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					       The Ministry Of Justice Consultation:

       “Transforming Legal Aid”


Why it matters to everyone,
 what it means, why it’s wrong and what you can do.




         Further Copies available from www.mfjc.co.uk
                                             CONTENTS

Introduction                                             4

Main Proposals                                           4

Why is it important?                                     5

The Economic Argument?                                   6
  The Government’s Figures are Wrong                     6
  The Economic Benefit of Our Legal System               8
  But isn’t it cheaper in other Countries?               8
  But the Country Needs to Save Money?                   9
  The ‘Other’ Economic Impact                           10
  ‘Fat Cat’ Lawyers                                     10
  How is the Government planning to save money?         13

Price Competitive Tendering                             13
  What does it mean?                                    13
  Have they tried PCT before?                           14
  What happens to Choice? – Part I                      15
  What happens to Choice? – Part II                     15
  What happens to Quality?                              16
  People for People                                     16

Family Law                                              17
  The Story so Far                                      17
  The Effect of Changes to Family Law to date           18

Family Law – More Cuts                                  21

The Combined Effect                                     23

Why no debate?                                          24

Don’t Do Nothing – Have Your Say!                       25
  Remember, numbers matter!                             25
    Sign a Parliamentary Petition                       25
    Write to your MP                                    26
    Write to the Parliamentary Justice Committee        27
    Write to the Justice Secretary                      27
    Write to the Minister of State for Justice          28
    Write to the Children and Families Minister         28

                                                  2
    Use Social Media                            28
    Write to a Newspaper                        28
    Contact the Media                           28
    Respond to the Consultation                 29
    Go to a Consultation Event                  30
    Attend the Public Meeting                   30
    Get others involved                         30

Further Copies of this Document                 31

Annex A – Summary of Proposals                  32

Annex B – Sample Points for Letter to MPs       35

Annex C – Useful Links                          39

Annex D – Useful Press Articles                 42

Annex E – Sample Consultation Response          45

About you                                       46

List of questions for response                  47

Endnotes and References:                        67




                                            3
Introduction

On 5th March 2013 the Ministry of Justice announced a further Consultation on Legal
Aid. It was initially expected in Autumn 2013 but without warning it was brought forward.


On 9 April 2013, the Ministry of Justice (MoJ) published its consultation paper entitled
“Ministry of Justice consultation: Transforming legal aid: delivering a more credible and
efficient system.”


This document has been prepared by a family lawyer. It is not intended to be a detailed
exploration of every issue raised in the consultation document but is written to deal with
the major issues raised by the Consultation from the perspective of people not often
involved directly in the Criminal Justice System and explain why the Consultation is still
of critical importance.


The Consultation also has sections that are directly relevant to the Family Justice
System, which are dealt with below.



Main Proposals

In Annex A to this document you can find a more detailed summary of the proposals.
However, the most significant changes proposed are as follows:


      A reduction in the number of suppliers for the criminal justice system from about
       1600 mostly small and medium size business to 400 providers ‘big business’
       providers;


      Price Competitive Tendering (PCT) for the vast majority of Criminal Justice Work;


      People will no longer be able to choose the lawyers who represent them;


      Representatives will be ‘incentivised’ financially to obtain guilty pleas, reduce the
       length of time spent in preparation and to ensure that court proceedings are
       conducted as quickly as possible;

                                             4
      Further restrictions on eligibility for Legal Aid;


      Further and considerable restrictions and reductions in funding and remuneration
       for CJS work;


      A 10% reduction in the ‘fixed fee’ and hourly rate paid to solicitors for Public Law
       care work; and


      A 20% reduction in the standard fees paid to ‘experts’ in all Legally Aided cases.



Why is it important?

Later in this document is a more detailed examination of individual proposals. However,
these proposals have a potentially far-reaching effect on all members of society who
may have cause to rely on the Criminal or Family Justice System either directly or
indirectly.


The following are the easily identifiable consequences of the proposals:


      If you or a family member, friend or someone you know have cause to be
       involved in the Criminal Justice System the realities will be:
              o There will be fewer people available to represent you;
              o They will be more distant geographically and in all likelihood less qualified;
              o The amount of time those people are able to give to your representation
                 will be more limited; and
              o In the case of the Criminal Justice System you will no longer be able to
                 choose who represents you.


      If you or a family member, friend or someone you know have cause to be
       involved in the Family Justice System the realities will be:
              o There will be fewer people available to represent you;
              o They will be more distant geographically and in all likelihood less qualified;
                 and


                                                5
          o The amount of time those people are able to give to your representation
              will be more limited.


      If Price Competitive Tendering (PCT) is introduced in Criminal Law, it will be
       proposed in other areas, including Family Law. PCT is a flawed way of providing
       services and will be particularly so in the provision of justice, for the reasons (and
       examples) set out below.


      The proposals will lead to a less efficient Criminal and Family Justice System, an
       increase in cases being decided wrongly, are unnecessary, unsupported and
       socially divisive.


      The proposals are likely to lead to a substantial drop in quality not only of the
       defence of people but also in prosecuting criminals.



The Economic Argument?

The Government’s Figures are Wrong


The Government says that the changes are necessary to save £220 million from the
Criminal Justice System and Legal Aid.1 In these difficult times everyone appreciates
the need to save money and find efficiencies, but it is worth examining how the
Government arrives at its figures.


In fact the Government has used misleading calculations to arrive at these figures and
the Consultation Document does not take into account either money that has already
been saved from the Legal Aid Budget or it’s own predictions about the money that will
be saved by the substantial cuts that have been implemented to date.


The amount spent on criminal legal aid is said to be over a billion pounds a year. It has
been used in the Consultation document, accompanying press releases and articles by
the Secretary of State.


A proper considered analysis of the figures reveal a different picture.



                                             6
These figures relate to work billed in the period 2011/12. As such, it relates to historic
work billed in that financial year and does not provide an accurate spending figure for
current rates. The point is that the reductions imposed since 2010 are not reflected in
the published figures.


The latest figures available are contained in the Business Plan for the Legal Aid
Agency2 (the organisation that pays Legal Aid) published on 16 April 2013.3


The projected spend on criminal legal aid is £941 million for financial year 2013/14. The
saving on the figures used in the consultation document is already £168 million.


The aim of the consultation is to achieve savings, from the criminal budget, of £220
million by 2018/19. If the correct figures are used the saving needed is only £52 million.


The effect of previous reductions are still being felt and will have an impact on the
overall spend in the future. This is conceded in the Legal Aid Agency’s Business Plan,
which predicts a huge reduction in the money the government is due to spend even
before any further cuts are made.


The historic spending figures also reveal the extent of the cuts already imposed. A
consultation document from the Ministry of Justice released in November 2010
“Proposals for Legal Aid Reform” provide the historic spending figures on criminal legal
aid.4


In real terms, allowing for inflation, the current projected spend is less than the spend
on criminal legal aid in 1997/98, when the spend was £955 million.5


This is against a background of an increasing Prison Population (i.e. more work for the
Criminal Justice System)6 and significant changes in the law since 1997/98 that have
also seen increased work for the Criminal Justice System.


The savings and efficiencies that are being asked of the criminal and family justice
system have already been achieved and then some.7




                                            7
The Economic Benefit of Our Legal System


The UK has one of the best legal systems in the world. Don’t just take my word for it,
the Justice Secretary, The Rt. Honourable Chris Grayling says so. What is more, he
recognises that because of that it makes the Country a huge amount of money every
year.


During a recent speech Mr Grayling gave to a group of City firms on 16 th March 2013,
he trumpeted the fact that legal services in this country contributed £20.9 billion per
year,8 much of which is brought into this country from abroad because, according to him,
the legal system in the UK has an “unrivalled reputation” for “impartiality, integrity and
enforceability”.9


In other words, because the system is so good, it makes the Country billions of pounds
every year. In fact, the amount of money the UK makes from its’ legal system far
exceeds the amount spent on Legal Aid many times over.


What is the foundation for that “unrivalled reputation” for “impartiality, integrity and
enforceability”?


The foundation for that quality and impartiality of the system rests in the judiciary and
legal representatives most of whom have benefited hugely from the underpinning,
training and integrity provided by the publically funded system of justice. The legal
system is a huge asset to the UK economy. These proposals seek to attack that very
foundation and worse seriously threaten the ethics that are the mainstay of that
impartiality and integrity.



But isn’t it cheaper in other Countries?


The Ministry of Justice regularly tells the media that we have a very expensive system
of justice and legal aid. It is often asserted that other countries do it cheaper.


In some senses this is true. For example, in the USA they have the Public Defender
system, which has an unparalleled reputation, although it is not for quality or even
adequacy.10
                                              8
Furthermore, the comparisons are wrong. The Justice Secretary recently pointed out,
for example, that in France they spend a lot less 11 on Legal Aid. However, he does not
mention that they have a completely different system of law whereby a judge takes an
active role in investigating cases, directing the police, commissioning experts and
gathering evidence – none of the cost of which is included in his comparison. And
France does not have a legal system that The Justice Secretary considers has an
“unrivalled reputation” for “impartiality, integrity and enforceability” nor does it make
France any where near as much money.




But the Country Needs to Save Money?


No one argues with this, including the professional bodies that represent the interests of
people in the CJS (not just lawyers). Those bodies are more than happy to sit down with
the government and examine ways in which further savings can be made that will do far
less damage to the integrity and efficiency of the CJS, but the Ministry of Justice is not
open to any idea other than Price Competitive Tendering (see below) at the moment.


At the same time, the Government is allowing many companies to escape from paying
their due in taxes through reaching ‘deals’ with them concerning billions of pounds in
unpaid taxes12 and MPs discuss huge increases in their own expense allowances 13. It
must also be remembered that the total spend on all Legal Aid represented only 0.18%
of the UK’s Gross Domestic Product in 2008, according to the Government. 14 That
compares to 18% on health care, 17% on welfare, 14% on education, 7% on defence
and 3% on transport in 2012/13.15


Meanwhile the Law Society (who represent Solicitors) and the Bar Council (who
represent Barristers) have come up with many different suggestions for alternative ways
to save money that do not seek to undermine the quality of justice available in this
country.16 However the Justice Secretary refuses to consider or even talk about those
suggestions.




                                            9
The ‘Other’ Economic Impact


When the Government proposes such a radical change to how things are done, they
carry out what is known as an ‘Impact Assessment’. That is government-speak for “what
will happen if we do this”.


The Government’s ‘Impact Assessment’ mentions nothing about the thousands of
people who will be made redundant as a result of these measures, about the effect on
local economies and small businesses and the loss of revenue for the tax-payer that will
result.


Neither have they carried out any form of assessment of the increase in costs that these
proposals will result in when things go wrong, as they have with almost every other
example of the Government trying to impose these type of changes (see below).


Indeed, they refuse to answer those questions when they are asked about them.17



‘Fat Cat’ Lawyers


The media regularly publishes articles about ‘fat cat’ lawyers who make huge amounts
of money. They are inaccurate and do not reflect the truth about lawyers who work for
legal aid rates. Of course, there are some (very few) at the top of the professions who
make very large amounts of money. The vast majority do not and working for cases that
are legally aided pays much less.


The average salary for a solicitor is about £34,000 pa (before tax). 18 That’s for all
solicitors, including those who do not do legally aided work. Those that do almost
always get paid less than those who do other privately paying work.


Barrister’s pay varies massively as they are self employed and it is very difficult to find
an ‘average’. Those doing legal aid work get paid much less than those doing privately
funded (eg commercial work).


