Striking out – a desperate profession and the politics of legal aid

It’s over two years since the government announced its controversial next wave of cuts to legal aid. As resentment this year exploded into an unprecedented strike, Legal Business assesses the anger and professional horse-trading.

‘A revolution requires willing fighters with nothing to lose. There may be plenty of legal aid practitioners who fit this description. Revolution also requires a reasonable level of popular support. It is unclear whether the unity of the profession remains sufficiently robust or whether the movement as a whole has the energy it did two years ago. At this early stage, next steps are uncertain. The profession may choose conciliation, combat or a mixture of both – but, with little leverage left, whichever option it selects it must be totally committed to it.’
Tom Smith, The Justice Gap, 2015

On the morning of 21 August, members of the legal profession took to social media sites to express their dismay. Perhaps their last remaining bargaining tool of any consequence in preventing controversial cuts to criminal legal aid had been relinquished. After 52 days, the unofficial strike by thousands of criminal solicitors and barristers in protest was suspended amid rumours that campaigners were edging towards agreement with new Justice Secretary Michael Gove.

A joint statement released by the Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association (LCCSA) said: ‘Although no offer to settle the issue has yet been made, as a gesture of goodwill… we firmly believe that the time is right to suspend the action with immediate effect. We look forward to continuing open dialogue with the government.’

To many weary legal aid veterans, that couldn’t be further from the truth. Cyril Morris Arkwright Solicitors defence lawyer Darin Millar tweeted: ‘A deal has been done and no-one has been told what it is!’ Oliver Gardner, managing director at Manchester firm Howards Solicitors, said: ‘There is still too much that we are all kept in the dark about.’ Another, Stephen Nelson at London firm Nelson Guest & Partners, added: ‘I am appalled by this spineless decision. To my friends at the Bar I apologise. To my professional organisations, I resign.’

Such comments reflect on the latest episode of the long-running tussle between the government and the profession over the last 20 years regarding legal aid reform. Relations had already been hugely strained by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which ushered in deep cuts to civil legal aid. Aside from concerns over LASPO, which was designed to save £280m annually, largely through a withdrawal of large areas of work from legal aid, the mood had been further soured by the replacement of the popular justice secretary Kenneth Clarke with the more right-wing Christopher Grayling.

Of course, legal aid had faced sustained cuts since the late 1990s, long before the post-2009 period ushered in the need for wider public spending cuts. While the government maintains the provision of legal aid is generous by international standards, many in the profession contend that the system is in danger of effective collapse or a form of market failure as solicitors and barristers turn away from publicly-funded work.

Such a mood led to the unprecedented strike – and signs that the government’s once implacable resolve to push through further cuts was wavering. Yet in the absence of such robust measures, the profession may be facing what it did before: another wave of deep cuts that will test whether its claims of a system breakdown are substantive or another case of lawyers crying wolf on public funding.

‘Market failure? Absolutely,’ argues Jonathan Black, president of the LCCSA. ‘We have been warning about this for many years and the government will keep pushing – we haven’t had an increase for 20 years.’

Law Society head of legal aid Richard Miller says: ‘This will affect the quality of criminal defence lawyers available. Having someone to represent you against the weight of the state is most important, not just someone in the room but someone who really knows what they’re doing. No other profession would be asked for someone highly qualified and paid so little.’

The forgotten pillar

For decades after its creation in 1949 under the Legal Advice and Assistance Act as part of sweeping reform brought in by a post-war Labour government, legal aid existed without controversy. Mapped by a committee chaired by Lord Rushcliffe, it orchestrated comprehensive state-backed legal advice provided by private practitioners, providing a near-universal system of legal support for around 80% of British citizens.

The system was effective and its scope expanded for decades to the extent that some characterise the 1970s and 1980s as the golden age for publicly-funded work. It was through the 1990s that soaring expenses would put the cost of legal aid under political scrutiny, as spending rose in real terms from £1.108bn in 1990-91 to £2.06bn in 1998-99, according to statistics from the Legal Services Commission (LSC) (now the Legal Aid Agency). The response was the 1999 Access to Justice Act, pushed through by the then influential Lord Chancellor Lord Irvine. The shake-up, which phased out legal aid for personal injury and replaced the Legal Aid Board with the more bureaucratic LSC, was fiercely resisted by the profession but in retrospect looks like a constructive attempt to modernise legal aid.

Throughout the 2000s the Labour government was to wrestle with legal aid costs, ushering in competitive tendering for contracts to provide legal aid, payments through a fixed-fee regime and pushing down on rates.

While legal aid was facing a pressure on costs in contrast to the period of expanding public spending, in the wake of the 2008/09 banking crisis and 2010 election of the coalition government, an entirely new order of cuts materialised.

