In April, the criminal legal aid profession organised a protest rally in London, their final effort to force their cause onto the election agenda. Former Court of Appeal Judge Sir Anthony Hooper delivered a keynote speech at the event, uttering the following rallying cry: ‘If the Conservatives come back into power, it’s revolution time.’
The Conservatives (with Liberal Democrat assistance) had driven through reform of criminal legal aid despite widespread opposition within the profession and beyond. If re-elected, they would almost certainly continue in the same vein. The strategies adopted by the profession to either stop or stem the changes had been ineffective.
As such, a ‘revolution’ in approach would be needed. In light of the election result, the profession must now consider what shape this revolution must take, if any. Sir Anthony’s words imply drastic, combative action, but this is not the only choice available at this early stage.
The Conservatives have not only been returned to power, but now control an outright majority in Parliament. This provides a mandate to proceed with the reforms proposed prior to the election.
Arguably, a more notable development is the displacement of Chris Grayling as Justice Secretary, who unified opposition to reform as a sort of ‘folk devil’ for criminal defence lawyers from both sides of the profession. He was frequently characterised as ideological and unreasonably obstinate in his approach to reform. His replacement is Michael Gove, ex-education secretary and another minister who drew widespread professional criticism for reform during the last Parliament. This change has the potential to be positive or negative, and should influence decisions regarding the necessity of Sir Anthony’s ‘revolution’.
Potential for a clean slate
The relationship between Grayling and the profession was strained from the outset but gradually became almost non-existent towards the end of his tenure. The profession might argue that this was due to the Justice Secretary’s refusal to engage in meaningful consultation and his disregard for evidence contrary to the reform agenda. Grayling would likely dispute this and perhaps suggest the profession was protecting its vested interests.
Nonetheless, a rancour between the two sides was undisputed.
In contrast, Mr Gove comes to the role fresh, free from any historic antagonism between himself and the profession. There is the potential for a clean slate. However, Mr Gove, like his predecessor, is not a lawyer – a factor frequently cited as problematic for any person attempting to understand the impact of reform.
As Education Secretary, Mr Gove was both uncompromising and seemingly unconcerned with professional objections to his reforms, much like Mr Grayling. He was criticised for demonising opponents as barriers to progress, thus constricting productive and reasonable dialogue. His voting record also raises concern. He consistently supported the restriction of legal aid in Parliament and voted “not to require the Lord Chancellor to ensure that, subject to resources, individuals have access to legal services that effectively meet their needs.” This might reasonably be considered a key duty for the Lord Chancellor; instead Mr Gove will be free of such responsibility.
Therefore, whilst Mr Grayling’s departure presents an opportunity for a change in relationship with the Government, the profession should be wary. Austerity remains central to Conservative plans.
The reforms spearheaded by Chris Grayling were transparently rationalised by the need to save money. Nothing will be reversed by Mr Gove and the justification of cost-cutting is unlikely to alter.
Considering Sir Anthony’s call to arms, the profession therefore seems to have two choices: to be conciliatory or combative. Much of this will depend on the attitude and behaviour of the new Justice Secretary as well as the profession’s collective desire to fight. The former is, at this point, unpredictable. The latter may be less so considering the predicted impact of the reforms that will likely be imposed.
Pre-election, the two major changes on the horizon were the Duty Provider Scheme (DPS), also know as the two-tier scheme, and a second fee cut of 8.75% for solicitors. In March 2014, the Criminal Bar secured an indefinite delay in cuts to the Advocate’s Graduated Fee Scheme (AGFS). Whether this ‘deal’ will be honoured by Mr Gove, considering he did not agree to it, is uncertain.
For now, one can assume it remains valid. The two-tier scheme is cause for greatest concern amongst the profession. It is argued that it will make financial survival extremely difficult for many criminal legal aid firms and, eventually, the Criminal Bar. Under the scheme, the size and scope of the legal aid market will be radically altered. There will be no limit on the number of ‘own client’ providers – firms that have established relationships with regular clients.