Advocacy (appearing in Court) that is paid for by legal aid now pays the same whether
the person doing the advocacy is a solicitor or a barrister.
                                             10
The Government’s own “official careers website” advising students on careers says this
about Barrister’s pay and conditions:19


   •   Salaries vary depending on a range of factors, including location, area of practice,
       experience, reputation and type of employer (self-employed or employed).
   •   Earnings for barristers starting out are sometimes extremely low and there may
       be a considerable delay between doing the work and receiving remuneration.
   •   Around 80% of barristers are self-employed and have to contribute towards the
       running/overheads of chambers from their income, as well as covering their own
       tax and pension arrangements.
   •   While courts tend to sit at regular hours during the day, barristers frequently have
       to work long, unsocial hours involving evenings and weekends, particularly early
       on in their career.
   •   Most opportunities are in London and other major cities and towns.
   •   This is a demanding and intellectually challenging role, but there is a very
       supportive professional community.
   •   Barristers are expected to conform to high standards of dress, ethics and
       professional conduct.


Totaljobs.com puts the average Barrister at about £32,000 per annum. Those doing
commercial or privately paid work can earn much more.


The public have a perception of lawyers being rich individuals milking the ‘gravy train’ of
public money to line their own pockets. This is simply not true. The following is an
extract for an article written by the wife of a criminal barrister. It paints an entirely honest,
realistic and accurate picture of life for the vast majority of lawyers, criminal or family,
who do legally aided work:20

       “The vast majority of criminal defence lawyers do not earn anywhere like the amount of
       money that the government and media would have you believe that they do. Sure, my
       husband earns more than the national average, but it is hardly pots and pots. Not as
       much as a consultant doctor in the NHS, for example.

       We’re all in it together
       One thing that has been kept very quiet is that barristers’ wages have gone down a lot
       since 2010. Some might say they have already done their bit for the deficit. We always
       know more cuts are coming because we start seeing “fat cat” lawyer stories appearing
       in the gutter press. Rather than try to get the true facts some lazy journalists simply

                                               11
regurgitate and spin the lies and nonsense that they are fed by the government. And the
public swallows it.
…

All work and (little or) no play
Most people work a fixed number of hours per week. Sure, everyone has to stay late
from time to time or take a bit of work home at the weekend. My husband does some
work most weekday evenings and I can count on one hand the number of weekends
where he has not had to work so far this year. When we first moved in together I used to
ask him if he had work to do every night. Now I don’t ask anymore. Sometimes he’ll text
me on the way home and say he doesn’t have any work to do and would I like to watch a
DVD.

Because of how the court system works, and because the Crown Prosecution Service
love to dump on them at the last minute, he can’t always plan when he will be working
late. I’ve lost count of the amount of times we have had to cancel something at the last
minute. Or just refuse it outright.
…

When he is in a big trial he will wake up, commute two hours to London, be on his feet
talking or sitting down listening and making notes all day, commute two hours home, eat,
and start work again. He may not go to bed until after midnight, then the next day he will
wake up and do the same again, and again and again until he’s given his closing speech
and the jury are out. While he is in a big trial he’s not really present when he is at home.
It is like his brain can only cope with the trial and tending to his basic physiological
needs, eating, washing, sleeping. There is only limited capacity for idle chat.

Special skills
I’ve never been to see him in court. But I know that when he’s doing a closing speech he
might speak non-stop for a couple of hours. I often do presentations at work, for 15-20
minutes, sometimes to groups of 100 or so people. But because of the nature of my
work my audience is usually on side already. They want to hear what I have to say and I
have no fear of public speaking. But I couldn’t speak coherently and persuasively on a
complicated topic for over an hour. Could you?

The work that I see him do is usually reading. Piles and piles of paper. Folder upon
folder. Sometimes the house it littered with it. Or he is watching CCTV video nasties.
Over and over again. When he’s reading he’s not reading like you or I read a novel. He
is scouring every word of the text for some detail that might help the case. Assimilating
huge amounts of information, weighing it up and working out what it all means.

Much has been made of barristers being paid by page count. It is the Crown that
decides on what evidence is going to be used and therefore that part of the fee. There
might be hundreds of thousands of pages of evidence available but only a portion some
of it will be “used”. The rest is “unused” and doesn’t contribute to the page count.
Defence lawyers have to read, consider and be able to recall ALL of the evidence,
whether the Crown have deemed it “used” or “unused”.

Emotional fallout
Last year he was on a murder. It was caught on CCTV. He had to study that over and
over again at home, frame by frame. Then watch it again and again at court. For days on
end. I happened to see the sequence once. I saw the young lad get shot and die once. I
found it upsetting. So much more harrowing than watching a shooting on film or tv.
Because there is no music, no dialogue to build up the anticipation. One minute they are
one of thousands of groups of young people having a great time out on the town. Next
one of them is lying dead on the floor and all of their lives have been changed forever.
Perhaps you could watch something like that over and over again and not be bothered

                                        12
       by it. I couldn’t. Then there are sexual offences…and sexual offences involving children.
       They too come with still picture and video evidence which has to be studied.

       He never complains of being disturbed by it all. But that doesn’t mean he isn’t troubled –
       when he is doing a nasty trial he will talk about it in his sleep. I’ve had many an
       unpleasant wake up call. It is bad when his client says he is not guilty. It is worse when
       he is convinced he is innocent. Can you imagine the stress of holding the course of
       someone’s life in your hands? Whether they go back to their law abiding lives or get
       found guilty and go to prison?

       The bottom line
       Most legal aid lawyers get paid an awful lot less than you think they do, for doing very
       long hours of intellectually and emotionally challenging work. Oh, and they don’t get paid
       a regular amount every week or month, like you and I. They only get paid after they have
       been working on a case for months and months, after the trial is over.”



How is the Government planning to save money?


The Government is not simply proposing to cut the amount paid to lawyers, although
they are proposing that. Indeed, the proposals assume at least a 17.5% reduction and
in some circumstances a one third cut. In some cases an advocate representing
someone will be paid as little as £15 per day in a trial.


In addition the Government is rigging the pay structure so that the lawyers (and non-
lawyers) involved in future cases make more profit by persuading people to plead guilty.
How would you feel about knowing that someone who represents you has a
vested interest in getting you to say you were guilty of something that you were
not?


However, the biggest change will be in the introduction of Price Competitive Tendering.




Price Competitive Tendering

What does it mean?


The Government wants firms (not necessarily solicitors firms) to ‘bid’ for work at the
lowest price possible. In each region there will be a limited number of contracts
available and the lowest bidder will win. So if firm X says that it will do 1000 cases for



                                               13
£1000 per case and firm Y says that it will do 1000 cases for £900 per case, firm Y will
get the contract.


Firm Y will then have to work out how it is going to make a profit from those 100 cases.
How will it do this? Well, we already know how because we have seen it in other areas
where the Government has imposed PCT. They will use less qualified people and
spend less time on the work.



Have they tried PCT before?


The answer is yes. It has never gone well.


The Government introduced PCT to provide translation services in the Courts. It is a
disaster. When Parliament investigated how it had worked, they concluded that the
quality of services had dropped hugely and the government had not listened to
warnings that the system would not work and that it was “shambolic”21:


       “The Ministry of Justice’s handling of the outsourcing of court interpreting services has
       been nothing short of shambolic. It did not have an adequate understanding of the
       needs of courts, it failed to heed warnings from the professionals concerned, and it did
       not put sufficient safeguards in place to prevent interruptions in the provision of quality
       interpreting services to courts.”


       “The evidence shows that Capita-ALS [the company who got the contract] failed to
       deliver on many aspects of the Agreement and did not implement appropriate
       safeguards to ensure that the interpreters it provided were of sufficient standard.”22


A substantial number of cases have been delayed or abandoned and recently the
Government has had to pay this company an extra 22% more on the contract, tax-
payers’ money to cover the additional cost of doing the job properly.23


PCT was used to contract the company who provided the security for the Olympic
Games. That was a disaster. G4S could did not do it properly and the army had to be
called in to provide extra cover, at tax-payer’s expense.24



                                                14
It would be helpful if the Government could point to examples of PCT working well in the
field of law or some related industry. They cannot.



What happens to Choice? – Part I


Simple. It will be gone. If you or a member of your family is suspected of a crime, you
will not be able to choose your legal representative. You will be assigned a company
who must be the company that acts for you. It will be on a rota basis.


If you know that Company Y did a particularly good job and has a good reputation in a
certain type of case – hard luck, you have been given Company X and you will not be
allowed to change them.


If you know that Company Y uses a certain advocate who is very good – hard luck, you
will not get them because company X, who you have been allocated, will not use that
advocate because they have their own ‘in house’ advocates who are paid less so make
the company more money.


A criminal wants to know from the lawyer that he has used and trusted all his life
whether he should plead guilty, well he won’t get told by that lawyer so he’s less likely to
plead guilty. He might also know that it is more profitable for the person now advising
him to tell him to plead guilty, so why would he take that advice? There will be a trial, for
which the tax payer will foot the whole bill, not just of his defence, but the prosecution,
Court time, witnesses, police etc.



What happens to Choice? – Part II


What if you are not accused of a crime, but you need a solicitor to deal with something
else?


These proposals will shut down solicitors firms in the hundreds. Many Solicitors firms
are Small or Medium Enterprises (what the Government likes to call SMEs). They do a
mixture of law – some criminal, some family, some property.



                                             15
The proposals reduce the number of solicitors’ firms that are allowed to do criminal work
from about 1600 to 400. Many firms will go out of business because they cannot survive
without their criminal department – which will affect the availability of other services.


The legal market will change and big companies will move in – they are the only ones
that will be able to afford the set-up costs of the PCT contracts. The local ‘High Street’
Solicitor will become a thing of the past, with profit being the main motivation for doing
publically funded work.



What happens to Quality?


At the moment, solicitors and barristers get work by reputation and performance. If they
are good at their job, generally, they are busy. If that are bad, they do not. There is an
incentive to be good and a disincentive to be bad. The price the lawyer is paid for the
job is fixed by Government and the market dictates who is busy and who is not.


Under these new proposals it does not matter how well or badly you do the job. Once a
contract is awarded the work is guaranteed for 3 or even 5 years. All that matters is
finding a way of making as much money from the work as you can.


You can be brilliant or merely ‘acceptable’ – does not matter.


There will be no ‘competition’ apart from at the very beginning, when the contracts are
bid for, when the lowest price will win. Thereafter, market forces and incentives for
quality become completely irrelevant.



People for People


Lawyers deal with people at the most difficult times in their life. Whether it is when
someone has been accused of something or when they are having family difficulties. A
personal service is needed and often the relationship and trust that can be built up
between a lawyer and the person he or she is representing is vital to the smooth
running of justice – it helps stop people wasting time on pointless arguments and
ensures that the most vulnerable in society are protected.

                                             16
Big business is not very good at dealing with individual people, you may have
experience of that yourself. However, these proposals are heavily weighted in favour of
big business – they are the only ones likely to be able to afford to bid for the contracts
because of the enormous set-up costs that will be required. Are you comfortable with
this statement:


       “Nick Buckles [the head of G4S] reminded the politicians just how much of a
       player his firm is, in both public and private life. Its staff deliver your money, read
       your meters, "we run your prisons, we run your hospitals", he said.”25


Soon, G4S could also be running your justice? How do you feel about that?




Family Law

The Story so Far


The Government is proposing further cuts to Family Law. These will not be the first.


In 2012 the Government forced through an Act called the “The Legal Aid Sentencing
and Punishment of Offenders Act 2012” which is known as LASPO.


