Why lawyers are taking on the government

The narrative of fat cat lawyers riding a legal aid gravy train hides an assault on access to justice

 

A crisis is looming in the criminal justice system as lawyers take direct action in protest at government cuts to legal aid, which they say jeopardise their ability to provide an adequate service to their clients. Criminal lawyers across the country are refusing to take on cases in the Crown Court – where the most serious offences are tried – under the reduced rates for criminal legal aid which came into effect on 1 July 2015.

Solicitors have been boycotting new cases since 1 July and barristers formally joined the action on 27 July.

The fees paid to solicitors acting in criminal cases funded by legal aid have been reduced by 17.5 per cent in the last 18 months, a cut which was implemented in two equal 8.75 per cent stages in March 2014 and July 2015.

In the face of widespread opposition and despite successive legal challenges, the government has also reduced the number of legal aid contracts available to law firms for ‘duty’ work in police stations from over 1,600 to 527, meaning many firms are at risk of going out of business.

The effect of the direct action is that defendants facing trial for serious criminal offences are appearing in court without legal representation and judges are ordering adjournments as a result. The ensuing delays and disruption are likely to create a logjam in the criminal courts.

Criminal lawyers do not take this action lightly, but they have concluded that they are unable to properly represent their clients and comply with their professional obligations under the reduced rates.

A review conducted for the government by KPMG in November 2014 found that criminal firms had an average profit level of 5 per cent, with a significant number already operating at a loss. It should be clear then that many firms are unlikely to survive the second half of the cut without finding significant savings in their operating costs.

In the last five years, the overall legal aid budget has been cut from £2.2bn to £1.6bn, and the rates paid to legal aid lawyers have not been increased – even to keep up with inflation – for almost 20 years, equating to a real terms reduction of 34 per cent before rates for civil legal aid were cut by 10 per cent and for criminal legal aid by 17.5 per cent.

Alongside reductions in fees, legal aid has been almost completely removed for whole areas of civil law including housing, employment, immigration and debt advice.

Furthermore, the purported ‘safety net’ scheme of exceptional funding, introduced to provide legal aid for civil cases where a failure to do so would breach the European Convention on Human Rights, was recently found by the High Court to be failing to operate as intended. During the last parliament, the Ministry of Justice lost a succession of judicial reviews challenging the lawfulness of its restrictions on legal aid, including – perhaps inevitably – a challenge to regulations limiting legal aid for judicial review.

The cuts to legal aid have also attracted criticism from several parliamentary bodies. A report by the Justice Select Committee, published shortly before the general election, concluded that the reforms had “harmed access to justice for some litigants” and that the Ministry of Justice had failed to carry out adequate research before implementing the cuts. In November 2014, the National Audit Office found that legal aid cuts had the potential to create additional knock-on costs, partly as a result of an increase in unrepresented litigants.

Finally, the Public Accounts Committee published a report in February 2015, which was heavily critical of cuts to legal aid. Margaret Hodge, the chair of the Committee, said the Justice Ministry had “shown little interest” in the knock-on costs of its reforms, caused by the inability to access advice to resolve legal problems.

The Ministry has repeatedly insisted that England and Wales has “one of the most expensive legal aid systems in the world”, frequently supporting this claim using a misleading comparison with countries which have inquisitorial rather than adversarial legal systems and similar overall per capita expenditure on justice.

This focus on the size of the legal aid budget ignores the benefit to society of an effective and fair justice system as well as the knock-on costs of legal aid cuts (it has been estimated, for example, that each £1 spent on early advice for social welfare law ultimately saves the state up to £8.80).

The narrative of ‘fat cat’ lawyers riding a legal aid ‘gravy train’ serves to sustain this assault on access to justice – but it is a myth. Lawyers who choose to practise in areas of law which are traditionally funded by legal aid, often acting for some of the most vulnerable people in society, are motivated by a sense of vocation and a commitment to social justice.

A career as a legal aid lawyer is becoming increasingly unviable for anyone not from a wealthy background due to the inescapable combination of low pay and high student debt. A survey we conducted in 2013 revealed that 63 per cent of respondents were earning £25,000 or less per annum. Legal aid lawyers, particularly at the outset of their careers, typically earn less than teachers, doctors, nurses, police officers and social workers.

However, the present dispute is not simply about pay. Many lawyers and campaigners believe the real cost of cuts to legal aid will be wrongful convictions and miscarriages of justice as people are forced to represent themselves in court. In a poll conducted by YouGov before the general election, 84 per cent of respondents rated access to justice as ‘a fundamental right’, compared to 82 per cent for healthcare free at the point of use.

The cuts are already inflicting significant damage on our justice system. In many ways, the functioning of the courts depends on the goodwill of lawyers, often conducting cases for derisory levels of remuneration; this boycott demonstrates that the government has exhausted that goodwill.

The direct action being taken by criminal lawyers in response to the latest cut could cause the already overstretched and creaking criminal justice system to grind to a halt. Michael Gove will know it is imperative that an agreement is reached to end this action. The new justice secretary’s ability to find a solution will be tested when representatives of criminal lawyers meet again with the Ministry of Justice on Monday 3 August, after a ‘potentially constructive’ meeting on 23 July.

Oliver Carter is co-chair of Young Legal Aid Lawyers. Follow him on Twitter

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