My Lords, I refer to my registered interest as a practising barrister, though not undertaking work in the criminal field.
The fact that this Regret Motion is being debated at all is evidence of a problem that has bedevilled the relationship between the legal professions and government for many years now. Governments of all complexions have failed to seek consensual solutions to the challenge of providing a publicly funded criminal justice system that will work successfully both for the public and for the two essentially private sector professions. A mutually supportive and trusting relationship between the professions and government is essential if our criminal justice system is both to be effective and fair and, at the same time, to command public confidence. There is a crying need for the Ministry of Justice to work more closely with the professions to reach an acceptable agreement—a compact—for fees and future allocation of work. The constant war of attrition over recent decades has damaged government and the legal professions and should not continue. This was a view held and often expressed by my noble friend Lord McNally when he was a Minister, although of course he was bound by the constraints placed upon him by being part of the coalition Government with the overwhelming need to find cost savings. This Government are also so constrained, and we understand that.
I will speak of the reductions affecting criminal work, and my noble friend Lord Carlile of Berriew will speak largely about the changes affecting work for prisoners.
The background against which the implementation of the second stage of the 17.5% reduction in fees is being imposed is a great deal more favourable than it has been for some years. Sir Bill Jeffrey summarised this at the start of his extremely helpful report, Independent Criminal Advocacy in England and Wales, published in May 2014. He wrote that:
“The landscape of criminal advocacy has altered substantially in recent years. Recorded and reported crime are down. Fewer cases reach the criminal courts. More defendants plead guilty, and earlier than in the past. Court procedures are simpler. There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials. In the publicly funded sector (86% of the total), it pays less well”.
The climate should, therefore, present us with opportunities to make improvements to the criminal justice system, to make it work better and more cost effectively by collective and collaborative effort and working on a clearly evidenced-based approach. Yet the introduction of these regulations has been far from that.
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The justification for the second 8.75% fee reduction was to have been the economies of scale and reductions in cost that were to be expected as a result of market
consolidation—the theory being that fewer providers would have larger and more certain volumes of work, which would enable them to weather lower costs by making such economies of scale. Of course, that argument ignores some of the difficulties inherent in reducing provider numbers. A reduction from 1,600 contracts to 527 for solicitors offering cover at police stations involves a substantial limitation of choice for the public. It also makes it far more difficult for new entrants into the market to prosper, which has the effect of ossifying criminal practice in the hands of a few providers. It risks defendants being left without adequate advice at police stations. I do not believe that any clear assessment of that risk—the risk of solicitor cover being unavailable or simply too far away—has been carried out.
Even if one overlooks these points, there is an inherent deep unfairness in what has happened. Although the cuts were introduced in July of this year, the market consolidation that was intended to enable the profession to weather them is delayed until at least January 2016, so that there is a minimum of six months between the two with no protection in place.
The Law Society expects numbers of firms to fold or stop taking criminal work as a result of this second tranche of cuts. Yet the Government’s impact assessment accompanying the regulations entirely missed the point. It recognised the,
“additional pressures created by declining case volumes”,
and that there are,
“additional challenges in coping with reductions in fees”.
Yet the impact assessment made the assumption, described as key, that there would not be any major impact on future clients, explaining that:
“Any impact on clients would be felt through a lack of legal aid coverage should providers be unable to sustain a second fee reduction. We believe that any potential problems with sustainability are mitigated by the changes to legal aid procurement and the harmonisation of fee structures”—
in other words, by the very market consolidation that has now been delayed. But the fact is that there is already, and will be, a loss of providers. The assumption to the contrary flies in the face of human economic behaviour.
It is very similar to the assumption that was made in relation to raising court fees—that the enhanced fees of up to £10,000 to bring a money claim were assumed not likely to lead to a reduction in case starts.
The real challenge for government in this Parliament should be to get the criminal system working better. The report by Sir Bill Jeffrey, which I mentioned earlier, recognised the value of independent and successful legal professionals providing high-quality advocacy. He made a number of important suggestions for the future work of solicitor and barrister advocates in the fields of training, early choice of advocates for cases, and the structure of the two professions and the work they undertake. The Government should heed his report very carefully, and it would be very helpful if the Minister could say in his response how and when they intend to respond to the Jeffrey report, which they commissioned.
The Government should also respond positively, and not just with warm words but with the allocation of the necessary resources, to the need to implement in
full the recommendations of the Review of Efficiency in Criminal Proceedings conducted by Sir Brian Leveson and published in January this year. With better communications, fewer unnecessary hearings attended in person by all parties, getting charging decisions right first time and ensuring continuity of representation and of case management throughout the life of cases, there could be a manifestly more efficient system. But as Sir Brian made clear, resources are needed to establish and kick-start that more efficient system—resources for better technology and resources for training. It is incumbent on the Government to provide those resources—and to ensure that the morale of those involved in establishing and running the system is high, so as to make the changes successful.
No doubt the Government would say that savings needed to be made now, and would point to the obvious fact that that the savings that would result from the Leveson proposals would take time to be made. But that is, quite simply, no reason for not making them or trying to make savings now by enabling remuneration in ways that are unfair, that reduce the number of practitioners willing to undertake criminal work, and that diminish morale throughout the system.
On legal aid, we have proposed ways of saving money without cutting fees to unacceptable levels. We have suggested making defendants’ restrained funds available for paying reasonable defence fees in very high-cost cases. In civil cases, you cannot freeze funds without an exception for the payment of reasonable costs, yet at present the defendant in a criminal case who has restrained funds is entitled to legal aid because he cannot use the funds to pay for his defence. It defies logic, but apparently some in the Government support retaining the present arrangements.
We have also suggested that larger companies should be required to carry compulsory insurance for directors and employees to cover the costs of fraud prosecutions; we have employer compulsory liability insurance, so why not that? Such defence costs are usually now incurred by the legal aid budget in disproportionately expensive very high-cost cases. These are practical ways to reduce the cost of legal aid without driving firms out of business or making criminal work a Cinderella service, and without destroying the morale of those who work in it. We wish to co-operate with the Government to find ways to save money that are effective and fair, and to be involved in a far more consensual approach.