LASPO took legal aid away from most family cases. This represented a cut in the legal
aid bill of over £350 million pound per year that affect over 600,000 people.


Now you cannot get legal aid to come to court for any of the following things:


      If your ex-partner stops you seeing your children or only wants you to see them
       rarely;
      If you ex-partner wants to move abroad with your children;
      If your ex-partner accuses you of being violent or abusive; and
      If your ex-partner is a danger to your children - unless you have managed to
       prove in a court previously that he or she has been violent or you have reported it
       to the authorities (which we know the vast majority of victims do not).

                                             17
For example, I was recently involved in a case where a father wanted to see his child
and the mother was saying he could not. The mother accused him of serious sexual
assaults. He was, in the end able to prove that she was lying but only because his
solicitor was able to obtain telephone records and other evidence, all of which was
difficult to get hold of. The mother was also shown to be lying, through careful well-
prepared cross-examination of her. Had the father been representing himself I have no
doubt the result would have been very different. He would not be seeing his child and a
substantial miscarriage of justice would have occurred. He might also have been
prosecuted in the criminal courts (costing more money).


He was lucky. He walked into his solicitors’ office before 1st April 2013. Had he seen
them after that date, he would not have got legal aid.


The government is proposing a change to the law so that both parents’ must be
involved in their children’s lives in most cases.26 They have removed the ability of most
parents to go to court to enforce their ability to be involved in their children’s lives.



The Effect of Changes to Family Law to date


The University of Warwick has recently published a study into the effect of the changes
in Family Law that have already taken place.27


The study concluded as follows:


       “In November 2010 the coalition government announced its plans to abolish Legal Aid
       for the majority of non-criminal legal problems. This attack on access to justice and the
       rule of law had no mandate – no party manifesto had even hinted it – and no precedent.
       Every area of assistance not directly engaging ECHR rights was to be removed. The
       Government itself admits over 600,000 cases per year will no longer be funded.

       Two years of campaigning and resistance followed. Despite being defeated an
       unprecedented number of times in the House of Lords, the Legal Aid, Sentencing and
       Punishment of Offenders Act (“LASPO”) passed and came into force this month,
       coinciding exactly with the introduction of many welfare “reforms”. Whatever your views
       on the coalition government’s austerity agenda, it is now abundantly clear that equality
       before the law is no longer a statutory principle of our society. The likely impact on social
       cohesion of both welfare reform and turning the justice clock back to the pre-Beveridge
       1940s will be profound.


                                                18
       However, LASPO does more than abolish the right to professional advice and
       assistance for those who could never afford to buy justice. It represents the end of many
       of the careers of those who have dedicated their lives to working for fees that have been
       kept static for two decades. It squanders precious resources built up over 60 years of
       consistent public funding of legal advice.”


The report goes on to highlight that the changes that have already taken place are likely
to lead to ‘advice deserts’. In other words, places where legal advice is simply no longer
available.


Of course, you can still go to court on your own and represent yourself. The
Government has not thought through the cost of this. When people are unrepresented
cases take longer and therefore cost more. Every organisation involved in Court
proceedings says so – including the judges. The President of the Association of Her
Majesty’s District Judges recently warned:28


       “Many more litigants are representing themselves without the legal knowledge and skills
       possessed by the professional lawyer. Nowadays, district judges are often required not
       only to decide the outcome of a case but also, to tease out from the parties the issues,
       then establish the facts, ascertain the area of law involved and then determine the
       outcome following statue and common law.

       Discussions [outside court] often find solutions to cases to avoid the expense and time
       taken by a full court hearing. The result is more fully contested final hearings and, often,
       less favourable outcomes for the parties.

       Less favourable in the sense that judges are always constrained to determine cases in
       the way the law requires whereas a negotiated settlement often enables the parties to
       settle their differences in ways judges are unable to employ. For example, sometimes a
       simple apology for what has happened and a resolve to deal with one another differently
       in future may resolve a case but a judge could not order that to happen.”



However, the Justice Minister, Lord McNally recently said that people representing
themselves is okay because they do it in the Small Claims Court 29. The Small Claims
Court deals with low value car accidents and other low value claims involving money. It
does not deal with children. Some might think that issues around children, their welfare,
the rights of parents to see them, domestic violence and abuse are all more important
than who is responsible for a car accident or leaky roof.


Other judges have warned that the changes already put in place are hugely damaging.




                                               19
Lord Justice Ward, a Court of Appeal judge recently commented that a surge in
lawyerless litigants following the introduction of legal aid cuts would put such a strain on
the court system that the government’s anticipated savings of £350 million a year would
be lost.


       “What I find so depressing is that the case highlights the difficulties increasingly
       encountered by the judiciary at all levels when dealing with litigants in person.
       Two problems in particular are revealed. The first is how to bring order to the
       chaos which litigants in person invariably – and wholly understandably – manage
       to create in putting forward their claims and defences. Judges should not have to
       micro-manage cases, coaxing and cajoling the parties to focus on the issues that
       need to be resolved. Judge Thornton [the Judge how dealt with the case
       origninally] did a brilliant job in that regard yet, as this case shows, that can be
       disproportionately time-consuming. It may be saving the Legal Services
       Commission which no longer offers legal aid for this kind of litigation but saving
       expenditure in one public department in this instance simply increases it in the
       courts. The expense of three judges of the Court of Appeal dealing with this kind
       of appeal is enormous. The consequences by way of delay of other appeals
       which need to be heard are unquantifiable. The appeal would certainly never
       have occurred if the litigants had been represented. With more and more self-
       represented litigants, this problem is not going to go away. We may have to
       accept that we live in austere times, but as I come to the end of eighteen years
       service in this court, I shall not refrain from expressing my conviction that justice
       will be ill served indeed by this emasculation of legal aid.”30

Lord Neuberger, President of the Supreme Court, the most senior judge in the Country
said many people would be left feeling alienated from the courts when entitlement to aid
is withdrawn from those involved in divorce and family issues.31


Lord Neuberger said:


       “My worry is the removal of legal aid for people to get advice about law and get
       representation in court will start to undermine the rule of law because people will feel like
       the government isn’t giving them access to justice in all sorts of cases. And that will
       either lead to frustration and lack of confidence in the system, or it will lead to people
       taking the law into their own hands.”

       “This will mean that court hearings will last longer, the burden on court staff and judges
       will increase. ”And you may find the savings the government thinks it’s making in legal
       aid will be offset in other costs of courts and judges and court staff in supporting litigants
       in person.”




                                                20
Family Law – More Cuts

The Government Consultation proposes further cuts to family law. This time, not only to
those cases where parents are in dispute about their children but in cases where Social
Workers want to remove children from the care of their parents (known as Public Law or
Care Cases).


They propose cutting the amount that solicitors get paid by 10%. At the moment
solicitors get a fixed fee for every such case – almost whatever it costs them to do the
case. The current proposals make it clear that even more cuts will be brought in at a
later date.


The proposal is based on the assumption that the proposed reduction in the time it
takes for Care Cases to be decided leads to a reduction in the amount of work that is
undertaken. This is an assertion that is wholly unsupported by any evidence in the
Consultation Document or elsewhere and is an illogical conclusion.


The shift in Care Cases is to the ‘front loading’ of evidence – that is to say that more
work is undertaken by the Local Authority prior to care proceedings being started. The
preparation of cases prior to and immediately upon starting of any case will increase.


The facts of the case, the issues in the case and work required in the case will remain
the same, there will just be less time to do it in, which means, in fact, that providers are
likely to be working harder and under even more pressure to meet tighter Court
timetables.


The pool of expert representation available for family cases is shrinking and will
continue to shrink.


They also propose that experts instructed in such cases (for example, doctors and other
medical experts) are paid 20% less. This ignores the fact that the law has recently been
changed in family cases to reduce the number of experts involved to only those that are
strictly necessary, which will lead to huge savings in any event.




                                            21
The importance of having expert representation has been emphasized on numerous
occasions, for example Mr Justice Baker 32 made the following comments in a trial
involving the suggestion that the child had been subjected to a serious head injury at
the hands of the parents:


       “…this case demonstrates again the crucial role played by the specialist family bar and
       solicitors. The role played by all of the representatives for all of the parties in this case
       has been of the utmost importance. All judges are very concerned at the prospect of an
       increase in self-represented litigants and the consequences for the family justice system.
       Not enough recognition is given to the contribution to the family justice system made by
       family lawyers.

       The High Sheriff of Devon sat in for one morning of this hearing, as it happened during
       the evidence of Mr Richards, and afterwards expressed to me his astonishment at the
       level of specialist knowledge required of counsel, in this instance, Mr Storey, entrusted
       with the task of cross-examining the expert. This is one small illustration of the
       indispensable contribution made by family lawyers in this type of case. Without that
       contribution, it would be impossible to ensure that justice is done."


The importance of decisions taken in Public Law Family Cases cannot be overstated.
Family law and policy are important because families matter. Most people regard family
as the most essential thing in their lives, often above work, health, friendship and
economic security. Families are complex. The decisions the Court makes can
permanently separate children from their parents.


The reality is that if you cut the income of a group of professionals by 10% one year (as
the Government did last year, on top of LASPO) and 10% the next year (lawyers) or
20% in one fell swoop (experts), then firms will go under. That means less choice, less
availability, more delay, less chance that the parents and children who need them will
be able to get them.


The ones that do keep going will be forced to do more work for less money, which
means spending less time on each case. Lawyers instructed by parents and children
need to have the ability to give the proper time that it takes to prepare a case, to form a
proper meaningful relationship with the parent or child so that there is understanding on
both sides and to give advice that is based on that solid understanding of both the facts
and the people.




                                                22
The Combined Effect

The combined effect of these proposals (criminal and family) will decimate many Small
and Medium Enterprises (SMEs). The Government has removed from society the
protection of representation in the majority of Private Law family cases, with the
resultant impact on the suppliers of that representation.


Many Solicitors will, as a consequence of the above proposals, lose criminal
departments and now the proposal is to reduce money for family work even further.


The effect of these proposals are examined nowhere in the Consultation Document or
the ‘Impact Assessment’.


Likewise, the independent Bar, where a substantial proportion of the expertise in Family
Law and Care Cases comes from, are and will continue to be detrimentally affected by
the need for solicitors to use less experienced ‘in house’ advocates, not by choice or
because that is better for the parents or children, but because the only way of having
any chance of making the work economically viable will be to ensure that advocacy fees
are also kept in house. Once again, nowhere does the government examine this effect.


The former Lord Chief Justice Lord Woolf has predicted that the proposals would lead
to a “factory of mass-produced justice” and miscarriages of justice:


       “There have never been votes in crusading on behalf of people who are maybe guilty,
       but the principle of fair justice must be important to us as a society. The rule of law and
       our system of justice is one of the areas where up until now we have still been able to
       look with pride. The long-term effects of this will be very serious and once the damage is
       done it will be very, very hard to put right.”33


John Fassenfelt, chairman of the Magistrates Association, which represents 28,000
voluntary justices who see the bulk of cases before the courts has said that the plans
would eradicate small firms of lawyers who understood the needs and problems of their
clients.34




                                                  23
The combined effect of these proposals will decimate the justice system of this country
and mean that anyone who needs help with the law, for whatever reason, is much more
likely to be left without that help.



Why no debate?

The Government is starting a process of change that will affect directly and indirectly
the entire legal system and therefore all Citizens of the UK.