With the new government ring-fencing health and education spending, the Ministry of Justice (MoJ) was, along with many departments, facing 20%-plus budgetary cuts.

The 2012 LASPO was designed to slash the £2.1bn legal aid budget by around £350m by 2015 despite widespread opposition from many, including the Law Society, the Bar Council, and the House of Lords. (The Labour Party adopted the nebulous position of widely criticising the reforms without making binding commitments to reverse them.)

LASPO removed public funding for private family cases (except those involving evidenced domestic violence, child abuse or abduction); welfare benefits; clinical negligence; employment; housing disputes (other than serious disrepair, homelessness or anti-social behaviour); debt; immigration; and education (except special needs cases), removing advice from 650,000 people (around two million people a year received legal aid at the time). Means-testing for legal aid was also toughened considerably.

The arguments around legal aid spending have typically crystallised around a few key areas, with the government arguing that the system is generous by international standards. The profession and critics of the reforms respond that such comparisons fail to take account of the UK’s adversarial system – which pushes costs on the lawyers rather than the courts – and the UK’s policy stance of jailing more people than comparable countries.

While such positions tend to polarise, neutral observers tend to agree that the system is not ungenerous internationally, while being a good deal less padded than presented by the government, which has gone out of its way to highlight a small number of high-earning barristers. High living costs and high remuneration in the English legal sector, added to the rising costs of legal education, likewise have inevitable knock-on impacts on the cost of provisions.

What is beyond doubt is that the legal aid budget has fallen substantially in real terms since 1999 during a period in which public spending as a whole has risen sharply.

Stats sourced from the MoJ Annual Report and Accounts show that, in nominal terms, legal aid expenditure has consistently fallen, from £2.4bn in 2004/05 to £1.7bn in 2014/15 – a 30% drop in a decade even before accounting for inflation.

While the profession has previously been guilty of excessive claims regarding legal aid, notably in the late 1990s and early 2000s, current forecasts of advice deserts and an exodus from publicly-funded work obviously have more substance.

Few doubt the political reality that legal aid is an easy target given its complexity and perceptions that money is being spent on criminals or well-heeled lawyers.

Bar Council chair Alistair MacDonald QC says: ‘People who need legal aid for family, welfare, housing and debt problems are often among the most vulnerable in society. They face a tangle of personal and legal problems and are unable able to mount an effective political opposition to legal aid cuts. Justice tends not to be a topic in which people take a keen interest until they need it.’

Carl Gardner, the former government lawyer and legal author and blogger stresses the public perception about ‘fat-cat lawyer’ incomes. ‘They believe that lawyers, in particular legal aid lawyers, are far better off than they actually are. Many lawyers are trying to correct the public impression about how well-off they are but the image of the criminal lawyer, false as it is, is very deep-rooted. As far as criminal legal aid is concerned, most believe they will never need it. That puts it in a radically different position than the NHS, which everyone believes they need.’

As inflamed as opinion of LASPO is, it is the latest round of cuts that were being implemented by former Lord Chancellor Christopher Grayling (see box, ‘Legal aid reform’, above) that led to the strike, including a 17.5% cut in solicitors’ fees (introduced in two stages over March 2014 and July 2015) and criminal court charges of up to £1,200, have prompted warnings from the profession and lobbyists that the measures will further erode access, damage the quality of advice available, and cause knock-on problems for the future.

The Grayling effect

A television producer by trade, Grayling was appointed to the Cabinet in a reshuffle in 2012, replacing Kenneth Clarke, and tasked with undertaking further overhauls of legal aid. The appointment was widely seen as replacing a liberal barrister with a more classic Conservative hard-liner. He was the first non-lawyer to have served as Lord Chancellor for at least 440 years.

His strident tone and a lack of consultation meant Grayling was very quickly seen as a hatchet man by the profession.

Tasked with making a further £220m in cuts to legal aid following LASPO, his term was mired in controversy that extended well beyond the obvious interest groups and ideological opponents. Lightning rod causes he backed, for instance, included major restrictions on prisoners’ eligibility for legal aid, and proposals that immigrants should satisfy a ‘residence test’ to gain funding.

Alongside cuts to lawyer fees, police station contract reduction, and criminal court charges, Grayling tabled three significant concessions to the Criminal Justice and Courts Bill that would allow judges to use discretion in deciding whether challenges to government decisions can go ahead if they are of ‘exceptional public interest’. The latter move saw Grayling branded as ‘off his trolley’ and ‘a disgraceful incompetent’ in one vitriolic attack by barrister and former Tory MP Jerry Hayes.

