Response to “Transforming legal aid: delivering a more credible and efficient system – 2013”
The Black Solicitors’ Network (BSN) was formed in 1995 to promote the interests of black solicitors, to support and share information and to participate in consultations, initiated by the Law Society and other Government bodies, in relation to matters which affect black solicitors. Between 2003 & 2013, the BSN was recognised as a Law Society special interest group. We are a national organisation with branches in the Midland and the North of England.
A not-for-profit company, it aims to be the primary voice of black solicitors in England and Wales. It is committed to achieving equality of access, retention and promotion of black solicitors within the sector. BSN has a membership of over 5000 solicitors, trainees and students with a small number of paralegals and Legal Executives. It does not represent barristers. The membership is almost equally split between African-Caribbean and Asian lawyers.
We have addressed our comments mainly in relation to criminal law as that is the area where many of our members work and where we have a greater level of understanding on how the proposed changes would impact on clients and providers.
We do not propose to answer each and every question detailed in the consultation but summarise our views and, on occasion, answer specific questions. The questions are flawed and do not offer a wide enough scope for various options or discussions to be explored. We consider that the consultation and questions have been devised with a specific agenda in mind which is somewhat restrictive.
The main aim of the consultation document is to achieve savings for the Ministry of Justice (MOJ) of £220 million per year.
It has to be noted that the figures used by the MOJ in the consultation are now some what outdated. There has been a marked downturn in criminal matters being prosecuted. As a result of that downturn, savings to the legal aid fund have already been achieved in the region of approximately £100 million. There is no room for the savings proposed in the consultation document or the projected spending given the marked reduction in criminal legal aid fees.
The consultation document and figures used do not take into account further savings from the use of video link hearings operational in London and Cheshire. Savings have been made in the Pilot of this scheme and it is anticipated that it will be rolled out throughout the country shortly making further savings.
In addition, the allocation system is successfully being tried in the Great Manchester area. This again is realising significant savings and again it is anticipated that it will be rolled out throughout the country imminently.
There is an acceptance that the system regarding representation is costly and that savings must be made given the need for prudence during this continued period of economic downturn. This has to be taken in conjunction with a more robust recovery of clients’ contributions to their criminal legal aid bill.
We anticipate that the areas identified above are likely to produce the savings required given the general downturn in criminal proceedings. Despite these savings it appears that the MOJ still wish to make additional savings.
In particularly, in relation to the proposals regarding criminal legal aid and the removal of client choice for police station and magistrates’ court matters, there is an acceptance that these would have a disproportionate impact on BME clients, who are over represented in the criminal justice system, and on BME providers.
Further, there seems to be no available data on client’s language needs or the provider’s language skills. If this is due to the fact that there is a dearth of data, this does not mean it is not a fundamental part of the process which has been totally overlooked.
A Consumer Research study in 2008 by the Solicitors Regulation Authority, the independent regulator of more than 100,000 solicitors in England and Wales, into the experiences of black and minority ethnic people using solicitors in England and Wales and published in June 2009 found that “Nearly a third (31%) of BME people feel it is important for their solicitor to be capable of communicating with them in a particular language. This rises to 54% for BME people using legal aid to fund their legal services, compared to 22% for those paying privately.”
A number of our members work in firms that employ a large percentage of BME Solicitors (see further details below) and many such firms have a large BME client base. The benefits for the client are that they can instruct someone who speaks the same language and understands the cultural implications of certain issues. The benefit for the provider is that instructions can be taken from clients at any time without the constraints of an interpreter. The benefit for the MOJ is a lower legal aid bill as interpreters are less frequently used resulting in lower costs to the MOJ. Language issues have been largely ignored in the consultation document. There are savings in the current system which are hidden and unquantifiable due to the lack of requisite data. If clients are unable to choose their own solicitor and they are allocated a solicitor by the State then additional costs would be incurred in interpreter fees. Given the current state of the interpreter system, the associated costs may be exceptional.
In addition, firms develop certain niches in crime and clients tend to instruct those firms who specialise in the requisite area. The time spent by those providers is then significantly less. The consultation document seems to naively request that all firms are in a position to cover all criminal cases. This is obviously not possible and could lead potentially to miscarriages of justice.