Many believe that the changes being proposed by the Government will destroy our
current legal system, replace it with something that is inadequate, less efficient and
designed, purely to benefit big business at the expense of individual people and small
businesses. Many people believe that the proposals are the result of the Government
wanting to undermine the ability of individuals to challenge decisions, defend
themselves and enforce what is fair and right. Many people believe that the
Government’s aims are based on ideology rather than looking seriously at ways in
which efficiencies can be achieved and discussing those with the people who know how
to achieve them.


Maybe the Government is right, maybe the system they propose would be better? If that
is the case you would expect those responsible for the proposals to be engaging in
debate, putting forward their arguments and standing up for what they believe. Most of
all, you would think that our elected representatives (MPs) would have a say in all of
this?


Well no:


       This proposals were not part of any Political Parties’ manifesto;
       There is no plan for a debate in Parliament;
       The Justice Secretary, Mr Grayling, has refused to engage in any public debate
        with representatives of the professions involved;
       The process was brought forward, with almost no warning, by 6 months;
       The consultation process is a sham, with the Government making it clear that the
        main principal, that of Price Competitive Tendering, is not up for debate; and


                                             24
      Few MPs have any idea about the proposals;
      The Ministry of Justice has refused to conduct a proper analysis into the effects
       of its’ past changes in Legal Aid despite being asked to do so by the House of
       Commons Public Accounts Committee.35


The Secretary of Justice, Mr Chris Grayling, does not like debate.


When Parliament was investigating the interpreters’ service “shambles” (above), court
staff were instructed by the Justice Secretary not to co-operate with the committee's
investigation or take part in their online survey.36


The Government is currently imposing Price Competitive Tendering on the Probation
Service. Staff members have been warned by Mr Grayling that if they speak out or
criticise him or the proposals they will be disciplined.37


You have to wonder what he is so frightened of?



Don’t Do Nothing – Have Your Say!

If you disagree with these proposals, there are several ways in which you can have your
say.



Remember, numbers matter!


The professional organisations will all submit detailed responses to the Consultation.
However, each one is only a single response. The number of responses, letters sent,
petition signatures etc. matter very much.


These are some suggestions at what can be done to have your say and raise
awareness of the issue:



Sign a Parliamentary Petition




                                              25
The following Petition has been running for a while. It reads:


       “The MOJ should not proceed with their plans to reduce access to justice by
       depriving citizens of legal aid or the right to representation by the Solicitor of their
       choice.”


You can sign it by going to this address:


http://epetitions.direct.gov.uk/petitions/48628


You just put your name and address in and they send you an email to confirm that it is
you.


At the time of writing it has over 30,000 signatures.


If a petition reaches 100,000 then the Government promise to have a debate on the
issue raised by the petition. It also raises awareness of the issue.


The Bar Counsel has also set up a petition with the Organisation ‘38degrees’, which
has considerable experience in campaigning on issues.


You can sign it by going to this address:


http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice



Write to your MP


Members of Parliament do not know about this issue. Tell them! The more letters they
get, the more notice they are likely to take.


Annex B contains a list of sample points to make if you write to an MP.


You can find out the address and contact details for your MP here:


http://www.theyworkforyou.com
                                                26
Again, it is about numbers. The more letters MPs get, the more likely they are to pay
attention to the issue and look into it in more detail.



Write to the Parliamentary Justice Committee


They are the people who highlighted the fiasco over court interpreters. The members of
the Committee are:


          o Rt Hon Sir Alan Beith (Chair)          Liberal Democrat
          o Steve Brine                            Conservative
          o Jeremy Corbyn                          Labour
          o Rehman Chishti                         Conservative
          o Nick de Bois                           Conservative
          o Gareth Johnson                         Conservative
          o Rt Hon Elfyn Llwyd                     Plaid Cymru
          o Seema Malhotra                         Labour
          o Andy McDonald                          Labour
          o Yasmin Qureshi                         Labour
          o Graham Stringer                        Labour
          o Mike Weatherley                        Conservative


They can all be written to at The House of Commons, London, SW1A 0AA.



Write to the Justice Secretary


       Ministry of Justice
       102 Petty France
       London
       SW1H 9AJ
       United Kingdom


       chris.grayling.mp@parliament.uk



                                              27
Write to the Minister of State for Justice


       The Rt Hon. the Lord McNally
       House of Lords
       London
       SW1A 0PW



Write to the Children and Families Minister


       Edward Timpson MP
       30 Victoria Street                 The House of Commons
       Crewe                              London
       CW1 2JE                            SW1A 0AA



Use Social Media


Tweet, Facebook etc. Tell your friends etc. about it and get them to sign the petitions.

The #SaveUKJustice is popular at the moment on Twitter. Take a look.




Write to a Newspaper


Local or National, it does not matter.

You can get a list of all newspapers, local and national, here:

       http://www.mediauk.com/newspapers




Contact the Media



Email, Tweet or write to a media personality or programme to raise the profile of the

issue. Here are some suggestions:



                                             28
       Newsnight

       Channel 4 News

       The Today Programme – Radio 4



You could, for example, ask them to invite Chris Grayling to debate the issue with a

member of the profession, for example, Michael Turner QC, Leader of the Criminal Bar

Association.




Respond to the Consultation



The Consultation document can be downloaded here:

https://consult.justice.gov.uk/digital-communications/transforming-legal-aid



You can respond in four ways:



   (a) take the online survey which can be found on the page above – this is the

       Government’s preferred method as it makes it easiest for them (and for you);

   (b) Download a copy of a ‘Word’ document to complete and return to them by email

       – there is an example of a completed document available at Annex E;

   (c) Write to legalaidreformmoj@justice.gsi.gov.uk with a ‘free form’ response; or

   (d) Send a written hard copy response to: Annette Cowell, Legal Aid Reform,

       Ministry of Justice, 102 Petty France, London, SW1H 9AJ.



The problem with the consultation is that if you take part in the online survey or fill in the

‘Word Document’ form (see Annex E) you are restricted to answering questions, which




                                             29
it has to be said are heavily slanted. However you respond it is vital, if you agree, that

you challenge the principal of Price Competitive Tendering.



The closing date for the Consultation is 4th June 2013 at midnight.




Go to a Consultation Event



Click on this address to register to attend a Ministry of Justice consultation event:

       http://www.eventbrite.co.uk/org/3715478557



They are being held in the Northwest as follows:

      Liverpool 21 May 2013 17:30 - 19:00 – Aintree Racecourse

      Manchester 21 May 2013 17:30 - 19:00 – Disbury




Attend the Public Meeting

Justice For Sale
FRIENDS MEETING HOUSE
173 Euston Road
London NW1 2BJ
Opposite Euston Station Registration
1.30pm Meeting 2.00pm

Tickets available from www.clsa.co.uk/justiceforsale.


Get others involved



Numbers matter! Fuss matters! Get you friends, relatives, staff, colleagues etc involved

in the issue. For example, if everyone who had already signed the petition simply got


                                             30
two more people to sign it, it would soon be at 100,000. Try to persuade you non-lawyer

friends to get involved, they might not realise what is at stake.




Further Copies of this Document


Further copies of this document can be downloaded from www.mfjc.co.uk or by

emailing me (below). If you have an electronic copy you can simply click on the links

and contacts, as well as copy and paste any sections you find useful.



                                                                               Clive Baker
                                                             7 Harrington Street Chambers
                                                                            www.mfjc.co.uk
                                                                    clive.baker@7hs.co.uk
                                                                    Twitter: @CliveABaker

                                                                             9th May 2013




                                             31
Annex A – Summary of Proposals


The proposals can be summarised as below. A full copy of the consultation document
can be found on the Ministry of Justice’s website.

Chapter 3: ‘Eligibility, scope and merits’

      Reduce the scope of advice and assistance, including advocacy assistance, in
       criminal legal aid for prison law.

      Introduce a financial eligibility threshold whereby any defendant with a
       disposable household income exceeding £37,000 or more would be ineligible for
       legal aid in the Crown Court.

      Require applicants for civil legal aid to satisfy a residence test, restricting
       eligibility to those with at least 12 months' lawful residence.

      Restrict legal aid payments for judicial reviews to those where permission
       applications are successful.

      Abolish the ‘borderline’ prospect of success category in civil cases; only those
       with at least 50%chance of success will be eligible. 


• Chapter 4: ‘Competitive tendering for criminal legal aid’

      The MoJ intend to invite tenders for all criminal legal aid services with the
       exception of Crown Court advocacy and Very High Cost Cases (VHCCs).

      Contract length: Three-year contract term with the option for the government of
       extending the contract term by up to two further years.

      Geographical areas for the procurement and delivery of services: Criminal
       Justice System (CJS) areas (subject to two proposed mergers of areas) with an
       exception for London, to be further subdivided into three procurement areas.

      Number of contracts: Applicants allowed to apply to deliver services in more than
       one procurement area, but only one share in each area. The number of contracts
       to vary by procurement area. Illustrative contract numbers based on 2010/11
       LAA data suggests a range between four and 38 in each procurement area with
       the total number of contracts around 400.

      Types of provider: Providers could be individual organisations, a joint venture or
       ABS. New entrants may apply provided they form a legal entity and are
       appropriately regulated by the contract start date.

      Contract value: Successful applicants in a procurement area to be awarded an
       equal share of access to cases in the procurement area. The tenders must be
       below the current cost by 18 % (but in reality will be lower).

      Client choice: Clients would have no choice in the provider allocated to them at
       the point of requesting advice, and would be required to stay with that provider

                                             32
     for the duration of the case, subject to exceptional circumstances.

    Case allocation: Cases to be allocated equally, either on a case-by-case basis or
     through duty rotas.

Remuneration:

    Police station work: block payment for all police station attendance work per
     provider per procurement area, based on the historical volume in area and the
     provider's bid price.
 o Magistrates' court work: fixed fee per provider per
     procurement area based on the provider's bid price.


    Crown Court cases with less than 500 pages of prosecution evidence (PPE):

    Introduce fixed fee per provider per procurement area based on the provider's
     bid price.

    Crown Court (non-VHCC) cases with more than 500 PPE: maintain current
     graduated fee scheme but rates set per provider per procurement area based on
     the provider's bid discount against the current rates under the Litigators'
     Graduated Fee Scheme.

Procurement process: Two-stage application process:

    Pre-qualification questionnaire – evaluating an applicant's suitability to contract
     with a public body and its experience and capability of delivering the services.

    Invitation to tender – split into two parts – the first evaluating the provider's
     quality and capacity to deliver the specific service in the procurement area and
     
 the second evaluating the bid price.

    Contract award/ implementation: Competitive tendering process to start in all
     procurement areas in autumn 2013. Contracts would be awarded in summer
     2014 with the service commencing in autumn 2014. 


Chapter 5: ‘Reforming criminal legal aid fees’

    Restructure the current Advocacy Graduated Fees Scheme (AGFS) to
     encourage earlier resolution; harmonise guilty plea, cracked trial and basic trial
     fee rates to the cracked trial rate.

    Reduce fees for Crown Court advocacy and VHCCs (both litigation and
     advocacy), which are not already included in the proposals for competition.
     VHCCs would be reduced by 30%.

    Reduce and taper daily trial attendance rates from day three

    Tighten the criteria informing the decision to instruct QCs and / or multiple
     counsel in a case

    Change litigator contracts to require greater support to counsel from the litigation
     team. 