Grayling came under scrutiny last September when the High Court held he acted unlawfully over his failure to disclose the contents of two key reports during the consultation process. Justice Burnett said that the decision by the MoJ to refuse to allow those engaged in the consultation process to comment on the findings of two key reports into plans to introduce new dual criminal legal aid contracts was ‘so unfair’ as to be illegal.

Grayling was further dragged into a landmark appeal in May 2014, dubbed the OpCotton trial, which challenged a Crown Court decision to stay a high-value publicly funded serious fraud trial, after the defendants failed to find any barrister prepared to represent them on reduced legal aid rates.

But his evident antipathy to the profession stoked tensions to unprecedented levels. One act of defiance saw more than 1,000 barristers and solicitors – many bearing placards declaring ‘Grayling must go’ alongside a giant, papier-mâché effigy of him – protest outside parliament in their first full-day walkout in March 2014.

One head of a solicitors’ representative body comments: ‘Grayling had no communication with us at all. None whatsoever. We don’t know why. I don’t think he actually understood his brief very well to be quite honest and wasn’t that keen on discussing it in detail – he was led very much by his civil servants.’

Such sentiments extended beyond publicly funded lawyers. Grayling was one of the driving forces behind the Global Law Summit, a three-day event held in February to mark the 800-year anniversary of Magna Carta and promote the UK legal profession as a business success story. The event was mired in controversy, heavily criticised as having confused aims and a lack of effective engagement with the profession. A speech by Grayling to a group of commercial lawyers in early 2014 prompted bemused looks from the collection of senior lawyers.

Controversies over the legal aid reforms also led to the humiliating loss of a confidence vote for The Law Society in December 2013 for Chancery Lane’s ‘direct engagement’ policy with the government, which many felt was toothless. Law Society chief executive Des Hudson announced his early retirement in March 2014.

It seemed apparent that the government believed it was time to bring in a new justice secretary to smooth relations after the most fractious period in recent memory for the UK’s courts and justice ministry and the legal profession.

‘A breath of fresh air’

In contrast to the bluntly-spoken Grayling, the appointment by the Conservative government of former education secretary Michael Gove as Grayling’s successor has been praised as a ‘breath of fresh air’ for his views on prison reform, receiving plaudits from penal reform groups for considering the introduction of an ‘earned release scheme’ for studious inmates.

His wide-ranging speech for civil justice post-election outlined tackling the ‘creaking, outdated’ current system by increasing the use of online tools, looking at whether formal hearings are always required and making cost savings through the court estate before further legal aid cuts.

While Gove had been associated with controversial reforms in education, he was generally viewed as one of the Conservatives’ most intellectual and thoughtful figures and closer to Downing Street.

From the start it was evident that Gove was intent on playing a more nuanced game than his predecessor. His first major speech in June was entitled, ‘What does a one-nation justice policy look like?’, made a number of conciliatory gestures and pledged to sustain an independent Bar.

‘I do not think that those people who have expressed concern about reductions in legal aid are motivated by self-interest,’ he said in front of the Justice Select Committee this July, adding that they were motivated by ‘genuine concern’ about access to justice.

The rhetoric had materially changed, even if many in the profession noted an emphasis on the far smaller Bar at the expense of legal aid solicitors. The typical (and generally effective) government stance of playing the Bar off against solicitors appeared to be alive and well.

Jon Robins, a journalist with years of experience covering legal aid, says: ‘Gove is trying to divide and rule by getting the Bar onside and therefore undermine any industrial action taken by a united legal profession.’

City of London Law Society chief executive David Hobart says: ‘Gove has pitched his vision for the legal sector at a suitably high level – which is good – but whether he can keep up this approach in the face of the next brutal spending review is doubtful. It is possible, and to be hoped for, that Gove will produce “some hugely original rabbits from his hat”. The test of all of this will become clear soon, when Gove engages with the legal profession on extracting pro bono activity.’

Last month, the MoJ was scheduled to award 527 contracts to firms under the controversial dual-contract model, while an independent review of the arrangements is not tabled until July 2016. The controversial two-tier contracting system means some solicitors’ firms get duty contracts allowing them to take on new cases while others rely on clients referring themselves, which critics argue is unsustainable.

Many believe that the awards will go to larger criminal firms, slashing the number of criminal legal aid contracts from more than 1,600. Many lawyers fear that the chance for real compromise has passed and with it the rationale for stopping the strike. Under this reading, the profession has been played, while a much smaller group of the larger legal aid providers have been brought onside with larger contracts. While there is consensus that the number of legal aid providers needs to reduce to promote efficiencies, the pace of consolidation being attempted has provoked understandable concerns.

One senior solicitor says: ‘We’re in a delicate position at the moment. Calling off the strike was effective in that it’s got us round the table with the MoJ – I was more optimistic with Gove but not anymore. We’ve been disappointed with the feedback so far. We were led to believe we were in a negotiating position.’

