Criminal legal aid reform: ‘We need a bonfire of regulations’
These are our proposals as to how best to free up politicians and civil servants from their disastrous oversight of legal aid.
Why should we do this? MPs’ surgeries are swamped by unrepresented constituents desperate for legal assistance receiving well meant, but often incorrect, advice on complex legal matters. Nearly 90% of issues raised by constituents are legal in nature.
It is not as if politicians were not warned. But the cause of access to justice was not one that most MPs (with some honourable exceptions) have been prepared to support or take a particular interest in. The result is a tsunami of legal issues in their surgeries and unrepresented litigants in our courts causing delay, cost, suffering and misery.
We need to liberate government as much as possible from its role in the provision of legal aid. This is because they are so very bad at it. In all areas of law where the individual faces the powerful or rich, ordinary citizens of even moderate means are now denied access to justice. ‘Legal aid’ has been eroded both in scope and quality as a result of underfunding.
We have reached a crossroads. MPs can see it in their surgeries.
There has been a break in the social compact with the people. That compact is that as parliament presides over increasingly complex laws in an ever more complicated society, the individual can seek justice through the provision of legal aid.
Our version of austerity has been mild compared to that of the aftermath of the second world war and, yet across the parties, support for legal aid has collapsed.
Let us explore briefly the reasons for that. There are no votes in the support of legal aid. Although polls indicate that the electorate, when prompted, support public funding for legal aid.
The problem, historically, is that criminal legal aid exploded in volume throughout the 1970s and 1980s. Legal aid expanded alongside a sharp rise in crime levels and the introduction of very necessary protections under the Police and Criminal Evidence Act 1984 (such as the right to a lawyer if you are being interviewed at a police station) after a series of miscarriage of justice scandals.
Thus, there was an expansion of criminal law departments in traditional firms and the first generation of specialist ‘crime only’ firms. That increase in legal aid spend hit the Treasury which, in turn, squeezed the Lord Chancellor’s Department (later the Ministry of Justice) and put pressure on the civil legal aid budget which is, now, close to non-existent in many areas. The financial pressures also impacted upon the Bar, which was forced into competing with solicitors for the limited resources available.
However more recently there has been a dramatic drop off in the volume of criminal work. The thinking of both politicians and lawyers has lagged behind. The Government believes that having cut and held rates down, there is scope for more of the same. There is not. The profession remains wedded to criminal legal aid being a volume business that has led to a flooding of duty schemes as well as unscrupulous unchecked behaviour by some firms.
The cuts have resulted in advice and representation ‘deserts’ plus a massive increase in unrepresented defendants. Criminal lawyers, ageing and disillusioned, are calling it a day. This threatens both the UK’s international reputation for its justice system and the quality of our judiciary as the pool of candidates for the bench diminishes.
The government wants to force consolidation on the market but cannot devise a scheme that does not hurt the public by wiping out good criminal lawyers, big and small firms, solicitors and barristers. What follows are proposals to escape this depressing downward spiral. It is for the benefit of everyone: government, lawyers and – those mostly affected – the public who deserve better than the present shambles.
No political party has any interest in increasing the cost of criminal legal aid; but they do have an interest in access to justice and avoiding the growing chaos. We need to bring in additional income from another source and we need to reverse the hugely disproportionate expansion of expensive bureaucracy.
The Government must move away from provision of legal services via contracting and its concomitant massive bureaucracy. We do not need it nor do we need to spend taxpayers’ money on the outdated duty call centre (replace with IT), the helpline CDS Direct or the Public Defender Service (which we reckon is three times the cost of private practice per case). All this diverts millions from funding legal aid.
The role of government should be reduced so as to be the mere provider of a supported loan with financial supervision.
Let us get back to these clear positions. The profession provides advice and representation – not the government. The profession has clients and knows best how to serve them.
Legal aid is a right to gain access to justice not a benefit. No one of moderate or inadequate means should be denied access to justice simply because they lack immediate income or ready capital to fund representation at a particular time.
Access to justice should not be the preserve of the wealthy. Neither should it be a welfare benefit or free like healthcare provision for the convicted but a loan repayable upon conviction and sentence.
So who will do the work and how will they be regulated? Currently, legal aid work can only be undertaken by contracting firms and counsel they instruct (putting to one side direct access for the Bar for the purposes of this article).
We propose that contracting should end. Instead all solicitors’ firms that are regulated by the Solicitors Regulation Authority should be allowed to carry out criminal legal aid.
We need a bonfire of regulations and regulators. Given the relatively small expenditure involved in the provision of legal aid and the move to fixed fees, it is astonishing how overregulated the sector is. There are six types of multiple audits and review processes providing often ineffective ‘tick-box’ regulation that is expensive to operate for firms and government and provides little benefit for the public.
