Legal Aid Cuts and the Barristers' 'Strike'
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
The legal aid reforms put forward by Mr Chris Grayling, the Lord Chancellor and Secretary of State for Justice, have been controversial to say the least.
It’s caused the Criminal Bar Association to decide upon a half-day ‘strike’ on the first day of the next legal term on January 6, something which is completely unprecedented.
This dispute goes to the heart of how much we want to defend the current criminal justice system in England and Wales, and when all the facts are considered it looks far less like a well-paid, insular profession trying to protect itself than some may think. It also adds to the existing question marks hovering over the future of the criminal Bar, which potential criminal barristers need to think carefully about before deciding on their future career.
This article aims to summarise the current situation and then analyse it. If you have been following this issue in the press then the next section or so may not be too new to you; however, it should provide a good introduction for those of you who have not.
The proposed reforms
In a nutshell, the proposed legal aid reforms plan to remove legal aid for those who are considered not to need or deserve it, to introduce a new tendering scheme for representation, and to introduce fee cuts over time.
Most immigrants who have entered the country within the last year will not be eligible for legal aid. There will also be an end to automatic legal aid for defendants with a combined annual disposable income of £37,500 a year and at least £3,000 in the bank each month after essential bills. Fee cuts will be phased in from 2014-2015, of 30% for Very High Cost Cases (mostly terrorism and fraud) and of 17.5% for others including rapes and murders, subject to consultation. There will also be a new fee structure, with different rates for ‘guilty’ and ‘not guilty’ pleas. Contracts for defence representation will be tendered (meaning sold to the company/chambers making the best value offer). Mr Grayling and the Law Society accept that these plans will lead to smaller firms closing or merging with others, in order to be able to compete for these contracts. Legal aid for prisoners wishing to complain about treatment at their prison will also be removed, with other cheaper mechanisms intended to be used instead.
These proposals are based on an argument that the legal aid bill needs to be cut by £220m, in line with the wider cuts necessary across the whole department. The current legal aid system costs £2bn per year, about half of which goes on criminal legal aid, and as the most expensive legal aid system in the world the Ministry of Justice says this needs to be reduced. It points out that the changes to VHCCs will still lead to good levels of payment – two-thirds of barristers working on these cases receive fee incomes over £100,000 at present, which is claimed to be too much.
The current proposal for reforms is different to that put forward earlier in the year, as a result of a consultation exercise which the Justice Minister Jeremy Wright reported as producing almost 16,000 responses. Notably, the initial proposal to remove defendants’ ability to choose their lawyer has now been scrapped, as has the proposal for Price Competitive Tendering (PCT). PCT would have resulted in cases going to the company offering the lowest price, regardless of quality of service, and there was concern that this would lead to a drop in the quality of representation.
The response from the Bar
Nigel Lithman QC, Chair of the Criminal Bar Association (CBA), has been an outspoken critic of the proposals on behalf of his association. There are a number of concerns at play here. Firstly, the criminal Bar is already much less lucrative than some seem to think and previous cuts are already bringing in savings which are not being acknowledged. The Ministry of Justice is focusing on the income of those few barristers working on VHCCs, whereas 60% of the Bar earn less than £37,000 a year. Mr Lithman claims that the new fees would cause many to be working on less than the minimum wage; the criminal Bar is well-known for its long hours and barristers having to pay out fixed costs such as rent to chambers. The high-earning barristers tend to be those working in the commercial Bar, and it is wrong to think that criminal barristers also earn the same amount.
Further, the current fee system has already seen a lot of pressure from budget cuts. Mr Lithman claims there has been a 40% decrease in fees since 1997. Further, Mr Grayling’s office had an underspend of £54m last year as a result of earlier cuts coming through, and this ought to be taken into account when considering the necessity and extent of more cuts.
The CBA is concerned that the cuts will have an impact on or possibly destroy the criminal Bar, and that there will be a real impact on the quality of criminal justice in England and Wales. This will be discussed later.
As a result, the CBA has agreed upon a ‘strike’ on the morning of January 6, the first day of the new legal term. Due to the way the legal system works, this will be a strike in the sense that those barristers involved will ask to move trials into the afternoon or another day- this is not a ballot-led industrial action organised by a trade union, and nor is the CBA putting pressure on barristers to get involved. The intention is to show what barristers believe the criminal justice system would look like if these proposals are put into practice; the Bar will go under and the quality of British justice and representation will suffer.
The Criminal Law Solicitors Association (CLSA) and the London Criminal Courts Solicitors Association (LCCSA) have announced that they will support the CBA with a “non-attendance” protest. This will push the impact into magistrates’ courts too, where barristers are increasingly being replaced by solicitor-advocates or Crown Advocates. They have also expressed concern about the impact on justice which the proposals will have.
A threat to criminal justice, and the Bar
Having set out the nuts and bolts of the current situation, this next part of the article will put forward the argument that these reforms will have negative effects on both defendants and barristers, and overall on the criminal justice system. These cannot be separated out; the Bar may seem old-fashioned because of the gowns and wigs but these proposals threaten to end a profession of which we ought to be proud, and which is central to the criminal justice system in England and Wales.
