Thursday 23 May 2013 by Catherine Baksi
In an unprecedented show of unity by the legal profession hundreds of barristers and solicitors came together yesterday to oppose the government’s proposed criminal legal aid cuts which they said would ‘destroy the fabric of the criminal justice system’.
Over 1,000 attended a London meeting dubbed ‘Justice For Sale’ organised by the Criminal Law Solicitors Association to oppose the planned £220m cuts to criminal legal aid, removal of client choice and introduction of price-competitive tendering (PCT).
Former Court of Appeal judge Sir Anthony Hooper said: ‘These proposals by the inaptly named justice secretary are fundamentally flawed and must be rejected in whole.’
The meeting unanimously carried a motion that PCT is ‘not the way forward’ and called on the government to abandon it.
It rejected the proposed fee cuts and resolved that there should be ‘no further cuts to criminal legal aid until an immediate review is carried out on the impact of the cuts so far, the impact of the downturn in volume and consequent reduction in legal aid spend’.
Competition law prevents lawyers from taking concerted strike action, but the meeting voted to ‘institute a rolling programme of training days increasing in number on dates to be announced from time to time’.
A further motion, not to co-operate with the Quality Assurance Scheme for Advocates (QASA), was also unanimously passed.
Opening the event, Kent solicitor Robin Murray said it was 'not so much a meeting, more an insurrection - about not so much a consultation, more a declaration of war, on the right of the public to choose their solicitor'.
Association chair Bill Waddington said that a real-terms fall of more than a third since 2006 in the criminal legal aid budget meant the profession had ‘nothing more to give’. But he said it was the removal of client choice where the profession ‘draws a line in the sand’.
‘Opposition to it is the foundation stone of a wall of resistance against PCT,’ he said.
In coming together, Waddington said barristers and solicitors have ‘overcome our greatest weakness that has allowed us to be divided and conquered’ - something that he said the government’s consultation is designed to achieve. He said: ‘Let’s defend the criminal justice system and ourselves – we cannot and will not stand by and allow it to fail.’
Vice chair of the Criminal Bar Association Nigel Lithman QC said that in its proposals to eradicate 75% of solicitors’ firms and decimate the independent criminal bar, the government had ‘misjudged the profession’s response’ and ‘seriously underestimated the force of our united profession’.
‘Bar and solicitors – we are united in opposition to the proposals that will destroy the fabric of the criminal justice system,’ said Lithman.
Outlining the CBA’s response to the broad proposals, Lithman said it is: no to PCT, no to fee cuts and no to QASA.
Litham likened the plans to a ‘Victorian picture of Bedlam’. They will result in a ‘subcontracted public defender system devoid of choice for defendants without financial means and indifferent to quality’.
But he said: ‘The juggernaut can be stopped if we all stand together.’
Former president of the London Criminal Courts Solicitors Association Greg Powell accused the Ministry of Justice of ‘fundamental dishonesty’ and of possessing ‘the morality of a thief’ in the way it moved the goalposts over the amount of savings it seeks to make.
On the reforms themselves, he said: ‘We are walking backwards in time,’ to a place where there is no choice, ‘cowboy’ prices, no competition, and stagnant business models.
He did not accept the government’s premise that the fiscal challenges necessitate the cuts. ‘This is not about austerity – this is about rolling back rights and access to justice – it is something naked, something cruel and inhuman.’
He too was determined that by acting collectively the ‘fearless’ legal profession can defeat the proposals.
Despite the fact that Labour had sought to introduce a system of PCT when in government, shadow justice minister Andy Slaughter spoke against the proposals which he said are a ‘fundamental attempt to de-professionalise the court system’ and ‘establish inequality as a principle’.
He described the plans are a threat to the rule of law and a fundamental attack on the rights of citizens and of civilisation.
The change, he said is ‘not acceptable to the profession or the public or to a future Labour government’.
Law Society chief executive Desmond Hudson told the meeting the ‘unworkable’ plans would make the debacle over last years courtroom interpreter contract ‘look like a picnic’.
He warned that the £37,500 eligibility threshold would lead to the court being clogged up with unrepresented defendants, victims of crime being cross examined by the alleged perpetrators and the Court of Appeal ‘bursting at the gunwales’ dealing with miscarriages of justice.
Advice received from a QC suggested that the proposals to extinguish choice are ‘unlawful’ and the change would therefore require primary legislation, Hudson said. The Law Society is also considering whether proposals are contrary to competition law, European procurement law ‘and any other damn thing you can think of’.
Hudson said the criminal legal aid reforms are part of a pattern following the civil legal aid cuts and the ‘shabby deal hammered out in Number 10 between the prime minister and the insurance companies to make it difficult for people to sue someone who has injured them’.
Taken together, he suggested the reforms show that government ‘cares little for the rule of law’ because he said ‘there will be no rule of law without access to justice or without an independent viable legal profession’.
Hudson said: ‘These changes are abhorrent and we need to fight them.’ But he suggested it may not be as simple as a binary choice between PCT or the status quo. He questioned whether the status quo is viable or whether an alternative may have to be considered.
‘We want an independent legal profession that is viable and we want the maximum number of our members to be able to work in that field,’ he said. But he warned that difficult and grave decisions may have to be made.
Addressing concerns over the entrance into the criminal defence market of haulage business Eddie Stobart, Hudson suggested lawyers each buy a single share in the company and express their concern.
In addition, he said: ‘I’d like to see an uncoordinated, unplanned, coincidental common decision made on the same day by every barrister in this country not to accept work from Stobart Barristers. And I’d like every solicitor-advocate to do the same.’
Co-chair of the Society of Asian Lawyers Jo Sidhu QC said the society has instructed a QC at Matrix Chambers to advise on a challenge over government’s failure to comply with the Equality Act.
Sidhu warned of the impact that the proposals would have on the diversity of the profession and on small firms, which he said are ‘more economically efficient’. He warned: ‘Minority practitioners are likely to become the principal victims of the changes.’
Hooper said it is a ‘complete scandal’ that the changes could be implemented by secondary legislation and urged supporters to sign the e-petition set up by Exeter solicitor Rachel Bentley. If it gets 100,000 signatures, it could prompt a parliamentary debate.
Convention and the separation of powers dictates that judges are generally unwilling to speak out against government policy, but Hooper said: ‘Many judges are hugely concerned about these proposals, but it’s hugely difficult for the senior judiciary to speak out.’
Any judge who has spoken out against the proposals would have to disqualify themselves from hearing the cases.