However, a limited number of ‘duty’ contracts will be offered: that is, contracts to provide legally aided, on-call representation to suspects in the police station or defendants in court. This limitation will represent mass consolidation of the duty market, reducing the number of firms providing duty solicitor services from around 1600 to 527. For those firms excluded from duty provision, the acquisition and retention of clients may become difficult. By providing duty solicitor representation, firms engage with new clients which may lead to an ongoing professional relationship and a regular source of income. Without it, firms will struggle to expand their client-base. This will, over time, make ‘own client’ work increasingly unprofitable and the provision of criminal legal aid work unsustainable. This will also be compounded with a second 8.75% cut in fees (timetabled for June 2015).
The potential results could, in their own way, be revolutionary. Firms may merge (and some already have) in order to expand their client base, increase their professional capacity, lower their overheads, and improve their chances of securing a duty contract. Many will, for financial reasons, be unable to do so.
To remain viable, most firms will need to reduce their wage bills and maximise profit. One method of achieving this will be to employ representatives with lower salary demands – in short, those with less experience and fewer qualifications. Firms may need to undertake higher volumes of ‘low value’ services; that is, categories of work which are becoming increasingly unprofitable, such as police station advice.
Quantity and speed will be key to making the delivery of ‘low value’ work worthwhile. If delivered by low wage employees, such work becomes more sustainable. If such changes are ineffective or unachievable, this could lead to the pre-emptive closure or eventual bankruptcy of many firms. Issues of rent, insurance and debt will complicate circumstances. This will of course mean unemployment for many legal aid lawyers. Firms which successfully secure duty contracts may need to operate in a similar manner. The ‘economy of scale’ model proposed by the Government in its Transforming Legal Aid consultation may become the norm.
High volume and speed will be essential to ensure that cases which attract lower fees become profitable. How this might be achieved and what the result may be is debatable. At worst, it may lead to lower quality work, pressure on clients, and unjust results. For the Criminal Bar, the consequent effects could be disastrous. Solicitors may increasingly opt to retain advocacy work ‘in house’, using employed Higher Court Advocates: solicitors with the same rights of audience as barristers. The impact on the Criminal Bar would be less work, lower income and eventually unemployment.
A dramatic reduction in the number of duty solicitors will also mean less competition. Providing a high quality duty solicitor service will not be essential to acquiring ‘own clients’ because firms with contracts will have a clear advantage. Moreover, a smaller duty solicitor market coupled with fewer people qualifying for legal aid may lead to less choice for a greater number of clients. These results would be negative for both the quality of service provided and for those people in need of representation.
If demand cannot be met, the result will be more litigants in person, which will have significant consequences for the efficiency and economy of the criminal justice system.
The Family Courts have struggled with this problem for several years now. Even the judiciary, normally silent on such matters, have felt compelled to express concern. Most notable was the judgment of Sir James Munby, President of the Family Division, in Q v Q. Sir James directed HMCTS to cover the cost of representation for a litigant in this case because there was ‘no other properly available public purse’. He explained that:
‘The absence of assistance in the court room by a professional advocate causes obvious problems: most litigants lack the skills to represent themselves to best advantage, for example in examining and cross-examining witnesses or making submissions. But there is a further and even more serious problem: the acute tensions that may arise when an alleged perpetrator cross-examines the alleged victim.’
Such logic can equally be applied to criminal proceedings, particularly in light of the substantial number of domestic violence cases coming before the courts.
The profession may therefore feel that acceptance is not an option, and that Sir Anthony’s ‘revolution’ is necessary.
Over the last two years, a number of strategies have been deployed to counter reform. There have been several mass meetings, protests and marches, prominent examples being the ‘Justice For Sale’ meeting in May 2013 and a rally in March 2014 involving over 1,000 legal aid lawyers.
These were designed to galvanize public support, unify the profession and to demonstrate to Chris Grayling that opposition to the reforms had both breadth and depth. The profession has also taken ‘direct action’: behaviours designed to disrupt the functioning of the criminal justice system.
