There was widespread hostility from the solicitors’ profession earlier this year, towards the Government and the Senior Bar, when the Lord Chancellor announced a deal for the Bar worth £17 million under the Very High Cost Criminal Case regime. Why was there such hostility? And was it justified?

The perception in the solicitors’ profession was coloured by the fact that for years, solicitors have made very strong arguments to the LSC on a range of issues, both in relation to the failure to increase remuneration and to cuts in important services to vulnerable clients, only to be met with the response that no matter how strong the arguments, the LSC simply does not have the money to make the changes the profession wanted.

During the course of this year, the DCA and LSC have implemented deep cuts to the police station advice scheme and to the availability of advice and representation in the Magistrates’ Courts. These were introduced on the basis that they might save around £14 million in year one, according to the consultation paper “Delivering value for money in the Criminal Defence Service”. Many solicitors considered these estimates to be significantly overoptimistic. CDS Direct is a proposal that will remove advice from a local solicitor for many suspects detained in the police station. The LSC acknowledged that it would reduce the quality of service to those affected. It was promoted unashamedly as a cost-saving measure; yet the main savings would come from a direct cut to solicitors’ income without a commensurate cut in their workload.

The proposed reintroduction of a means test was intended to make further savings, estimated at anywhere between £25 million and £93 million. This change will place a substantial administrative burden on solicitors. Moreover, the Constitutional Affairs Select Committee considered that “the only model which does not require contributions to be collected imposes an arbitrary cut off point, based on an undefined notion of gross ‘household income and capital’, and takes no account of defendants’ expenses. We consider there to be a significant risk that defendants who could not in practice afford to pay for their own legal representation would be denied representation under these proposals, even if the interests of justice required them to be legally represented, leading to the possibility of a challenge under the Human Rights Act.”

The LSC has now announced that equity in people’s homes will be taken into account when assessing eligibility for legal aid. At a stroke, the majority of homeowners and most ancillary relief cases will be taken out of scope of legal aid. All of these changes are justified by the LSC and DCA on the basis that they need to make savings. Most of them are strongly opposed by solicitors. Every time, we are told that the cuts are unavoidable because of the current budgetary situation.

The same response greeted suggestions that an increase in remuneration rates was needed to address the drop in the number of new cases started from around 690,000 in 2002-3 to barely 580,000 in 2003-4.

It was in this context that solicitors heard the news that an extra £17 million had been found to increase barristers’ incomes.

The details of the package did nothing to allay a sense of deep injustice. In particular, having been told that the scheme was designed to pay junior barristers supporting a leader a sum that would equate to annual earnings of £80,000, we learnt that the lower rates for barristers of up to five years’ call were to be scrapped. Most in the solicitors’ profession, many of whom will never see £80,000 in their lives no matter how senior and how expert they become, were aghast. If newly-qualified barristers won’t work unless they can charge enough to earn £80,000, at a time when desperately needy people are having services taken away from them, and senior solicitors are struggling to maintain services on earnings substantially less, the system cannot afford them. Just for a moment, many solicitors considered the stereotypical image of the fat cat who cares nothing for the clients to be wholly justified.

The representative bodies also felt aggrieved. Most of them, including the Law Society and the Legal Aid Practitioners Group, had accepted the need to find better ways of working within the existing financial constraints. They had dismissed suggestions that industrial action should be taken; on the basis that constructive dialogue was far more likely to achieve progress than militancy. Yet within a couple of weeks of the Bar organising a boycott, the Government caved in and increased their remuneration. How could anyone ever again argue against the militant voices on our side of the profession?

Suggestions from the Bar that the two sides of the profession should fight together rang hollow. When has the Bar ever stood up for solicitors, people asked? (To be fair, the representatives of the Bar stood up very strongly for solicitors at the Constitutional Affairs Committee’s enquiry into the Criminal Defence Service Bill.) Explanations from the Government and the LSC were dismissed as so much sophistry, and even the subsequent announcements of increased rates for legal help, for housing work and for serious duty solicitor cases did little to mollify solicitors.

So to what extent was there justification for what the Bar did and for the DCA’s position? The background to this controversy lay in proposals from the LSC to bring all high cost criminal cases under a contracting regime, in order to give them more control over the costs and to reduce the sums paid to barristers. After years of squeezing solicitors in their day-to-day work, attention was finally being turned to the cases that were responsible for disproportionate amounts of the legal aid spend. The size of the cuts being proposed was significant. It was limited compared with what solicitors have been through, but it was being introduced in a single measure, rather than over a period of years – a clean amputation instead of a thousand cuts. In that context, it is unsurprising that barristers working on such cases considered the cuts to be unduly savage. The result was the boycott.

The Bar is a fraction of the size of the solicitors’ profession. Solicitors who wish to take militant action always have the concern that there will be those who see a business opportunity and are happy to break ranks. Moreover, a single substantial cut in direct income is an easier target than a series of cuts that only have a cumulative impact over time. The Bar managed to hold the line to a sufficient degree to worry the Government, which felt obliged to make concessions.

Clare Dodgson describes the outcome in Focus 45 thus: “We have arrived at an agreement which will continue to deliver a significant reduction in the cost of VHCCCs and improved control over future spending. The agreement will reduce the level of savings from that originally estimated, but I must stress that the result is a reduction in savings and not an increase in remuneration.”

There is, though, a major flaw in this logic. This year’s budget was predicated on the original level of savings. Even on that basis, there is a hole in the LSC’s finances. In the recently issued consultation paper, “A new focus for civil legal aid”, the LSC states, “There is serious pressure on the CLS budget and the savings which the measures in this consultation will achieve should enable us to avoid other savings.” Off the record, some in the Commission feel that even before the VHCCC deal, these savings would not deal with the problem, and that the deal just made it even worse.

The Constitutional Affairs Committee agrees that further savings need to be made from the sums spent on Very High Cost Cases. In their report into the proposed reintroduction of means testing, the Committee states, “Over the course of our inquiry, we have been told by a number of witnesses that there are better ways of controlling spending on criminal legal aid than reintroducing means testing and transferring responsibility for grant. We recommend that the Department should focus more of its efforts in other areas, such as reducing expenditure on the most expensive criminal cases, which consume a disproportionate amount of the Criminal Defence Service budget. We recognise that the Department has made some progress in this area, but believe that further savings could be found.”

Over the medium term, such savings have to come from reforms to the prosecution process and the management of these cases. There is a limit to how far the Government can make savings solely by slashing defence lawyers’ fees, whether those lawyers are solicitors or barristers. Hopefully both sides of the profession can work together to push this argument.

But for most solicitors, for now, the bottom line is that, although the Bar undoubtedly did have a valid case, it was no stronger nor more deserving of being addressed than the arguments put by solicitors, on their own behalf and on behalf of clients, over many years.

Richard Miller is Director of the Legal Aid Practitioners Group