There must be some form of ‘one stop’ regulation to avoid overpayment or incorrect claims through key performance indicators so that firms whose figures seem ‘out of line’ can be identified and audited. Apart from that audit role, the Legal Aid Agency would be reduced mainly to being a payment department. The SRA would audit advice, conflict checks, standard letters etc and ensure compliance with the ethical code.
The interests of justice test for legal aid could be returned to the courts.
Without this burdensome and bureaucratic infrastructure dominating solicitors’ lives, we can be free to provide better care and more time for our clients. We cannot stop a contraction of the criminal legal aid market: that is dictated by circumstances beyond our control (the drop in criminal activity, the way the police and CPS act, and so on) but we can move away from high volume, low paid models of working.
For the Crown Court, a fixed fee system for both litigators and advocates mirroring each other needs to be introduced. This would be predicated upon a vast simplification of case types. The current system is too complex and unnecessarily expensive to administrate.
Greater sentencing powers in the magistrates’ court would have the side effect of providing a better training ground for junior barristers. The Bar has increasingly lost out to ‘home grown’ higher court advocates as a result of the economics of running a solicitor’s criminal practice at unprofitable rates. Making magistrates’ court work more profitable for solicitors will remove some incentive for them to migrate to the Crown Court.
How are fee rates to be set? It is proposed that government recognise the Criminal Law Solicitors Association and the London Criminal Court Solicitors Association, jointly with the Criminal Bar Association in respect of Crown Court advocacy, as a joint negotiating body in respect of criminal legal aid work. Fees should be negotiated on a three or five year basis; and in the interim fixed annually by the rate of inflation or else 2% (the Bank of England’s monetary inflation target), whichever is the lower.
The fees we earn should be independently set and not limited to tax payer funding. What the government should pay is financial support for the client representing a minimum figure for those fees.
The profession will also have the right to negotiate top-up fees with clients (not on benefit) where appropriate. It will be a duty to advise rates vary between firms. Solicitors will need to market themselves. Counsel will also be free to negotiate top up fees with solicitors’ firms. The Bar have been badly hit by legal aid cuts.
Legal aid eligibility for police station work will be free at the point of delivery with incentives for senior lawyers to attend on more serious cases.
The scope of the court-based schemes will clearly have to depend on a simplified ‘interests of justice’ test. It will include all offences, imprisonable and non imprisonable, in cases where there is a triable point-of law or vulnerable clients or witnesses.
The financial eligibility assessment must be kept simple – so that we can tell the applicant immediately, at the outset, from a simple table or IT module whether they are eligible and if they have to contribute and over what period.
Those, on state benefits, shall make a contribution but only to be paid at the minimum rate permitted currently deducted from benefit (added to other liabilities imposed by the courts).
The amount repaid will be a basic lower standard fee with the limited top up fees for the better off. (The firms will be charged a fixed sum for collection of that top up figure).
Those with a gross income in excess of higher rate tax commencement will not be eligible for a legal aid loan but have to pay privately for magistrates’ court work if they require legal representation
If a case should result in an acquittal on all charges, whether after trial or by the prosecution offering no evidence, no contribution shall be made by the not guilty defendant.
Crown Court legal aid eligibility and contributions would be more complex. However, the fee regime should be drastically simplified. There would have to be more contribution levels and they will each have to be higher than for the lower case work. All contributions should be collected in the same way as for the lower case work (back not front loaded) and no contribution should be made on an acquittal.
We can bring in additional funding to the system from those repaying the loan. Why should they not pay for the skilled advice and representation they choose, when they pay now towards CPS representation costs which they did not choose?
Taxpayers and politicians will welcome legal aid loan contributions. It will help make debates about legal aid less toxic.
Defendants will not object to paying a little to their own defence according to our (albeit limited research) and they will now, in common with private clients have a financial stake in demanding and driving quality representation. Those who want a more than a basic service can pay a top up fee – for example, to have the attention of a more senior lawyer.
The drastic reduction of Government bureaucracy will save millions for the nation.
The Bar would be free to negotiate with firms in respect of top up fees for crown court and complex magistrates’ court cases.
These proposals would take the pressure off the civil legal aid budget.
We appreciate the these proposals would represented a major culture change but there needs to be a radical new strategy or legal aid will die. We need to be freed up from expensive overregulation. The system needs to be freed from political control in favour of independent oversight and politicians freed from having to treat ‘access to justice’ as a political issue.
We suspect very few politicians would demure from the words of former Attorney General Sir Hartley Shawcross, introducing the Legal Aid and Advice Bill in December 1948 when he told a supportive House of Commons: ‘It is the charter of the little man to the British courts of justice. It is a Bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay.’
Robin Murray and Julian Berg
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. Julian is secretary of the CLSA. Both are practicing criminal lawyers - the views expressed in this article are their own