Eligibility, Scope and merits
Prison law: In relation to the proposed changes to the scope of prison law funding there seems a naturally occurring decrease in the budget. We need to be mindful that we are dealing with one of the most vulnerable groups in society. In addition, the suggestion that prison complaints should be sent to the Prison and Probation Ombudsman appears an attempt to shift this area of work to another organisation and as such the cost of the same would therefore be transferred. It is thus unclear as to what level of savings would actually be made. Finally, in relation to disciplinary proceedings, justice and equality of arms is a cornerstone of the criminal justice system. Prison discipline issues fall within the same remit and require the very same safeguards. This lack of involvement from outside agencies could quite easily result in bias and an abuse of their position/process by the prison service and their staff.
Reforming Fees in Criminal Legal Aid
Crown Court financial eligibility threshold: There is a real need to consider the average defence costs of those cases where a legal aid contribution order has been imposed. We assert that cases involving those defendants with a higher income tend not to be general crime. Accordingly, the figures suggested are somewhat deceptive. Further, the suggested cap on payment from central funds appears unfair.
The current Committal procedure for cases from the Magistrates to the Crown Court is soon to be abolished and removes the safeguard whereby the evidence is reviewed by examining justices to ensure there is sufficient evidence for the case to be heard. Once Committal proceedings are abolished, it follows that cases may be allocated to the Crown Court where there is a lack of evidence, as there is then no procedure to test the evidence.
If legal aid has been refused and the case is allocated to the Crown Court the costs of representation would fall to the defendant. If the case is subsequently withdraw or dismissed due to lack of evidence the defendant would be unable to recoup all their legal fees and as such would be left out of pocket through no fault of their own, causing an unjust situation.
Introducing competition in the criminal legal aid market
Reforming fees in Criminal legal aid: In relation to the proposals for criminal legal aid, we consider that given the savings identified above the proposals are unreasonable. Price competitive tendering together with the proposed reduction of 17.5% is unworkable which may result in there being a legal desert in certain areas.
Equality Impact Assessment
We consider that this Consultation paper and its equality impact assessment entirely disregards the Government’s duty to give due regard to the need to eliminate unlawful conduct, advance equality of opportunity and foster good relations. These proposals will have an unfair and unjust disproportionate effect on BME clients, BME solicitors and BME firms. Our assertion is supported by the government’s own research.
The Legal Services Research Centre (LSRC) 2011 survey of Routine Diversity Monitoring of the Supplier Base, reported on “the diversity differences between ‘civil only’ solicitors’ offices, ‘criminal only’ offices and offices doing both civil and criminal work. BME majority control has increased in all office types since 2009, and particularly for criminal offices which experienced the largest gains in proportion over 2009 results. Crime had the largest percentage of BME solicitor fee earners, also showing an increase on 2009, whilst BME civil solicitor fee earner numbers have stayed fairly consistent in comparison.”
The research also found that in relation to all solicitors’ offices “ 614 (14.3%) of 4,298 with (part or full) managerial control of offices were BME. This compared to 11.3% in 2009 and 12.5% in 2007. 230 (16.2%) of 1,420 offices reported that they had BME majority managerial control, with a further 68 (4.8%) reporting that managerial control was equally split between white British and BME employees. This compares to 11.1% BME and 5.0% Split in 2009 and 13.8% BME and 4.6% split in 2007.
Also as in 2009 and 2007, there was overlap between offices with BME managerial control and offices with fifty percent or more BME solicitor or non-solicitor fee earners. 81.1% of offices with BME managerial control contained fifty percent or more BME solicitor or non-solicitor fee earners (85.8% in 2009 and 80.5% in 2007). Of firms with 10 or more fee earners, 74.4% of offices with BME managerial control contained fifty percent or more BME solicitor or non-solicitor fee earners.
In relation to Civil Contracts, the research found that “there was an overlap between those with BME managerial control and those with a majority of BME employees. 80.2% of offices with BME managerial control contained fifty percent or more BME solicitor or non-solicitor fee earners compared with 1.6% of offices with white British managerial control.”