A grown up conversation

The original 2013 legal aid package had also put forward price-competitive tendering for legal aid work but this was dropped after a deal was reached with The Law Society. In a similar vein, Gove is now pushing for lawyers to ‘look into their consciences’ and do more work for free in the justice system, though there is widespread scepticism regarding using pro bono to fill the gap left by state funding.

The reality is that publicly-funded legal work is facing dramatic cuts to the point where it seems inevitable there will be a further withering of the publicly-funded profession.

The consequence will surely be significant numbers vacating legal aid work and a pressure for solicitors to retain advocacy work in-house. Some of these trends have merit – the highly-fragmented nature of the publicly-funded profession would likely benefit from consolidation.

There is also some merit to the argument legal aid spending in some cases is the stitch in time that saves down the line or avoids taxpayers’ money merely being pushed between different agencies.

Law Society president Jonathan Smithers says: ‘The government needs to stand back and review. The budget has been subject to salami slicing. We need a proper review of what access to justice means. That won’t happen in the next six months but we need a proper grown up conversation.’

But other implications are harder to put a positive spin on. The propensity of the UK to spend large amounts on a relatively small pool of complex cases means that a small group of experienced silks still have relatively well-paid careers. But the prospects for the junior barristers that are supposed to be the judges of the future are not good.

Given the UK’s position as a global leader in legal services and a key disputes resolution hub, the combination of legal aid reforms and rising court charges raise serious questions over whether the UK is investing in its own success, quite apart from its social obligations. But the speed and tone of the reforms has undermined hopes for a thoughtful attempt at reform.

For this the profession bears a considerable measure of responsibility. Its response to the government on legal aid reform has been divided, naïve and lacking strategy. That division is evident not only between solicitors and barristers (which has typically been exploited) but between the junior and senior practitioner, firms large and small, and different branches of the profession. Many have become deeply cynical regarding complacency among senior barristers even as solicitors and junior barristers struggle on.

The Law Society has been an understated advocate in recent years despite substantial resources, a weakness that is arguably inevitable given the government backing it requires for its authority and revenue-generating powers.

Smithers says that lessons have been learned: ‘The Law Society is changing and it’s better. I’ve travelled the length and breadth of the country. I’m sorry the vote of no confidence in December 2013 happened. But we’re in a much better place than before – we have much better lines of open communication. It’s about making sure we can lead the profession and talking with it, not to it. Without going into what went wrong, we want to make sure it doesn’t happen again.’

But in a wider sense the legal profession has habitually failed to come together to have its voice heard, on legal aid or any substantial policy issue. Governments – confronted continually by differing interest groups – are typically adept at identifying the divided and easily dismissed groups; the legal profession has repeatedly played into its hands with tactics that have veered between self-interested melodrama, debating school negotiating tactics and soft-headed analysis.

While many fear that with the strike action now ended, the profession’s leverage has been given away, there emerged the possibility of minor concessions. At a meeting on 16 September between Gove and the LCCSA and the CLSA, the MoJ offered to ‘suspend’ the second 8.75% cut. The concession would apply to new fixed and standard fees introduced on 11 January for police station attendance and representation in the magistrates and Crown Court. Other fees would revert to the levels before the 1 July cut.

The offer is based on the profession not putting in place another boycott or strike against the two-tier contracting structure. However, the suspension is only in place for three months ‘to support firms as the new contracts are introduced’.

As Legal Business went to press, the MoJ was expected to confirm the awards of contracts at the end of September. In itself, a three-month suspension would make little difference unless the move is made permanent.

Robins says: ‘It’s always been difficult for lawyers to join forces and engage in action of this kind. I was rather stunned that they got this summer strike going in the first place. Right from the start of the direct action I’ve been confidently predicting it’s going to fall apart at any second.’

One former High Court judge says lawyers should instead look forward and move into other work: ‘This government’s approach to legal aid is destroying the ordinary right of individuals to access to justice. I understand austerity and all that – but then they have to stand up and say: “That’s what we’re doing, we’re destroying the system.” It’s an outrage. Those people out lobbying and fighting, there’s a host of other areas they can be working in. There will be lots of regulatory work, we’re becoming an increasingly regulated society. It’s not criminal but it’s in the area. I’m very disappointed by strike action. You look at the photos of all these rather posh barristers dressed in 18th century gear with a high collar… the public have no sympathy and rightly so, and neither do the government. If you don’t want to do it, just resign. I’d encourage as many to resign as possible.’

Bleak words. But under the circumstances, but it’s hard to offer any other counsel. LB

sarah.downey@legalease.co.uk