                                          33
 Chapter 6: ‘Reforming civil legal aid fees’

     Reduce the representation fee paid to solicitors in public family law cases by
      10%

     Reduce hourly rates of pay by 10%

     To take effect in April 2014 – to coincide with changes to the advocacy fees
      scheme and an introduction of the Single Family Court (details not yet published)

     To retain the geographical pay differential now but this is to be reviewed in the
      future – no date given

     Remove 35% uplift for immigration and asylum Upper Tribunal appeal cases
      
 Chapter 7: ‘Civil and criminal expert fees’

     Reduce the current specified standard fees for experts by 20%.

Chapter 8: ‘Impact Assessments’

     The MoJ, in accordance with its duties under the Equality Act 2010 has
      considered the impact of their proposals on individuals sharing protected
      characteristics. Responses are encouraged to their impact assessments.

     The deadline for submission of responses is 4 June 2013. Responses can be
      made online, via email or by post. Details can be found in the consultation
      document.




                                          34
Annex B – Sample Points for Letter to MPs

There is a very good template letter to MPs available from the Criminal Bar Association.
It can be downloaded from this link:
https://www.criminalbar.com/files/download.php?m=documents&f=130429093436-
TemplatebarristersLettertoMP28413.doc



Here is a list of some points you might feel able to make:



                                                                                     Mr or Ms MP

                                                                               House of Commons

                                                                              London SW1A 0AA



                                                                                      9th May 2013



Dear Mr or Ms MP,



As one of your constituents and [insert as necessary], I am writing to express my grave concerns

about the recently published Ministry of Justice consultation “Transforming legal Aid: delivering

a more credible and efficient system”.



I am very concerned about these proposals for the following reasons:


Criminal Law Points:38



      Client choice of legal representative is the best guarantee of quality in the Justice System.
       The current MOJ Consultation “Transforming Legal Aid: Delivering a More Credible
       and Efficient System” proposes the removal of a suspect’s right to the solicitor of their
       choosing.

                                                35
   Client choice is the best way of ensuring quality of legal representation because solicitors
    know that if they provide a poor service they will lose clients.


   Under the current proposals a fixed number of clients is guaranteed to each provider of
    legal services whether the client likes them or not and then with no incentive at all to
    deliver a quality service because they have a captive client base.


   The logic is that solicitors are allocated clients as equally as possible, the client having no
    say in the solicitor in question. This will allow lawyers to bid for blocks of work in a
    price competitive tender (PCT). The winner is the lawyer who is prepared to come in at
    the lowest price.


   It seems as though the MOJ are sacrificing client choice, arguably the best way of
    ensuring quality of representation, on the altar of price competition, something that will
    only deliver a less credible and efficient system, that will in all probability cost more in
    the long run.


   The provision of legal aid will be utterly transformed by the Justice Secretary’s plans.
    The Lord Chancellor will hand over the budget for running the criminal caseloads to new
    entities with regional responsibility for conduct of criminal cases, much as G4S runs our
    prisons.


   Once a client falls into the hands of one of these new entities he will find that his choices
    are limited. The Lord Chancellor holds that many criminal trials are financially
    inconvenient. Thus the lawyers will be penalised for running trials and those who wish to
    protest their innocence will be presented with incentives to compromise their position.


   The plans will also dovetail with a new regulatory regime, welcomed by the Ministry of
    Justice, that allows for a new breed of semi-skilled lawyers, not competent to advise on
    or conduct trials, to represent defendants when they take their first, difficult steps before
    a Crown Court.


   So we are to have a new two-speed criminal justice system. Those who can afford it will
    be able to access the sort of legal advice one would expect to receive from an
                                              36
    experienced trial lawyer, who has the capacity to assist with all of the difficult questions
    that arise in the dock of a Crown Court. The remainder will have to take their chance
    with the plea-only advocate to whom their case has been assigned, and who knows only
    this: that he has to save his company’s money.


   At the very least these changes will seriously fracture the public’s trust in the justice
    system but in all probability will cost the government and society dearly.


   The proposal is socially divisive as only the wealthy elite will under these proposals be
    able to choose their own solicitor.


   The proposal weights financial incentives towards entering a guilty a guilty plea (which
    will create suspicion between client and lawyer)


   The proposal attacks quality by preventing natural selection of the best firms, as lawyers
    will be compulsorily allocated to you by a call centre not by reputation or personal
    recommendation.


   The proposal actually promotes as policy the concept of solicitors not providing a quality
    service ‘above acceptable levels’. It wants legal aid defence lawyers not to try too hard in
    the defence of you.


   The most cut throat price will determine which lawyers survive. (Would you choose to
    put your liberty in the hands of the cheapest or the best?)


   The number of firms will reduce to an astonishingly few creating travel time and expense
    problems for clients who will have to travel far to see their solicitor. This will impact
    upon your surgeries.


   The economics of the proposals will create a high risk of financial failure even for those
    who 'win' the auction as it is impossible to guarantee sufficient volume for surviving
    firms.


   Barristers (independent Bar) will find it impossible to survive as the arrangements are
    such that criminal work is not profitable for them under these provisions.
                                             37
      Even the press are waking up to this crisis in legal aid funding which this paper will
       create


      The professional organisations have repeatedly suggested targeted reforms to save money
       but these are ignored.


Family Law Points


      Many people do not realise that the current Ministry of Justice consultation
       “Transforming legal Aid: delivering a more credible and efficient system” contains
       further cuts in the provision of legal aid for family cases.


      This Government has already cut millions and millions of pounds from family justice.


      Now they are attacking the provision of advice for parents and children in particular in
       cases involving the removal of children from their parents’ care by Local Authorities.


      The importance of decisions taken in such cases cannot be overstated. Family law and
       policy are important because families matter. Most people regard family as the most
       essential thing in their lives, often above work, health, friendship, economic security and
       love. Families are complex. The decisions the Court makes can permanently separate
       children from their parents.


      The proposal is based on the assumption that the proposed reduction in the time it takes
       for Care Cases to be decided leads to a reduction in the amount of work that is
       undertaken. This is an assertion that is wholly unsupported by any evidence in the
       Consultation Document or elsewhere and is an illogical conclusion.


      The shift in Care Cases is to the ‘front loading’ of evidence – that is to say that more
       work in undertaken by the Local Authority prior to care proceedings being issued. The
       preparation of cases prior to and immediately upon issue of an application will increase.




                                                 38
      The facts of the case, the issues in the case and work required in the case will remain the
       same, there will just be less time to do it in, which means, in fact, that providers are likely
       to be working harder and under even more pressure to meet tighter Court timetables.


      The pool of expert representation available for family cases is shrinking and will
       continue to shrink.


      Perhaps you can give an examples of how people have already been affected.


      Give examples of how people will be affected.


      Ask the MP to consider the issue in more detail.


      Refer them to something that sets out the position in more detail.


General


      Despite the importance of all these proposed changes no debate in Parliament is proposed.


      No party included these proposals in their manifesto.


Yours sincerely


Remember:


      You do not have to make every point.

      The aim it to raise awareness and make one or two powerful points.

      You can always refer them to some more information.

      Ask friends and family to do the same.


Annex C – Useful Links



                                                 39
The following are all links with more information about the proposals and the
consultation.


Further copies of this document
www.mfjc.co.uk


e-petition
http://epetitions.direct.gov.uk/petitions/48628


Bar Council petition with the ‘38Degrees’ organisation
http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice


Save UK Justice Campaign
www.saveukjustice.net


The Law Society Survey on the effect of LASPO
http://www.lawsociety.org.uk/news/stories/the-impact-of-laspo-complete-our-survey/


The Law Society
www.lawsociety.org.uk


The Bar Council
www.barcouncil.org.uk


Useful resource detailing information about the consultation
www.crimeline.info/news/pct-protest-information


The Criminal Bar Association
www.criminalbar.co.uk


The Criminal Bar Association Blog
http://criminalbarassociation.wordpress.com


The Criminal Law Solicitors Association
www.clsa.co.uk

                                             40
The consultation itself
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid/consult_view




And of course – www.google.co.uk




                                           41
Annex D – Useful Press Articles

The following is a list of links to useful press articles, blogs and letters on the issue. If
you have an electronic copy of this document you can just click on the links.


Former Lord Chief Justice speaks out:
http://www.independent.co.uk/news/uk/home-news/new-legal-aid-reforms-end-justice-
for-all-lawyers-warn-8591234.html


The BBC:
http://www.bbc.co.uk/news/uk-22075141
http://www.bbc.co.uk/news/uk-21665319 - the Lord Neuberger interview
http://www.bbc.co.uk/news/uk-england-cornwall-22335411 - petition
http://www.bbc.co.uk/news/uk-england-22244549
(not much, is there?)


The Express:

http://www.express.co.uk/news/uk/393489/High-Street-solicitors-could-be-forced-to-

close-by-Government-legal-aid-changes

http://www.express.co.uk/news/uk/395303/Danger-alert-over-legal-aid-auction


Trouble in Wales:
http://www.bbc.co.uk/news/uk-wales-politics-21898679
http://www.bbc.co.uk/news/uk-wales-22330695


New Statesman:
http://www.newstatesman.com/politics/2013/04/how-ministry-justices-proposal-
tendering-criminal-legal-aid-misconceived-and-illib


The Law Society Gazette:
      http://www.lawgazette.co.uk/news/criminal-legal-aid-reforms-potentially-unlawful-
       society
      http://www.lawgazette.co.uk/news/stobart-bid-pct-work
      http://www.lawgazette.co.uk/news/mayhem-threat-wales-votes-against-qasa
                                             42
      http://www.lawgazette.co.uk/news/pct-bidders-risk-flouting-conduct-code
      http://www.lawgazette.co.uk/news/revealed-grayling039s-plan-drive-a-wedge-
       between-bar-and-solicitors
      http://www.lawgazette.co.uk/news/tendering-proposals-attack-justice


Very good ‘blog’ on the effects of the changes proposed
http://barrister999.wordpress.com/


Good ‘blog’ about what is happening and open letter to the Parliamentary Justice
Committee
http://neilhawesqc.wordpress.com/2013/04/28/pct-and-legal-aid-cuts/


Guy Gozem QC:
http://guygozemqc.wordpress.com/2013/04/28/44/


CrimeLine:
http://www.crimeline.info/news/a-bedtime-story-from-the-world-of-pct
http://www.crimeline.info/news/pct-tenders-some-thoughts


Alison Gurden: What Does it Mean to the Person on the Street
http://alisongurden.wordpress.com/2013/04/17/saving-uk-justice-what-does-it-mean-to-
the-person-in-the-street/


Simon Pottinger:
http://jrsconsultants-uk.com/2013/04/dont-be-innocent-under-pct/


Solicitor in the North East:
http://www.crimeline.info/news/some-thoughts-on-pct-a-solicitor-shares-views-with-
colleagues


Oliver Kirk (Kent):
http://criminalbarassociation.wordpress.com/2013/04/18/price-competitive-tendering-a-
solicitors-view-from-the-high-street/




                                          43
CLSA Vice Chair:
http://www.lawgazette.co.uk/opinion/comment/criminal-legal-aid-reforms-restrict-client-
choice?utm_source=emailhosts&utm_medium=email&utm_campaign=GAZ+19%2F04
%2F2013


Matthew Claughton - Letter to The Times – Published
http://www.crimeline.info/news/letter-to-the-times


Tim McArdle’s spoof letter to Chris Grayling
http://www.olliers.com/latest-news/147-dear-mr-grayling-please-help.html


Matthew Claughton - Letter to Guardian - Published

http://www.guardian.co.uk/law/2013/apr/25/justric-claims-legal-aid-cuts


David Philpott’s letter to local MP, George Osborne (Download)
http://www.olliers.com/documents/david-philpott-letter-george-osborne.doc


Tim McArdle's spoof letter - The Law Gazette – Published
http://www.lawgazette.co.uk/opinion/letters/i-want-be-a-fat-cat-criminal-lawyer


Matthew Claughton's letter to the CPS (Download)
http://www.olliers.com/documents/matthew-claughton-CPS-letter.doc


Matthew Claughton - Letter to the Telegraph (Download)
http://www.olliers.com/documents/defendants-commoditised-like-cheap-sausages-as-
MOJ-sacrifies-client-choice-for-price-competition.doc




                                            44
Annex E – Sample Consultation Response




                          45
                                                                           Transforming legal aid
                                                                              Consultation paper
                                                                                        Questionnaire



Please complete this section to tell us more about you.


