Alistair Webster QC - Speech - 'Vanishing Justice - the Legal Aid Debate' (14/09/2013)




I will address you tonight wearing two hats: both as a Liberal Democrat and as a lawyer.  Following what the representative of the Law Society has said, whilst I recognise that some of the more egregious proposals in the original consultation paper have been dropped, the Law Society has been politically naive in allowing itself to be represented as a partner in the revised proposals.  Their reservation about the proposed cuts in fees should have been given far more emphasis.  As I will demonstrate, the fee cuts proposed are at a level which represents an existential threat to the provision of publicly funded legal services and to the survival of many of their members.

From a political point of view, we have a very good party policy on legal aid.  It was adopted overwhelmingly at the Sheffield Conference: there were only two votes against.  And no government minister spoke against it.

The party policy recognises the pressure on the public finances, but also asserts the need to ensure proper access to the courts.  The principle of the rule of law, from which, after all, the modern state developed, is central to our democracy, and there are no more important duties upon the state than upholding it and ensuring that citizens have access to the courts.  As I said when proposing the motion, I am proud of the commitment to human rights enshrined in the Coalition Agreement, but they are of little use if they cannot be enforced by access to the courts.

The policy calls for alternative funding to be explored.  In relation to long fraud trials, for example, which overwhelmingly involve companies, why should not the polluter pays principle come into play?  If companies were required to insure directors and officers against the costs of defending criminal charges brought against them related to the involvement of the company, the savings would go a long way to meeting the target savings of £220m.

The policy recognises the serial failures of the MoJ and its legal aid agencies, as identified by the excellent reports of Alan Beith’s Justice Select Committee, in terms of ramming through policies without any idea of their likely effect on the market. These failings represent a truly dismal record: a dysfunctional and incompetent department.

Since the policy was adopted, the evidence has mounted:

-          Its main suppliers are being investigated for fraud in relation to contracts with the MoJ itself.

-          Its competitive tendering exercise for translation services in the courts has proved to have been a disaster: described by the Beith Committee as conspicuously incompetent.  Having allowed a bid at a level which made the service uneconomical, in the face of all sensible advice, they have had to increase the amount paid by over 20%.  They thus colluded with a bid which undercut ( and therefore took out ) the competition and then, having done so, rewarded the underbidder by vastly increasing its revenues.  This was a catastrophic failure of government and is a cautionary tale for the rest of the justice system.

Despite our clear policy, we have become tied in with cuts volunteered by a  Tory minister, untrammelled by any real knowledge of the courts system or the law.  He seems to have been desperately anxious to resurrect his career by proving his worth to Osborne by enthusiastic cutting.  We are left with cuts on a scale which reflect less the needs of the economy, and society, but more the political ambitions of the Lord Chancellor.

This should not be allowed to be presented as an argument about lawyers’ fees or incomes.  But they happen to be central to the argument, because if you do not have sustainable businesses, you will have no lawyers working in this sector – or, at least, none worth employing.

Ask yourselves: how do most of your constituents access legal advice and representation?  I am not talking about big business, who receive a Rolls Royce service through the big city practices, where the partners earn £750k plus.  It is through high street solicitors.  And what successive governments wholly fail to appreciate is that they present a business model which is efficient and very much in the public interest.  They are cost effective.  They avoid the need to carry expensive specialised employees through their ability to refer clients on to specialised advice from the bar.

The income streams of high street solicitors have already been seriously reduced by governmental decisions over the past 3-4 years:

-          Much family work has lost public funding and fees have also been reduced.

-          Personal injury work – compensation for employees, victims of road accidents.  Fees have just been substantially cut.

-          Criminal legal aid fees have already been cut by over 10% in the last two years, following years of reductions in real terms.

That is the background.  Now what is proposed? 

First, a cut of 17.5% across the board for criminal cases. 

Second, for the most serious and complex cases, an immediate cut (including cases already proceeding ) of 30%.  This 30% cut, you need to understand, follows effective cuts of up to 38% since 2004.

Third, a significant ‘restructuring’ brought about by a significant reduction in the number of duty solicitor contracts. 

They want bigger providers because, they argue, a bigger throughput means that the fees per case can be lower.  This is, sadly, a policy which is economically incompetent, in addition to its political failings.  National Audit Office figures recently showed that, with the exception of very small firms, the profit level for criminal legal aid work was substantially below the level of the proposed cuts.  It transpires that, the bigger the firm, the lower the profit level.  Medium sized firms had a profit level of 11% and larger firms one of 7%.  You don’t need the economic skills of Vince Cable to see that the proposed cuts won’t work.

And what will be the result of this on the high street?  What effect upon towns like Rochdale will the closure of these departments or firms themselves have?  More redundancies.  Another blow to civic society.  Another loss of services from towns already struggling to stay viable.

How does this tie in with our policies on small and medium enterprises?                ( simple answer: it doesn’t ).  It is a policy which is unsustainable. Our party policy calls for proper trialling and modelling.  There has been none.  This is far too important a subject for a leap in the dark off a cliff.

And then, we have the effect upon the bar.  The fact is that the fee levels suggested, and the mechanism proposed, remove all incentive for anyone of any talent to come to the criminal bar for a career.  They provide no incentive for anyone to assume the heavy burden of difficult cases.  Given the burden of an extensive training, professional obligations and the unavoidable costs of practice, my wife worked out today that her hairdresser ( not a particularly expensive  one ) will earns 50% more per day than is proposed for a barrister in a difficult case.  With all due respect to her hairdresser, such an economic model is, self-evidently, unsustainable.

I was talking, at court this week, to a member of my chambers who was hoping that a court could be found to take her case, which had been listed without  court to go to.  I asked her what the fee would be if the case did not get on ( she having, of course, no choice but to prepare the case and attend ).  The answer is: nothing.  No fee would be payable.  I suppose this is one example of where a 17.5% cut would not be too bad!

We need to make it clear that we condemn this disastrous policy.  A clear message needs to be sent to the parliamentary party.  I know that significant players in the parliamentary party would have opposed the original proposals.  We have not had time to speak to them about the current proposals, but I hope that clear arguments like the ones I have advanced this evening will ensure that they make it clear to the government that this policy must be radically amended.