First, the proposals will jeopardise the criminal justice system and its key aim of giving everyone a fair trial. Most obviously, it has been noted that the new fee system will incentivise firms to push for a ‘guilty’ plea to be entered. In those instances where the case looks undefendable, even if the defendant is not guilty (because of course the representative never really knows whether the defendant is guilty), the fee system could well influence a decision which should be taken purely based on the defendant’s best interests.
Additionally, the exclusion of certain people from legal aid is to be questioned on a level of principle. The Bar on recent immigrants being eligible may serve to cause miscarriages of justice at a time when someone is already at their most vulnerable – newly entered into a country where they may not know the language or law, or have sufficient funds to defend a case. The Human Rights Act sets out a right to a fair trial – surely this commitment to a core of rights for all should lead us to think twice about taking it away from immigrants?
Apart from direct impacts of the rules on recovering legal aid, the concerns about the future of the Bar have been explicitly linked to the quality of representation in criminal cases and its impact on the justice system in general. There is a wide concern that these proposals will end the criminal Bar and that using non-independent representatives will harm the quality of the criminal justice system. There are a fair few strands to this, which focus around the current high quality of the criminal Bar and its superiority to any alternative.
There have already been arguments made that replacing barristers with in-house advocates will remove the independence of representatives which is so highly valued in the current system. As shown in the above example on guilty pleas, if the representative works within a company which has contracted for the cases on a rate per case, the focus may well be on completing each case quickly rather than the defendant’s interests. By contrast, self-employed barristers are freer from such influence, and therefore will take the extra time on a case where they feel it appropriate.
One Crown Court judge, His Honour Judge Woolman, has also raised a concern that cases would take longer and be less well-handled by those with less experience. There is a reason why it takes a long time to train as a barrister; there is a lot to understand about procedure and so on and this is not something which can be developed overnight. The proposed weekend-long course for in-house lawyers is therefore being criticised as insufficiently rigorous next to the current training for barristers. This worry is already present in that the rise of solicitor-advocates or Crown advocates is taking opportunities from junior barristers to sharpen their teeth on smaller cases in the lower courts. There are then some who believe that the Bar is superior to an alternative system of advocacy by solicitors, and should therefore be protected. Financial protection is of course crucial to this — His Honour Judge Woolman also noted that without adequate compensation, able candidates will be put off the Bar, or experienced barristers may leave.
Indeed, the lower fees have begun to force many to question whether they wish to continue in the criminal Bar at all, especially as the rates of pay in other areas such as the Chancery Bar are significantly higher. The CBA reports that 98% of barristers have said that they would refuse work under the new fee structure, and already there have been anecdotal reports of barristers refusing cases because of the lower fees they would be paid for the work, as they are entitled to do if the fee is too low (the intrigant’s blog). As to entering the profession at all, Mr Lithman has noted that those coming to the Bar face debts of £72,000, and that the reforms will reduce the scholarships currently available. The sheer cost of entering the profession, linked with the lower wages which would result from the changes, means that it becomes even less of an attractive prospect. Mr Lithman also noted that the lack of scholarships will close the profession to more people from working-class backgrounds — surely a concern given that those from all walks of life are represented in the criminal courts.
Chambers will also struggle under such a system. Mr Grayling has noted that there will inevitably be mergers or closures, and there has already been one high-profile criminal set closing. Tooks Chambers was well-known for its high-profile cases which were paid for by legal aid; its lawyers were involved in the Stephen Lawrence case and the Saville Inquiry into Bloody Sunday, the Hillsborough inquest and the defence of the Birmingham Six. This is not a small chambers going under due to inefficiencies, but a pioneering one which has blamed its dissolution on the cuts in the legal aid it so often relied upon. Chambers have also already begun to diversify into other areas of practice which are less reliant on legal aid; whether due to current difficulties or in readiness for the reforms, it is clear that many chambers are concerned about their future. As the chambers are the ones providing the system of self-employment which guarantees the independence of barristers, we really ought to be questioning whether the proposals are right to consider that these smaller chambers should be allowed to dissolve.
There are a few interlinked questions here which determine one’s opinion of the reforms. How important is an independent set of legal representatives for criminal cases? How much do we value barristers’ specific training? How much ought they to be paid, and how much do we care about attracting the best and brightest when their earning opportunities could be much higher in other industries or areas of law? Do we consider that everyone ought to be entitled to a fair trial, including recent immigrants? Should those who can just about afford the fees have to pay them themselves? In short, what does a human right to a fair trial involve? These are the questions under dispute between the Criminal Bar Association and the Ministry of Justice, and there is much more at stake than wages. The ‘strike’ on January 6 will no doubt not be the end of things.
As for current students aspiring to the criminal bar, there are plenty of practical questions to answer. Solicitor advocates and Crown advocates (the Crown Prosecution Service is making a concerted effort to raise the amount of advocacy done by in-house lawyers) work for a salary rather than being self-employed, and do not have the same period of uncertainty as those who have to go through completing pupillage and trying to find tenancy. It is certainly worth thinking about as an alternative career path. That said, there are still scholarships to help with the costs of getting into the criminal bar, and chambers may be able to survive by diversification into related areas of law. At the moment, there are too many question marks to say whether the criminal Bar will exist in ten years’ time, so you can do no better than to assess the situation when it comes to making your own decision and ask yourself which you would prefer.