Mr Chris Grayling.
16th May 2013
Dear Lord Chancellor,
Can I congratulate you on your splendid proposals for reforming criminal legal aid, set out in the Ministry of Justice (MOJ) paper on 9th April 2013? I see that after the so-called ‘consultation period’, you propose to change the law by signing a statutory instrument and thereby circumventing both Houses of Parliament. I agree that they can’t be trusted on a matter of such importance.
When you first proposed (1) price competitive tendering for criminal solicitors’ firms and (2) the removal of every defendant’s right to the legal aid criminal solicitor of his/her choice I was surprised and worried. I could see one practical reason for it. By forcing each defendant to have the criminal solicitor allocated to them by the state, it guarantees a high volume of defendants to the small number of firms who have a contract. How else could the government make a bid worthwhile (given the winning bidders would have to bid at such a low level) except by guaranteeing a high volume of work? But we Tories stand for choice don’t we? Aren’t we in politics to reduce the size of the state and increase the private sector? We try to allow the market to flourish by encouraging people to choose between providers: choice of GP, choice of school, choice of hospital etc. That is the Tory way to drive standards up, I said to myself. Surely client choice is the most effective quality control in the system? But your proposal removes all choice and, for good measure, makes it nigh-on impossible to change criminal solicitor after you’ve been allocated one.
Then I thought the implications through. If every solicitor knows they don’t have to attract new or repeat business from defendants by providing a high standard of legal work, they will simply do the bare minimum (and perhaps not even that). Any solicitor with a contract will know they don’t need a good reputation to attract work because they are guaranteed to be allocated defendants by the state. Brilliant! On top of that firms will only have contracts because they have bid the lowest price to secure them, so their costs will have to be driven down by their (probably ever more junior) lawyers being given large workloads by their managers. The standard of work will drop and, after a relatively short while, the defendant community alive to this will do everything they can to avoid even getting legal aid lawyers. They will either go private or represent themselves at their trial. That will dramatically reduce the legal aid budget! I began to see these proposals are pure Tory genius. The private sector will flourish after all as that is the only way a defendant can get the solicitor of his/her choice. Sneaky! For those on legal aid you will achieve a cut-price service with profits going to big business whilst the ‘customer’ receives a barely adequate service. And for those not on legal aid, you have created a market for private defence services. Your own official at the MOJ recognised that the only way a solicitor attracts custom at the moment is through a high quality of service and that if there is no need to attract custom at all (because the state allocates it to you) then quality will be reduced. That official nearly let the cat out of the bag in the Government’s Impact Assessment when he stated at paragraph 23 “the removal of choice may reduce the extent to which firms offer services above acceptable levels”. Let’s hope no one saw that!
I understand that the newly named ‘Stobart Barristers’ (not of course barristers at all but an off-shoot of the well-known logistics firm) are intending to bid for contracts and saw that their legal director, Mr Trevor Howarth, spotted these implications early on. In an interview when asked about the proposed removal of choice from defendants who apply for legal aid he said “I don’t think lack of choice is damaging…No one is stopping them paying for their own choice of solicitor”. That left wing rag the New Statesman described your proposals as ‘illiberal’ in an article written by David Allen Green published on 23rd April 2013, but in one way they are classically liberal: freeing people from the heavy hand of the state (legal aid) and forcing them to pay privately to avoid jail.
Of course, it means that even innocent defendants will have to pay for their lawyers, and those on legal aid will have a reduced quality of service, but it will reduce the size of the budget in your government department and that is what matters most, right? These people should never have got themselves arrested, should they! It was a bit mean of you to change the law recently to prevent defendants being repaid their legal costs on acquittal, so even the innocent will be seriously out of pocket, but hey life’s unfair right? It’s not the job of the Secretary of State for Justice to resolve that.
I see that a few London ethnic minority solicitor firms have stated that they will go out of business when the larger providers (Sobarts, Tescos, Co-op and Serco) come into the legal market. They say that the defendants they currently represent from ethnic minorities will be forced to go to solicitors from these firms with lawyers whom they don’t have a relationship and have not built up any trust. Lawyers also say that the building up of trust over the years between a client and legal advisor can reduce delays and help ease the burden on the vulnerable. Those are reasonable arguments given your plans, but don’t let that put you off: keep your eye on the wider goal. You never know it may bring back to us some voters lost to UKIP.
One of the things that amused me was the idea that G4S are said to be planning to bid for a contract. (Notwithstanding that embarrassing business over the security for the Olympics.) They probably will be awarded one, given contracts are allocated on price. As you well know they currently run some private prisons and drive defendants in their security vans to and from the courts where they guard the docks in the court rooms. I read that they are to be awarded a contract to cover some police services in some police areas. So there is the deliciously ironic prospect of a security firm helping to prosecute a defendant, then providing his legal representation at court and then imprisoning him. It will even be in G4S’s interest to get a defendant to plead guilty to provide ‘customers’ for its own jail. Even I balked at that! If, heaven forbid, your career goes belly-up I suspect a consultancy with G4S or Serco will provide you with a post-politics sinecure.
One other benefit, I’ve thought of is that given the quality of defence representation will go down, prosecutions will be more easily secured. Win-win! Those barristers who prosecute in the Crown Court will run rings round a demoralised overworked contracted lawyer who misses relatively easy defence points or doesn’t prepare for trial well enough in advance. But on the other hand I also foresee a snag here. Criminal barristers survive financially by prosecuting and defending. Once these cut-price contracts are secured by solicitors’ firms they will only be made cost effective by the managers obliging their in-house lawyers to undertake the Crown Court work as well, so criminal barristers will not be able to survive and will leave the profession. How will the CPS cope with that tidal wave of desertion of specialised prosecution talent that do 70% of the prosecuting in the Crown Court at the moment? The guilty may then be walking free in large numbers after trials. The DPP’s problem I suggest, not yours, after all his additional costs would not fall within the MOJ budget. Won’t it add to the budget of the Home Office or the Attorney-General? Anyway, you won’t get the blame.
And as for the inevitable miscarriages of justice and the consequent necessary appeals to the Court of Appeal and all those retrials, well, although the future costs to the MOJ will be large, at least the department’s headline savings over the next two years will look impressive at the 2015 General Election.
You declare that your aim for these proposals is to reduce the legal aid budget by £220 million over the next five years. I see that crime figures are down and that means, of course, fewer court cases and so the legal aid bill would reduce even if you did not bring in these changes. You have been wise to keep quiet about that. We all know that the police have not been charging defendants even where they have the evidence to secure a conviction, and then either cautioning them or letting them go scot free. How else are the police to reduce their budgets as required by the Home Office for heaven’s sake? I don’t think the public are alive to the fact that victims are being denied justice to help the government get the public finances under control; long may that ignorance continue.
Finally, you said in your forward to the consultation paper that these proposals are being introduced because legal aid has “lost much of its credibility with the public”. Despite requests (from some awkward quarters, like SaveUKJustice) you have not been able to provide evidence for that assertion. Once these proposals have been signed into law, by you sitting at your desk, the evidence of loss of confidence in the system will soon be there to satisfy these people. But hopefully you will have been promoted from the MOJ by then and someone else can clear up the problems. Perhaps you will be given the Home Office and can begin, at long last, to introduce payment by results for the police service and price competitive tendering for the UK Border Agency.
Yours, with admiration,