Wounded but not dead

A look at the government’s new consultation on legal aid reform and an urgent call to all sections of the Bar, irrespective of discipline, to respond

Contributor
Maura McGowan QC, Chairman of the Bar

I would imagine that being hit and knocked out by a speeding car means that when you come around you feel a mixture of relief at not being dead and a deep concern about whether your injuries might yet turn out to be fatal. That’s the dawning feeling for most of the criminal Bar following publication of the Ministry of Justice’s (MoJ’s) consultation paper, Transforming legal aid: delivering a more credible and efficient system.

Since the end of 2011, when the last process was suspended, the prospect of price competitive tendering has been looming over the heads of the criminal Bar. We knew by March that the consultation was being brought forward from the predicted date of the autumn of 2013. The Criminal Bar Association (CBA) has had a contracting group looking at these matters through 2012 and the Bar Council set up its Fees Policy Group in autumn 2012. The overriding objective was to persuade the MoJ that any form of competitive tendering was inimical to the survival of an independent, self-employed referral Bar. In fact, that objective and the offer of efficiencies was described to me by the CBA as my only mandate. I vigorously pursued that in my meetings with the secretary of state.

They were tough discussions. I was worried our arguments might not be seriously considered. However, as discussions progressed, I felt we were being listened to and that our arguments were being carefully and thoughtfully assessed. From the terms of the consultation paper, it seems we were indeed heard:

“…OCOF…This would likely affect the long-term sustainability of the Bar as an independent referral profession. The Bar is a well-respected part of the legal system in England and Wales, and we will have due regard to the viability of the profession in reaching our final decision on the model for competition.” (Para 2.8)

And so we have escaped instant death. Now we have to investigate just how serious our injuries might be. The paper is lengthy and detailed and will require a very careful and detailed analysis. At first blush it proposes very deep cuts to fees for those already struggling. By the end of 2012, all criminal fees had been cut by about 14.5%; in homicides there has been an additional cut of 25%, so a total of 39% on figures fixed 15 years ago. This sits in combination with a drop in the number of cases of about 10% and the fact that solicitor and in-house advocates are doing a very significant proportion of cases themselves.

The paper proposes a further 17.5% off across the piece, 30% off very high cost cases (VHCCs) and a downward tapering of daily refreshers in which counsel will suffer if a defendant has the temerity to fight his case. In case anyone outside the happy band of criminal practitioners thinks VHCCs are very well paid, the current daily refresher for a silk is £500 and will be £333 gross if the proposals come into effect. That is completely intolerable.

It is entirely understandable and reasonable that the secretary of state wants the system to operate more efficiently. Further, in common with other departments he is required to make savings. No-one is immune from the effects of the current economic crisis. He aims to save £220m, approximately 20% of which relates to Crown Court advocacy (£44m), plus controversial proposed changes to civil and judicial review proceedings which require close examination.

There is scope for greater efficiency and saving within the criminal justice system. These need not, and should not, come from yet further cuts in fees to rates which will be interpreted as contemptuous of criminal practitioners. It is for those of us who are directly involved in the system to identify where greater efficiencies can be promoted and savings made. My experience is that if we advance rational evidence-based arguments they will be carefully and objectively considered.

As I said in my inaugural speech in December 2012: “By engaging in the process and offering constructive proposals we can properly establish ourselves as authors of change not its victims. We have to get ahead, the Lord Chancellor has recently announced a review of legal aid, we will, of course, contribute to that and seek to put forward our case constructively and with determination. But I would like to see us carry out our own analysis of public payment for legal services. We have worked in and with this system; we do not simply administer it from the outside. We are not simply driven by a desire to cut costs, we can see all along the system, we know where the failings are and can suggest remedies or solutions.”

To work in the public interest is likely also to work in our own financial interest. We do a difficult, skilled and challenging job which has serious implications beyond the individual cases in which we are immediately involved. It requires immense application and the highest standards of professionalism and ethics. We must ensure that those standards are maintained and promoted. That depends on ensuring that talented and principled practitioners are retained within the profession to which they continue to be attracted. Reasonable remuneration is an important factor in achieving that objective.

Equally the public is entitled to hold us to account for what we cost. We can and will answer that account. There are savings that can reasonably be made in the system and we will identify them. If there is a more efficient and credible way of funding the system, in whole or in part, we will suggest it.

To that end, I repeat my request that all sections of the Bar, irrespective of discipline, respond to this paper. The reputation of the criminal Bar for skill and integrity is world renowned; the whole profession suffers if it is eroded.

We must play an active part in ensuring our survival and that of the standards we offer and apply. The impact of some of the proposals in the paper would be destructive. There is a better way. We are determined to identify it and assist in its implementation.