Following the ruling last month that the governments consultation process for cuts to criminal legal aid were “so unfair as to amount to illegality”, the MOJ launched a new consultation. Below is a submission by DtRtP.
One key issue at stake here, is defending people’s access to representation by specialist lawyers as noted in yesterday’s Guardian “The effect of Ministry of Justice cutbacks and reorganisation of duty contracts covering police stations and magistrates courts could, according to leaders of the profession, lead to two-thirds of criminal solicitors losing their jobs. Poorly paid paralegals are increasingly being hired to carry out criminal defence work, critics of the government’s plans warn, prompting fears of an increase in miscarriages of justice.”
Such representation which has certainly been critical to defending protesters against criminalisation. Susan Matthews writes “The recent wave of cuts to legal aid in the UK will inevitably threaten the right to peaceful protest. Even though this is a right that is supposedly cherished, it will only survive if it is backed by access to expert legal support. I write as the mother of a student, Alfie Meadows, whose experience over the last three years epitomizes the threats protesters face. Alfie faced three trials (the first ended in a hung jury, the second was aborted due to illness). He was unanimously acquitted by a jury in March 2013 at his third trial. Alfie’s acquittal (as well as his action against the police which is ongoing) were the result of an immense amount of work by a dedicated and expert legal team. His solicitor in the criminal case won the Legal Aid Lawyer of the Year award in 2013.”
The latest consultation, the defeat of the government proposals for a residency test are indicative of the unpopularity of Graylings assault on legal aid - and show why we have to keep the fight up.
1. Share this powerful Justice Alliance film https:
2. Join campaigners against cuts to legal aid on the TUC demonstration on Saturday, 18th October. http://www.tuc.org.uk/events/britain-needs-pay-rise-march-and-rally
3. Join the discussion on legal aid and standing up to the assault on civil liberties at DtRtP’s national conference on 16th November with Matt Foot of Justice Alliance, Danny Dorling and others http://www.defendtherighttoprotest.org/national-conference/
DTRTP SUBMISSION:
Introduction
Issues for consultation
1 Do you have any comments on the findings of the Otterburn report, including the observations set out at pages 5 to 8 of his Report? Please provide evidence to support your views.
I am concerned that the MOJ proposals ignore the conclusions of the Otterburn report. It is curious that the MOJ commissioned a report whose findings they then ignore. Otterburn provides extensive documentation on the problems faced by law firms as a result of cuts to fees. Otterburn argues that previous reductions in fees, specifically for crown court work, are not yet reflected and that London legal firms considerable evidence of a drop in volume of work for legal face particular financial challenges. Otterburn gathers aid lawyers as a result of a failure of police and CPS to pursue charges. There is worrying testimony that victims are being short changed as a result of the pressure on police to meet performance targets. Overall it is baffling that the MOJ commissioned a report and then dismissed or ignored its conclusions. Overwhelmingly, the evidence of the Otterburn report is of a sector which is on the brink of financial collapse and which is struggling to cope with existing cuts of 8.75%. Given that this sector provides justice, this fragility is not merely a commercial consideration but one which will impact on the most vulnerable in society.
2 Do you have any comments on the assumptions adopted by KPMG? Please provide evidence to support your views.
It is surprising and worrying that KPMG ignore or reject many of the central findings of the Otterburn report, specifically the finding that a minimum 5% profit margin is necessary to make providers sustainable. This finding is fully supported by research evidence by Otterburn. Despite this, KPMG simply reject this finding, replacing it with an unsubstantiated belief that no minimum profit margin is necessary. Given that MOJ appears to be motivated exclusively by the desire for savings it is unsurprising, though very worrying, that they accept KPMG and reject Otterburn on this issue. Likewise, KPMG assume that law firms will be willing to give up (on average) 50% of their own client base. This figure is manifestly an unsubstantiated and unevidenced guess. There is simply no evidence that a law firm will choose to give up part of its client base. As a representative of a campaigning organisation that has extensive experience as a user of legally aided lawyers, I am very concerned that MOJ display so little interest in the protection of a sector which is central to the provision of justice. The MOJ state that they seek to reduce the burden on the ‘public purse’. It needs to be stated that the public include those who are accused of a crime (rightly or wrongly) and those who are the victims of crime. Legal aid is not a ‘burden’ on the public purse, but a benefit and a right that is funded by the public for the public for the maintenance of justice.
3 Do you have any comments on the analysis produced by KPMG? Please provide evidence to support your views.
KPMG base their evidence on models of purely commercial behaviour that are not applicable to the legal sector, ignoring the specific evidence amassed through the Otterburn report. By accepting the KPMG findings over those of other interested parties, MOJ reveal their desire to impose commercially based strictures on the legal profession thus ensuring that client choice is limited and constrained within a damaged and shrunken sector. The result will be to limit access to justice for those who need it most as well as force a large number of firms to close.
4 Do you have any views on the MoJ comments set out in this document? Please provide evidence to support your views.
It is perverse that the MOJ are proceeding with these proposals given that their own commissioned report offers research to show the destructive nature of the changes proposed. Given that a series of large cuts have already been imposed, reducing the cost of legal aid from around (it is claimed) £2.1 bn to £1.5 bn, persistence in this project can result only from a desire to shrink the legal profession, losing jobs and reducing access to justice for those unable to pay.
Contract numbers
5 If the assumptions and data on which the KPMG recommendations are based remain appropriate, do you consider that there is any reason not to accept the maximum number of contracts possible (525), as the MoJ have done? Please provide evidence to support your views.
The Otterburn report offers a series of testimonies which claim that a major restructing of the kind that is proposed is unsustainable at the same time as cuts to fees. It is clearly a major threat to firms to cut fees at the same time as reducing the number of contracts.
6 Do you have any other views we should consider when deciding on the number of contracts? Please provide evidence to support your views.
I am extremely concerned that this further threat to legal aid solicitors will entrench a two tier system, leading to minimal standards of support for legally aided clients. The ultimate result can only be an increase in miscarriages of justice with the attendant financial costs of appeals. More serious though is the threat these proposals bring to the justice system and to access to justice for all. It is clearly impossible to have a justice system unless justice is equally available to all.