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Matthias Kelly QC Warns Of The Threat To Independent Publicly Funded Advocacy Services From Current Government Policy
“Everybody knows that lawyers are all parasites. Lawyers made the law complicated to line their own pockets. Lawyers do not contribute to justice, they frustrate it. Lawyers simply spin cases out for their own ends. All lawyers are grossly over-paid fat cats. There is no need for lawyers to exist at all. The best thing is to just get rid of them”


By Matthias Kelly QC

So goes the ‘bash the lawyers’ tune pushed out in the media whenever a further move is afoot to further reduce the level of payments made to publicly funded lawyers.

The reality of life of course is that there is continuing need for fearless, independent advocates to be available to the publicly funded litigant and the independent Bar currently provides the most.

The State cannot simply be trusted to prosecute only the guilty and to do away with independence; a local authority cannot simply be trusted to seek custody of children not only where there is no doubt that it is the right course; the Government cannot simply be trusted never to act unreasonably or unlawfully and always to legislate in terms that make sense and work in practice.

So where does this Government stand ?

Clear public commitments have been given in the recent past towards supporting the continued existence of high quality advocacy services to the publicly funded litigant, but recent events suggest that policy has turned towards savage cost cutting, with little regard for the potentially permanent loss that will ensue or the far higher cost to the taxpayer of putting it right later.
The Bar is not of course alone in receiving this treatment, but I believe the future of publicly funded advocacy from the Bar is now at a watershed.

It is time for a wider audience to understand the implications of current policy and for the Government to reflect on the medium to long term costs of it, but financially and to the public interest. I believe that it does not make sense and should be stopped before it is too late.

RECENT HISTORY
With the exception of some individual case contracts in the most serious cases, most criminal and family law cases are remunerated through fixed but graduated fee schemes. The Bar helped design those schemes to provide a modern payment system that delivers complete cost control and a means of providing the publicly funded litigant with access to the independent advocacy services the Bar offers. The original criminal scheme introduced in 1996 was backed by the apparent recognition of Government that the fixed fees would require periodic adjustment for inflation etc. to maintain their value.

By 2000 no such adjustment had been made allowing the scheme to have reduced in real terms by over 14%.

In 2000/2001, the Lord Chancellor proposed further substantial reductions to fee levels then being paid in criminal and family cases. There followed a comprehensive analysis by both Government and the Bar of the true cost of full-time employment as against contracting out advocacy services, as well as a comparative exercise with other publicly funded professionals.
This article cannot delve into the detail of that review, but the detailed, expert case that resulted was a powerful dismissal of the argument that further cost cutting would have no affect on the supply of quality services.

The Lord Chancellor decided nevertheless that the determination of fees in the most serious cases, by independent cost judges against the criteria of ‘reasonableness’, should be abolished in favour of a case contract scheme at fixed hourly rates. Thover a case than the solicitor who prepares it for them or sits behind them in court. Solicitors’ rates are largely untouched. While some reduction may have been justified, the massive cut imposed on the Bar and total disproportion created in payment levels between the solicitor and advocate in the same case, will clearly have an effect on the availability of quality representation in these cases in the future.

By contrast, the Lord Chancellor decided that the graduated fee schemes for all other cases should not be reduced by the amount that he had originally proposed. He made that decision applying the same statutory duty that applies today and he did iminal graduated fee scheme was, he decided, to deliver the same expenditure as was currently being paid for those cases and the family graduated fee scheme was to deliver only a 5% cut on current rates.

This was no hand-out to the Bar, but cost cutting to the bone which still held some prospect of ensuring that enough competent practitioners stayed with the work.

The figures in the new 11 to 25 day criminal new scheme were then modelled from sample case data provided by Government. Prior to implementation of the new scheme doubts were raised as the accuracy of the Government’s data. The Bar sought an assurance that if they wrong the figures in the scheme would be reviewed. In July 2001 that year, Lord Irvine agreed.

The new criminal scheme went ahead against the background of this important reassurance.

The Government’s data was indeed defective and resulted in a cut of about 20%, rather than cost neutrality Lord Irvine had decided was essential. The Lord Chancellor’s Department agreed both the error and the necessarincrease fee levels.

A similar situation has arisen with family graduated fees. The scheme as formulated by the Government has imposed a reduction in the region of 11 to 13 per cent, rather the 5% intended. The scheme has also delivered payment in an erratic manner across the range of cases. There is solid evidence and agreement that the more senior advocates are leaving the work. There is again no sign that the Government intends to stand by the commitment given in 2001 to reduce remuneration in these cases by only 5 per cent. They speak now not in terms of quality by “adequate” levels of representation as more junior practitioners move into ever more serious levels of work. The public interest will suffer: vulnerable children and battered wives will pay the price.

Current DCA overspending on legal aid has arisen primarily as a result of unpredicted increases in asylum applications and appeals and in grants of representation orders in the Magistrate’s courts shooting up after the Government’s decision to abolish the means test. Yet it is the depleted fixed fee schemes that are to be the target of further cuts.

The message sent by a Government prepared to renege on commitments such as those given to the profession in 2001 (after careful consideration of the necessary level of funding to ensure continued standards of representation in these vital areas of litigation under statutory duty) could not be clearer. We have no alternative but to conduct all our future discussions upon a presumption that it will happen again. Moreover it betrays a willingness to degrade and erode the independent publicly funded Bar, in the apparent belief that nobody cares enough to stop it, and with no apparent plan as to what to replace us with.


There are those of course who believe that it is no co-incidence that the degradation of the publicly funded Bar might suit a Government apparently bent on greater control of the judicial process. When we do our job fearlessly and effectively we are apt to irritate Government as much as any other litigate we appear against and we are undoubtedly one of the ‘sectors’ until now at least more independent than others from Government control.

It is indeed worrying when a Government blames defence lawyers for ‘trying too hard’ when conviction rates drop.

When we defend in crime we can undoubtedly be a thorn in the side of incompetent of misconceived prosecutions or ill thoss. They want criminal trials to be fair and they want them to be efficient and effective. But trials will only be fair and efficiently and competently conducted if able men and women, from all backgrounds and communities, are attracted to the profession. We have an independent publicly funded Bar (and judiciary that is an example sought and emulated by many foreign countries who have sampled the alternative. Why is our Government apparently testing it to destruction?

The problems in family work are already immediate and pressing, but we have yet to see if there is any will to remedy it. The effects in criminal work have been delayed because implementation of the contracting scheme was delayed by Government but the Bar Council will this month deal with the Criminal Bar Association’s request to remove the current professional obligation to accept Government fees, imposed in the past when Governments were committed to paying reasonable fees. It will probably be more difficult for criminal practitioners to find immediate alternatives, given the Government’s almost total monopoly over the funding of criminal litigation now that a suspects assets are routinely frozen, but it is beginning and will continue.

The current round of further substantial cuts in remuneration for independent advocates is contrary to the public interest. It has been driven by short term unpredicted over-spending, much of which is the result of Government policy and it will cause real long term damage.

It will cost more financially in the long-run to replace the service we currently provide with full time employees than it would to keep alive and adjust the current graduated fee structures and reduce somewhat the draconian reductions visited in contract cases.

Lawyer bashing is always fun, even we can see that, but the independent publicly funded advocate is an endangered species without which the world not be a better place!




   
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