About you
Full name                                       A N Other

Job title or capacity in which you are Lawyer
responding (e.g. member of the public
etc.)

   If ‘Other’, please specify                   Member of the public and tax-payer.

Date                                            9th May 2013

Company         name/organisation         (if
applicable)

Address                                         Personal Address




Postcode                                        Personal Postcode

   If you would like us to acknowledge receipt of your response please tick this box.

Address to which this acknowledgement As above.
should be sent, if different from above


If you are a representative of a group,
please tell us the name of the group and
give a summary of the people or
organisations that you represent
List of questions for response
We would welcome responses to the following questions set out in this consultation paper. Please
email your completed form to legalaidreformmoj@justice.gsi.gov.uk or it fax to 020 3334 4295.

Question 1: Do you agree with the proposal that criminal legal aid for prison law matters should be
restricted to the proposed criteria?

   Yes        No
Please give reasons.

This is not my area of expertise and therefore I am unable to provide a meaningful response.




Question 2: Do you agree with the proposal to introduce a financial eligibility threshold on
applications for legal aid in the Crown Court?

   Yes        No
Please give reasons.

This is not my area of expertise and therefore I am unable to provide a meaningful response.




Question 3: Do you agree that the proposed threshold is set an appropriate level?

   Yes        No
Please give reasons.

This is not my area of expertise and therefore I am unable to provide a meaningful response.




                                                 47
Question 4: Do you agree with the proposed approach for limiting legal aid to those with a strong
connection with the UK?

   Yes        No
Please give reasons.

•     The Consultation Document does not make it clear whether the restriction will apply to Public
Law Family cases and those cases that remain within scope for Family Private Law Legal Aid.

•      Public Law Family cases involve decisions that have the most profound effect on children
and their parents. Often the potential result of the cases is a permanent separation between the
child and his or her parent either through the child being placed in care or the child being adopted.

Private Law Cases that remain in scope include cases where individuals have been subjected to
serious domestic violence.

Where the outcomes for the parents and children are so potentially life changing it is wholly
unacceptable to suggest that people involved in such proceedings should be without
representation. Public Law cases involve the consideration of detailed law and procedure often
together with large amounts of evidence. The documentation is rarely produced in English.

The UKBA decision making process is so shambolic and slow that such cases usually involve the
interaction of the family court with the Home Office and the UKBA. Without representation many
individuals involved in such cases would be wholly without assistance.

Example:

I was very recently involved in a case involving an Afghanistan National who was awaiting a
decision as to his residence status from the UKBA. He did not have leave to remain and would not
have qualified under the residency test proposed. He had been waiting for over 3 years for a
decision from the UKBA as to his application to remain. He had a child and the UK national mother
was incapable of looking after the child. As a result of the uncertainty as to his ability to stay within
the UK in the long term the Local Authority and the Children’s Guardian were recommending
adoption for the child. At the Final hearing, having undertaken considerable legal research, the
Judge was persuaded on his behalf to contact the UKBA with respect to their decision making
process. He was granted leave to remain within 24 hours and as a consequence 2 months later the
child was placed in his care, where he remains to date. Had he not had legal representation the
child with have been adopted. This is a child who would have difficult to place for adoption and
would have cost the Local Authority considerable resources both in caring for him whilst an
adoptive placement was sought and in finding a placement for him.




                                                   48
Question 5: Do you agree with the proposal that providers should only be paid for work carried out
on an application for judicial review, including a request for reconsideration of the application at a
hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is
granted by the Court (but that reasonable disbursements should be payable in any event)?

   Yes        No
Please give reasons.

•      Judicial Review is a fundamental protection for individuals who are subject to decisions by
public bodies and large organisations. It is a step of last resort. It is suggested that the alterations
proposed to the ‘merits test’ (Question 6 below) are sufficient to address the cases that are without
merit.

•     The figures relied upon in the Consultation Document reveal that in fact very few cases
which receive the benefit of legal aid are categorized as those “which did not settle, applied for
permission and failed, and ended without benefit to the client.” Of the 4074 cases there were, at
most, 500 cases according to the Consultation Document that fell into this category.

•     There is no indication of the costs to the tax-payer that would be saved by this measure.
Neither is there any assessment of the numerous and significant policy changes and decision
reviews by public bodies that have resulted from threatened or actual Judicial Reviews. By
weakening the ability of individual citizens to seek redress (and therefore making it known to public
bodies that it is more difficult for individual citizens to obtain funding for Judicial Review cases) the
proposals weakens the ability of ordinary citizens to challenge or threaten to challenge public
bodies and other organizations with vastly superior resources.

•       The proposal acts as a significant disincentive to Judicial Review being considered as an
option or being considered by the public body whose decision is being challenged as a serious
threat.

•       The proposal ignores the fact that having a Judicial Review system that is reasonably
accessible to the general public is a powerful and meaningful weapon in the armory of ordinary
citizens. Undermining that weapon undermines the ability of ordinary citizens to hold to account and
rectify the decisions of public bodies and large organisations. It is the bedrock of a free society. The
examples of Judicial Review cases that have changed the lives of numerous individual citizens (and
whose cases have gone on to establish new policy decisions that have benefited other people) are
myriad. No account of this is taken in the Consultation Document.

•       It is notable that the Justice Secretary was wholly misleading when recently talking about this
issue on BBC Radio 4’s ‘Today’ when he said “"In 2011 - the last year we had figures available -
there were 11,359 applications for judicial review [and] in the end 144 were successful,"
[http://www.bbc.co.uk/news/uk-22261140 – 23.4.13] which contradicts the figures given in the
Consultation Document.

•      They are also dishonest in that they create a misleading impression to the general public.
The impression given is that the tax-payer funds litigation that is almost entirely unsuccessful.
Clearly under half of those Judicial Review applications were funded by Legal Aid. It did not
acknowledge the number of cases that settle and in doing so produce a benefit by way of a change

                                                   49
of procedure or policy by the public body concerned in the Judicial Review. It does not acknowledge
the cases whereby the threat of Judicial Review has produced a change in policy. The figure given
by the Justice Secretary is in itself is entirely questionable given that it bears no relationship to the
figure quoted in the Consultation Document.




Question 6: Do you agree with the proposal that legal aid should be removed for all cases assessed
as having “borderline” prospects of success?

   Yes        No
Please give reasons.

Not as currently drafted. It is suggested that the test should be defined to indicate that ‘success’
includes the obtaining of a significant benefit for the individual concerned or a significantly beneficial
alteration in the arrangements or circumstances that are being challenged by the individual
concerned.




Question 7: Do you agree with the proposed scope of criminal legal aid services to be competed?

   Yes        No
Please give reasons.

The ‘Set Questions’ posed in the ‘pro-forma’ response to the Consultation Document are restrictive.
They assume the acceptance of the principle of Price Competitive Tendering as being an
appropriate system by which legal representation should be obtained. I object in the strongest terms
possible to this assumption for the reasons set out below and I object to the introduction of Price
Competitive Tendering within Criminal or any other area of publically funded law.

The reasons for my objections are as follows:

   a. The figures used in the Consultation Document are misleading. It is claimed that over £1 billion pound
      is spent per annum on Criminal Legal Aid and that savings of £220 million are required. In fact, the
      Official Government prediction for 2013/14 spending is £941 million. The saving already implemented
      by the ongoing reduction in the budget has already achieved likely savings of £168 million.
   b. Therefore to achieve the target specified, only a further £52 million is required.
   c. The effect of previous reductions in scope are still being felt and will have an impact on the overall
      spend going forward. This is conceded in the Legal Aid Agency’s Business Plan.
   d. The Justice Secretary, in a recent address on 14th March 2013, welcomed the £20.9bn contribution
      per annum that legal services bring to the UK economy because, according to him, the legal system
      in the UK has an “unrivalled reputation” for “impartiality, integrity and enforceability”. The foundation
      for that quality and impartiality of the system rests in the judiciary and legal representatives most of
      whom have benefited hugely from the underpinning provided by the publically funded system of
      justice. The legal system is a huge asset to the UK economy. These proposals seek to attack that
      very foundation and worse seriously threaten the ethics that are the mainstay of that impartiality and
      integrity.
   e. The principle of PCT elevates ‘price’ as being the supremely important factor in awarding contracts.

                                                      50
      The inevitable and unarguable result will be a fall in the quality of representation given in criminal
      proceedings. The model is described as ‘competitive’. The truth is that it is competitive in only one
      area, that of price. Competition in terms of levels of service (beyond a bare minimum), in terms of
      quality of representation and advocacy, in terms of availability and accessibility of services will be
      fatally undermined.
   f. Once the contracts are in place the market share is fixed and the volume of work will never exceed
      the allocated portion, so in an area with four providers they will each get one quarter of the cases. No
      more. No less. There is no incentive at all to provide a good service. A good or bad service will
      equate to the same thing. No provider will benefit from providing a great service, and no provider will
      be punished in the market for providing a poor service. That is not the case at the moment.
   g. The only commercial necessity will be to provide a cheap service. That is inevitable when only the
      lowest bidders will succeed and there are built in cost ceilings but no floor, leading to deep cuts in
      what can realistically be provided. Quality for its own sake will have no value.
   h. Clients will ever increasingly be represented by in-house advocates. That’s the only way to make this
      profitable. This is not always a bad but it is the death knell for the independent Bar, and with it all the
      skills necessary for the prosecution and defence of the most serious cases.
   i. Preparation will be limited to the minimum because there will be no market incentive.
   j. Thus far the Ministry of Justice has refused to consider alternative methods obtaining additional funds
      for the Legal Aid Budget suggested by interest parties such as the Law Society, The Bar Council, The
      Criminal Bar Association and the like. If this was an open debate about how to save money in the
      public interest the MOJ could have come to those who work in the system – from the police all the
      way through the CPS, Probation, the Courts, and defence solicitors and barristers, and asked what
      the way forward should be. With a good faith approach there would have been a good faith response
      and many good suggestions would be made.
   k. No professional body appears to be suggesting that in times of austerity the legal sector can be
      immune to measures designed to increase efficiency and reduce costs. The legal sector clearly has
      not been immune and to assert otherwise is simply dishonest. The nature of these proposals
      fundamentally undermines the Criminal Justice System (CJS), are unnecessary and wholly flawed. In
      addition they continue to reduce the availability, quality and efficiency of the Family Justice System.
      Other alternatives are available and have not been considered.
   l. The proposed timetable is wholly unrealistic. The Ministry of Justice proposes a reduction in the
      number of providers from about 1500 to 400. This is a huge upheaval and no money is being
      allocated for such restructuring. Firms that are able to bid are very likely to be under-resourced. I will
      comment below in the ‘Impact’ section on other aspects of the plans.