The two primary examples have been ‘training days’, when solicitors and barristers have disengaged from their normal duties en masse in order to attend protest meetings involving no training whatsoever. The other example was the suspension of the Criminal Bar’s ‘returns’ policy in March 2014.
Under the ‘returns’ system, instructed barristers who have conflicting court commitments can return their instructions to a solicitor who will recruit another barrister to cover the work. By suspending the policy, instructions would be returned but not covered by another advocate, leading to substantial disruption in the court system. The strategy seemed effective; the Justice Secretary and Criminal Bar came to an agreement to postpone a cut to the AGFS only weeks after the suspension of ‘returns’.
The legal profession have also used judicial review to fight the reforms. However, the Court of Appeal dismissed the profession’s legal action against the two-tier scheme in March 2015, effectively eliminating any legal remedy. With the final hope being the election of a Labour Government – who promised to abandon the schem – the profession is now at a crossroads.
Conciliatory or combative?
To return to the proposition outlined earlier, the profession can choose to be conciliatory or combative. Conciliation would require the primary representative organisations, the Law Society, the Bar Council, CLSA, LCCSA and CBA, to engage in dialogue with Mr Gove and the Ministry of Justice. All of the above organisations regularly offered to provide information and advice on restructuring criminal legal aid to Mr Grayling and were ignored. Nonetheless, engagement should arguably be the initial approach.
Should Mr Gove continue the work of his predecessor and in a similar fashion, the profession may need to consider combat. The Bar might entertain a ‘return to no returns’ due to its apparent success in such a short period of time. This may depend on whether the ‘deal’ mentioned earlier is honoured by Mr Gove. If it is, the Bar may feel it has no mandate to renege.
The CBA is currently balloting its membership on a return to direct action over the two-tier scheme and the consequences it may have for the Criminal Bar. Another possibility, particularly for solicitors, is to engage ‘work to rule’ action as the profession did in 2007. This would entail undertaking only the minimum level of work required to fulfil legal, professional and contractual obligations.
This might include adherence to 9 to 5 working hours, in contrast to the regular weekend and evening work that many practitioners engage in. Another example would be the attendance of only one representative to cover an entire firm’s court caseload for a day. The result would be a substantial ‘slow down’ in the criminal justice system, with delays and potentially wasted hearings.
Both of the above tactics are designed to demonstrate the extent to which professional goodwill sustains the effective functioning of the criminal justice system. Without it, economy and efficiency are severely impacted.
However, organised dissent on a scale large enough to be effective requires unity. Barristers and solicitors have traditionally found it difficult to agree on many issues, particularly direct action. In May 2013, a survey conducted by the author of 360 solicitors and barristers demonstrated an unprecendented level of unity amongst the two sides of the profession. Two years on, circumstances may be different.
The passage of time often dampens fervour. The various methods of challenge to criminal legal aid reform have been, largely, unsuccessful. Moreover, the Bar’s acceptance of the ‘deal’ offered by Mr Grayling may have been perceived as a betrayal of the unified front. With the proposed reforms seeming increasingly inevitable, the desire to fight may be usurped by a desire to adapt.
This may further divide the profession. As mentioned earlier, solicitors may need to undercut barristers to survive by retaining advocacy in house. Higher Court Advocates obviously pose a challenge to barristers and their traditional dominance of advocacy. This will be a source of tension. Equally, with the dawn of direct access, more barristers may choose to bypass solicitors.
What then of Sir Anthony’s ‘revolution’? A revolution requires willing fighters with nothing to lose. There may be plenty of legal aid practitioners who fit this description. Revolution also requires a reasonable level of popular support. It is unclear whether the unity of the profession remains sufficiently robust or whether the movement as a whole has the energy it did two years ago. At this early stage, next steps are uncertain. The profession may choose conciliation, combat or a mixture of both – but, with little leverage left, whichever option it selects it must be totally committed to it.
Tom is a senior research fellow and associate lecturer in the Faculty of Business and Law, University of the West of England. His primary research interests are criminal defence lawyers, legal aid and criminal procedure