You’ve got to have the money to buy it

Let’s talk about legal aid.

I think it’s reasonable to say that the government isn’t keen on legal aid; many restrictions and obstacles have been introduced to the legal aid scene in the last few years, including an element of means-testing. It’s still broadly the case that, if you’re taken to court and you face a prison sentence (or equally serious penalty) if found guilty, you’re entitled to legal advice free of charge. Moreover, you’re entitled to choose your own representation. You may not choose to use this right or be able to exercise it effectively, but for many defendants this is a godsend. For example, if (far from hypothetically) you’re up on a public order charge arising from a demonstration, and you happen to know that a particular law firm has a good record in holding the police and the CPS to account in similar cases, you have the right to give them the call. These rights extend to serving prisoners and non-citizens such as asylum seekers, although naturally these small groups of people only supply a small proportion of the total legal aid caseload.

The government is currently bringing forward proposals to transform legal aid for criminal cases. This isn’t hyperbole, or if it is it’s not mine: the consultation document is actually called “Transforming Legal Aid“.

The transformation that the Ministry of Justice have in mind has two objectives. Firstly, costs would be cut. The consultation document hammers on the cost-cutting drum. The proposals in the consultation document fall into two categories: those with a justification on plausible financial grounds (disregarding their impact on the quality of service) and those with a vague handwave in the direction of a possible justification on financial grounds.

However, the sums involved are, in context, trivial: the estimated total annual saving is £220 million, or just under a fifth of one per cent of public sector net borrowing for the last financial year. This suggests that the second, less overtly stated, objective may be the main motivation: that the goal is not to produce a cheaper criminal legal aid system but a radically different one. The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. (Correction: the number of firms accredited for each area is pre-determined, but the numbers vary from four up to a maximum of 38 (London West and Central). Fifteen of the proposed 42 areas have been allocated the minimum of four.) Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest. It would still be possible to pay for legal representation of one’s choice; indeed, defendants with a high enough disposable income would be debarred from legal aid, positively guaranteeing the creation of a two-tier system. There’s more, and worse.

At an open meeting, Elizabeth Gibby of the Ministry of Justice was fazed by one particularly difficult question:

“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.

“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.

“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.

There is nothing in the consultation paper about the quality of the service. Or to put it another way, the consultation is all about the quality of the service – it’s all about replacing the existing service with a lower-quality substitute. This matters, for very much the same reason as it would matter if we were replacing GPs or teachers with low-waged employees of profit-making companies. We know it’s a bad thing when people get the wrong advice from a banker or an estate agent or a car salesman, most of all if the person giving the advice profits from it; if there were a government scheme to make it easier for financial advisors to recommend the wrong product we’d all be up in arms. But bad legal advice is much, much worse; someone who gets the wrong legal advice can end up being named as a paedophile, or burdened with a conviction for fraud that will never become spent, or behind bars for murder, without having committed any of those crimes. (These real-life examples are from A Barrister’s Wife, a new blog which I strongly recommend.) And the proposed reforms will make bad legal advice much, much more likely.

Just to be clear, I am not suggesting that standardising legal aid would drive out professionalism, or that the only decent lawyers are those who can charge huge fees. The legal aid budget is already administered fairly strictly – any legal aid criminal defence lawyer motivated by money is in the wrong branch of the business. The problem with cost pressure and standardisation is much more insidious, and rests on a little-known fact about the criminal justice system – little-known to those of us outside the system, that is; for practitioners it’s the most open of secrets. This is the fact that nobody wants a trial. For the police, taking a case to court is laborious and time-consuming; what’s worse, it creates opportunities for the criminal (as they see it) to walk free, and for all their hard work to be wasted. The CPS are duty bound to chuck out the weak cases and those which it’s not in the public interest to pursue; when they’ve identified what they see as good, strong cases, the last thing they want is to risk an acquittal. Lawyers might be thought to have more of an interest in the courtroom show going on, but their position also makes them all the more aware of what a chancy business it can be – and their workload makes quick resolution a high priority. The answer to all these problems is a guilty plea. For the police and the CPS, a guilty plea means the job’s done: the criminal’s been charged, the criminal’s owned up, the criminal’s been sentenced. Defence lawyers want what’s in their client’s best interests, but what that means in practice is that they want to aim for – and they want their client to aim for – the best result they can realistically hope to achieve. In many cases, quite irrespective of questions of factual guilt, this may well mean advising a guilty plea: someone who is likely to be found guilty in a contested trial will be well advised to plead Guilty and gain a reduced sentence. At the same time, a guilty plea by the client will mean that the lawyer can save some time and get on to the next case, which will always be a consideration if time is limited – and time generally is limited when money is limited. Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where much less time is spent on case preparation, much less scrutiny is given to materials that may hold vital evidence, and many more suspects and defendants are persuaded to plead Guilty – irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.

