The Tory Minister for Justice, Chris Grayling, has recently published proposals to completely re-organise the way people facing criminal investigations or allegations get legal advice and representation at police stations and the courts. If these proposals are pushed through, it will amount to the biggest attack on the rights of working class people to free and independent legal advice that this country has ever seen. Mark French, a legal aid solicitor in London, analyses the latest attack on democratic rights.
The Tory Minister for Justice, Chris Grayling, has recently published proposals to completely re-organise the way people facing criminal investigations or allegations get legal advice and representation at police stations and the courts. The proposals are called “price competitive tendering” (PCT). The stated aim is to reduce the cost of criminal defence services to the taxpayer by about 20%. If these proposals are pushed through, it will amount to the biggest attack on the rights of working class people to free and independent legal advice that this country has ever seen.
This is no exaggeration. Having worked in the profession for the last 17 years, I have never seen such a nakedly class-biased idea. Everybody I speak to who works in criminal law is totally shocked at what it means, not just for our clients and ourselves, but also for our support staff, and for society as a whole. For criminal defence solicitors, the governments proposals are the equivalent of what the miners faced in 1984, when the pit closure programme was announced.
These measures come at a time when legal aid solicitors are already in something of a crisis. Never generous in the first place, most legal aid rates in criminal law have not been increased for the last twelve years or so, and since the current government came into power in 2010, the scope of legal aid has been reduced to such an extent that fee income for legal aid law firms has declined by 20-25%. Many firms are at breaking point already. Some have already given up and ceased trading. I have heard anecdotal stories about cases of small solicitors firms really struggling to pay staff salaries at the end of the month.
Back to the 1940s
Talk to any criminal defence solicitor and they will tell you the new proposals will push society in the direction of what existed in Britain several decades ago, when there were frequent miscarriages of justice, and when innocent people would often get convicted for crimes they didn’t commit. Just look at the experiences of high profile cases like the Birmingham Six and the Guildford Four, etc.
In days gone by working class people on the whole didn’t have access to adequate legal representation. However, during the post-war period of general economic upswing, along with the growth of the welfare state in areas such as health and education that gave working class people some improvement in their conditions of life, there was the emergence of a system of funding legal costs for people on low and modest incomes: legal aid. No one is saying that the system we have now is perfect. But the current government of Tory millionaires seem to be willing to return things to conditions not seen since the 1940s.
Firstly, the government says that clients who can’t afford to pay for their own legal representation on a private basis – and that is most people by the way – will lose their right to choose who their lawyer is. Their solicitors will be appointed for them, at random, by way of a system based on the law firms’ previously agreed market share, and it will not be possible to change to a different solicitor later on.
It goes without saying that any wealthy bankers, tabloid newspaper editors, or corrupt members of parliament facing criminal allegations won’t have to worry about this. They will have as much choice as they like about who represents them because they are rich.
The appointed lawyer will not know anything of their client’s background or personal circumstances. This will mean that important points will not be noticed, and opportunities missed at bail applications and sentencing hearings. Many clients are very vulnerable and/or broken individuals with great personal difficulties, who will not be able to explain everything to their appointed lawyer on the first occasion they meet them. The trust between a solicitor and their clients will be much more difficult to maintain under a system where lawyers are appointed rather than freely chosen.
Multi-nationals enter the scene
Under the governments’ proposals there will be far fewer firms allowed to practice criminal defence work. Most solicitors doing legal aid work in small firms of a dozen or so individuals at all grades. Often these solicitors firms are very small entities, consisting of one, two or three very hardworking and committed individuals. Just the sort of people – the ‘strivers’ – that the government are constantly telling us they want to support.
Currently the government contracts with about 1,600 solicitors firms in England and Wales. They want to reduce this to 400, starting from autumn 2014. This has created an enormous feeling of anxiety and demoralisation for solicitors and their staff. No one knows whether they will be in a job or still have a small business in just over a years time!
So, in 2014 only solicitors firms who get a contract will be able to work under legal aid. They will only get a contract if they submit a tender and enter into a bidding process, competing to offer the government the lowest possible price per case. The lowest bidders will win.
The government say that they will ensure that quality of service does not suffer as a result, but have not explained how. My colleagues and I all suspect that quality is to be sacrificed under the new regime.
The government have put a cap on the bidding price so that the new legal aid rate per case will be at least 17.5% less than it currently is now.
Under the new scheme the solicitor will get the same money whether the client pleads guilty or not. This is basically designed to be a blatant incentive to lawyers to encourage their clients to plead guilty. It pits the financial interests of the lawyer against the interests of the client in seeking an acquittal.
Most people I know in the profession are sincere individuals committed to acting in the best interests of their clients. However, the government are suspected of actively encouraging big multi-national non-lawyer companies to enter the bidding process for large chunks of the legal aid market nationally; companies like SERCO and G4S for instance. The road haulage company Stobarts have expressed an interest in bidding for legal aid work in England and Wales.
When the emphasis is placed so heavily on price and profitability then there is obviously going to be a conflict of interests between clients and their legal representatives. Don’t be surprised to see large multi-national companies winning the bidding process and being awarded legal aid contracts for big swathes of the country on the basis of using their huge financial resources to undercut the smaller established and traditional solicitor firms. In those circumstances lawyers will be under enormous pressure to cut corners and will be forced to provide the minimum service that their employers can get away with. Fewer law school qualified solicitors will be needed, as more unqualified para-legal staff on lower salaries can replace them in these larger more impersonal work places.
If these plans are allowed to go through, the criminal justice system as we know it will be destroyed and it will be very hard to repair the damage to the social fabric that will result.
Organise and fight back
Thankfully, there is a fightback, although things are at an early stage. The consultation process ends in early June and in advance of that there is to be a demonstration outside Parliament followed by a rally at a large London venue on 22 May 2013.
So far no clear strategy appears to have been worked out how to effectively oppose the PCT proposals. Some, the owners of solicitors firms in particular, want to limit the campaign to simply refusing to co-operate with or entering into the bidding contest so that it cannot get off the ground. They also want to lobby and door step their local MP’s and are hiring a PR executive to get the media on board.
This is a potentially dangerous strategy. Firstly, the owners of many solicitors firms, particularly the larger ones, don’t trust one another enough to see things through to the end. They suspect treachery at every turn. Not without some justification one might add, as these people are often long term business rivals, and the owners of the larger and more successful firms may easily lose their nerve and decide to take their chances and put in a tender at the last moment. Indeed, it is understood that one or two of these larger firms have already started laying people off.
Secondly, simply withdrawing co-operation from the bidding process leaves the field wide open to big predatory non-lawyer companies who will use the opportunity to clean up.
The only way to put up an effective fight must surely be organising a series of strikes where solicitors, be they employees or small proprietors, refuse to attend courts or police stations. When this should be taking place and how long such a strike should last needs to be discussed and decided on. A one week strike would certainly cause chaos throughout the criminal justice system.
The barristers should be invited to take part in this as well. In addition, the support of other workers, such as court staff, should be sought. The PCT proposals will affect their conditions as well. In addition, trade union support should be asked for. The legal profession and support staff are rarely unionised. Now is the time to change that and join a union. UNITE is the obvious candidate; it is actively recruiting and its leadership appears to be moving in the direction of a confrontation with the government over the austerity cuts and the privatisation of the NHS.
The struggle to save legal aid is just at its beginning. What is at stake should not be seen simply as a few jobs for solicitors and their support staff. Legal aid should be seen as another branch of the welfare state that is under attack, in the context of the general crisis of capitalism. Without access to justice being available for all, then all the democratic rights that we think we have in principle simply become meaningless in practice.