Question 8: Do you agree that, given the need to deliver further savings, a 17.5% reduction in the
rates payable for those classes of work not determined by the price competition is reasonable?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




                                                       51
Question 9: Do you agree with the proposal under the competition model that three years, with the
possibility of extending the contract term by up to two further years and a provision for compensation
in certain circumstances for early termination, is an appropriate length of contract?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 10: Do you agree with the proposal under the competition model that with the exception of
London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas
should be set by the current criminal justice system areas?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 11: Do you agree with the proposal under the competition model to join the following
criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with Avon and
Somerset, to form two new procurement areas?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




                                                   52
Question 12: Do you agree with the proposal under the competition model that London should be
divided into three procurement areas, aligned with the area boundaries used by the Crown
Prosecution Service?

   Yes       No
Please give reasons.

Please see my answer to Question 7 above.




Question 13: Do you agree with the proposal under the competition model that work tendered should
be exclusively available to those who have won competitively tendered contracts within the
applicable procurement areas?

   Yes       No
Please give reasons.

Please see my answer to Question 7 above.




Question 14: Do you agree with the proposal under the competition model to vary the number of
contracts in each procurement area?

   Yes       No
Please give reasons.

Please see my answer to Question 7 above.




                                               53
Question 15: Do you agree with the factors that we propose to take into consideration?

   Yes       No
Are there any other factors that should to be taken into consideration in determining the appropriate
number of contracts in each procurement area under the competition model?

Please see my answer to Question 7 above.




Question 16: Do you agree with the proposal under the competition model that work would be
shared equally between providers in each procurement area?

   Yes       No
Please give reasons.

Please see my answer to Question 7 above.




                                                 54
Question 17: Do you agree with the proposal under the competition model that clients would
generally have no choice in the representative allocated to them at the outset?

   Yes        No
Please give reasons.

In addition to the answers given to Question 7 I would make the following points:


   a. The Consultation Document makes is clear that at present 40% of clients choose a different
      solicitor to the one that is allocated under the ‘duty’ scheme. This is a significant number of
      suspects who do not ‘stick with’ the solicitor they are allocated. Those who cannot afford to
      pay for the lawyer they want will be allocated a lawyer they do not want.


   b. Representation is a ‘human’ function. Relationships between client and representatives are
      important. Given a stated aim is to promote more early guilty pleas, the undermining of the
      ability to a suspect to have access to a representative of their choice is mystifying and
      illogical.


   c. Representation is a relationship of trust and quality. It enables justice to run more smoothly
      and enables the giving of unpalatable advice.


   d. Many people in the Criminal Justice System have mental health difficulties or other
      vulnerabilities. Solicitors who are able to build close relationships with clients such as these
      are able to assist in the efficient running of the justice system and are able to explain the
      difficulties they are facing so that appropriate help can be given.



Question 18: Which of the following police station case allocation methods should feature in the
competition model?

 Option 1(a) – cases allocated on a case by case basis                         Yes        No
 Option 1(b) – cases allocated based on the client’s day of month of birth                Yes         No
 Option 1(c) – cases allocated based on the client’s surname initial           Yes        No
 Option 2 – cases allocated to the provider on duty                            Yes        No
 Other                                                                         Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 19: Do you agree with the proposal under the competition model that for clients who
cannot be represented by one of the contracted providers in the procurement area (for a reason
                                                  55
agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available
nearest provider in a different procurement area?

   Yes       No
Please give reasons.

In addition to my answer to Question 7 above, the fact of asking this question shows the limitation
of the proposals. Access to Justice, representation and advice will be remote for some people.




                                                    56
Question 20: Do you agree with the proposal under the competition model that clients would be
required to stay with their allocated provider for the duration of the case, subject to exceptional
circumstances?

    Yes       No
Please give reasons.

Please see answer to Question 7 above. In addition I would like to make the following points:


    a. There are many reasons a client might wish to change representation. There may be an
       ethical consideration that means a particular lawyer may no longer be able to act on behalf of
       this person.


    b. Mostly, however, the client may simply feel (perhaps correctly) that they are not getting a
       good enough service. This is another aspect of the proposals that seem designed to
       eradicate ‘quality’ and competition from the provision of legal services in Criminal law.

Question 21: Do you agree with the following proposed remuneration mechanism under the
competition model?

   Block payment for all police station attendance work per provider per      Yes        No
    procurement area based on the historical volume in area and the bid
    price
   Fixed fee per provider per procurement area based on their bid price       Yes        No
    for magistrates’ court representation
   Fixed fee per provider per procurement area based on their bid price       Yes        No
    for Crown Court litigation (for cases where the pages of prosecution
    evidence does not exceed 500)
   Current graduated fee scheme for Crown Court litigation (for cases         Yes        No
    where the pages of prosecution evidence exceed 500 only) but at
    discounted rates as proposed by each provider in the procurement
    area.
Please give reasons.

Please see my answer to Question 7 above.




                                                  57
Question 22: Do you agree with the proposal under the competition model that applicants be
required to include the cost of any travel and subsistence disbursements under each fixed fee and
the graduated fee when submitting their bids?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 23: Are there any other factors to be taken into consideration in designing the technical
criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition
model?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 24: Are there any other factors to be taken into consideration in designing the criteria
against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender
under the competition model?

   Yes        No
Please give reasons.

Please see my answer to Question 7 above.




                                                  58
Question 25: Do you agree with the proposal under the competition model to impose a price cap for
each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a
discount on the graduated fee below the relevant price cap?

    Yes        No
Please give reasons.

Please see my answer to Question 7 above.




Question 26: Do you agree with the proposals to amend the Advocates Graduated Fee Scheme to:

   introduce a single harmonised basic fee, payable in all cases (other       Yes   No
    than those that attract a fixed fee), based on the current basic fee for
    a cracked trial;
   reduce the initial daily attendance fee for trials by between              Yes   No
    approximately 20 and 30%; and
   taper rates so that a decreased fee would be payable for every             Yes   No
    additional day of trial?
Please give reasons.

Please see my answer to Question 7 above.




Question 27: Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%?

    Yes        No
Please give reasons.

Please see my answer to Question 7 above. How has this figure been calculated. Where is it
considered in the Impact Assessment?




                                                    59
Question 28: Do you agree that the reduction should be applied to future work under current
contracts as well as future contracts?

    Yes        No
Please give reasons.

Please see my answer to Question 7 above. Ex post facto imposition or alteration of contract terms
is wholly unfair and possibly unlawful.




Question 29: Do you agree with the proposals:

   to tighten the current criteria which inform the decision on allowing the   Yes       No
    use of multiple advocates;
   to develop a clearer requirement in the new litigation contracts that       Yes       No
    the litigation team must provide appropriate support to advocates in
    the Crown Court; and
   to take steps to ensure that they are applied more consistently and         Yes       No
    robustly in all cases by the Presiding Judges?
Please give reasons.

This is not within my area of expertise and therefore I am unable to provide a meaningful response.
The Consultation Document does not quanitfy the extent of the problem or the impact of the above
proposals.




Question 30: Do you agree with the proposal that the public family law representation fee should be
reduced by 10%?

    Yes        No
Please give reasons.

The proposal is based on the assumption that the proposed reduction in the time it takes for Public
Law Proceedings to be decided leads to a reduction in the amount of work that is undertaken. This
is an assertion that is wholly unsubstantiated by any evidence in the Consultation Document or
elsewhere and is an illogical conclusion.

The shift in Care Proceedings is to the ‘front loading’ of evidence – that is to say that more work in
undertaken by the Local Authority prior to care proceedings being issued. The preparation of cases
prior to and immediately upon issue of an application will increase.

The facts of the case, the issues in the case and work required in the case will remain the same,
there will just be less time to do it in, which means, in fact, that providers are likely to be working

                                                    60
harder and under even more pressure to meet tighter Court timetables.

The pool of expert representation available for family cases is shrinking and will continue to shrink
(see answers to questions 34 and 35 below).

The proposal comes hard on the heels of the massive reduction in the provision of public funding
for Private Law Family proceedings.

The importance of having expert representation has been emphasized on numerous occasions, for
example Mr Justice Baker, in the very recent case of Devon County Council v EB & Ors (Minors)
[2013] EWHC 968 (Fam) made the following comments in a case involving the suggestion that the
child had been subjected to a serious head injury at the hands of the parents:

      “…this case demonstrates again the crucial role played by the specialist family bar and
      solicitors. The role played by all of the representatives for all of the parties in this case has
      been of the utmost importance. All judges are very concerned at the prospect of an increase
      in self-represented litigants and the consequences for the family justice system. Not enough
      recognition is given to the contribution to the family justice system made by family lawyers.

      The High Sheriff of Devon sat in for one morning of this hearing, as it happened during the
      evidence of Mr Richards, and afterwards expressed to me his astonishment at the level of
      specialist knowledge required of counsel, in this instance, Mr Storey, entrusted with the task
      of cross-examining the expert. This is one small illustration of the indispensable contribution
      made by family lawyers in this type of case. Without that contribution, it would be impossible
      to ensure that justice is done."

The importance of decisions taken in Public Law Family Cases cannot be overstated. Family law
and policy are important because families matter. Most people regard family as the most essential
thing in their lives, often above work, health, friendship, economic security and love. Families are
complex and pervasively shaped by law. The decisions the Court makes can permanently separate
children from their parents.

The reality is that if you cut the income of a group of professionals by 10% one year and 10% the
next (lawyers) or 20% in one fell swoop (experts), then firms will go under. That means less choice,
less availability, more delay, less chance that the parents who need them will be able to get them.

The ones that do keep going will be forced to do more work for less money, which means spending
less time on each case. Lawyers instructed by parents and children need to have the ability to give
the proper time that it takes to prepare a case, to form a proper meaningful relationship with the
parent or child so that there is understanding on both sides and to give advice that is based on that
solid understanding of both the facts and the people.

The combined effect of these proposals (criminal and family) will decimate many Small and Medium
Enterprises (SMEs). The Government has removed from society the protection of representation in
the majority of Private Law family cases, with the resultant impact on the suppliers of that
representation. Many Solicitors will, as a consequence of the above proposals, loose criminal
departments and now the proposal is to reduce remuneration for Public Law family work. The effect
of the reductions already undertaken and the high likelihood of ‘Advice Deserts’ was highlighted by
the University of Warwick’s Report “The State of the Sector: The impact of cuts to civil legal aid on
practitioners and their clients”. The effect of these proposals are examined nowhere in the
                                                  61
Consultation Document or Impact Assessment (see answers to Q34 and 35 below).

Likewise, the Independent Bar, where a substantial proportion of the expertise in Public Law family
cases comes from are and will continue to be detrimentally affected by the need for solicitors to use
less experienced ‘in house’ advocates, not by choice but because the only way of having any
chance of making the work economically viable will be to ensure that advocacy fees are also kept in
house. Once again, nowhere does the government examine this effect.

The Government is very good at briefing the media about ‘fat cat’ lawyers. The truth is far different.
The reality is that those of us that dedicate our work to publically funded cases have seen and will
continue to see a reduction in income.


Question 31: Do you agree with the proposal that fees for self-employed barristers appearing in civil
(non-family) proceedings in the County Court and High Court should be harmonised with those for
other advocates appearing in those courts?

   Yes       No
Please give reasons.

This is not within my area of expertise and therefore I am unable to provide a meaningful response.




Question 32: Do you agree with the proposal that the higher legal aid civil fee rate, incorporating a
35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished?

   Yes       No
Please give reasons.

This is not within my area of expertise and therefore I am unable to provide a meaningful response.




                                                  62
Question 33: Do you agree with the proposal that fees paid to experts should be reduced by 20%?

   Yes         No
Please give reasons.