Update 30/5/13: more on this from Francis FitzGibbon in the LRB, drawing out some unpleasant aspects of the proposals which I haven’t focused on (there are plenty to go round). There are many more links here.

These reforms are an assault on the legal profession and on everyone’s access to justice; they have no ethical justification and only the flimsiest justification in cost terms. They need to be stopped. Please sign the epetitions Save UK Justice petition; there’s also one from 38 Degrees. If you’ve got half an hour to spare, and especially if you’ve got anything you can cite as an organisational affiliation, please complete the Ministry of Justice’s online survey. Over the fold are some highlights from my answers.

Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
No. If costs need to be recovered on a means-tested basis, I can see no reason to change the current system. The imposition of a threshold – however high the level currently proposed – is divisive and exclusionary. Legal Aid should be a universal service, not a safety-net for those unable to ‘go private’.

Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
No. No principled ethical justification is given for this proposal, unless by ‘ethical’ we mean ‘xenophobic’. A financial justification is suggested, but since no figures are given I can only conclude that this proposal is not justified in cost terms.

Do you agree with the proposal that legal aid should be removed for all cases assessed as having ‘borderline’ prospects of success?
No. The proposal is to replace an established set of criteria and exemptions with another, more restrictive set. No justification is given for this other than the prospect of saving money; since no figures are suggested, we must assume that the sums involved are either negligible or unknown.

Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
No. Wherever competitive tendering has been introduced, it has driven costs down by setting firms, workforces and individuals in competition with one another, under the threat of ‘market discipline’. Competitive tendering tends to lead to lower salaries, stressed and demotivated employees and a tick-box approach to quality. Big employers and their shareholders benefit but professionalism suffers.
Competitive tendering is bad news for any profession which the public depend on, and especially bad news for any profession which offers the public creative, thoughtful and dedicated service. It would be an unmitigated disaster for the criminal law as a profession; as a result it would be disastrous for the criminal justice system itself, and for the many unfortunates who would be sure to receive rough justice and wrongful convictions as a result.

Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas?
No. Removing the defendant’s right to select a solicitor is a monstrous curtailment of effective legal rights. There is no justification for this proposal, other than the entirely illegitimate project of reducing most criminal legal representation to a cut-price corporatised service.

Do you agree with the proposals to amend the Advocates Graduated Fee Scheme?
No. No justification is given for this proposal, which would have the inevitable effect of reducing the time and effort which dedicated legal professionals devote to legal aid cases and consequently restricting effective access to justice.

Do you agree with the proposal that fees paid to experts should be reduced by 20%?
No. Far from “ensur[ing] that legal aid rates represent better value for money”, this and similar proposals would ensure that legal aid work was carried out on the cheap, leading inevitably to corner-cutting and the introduction of standardised off-the-peg services. The result for the general public would be the curtailment of access to justice and the erosion of effective legal rights.

Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper?
No. Anyone reading these proposals who was involved in the law or the criminal justice system, or had an informed layperson’s knowledge of the criminal law, would immediately identify the ‘impact’ of these proposals as the creation of a degraded, deprofessionalised system of publicly-funded legal representation, capable of delivering little more than efficiently expedited guilty pleas.
The proposals would create a two-tier legal system, pose a serious threat to the integrity and professionalism of the criminal law, restrict access to justice for those who most need it, curtail the public’s effective legal rights and lead inevitably to numerous miscarriages of justice and the ruination of many blameless lives. The proposals are odious and unjustifiable. They should not be modified; they should be abandoned.

One Trackback

  1. By Save UK justice: the blogs | ilegality on 29 May 2013 at 19:31

    […] May: You’ve got to have the money to buy it (The Gaping […]

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