During an earlier phase of the ongoing dispute over legal aid fess and cuts many of us became familiar with the refrain from the MoJ, when they were asked to comment, that went something like “at approximately £2bn we have the most expensive system of legal aid in the world”. Not only was it snappy but it also had the virtue (for the MoJ at least) of completely avoiding answering the particular question in issue.
Things have moved on since then and so a new refrain has been drafted with which we are again becoming increasingly familiar. I saw it used again this morning on a piece on the BBC2 Victoria Derbyshire show after an excellent interview by Oliver Gardner who carefully explained why solicitors have taken action against the latest cut of 8.75% in the fees paid to them for preparing cases of court.
In this version the MoJ make three claims. First they claim that the “changes’ [they mean cuts of course] “are designed to ensure we have a system of criminal legal aid that delivers value for money for taxpayers”. Next it is claimed this will “provide high quality advice to those that need it most”. Finally it is said that these “changes/cuts” will “put the profession on a sustainable footing for the long term”.
Who could possibly take issue with any of those claims? If only they were true! Unfortunately as is often the case with government departments there is more spin on this utterance than on a Shane Warne leg break – vaguely topical cricketing reference since you ask!
Let us take a more detailed look at each of these claims.
Value for money – Most of us like a bargain, me included, and if I can get the same item at a lower price just by walking 100 meters down the road I will do it happily. And as a taxpayer I am very keen that governments should only spend money wisely. But we all know the old adage that “you get what you pay for”. Usually the reason one version of any particular item costs less is because the quality is lower. It will break down sooner, wear out quicker and need replacing long before a more expensive version of the same item. If that’s true of clothing, shoes, cars and washing machines I don’t see why anyone would expect it to be any different just because we are talking about legal services.
What governments forget, or more probably just don’t care about, is that just because something is cheaper doesn’t make it better value. Value doesn’t just mean price. One of the very likely consequences of the current age of relentless cuts to legal aid will be that in years to come others will be left to deal with an increase in claims that there have been miscarriages of justice.
Quite apart from the human misery involved there will be a great deal of added expense in trying to put those errors right. New lawyers will need to be paid to investigate these cases. There will need to be further expensive court hearings in order to try to remedy a miscarriage. All that costs money and makes the idea of “value for money for taxpayers” a poor joke. And all because the current MoJ, only interested in paying as little as possible today, prefers to shop in Lidl rather than Sainsbury’s.
High quality advocacy – I have lost count over the years of the number of times I have had to reassure a sceptical client that the service I can offer them on legal aid rates is every bit as good as if they were paying me privately. That is the proud boast that legal aid lawyers have long been able to make and mean it. There are countless numbers of brilliant lawyers who could easily have gone into far more lucrative areas of law but who preferred to give their services to those in desperate need of good lawyers but who were unable to pay the cost themselves and therefore opted for a life doing legal aid cases. Sadly that is no longer the case.
I meet many law students each year. Many of them are desperate to do legal aid work but saddled with tens of thousands of pounds of student debt who can blame them for accepting a training contract or pupillage in a well heeled office or chambers and waving a sad farewell to a job in legal aid at a fraction of the wages?
The brain drain has already begun and I do not mean or intend any insult to my many fantastic colleagues who, like me, continue to do this vital work when I say that quality is starting to suffer and will continue to do so. We all know skilled colleagues, both solicitors and barristers, who have given up an increasingly unfair struggle and left a job they loved and worked so hard to achieve because the rates of pay do not make the job worth doing when you consider the hours, the demands of the job, the travel involved and the impact on family life.
Of course I expect that none of that will provoke a single tear or word of sympathy from Jane or Joe Public. They have swallowed the government line that we are fat-cat lawyers who deserve to be taken down a peg or two. But of course ultimately it is the public who will suffer if the quality of lawyers in public service declines. Think of the rape victim whose case was lost because the CPS chose to use a cheaper in-house advocate than a possibly more expensive but also much more experienced barrister to prosecute their case. We all know of examples of this in practice. But also consider the defendant, convicted and imprisoned on evidence of dubious quality, whose advocate whether barrister or solicitor was just not as good as the ones they might have had in the past. That is why Jane Pubic should be slow to laugh at our predicament.
“A sustainable footing for the long term” – this is the final insult. A package of slash and burn proportions being sold to us as a great idea, one we should embrace, apparently. The truth of course is anything but good news. The reality of the changes being brought in now is that about 1,000 solicitors firms who today have a contract to do criminal work will not have one in a few months time. Whilst some firms will no doubt merge many will simply go out of business. Many fine solicitors will cease to have a job. So too will many of the staff currently employed in those firms. The pointless suffering that will create may explain why so many feel so passionately about these cuts and the need to take action to fight them. Only in government nonsense-speak can that possibly amount to “a sustainable footing” for the profession. In fact the sustainability argument is so poor that even the Big Firm Group of solicitors, the ones expected ultimately to be able to make this wretched system pay enough to turn a profit have rejected it and are currently supporting action against the latest cuts.
And I will leave the reader to ponder the irony that it should be a conservative government that allegedly espouses competition and choice that is about to destroy a whole raft of small businesses and effectively nationalise criminal legal services.