In relation to Criminal Contracts, the position is even more stark “81.9% of offices with BME managerial control contained a majority of BME employees compared to 0.7% of offices with white British managerial control.”
The reality is that BME firms are employing BME solicitors and non-solicitors fee earners in high numbers. These firms tend to be run by sole practitioners or between 1-3 partners and will not be in a position to bid for the limited contracts that are proposed in this consultation. These Solicitors and Black entrepreneurs have succeeded despite structural issues in the market.
In November 2011, Nick Clegg, the deputy Prime Minister stated “Past evidence shows that firms owned by individuals of black African origin have been four times more likely than so-called ‘white firms’ to be denied loans outright. And that Bangladeshi, Pakistani, black Caribbean and black African owned businesses have been subject to higher interest rates than white and Indian owned enterprises.”
We do not consider that the structural issues identified by the deputy Prime Minister have yet been resolved to enable BME Solicitors to have a fair opportunity of competing in the proposed new market for legal services.
Answers to specific questions
- ii) Contract length
Q9 the length of the contract may potentially be flawed given the reduction in the number of cases progressing through the criminal justice system. The proposed fixed fee payment for police stations may result in overpayment.
iii) Geographical areas for the procurement and delivery of services
Q10 the proposed procurement areas in relation to criminal justice areas are unworkable. The procurement areas are too large. There is a duty to police station clients to be able to attend the police station within a 45 minute period. This may be unachievable under the suggested procurement areas. These proposals would create additional costs for the police and may result in clients waiting longer at the police station which, in turn, may be unjust. The principle underlying police station work is that it should be almost an emergency situation with a quick response and attendance. The main reason is to prevent innocent people remaining in custody for longer than necessary. This principle would be ignored under the proposed procurement areas.
There may also be an effect in the longer term as clients, who are unable to attend at their solicitors’ offices to prepare their case, due to the distance they would need to travel, having their cases prepared at court, during extended court attendances.
This may cause an increases in cases listed for trial that could previously have been resolved, incurring additional costs in other parts of the criminal justice system. It would make more sense for the procurement areas to be reduced in size to enable clients to see their chosen solicitor.
The proposals are akin to the State dictating from which GP you would be entitled to receive medical treatment. This proposal places a total and unjust restriction on freedom of choice. Even with schools, parents have the freedom to choose.
The client’s choice of solicitor may be relevant in certain cases if the case involves novel points of law, or there are religious or cultural aspects to the case. As indicated above, hidden costs such as interpreter fees may become apparent once the freedom of choice is withdrawn.
In addition, once a client has been represented by a solicitor who deals with the case to its conclusion, would it not be better for the client to have the same solicitor who is therefore aware of the particular issues of that case.
We submit that the figures regarding the average magistrate’s claims are unclear. Do these figures take into account CDS7’s? In any event they have not taken into account the costs reducing factors such as video link and allocations referred to above.
The data should consider the client specific ethnicity data and that of the supplier, regarding sex, age, race and language. The figures in isolation do not present a full analysis nor do they enable a full understanding of the impact of the proposals. A full cumulative impact assessment needs to be undertaken and not a piecemeal assessment as is the current case.
There are a number of alternatives to the PCT model including fixed matter starts which would provide the MOJ with an element of certainty regarding the total legal aid bill.
The BSN accepts that the Government must seek to find efficiencies from the funds used to support and uphold the rule of law in the current economic climate. However, we are concerned that these proposals will not only undermine the rule of law, they are likely to lead to an inequality in arms in both criminal and civil proceedings and, as such, prevent fair trials. We are particularly concerned that these proposals may prevent solicitors from undertaking their duty to represent their client to the best of their ability. The proposed incentives, in relation to cases where a guilty plea is made may lead to miscarriages of justice. We ask that these proposals be abandoned and that the MOJ works with the legal professions to create a more efficient and effective system. The wholesale destruction of the BME supplier base is likely should these proposals be implemented.
Chelsea Thomas (Black Solicitors Network North of England)
Yvonne Brown (Black Solicitors Network Law Society Council Member)
2nd June 2013