The tightening of the rules on the use of experts in Family Cases will lead to a considerable
reduction on the expenditure on experts. The effect of the changes has not been examined, either
in terms of the cost savings produced or the effect of the quality of decision making consequent
upon such a reduction.

Solicitors are finding it increasingly difficult to find experts that will undertake work on the current
Legal Aid rates. There is no analysis of this. I have personal experience of three medical experts
refusing to do work on current legal aid rates within the last two weeks. In one case, involving the
need for genetic testing, no expert was ever identified to undertake the work on the current rates.


Question 34: Do you agree that we have correctly identified the range of impacts under the
proposals set out in this consultation paper?

   Yes         No
Please give reasons.

There Impact Assessment does not examine any of the following aspects of the past or proposed
changes, in no particular order:

    (a) The effect of the changes brought about by LASPO on SMEs and the Independent Bar, which are
        wholly relevant to the implementation and effect of these proposals;
    (b) The effect of the changes brought about by LASPO on the availability and quality of representation
        and advice both for individual disciplines of representation and on the sector as a whole;
    (c) The effect of these proposed changes on SMEs and the Independent Bar both for individual
        disciplines of representation and on the sector as a whole;
    (d) The effect of these proposed changes on the availability and quality of advice in general terms (i.e.
        both family and crime) both for individual disciplines of representation and on the sector as a whole;
    (e) The effect of the changes in the Family Procedure Rules with respect to the instruction of experts in
        terms of savings brought about by those changes and the effect on the availability and quality of
        experts;
    (f) The effect on the availability and quality of experts of these proposed changes;
    (g) The ability and availability of suppliers to meet the timescales and provision required by the proposed
        changes;
    (h) The economic impact of the inevitable redundancies (lawyers, support staff etc) that will result from
        these proposed changes;
    (i) Any cost/benefit analysis of the proposed changes in the wider economic sense i.e. the amount save
        in legal aid as opposed to the economic consequences on income tax revenue, national insurance
        payments etc lost;
    (j) Any cost/benefit analysis of the socio-economic consequences within the local communities and
        wider community of the proposed changes;
    (k) Any analysis of alternative methods of reducing the MOJ budget and any cost/benefit comparative
        analysis of those alternatives;
    (l) Any analysis of the effect of financially incentivizing early guilty pleas and shorter trials on the
        likelihood of miscarriages of justice;
    (m) Any analysis of the effect of eradicating client choice on the effectiveness of procedures within the
                                                      63
       CJS, the likelihood of early guilty please in appropriate cases and public confidence in the CJS; and
   (n) Any analysis of the effect of the proposed changes in Family Law on public confidence in the Family
       Justice System.




Question 35: Do you agree that we have correctly identified the extent of impacts under these
proposals?

   Yes         No
Please give reasons.

Given the wholly inadequate range of the Impact Assessment it follows that the extent is also wholly
inadequate. A proper analysis would assess the true extent. Given the rushed nature of this
consultation (it having been brought forward by 6 months) it is difficult for one individual to set out in
concise terms the nature of the extent of the impact of these changes.

In terms of the failure to examine the extent of the impacts therefore I shall rely on some
observations made by far better informed individuals:

         “The former Lord Chief Justice Lord Woolf told The Independent on Sunday that the
         proposals would lead to a “factory of mass-produced justice” and miscarriages of justice.
         “There have never been votes in crusading on behalf of people who are maybe guilty,” he
         said. “But the principle of fair justice must be important to us as a society. The rule of law and
         our system of justice is one of the areas where up until now we have still been able to look
         with pride. “The long-term effects of this will be very serious and once the damage is done it
         will be very, very hard to put right.”

         The plans would eradicate small firms of lawyers who understood the needs and problems of
         their clients, warned John Fassenfelt, chairman of the Magistrates Association, which
         represents 28,000 voluntary justices who see the bulk of criminal cases before the courts.

         “These changes will mean we will see larger firms like G4S come in and gobble up the
         smaller firms,” he said. “That will not be good for community justice.

         “Often legal aid is looked at in the context of big serious cases at the Crown Court and not
         looked at the 95 per cent of the cases which come before us.

         “But we see cases of solicitors representing individuals time and time again and who know
         about their individual problems and circumstances. That will fade away and I don’t think
         defendants will get the representation they deserve.” – The Independent on Sunday, 28th
         April 2013

From the President of the Supreme Court Judge, Lord Neuberger of Abbotsbury:

         “The former Master of the Rolls, speaking out for the first time since his appointment as
         President of the Supreme Court, the highest court in the United Kingdom, said :"The two
         fundamental roles of Government are to defend the country from invasion and ensure the

                                                     64
      rule of law at home, and that includes access to justice."

      He aired particular fears about the fact that from next month thousands of people will no
      longer have access to free legal advice for issues such as many family disputes,
      employment or immigration cases, and debt or housing problems. In an attempt to cut the
      legal-aid bill by £270m, the Government has withdrawn funding for numerous categories of
      civil and family law and, by its own estimates, as many as 585,000 people will be affected.

      Lord Neuberger said his main worry was that those who could not afford to pay for a legal
      representative would have to rely on free advice being offered by the Government and
      charities, which was "second best". In the worst cases, he fears that those frustrated by an
      inability to seek justice would "take the law into their own hands".

      While sympathising with the Government's need to cut costs, he questioned whether
      slashing legal-aid budgets would eventually prove to be a false saving. "Litigants
      representing themselves take much more time in court. The danger is that what you save on
      legal-aid budgets, you lose in terms of court efficiency. It will lead to longer delays in court
      hearings and spending more money on courts." - Widely reported in the print media.

Lord Justice Ward in the case of Wright v Wright [2013] EWCA Civ 234:

      “What I find so depressing is that the case highlights the difficulties increasingly encountered
      by the judiciary at all levels when dealing with litigants in person. Two problems in particular
      are revealed. The first is how to bring order to the chaos which litigants in person invariably –
      and wholly understandably – manage to create in putting forward their claims and defences.
      Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on
      the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as
      this case shows, that can be disproportionately time-consuming. It may be saving the Legal
      Services Commission which no longer offers legal aid for this kind of litigation but saving
      expenditure in one public department in this instance simply increases it in the courts. The
      expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous.
      The consequences by way of delay of other appeals which need to be heard are
      unquantifiable. The appeal would certainly never have occurred if the litigants had been
      represented. With more and more self-represented litigants, this problem is not going to go
      away. We may have to accept that we live in austere times, but as I come to the end of
      eighteen years service in this court, I shall not refrain from expressing my conviction that
      justice will be ill served indeed by this emasculation of legal aid.”




                                                  65
Question 36: Are there forms of mitigation in relation to impacts that we have not considered?

   Yes        No
Please give details.

See above.




                                                 66
Endnotes and References:

1
    The Ministry of Justice Website states “We estimate that the proposals set out in this
consultation would, if implemented, deliver savings of £220 million per year by 2018/19.”
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid
2
    http://www.justice.gov.uk/downloads/publications/corporate-reports/legal-aid-agency/laa-
business-plan-2013-14.pdf
3
    This will be subject to scrutiny from the Audit Office and is proposed by the Government
as being accurate.
4
    http://webarchive.nationalarchives.gov.uk/+/http:/www.justice.gov.uk/consultations/legal-
aid-reform-151110.htm
5
    Footnote 4 above, page 215.
6
    The prison population in 1997 was (including those subject to a suspended prison
sentence) 69,000. The prison population in 2011 was (again including those subject to a
suspended prison sentence) 116,000. These figures are in a report published by the
Ministry of Justice in 2013 entitled ‘Story of the Prison Population in England & Wales
1993-2012’
7
    with thanks to http://www.lawtonslaw.co.uk/latest-news-blog/182-misleading-legal-aid-
figures
8
http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services-
action-plan-0313.pdf
9
http://www.cityam.com/article/grayling-calls-legal-fights-come-uk
10
     see for example this recent study on the US Public Defender system
http://www.justicepolicy.org/news/2757 which highlights that “dedicated public defenders
do not have enough time to conduct thorough investigations, or meet with and provide
quality representation for their clients” and points out the costs to the US tax payer of such
a wholly inadequate system.
11
     http://www.thetimes.co.uk/tto/law/article3740749.ece
12


http://www.telegraph.co.uk/finance/personalfinance/consumertips/tax/10026747/Governm
ent-paid-4.5bn-from-just-four-sweetheart-tax-deals.html and see
http://www.bbc.co.uk/news/business-22369147
13
     http://order-order.com/2013/05/01/mps-ask-for-more-staffing-expenses-despite-25-
increase/
14


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162395/inter
national-legal-aid-comparisons.pdf.pdf
15
     http://www.ukpublicspending.co.uk/year_spending_2013UKbt_12bc1n_30#ukgs302
16
     http://www.lawsociety.org.uk/news/stories/consultation-procuring-criminal-defence-
services/ and see
17
     http://barrister999.wordpress.com/2013/04/25/keeping-the-truth-hidden/
18
     See http://www.totaljobs.com/salary-checker/average-solicitor-salary;
http://studyinglaw.co.uk/solicitor-salary-benefits-a-rough-guide/; and
http://www.payscale.com/research/UK/Job=Solicitor/Salary
19
     http://www.prospects.ac.uk/barrister_salary.htm
20
     http://abarristerswife.wordpress.com/2013/04/30/myth-1-the-fat-cat-lawyer/
21
     http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-
committee/news/interpreters-and-als-report/
22
     see also http://www.irr.org.uk/news/shambolic-and-unworkable-outsourcing-of-court-
interpreting-services/ and http://www.guardian.co.uk/law/2013/feb/06/court-interpreting-
services-privatisation-shambolic
23
     http://www.lawgazette.co.uk/news/taxpayer-foot-bill-interpreter-pay-rise
24
     http://www.bbc.co.uk/news/uk-19559412
25
     http://www.bbc.co.uk/news/uk-19559412
26
     http://www.education.gov.uk/a00221161/children-families-bill
27


http://www2.warwick.ac.uk/fac/soc/law/chrp/projects/legalaidcuts/executive_summary_.pdf
28


http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=
13686:top-district-judge-warns-on-burdens-caused-by-rise-in-litigants-in-
person&catid=1:latest-stories
29
     http://www.guardian.co.uk/law/2012/oct/16/lord-mcnally-legal-aid-cuts-laspo
30
 http://www.bailii.org/ew/cases/EWCA/Civ/2013/234.html
31
     http://www.bbc.co.uk/news/uk-21665319
32
     Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam) – the parents were
found not to have injured the child.
33
     http://www.independent.co.uk/news/uk/home-news/new-legal-aid-reforms-end-justice-
for-all-lawyers-warn-8591234.html


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34
     http://www.independent.co.uk/news/uk/home-news/new-legal-aid-reforms-end-justice-
for-all-lawyers-warn-8591234.html
35
     http://ilegal.org.uk/thread/7290/year-ignored-public-accounts-committee
36
     http://www.guardian.co.uk/law/2013/feb/06/court-interpreting-services-privatisation-
shambolic
37
     http://www.guardian.co.uk/society/2013/mar/21/probation-officers-social-media-gag-
outsourcing and see http://saveprobation.blogspot.co.uk/2013/03/the-grayling-gag-versus-
probation.html
38
     With considerable thanks to http://www.crimeline.info/news/pct-protest-information and
the information and examples provided on their website.




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Description: A document setting out why the UK Government's Current Consultation on "Transforming Legal Aid" is important, how it affects you, what is wrong with it and what you can do about it.