by Kam Sandhu – @KamBass
On 4th June, the consultation on new reforms to legal aid ended. The last few weeks have seen hundreds of barristers, lawyers and firms condemn the proposed changes, in a bid to stop “catastrophic“, elitist, and “unjust” cuts to legal aid. Despite strong feelings from the Bar and the public to protect this vital service, it is difficult to understand exactly what is happening to our justice system. So, to get an insight, we caught up with Criminal Barrister and joint secretary of the Haldane Society of Socialist Lawyers, Mike Goold, to find out in detail, what we stand to lose.
In the first part of the interview, we find out what is happening right now in legislation, how changes will affect fairness of trial, and also discuss the Justice Secretary’s elitist attitude to the reforms.
Talk us through what is happening in terms of legal aid cuts right now. How will and how are they affecting people?
There’s [been] a consultation proposed by the government, which they launched a week or so into April and which [closed] on Tuesday [4th June]. They’re proposing quite substantial cuts to criminal legal aid in particular, but also civil legal aid – immigration, housing law and criminal law, those sorts of areas.
“Withdrawing legal assistance that hits some of the poorest and most vulnerable people in society.”
This comes off the back of already very substantial cuts that were introduced in April. There was an act that came in called the Legal Aid Sentencing and Punishment of Offenders Act which was passed in 2012, but provisions came into force in April, which took a lot of areas of civil law out of legal aid altogether.
This covers housing law and things like social welfare law, so advice and representation in relation to people making claims for benefits and appealing against refusals of benefits.
The cuts that came in April very much focus on civil law, but are very nasty, because people that tend to rely on or require that kind of legal advice are some of the most vulnerable people – people who are facing eviction, people who are being mistreated by their landlords and in relation to social welfare – people who are on benefits, disabled people, people maybe who have been wrongly refused benefits. So withdrawing legal assistance that hits some of the poorest and most vulnerable people in society.
So this already came in, in April, at a time when the government is looking to make cutbacks in public spending [with] the bedroom tax, housing benefit cap and such. So coming in at a time when people are increasingly needing support in housing areas and benefits. There’s quite a big incentive at the moment for examiners and people making decisions over benefits to refuse people benefits for cost saving. So there’ll be a lot of people being refused benefits who’ll be needing assistance and now can’t get it.
So all that came in April and about a week after these cuts came in, they released a further consultation. This time, mainly focusing on cuts to criminal law, but there are some nasty things for civil law as well.
One of the main things they’re doing is introducing price competitive tendering. So effectively, they want organisations to bid to have a contract. You have to have a contract to do legal aid law, but at the moment there’s no limit on the amount of organisations that can get contracts. What they’re proposing in criminal law, is reducing the amount of contracts to a much, much, much smaller level than it is now. In geographical areas, they’ll enforce companies to bid and basically offer to do the work at the lowest price. They’re saying that they will only accept bids 17.5% lower than the current rate. So that’s the maximum you’re allowed to bid. So there’ll be at least a 17.5% cut in legal aid rates.
“It’s going to be a race to the bottom for the quality of the legal aid that’s going to be provided.”
And they sort of sell this by saying that all this money goes to fat cat lawyers anyway, but in reality, legal aid solicitors, junior barristers and solicitors that work in criminal legal aid are pretty poorly paid already, and it’s going to get much worse.
But the main issue isn’t whether the lawyers will survive, it’s what happens to the clients. Because they’re asking companies to bid for the lowest cost. It’s going to be a race to the bottom for the quality of the legal aid that’s going to be provided. And what the government want is for big companies to come in and do it by economies of scale. So there’s already talk about organisations such as G4S, Tesco and Co-op and even Eddie Stobart. In fact Eddie Stobart has already set up a company called Stobart Law – they’re clearly going to be one of the organisations bidding. So organisations with no specialist knowledge are going to try and churn out this work at the lowest cost and it’s really going to affect the quality of the service people get.
The people representing civil cases will be chosen by a government agency. How will that affect the fairness of the trial and how important is it for a client to choose their own lawyer?
It’s extremely important for a number of reasons. At the moment when someone gets arrested and they go to the police station, they can request a solicitor to attend, and may already have dealings with a solicitor they want. They can pick their own solicitor, and that’s very important because it means solicitors, firms and lawyers at the moment are competing essentially by quality. So the better firms are, the more likely they are to get clients because they’re better at the work they do. What’s going to be introduced now is after they have a much smaller amount of organisations with contracts, there’s going to be no client choice. Effectively, there’ll be a rota. If there’s eight companies offering legal services in a geographical area, the first client that goes into a police station gets organisation number one. The next will get organisation number two. So there’s no client choice.
“It’s going to stop firms from being able to specialise and therefore stop clients from being able to get that specialist support…and if you get an Eddie Stobart pop-up lawyer who just cares about getting the case out the way very quickly, there’s nothing you can do to challenge that.”
That’s a trap for the client for a number of reasons. Firstly, it’s going to be very, very difficult for any organisation to offer specialist legal support. At the moment there are organisations that are known for doing say, human rights work, or protest work in criminal law. A lot of students who got arrested after the student demonstrations went to particular firms because they knew they were good at doing protest law and that kind of political law. But you won’t be able to do that anymore because you’ll get whatever one that happens to be on the rota. So it’s going to stop firms from being able to specialise and therefore stop clients from being able to get that specialist support. So taking away any idea of client choice, and if you get an Eddie Stobart pop-up lawyer who just cares about getting the case out the way very quickly, there’s nothing you can do to challenge that.
Justice Secretary, Chris Grayling, justified these changes by saying, “I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills. We know the people in our prisons and who come into our courts are often from the most difficult and challenged backgrounds”. What is Grayling saying here? And what does this mean about the attitude of the government towards these cuts?
It’s an astounding quote from him. People in the profession thought that [quote] showed such disregard, and such arrogance, and instead of trying to do better for the people using the legal system, what he’s saying is this incredibly elitist position that the average criminal is too stupid to know whether he’s got a good lawyer or not. If it was true even, it would not still not justify giving them a cut, because if someone was particularly disadvantaged that wouldn’t justify giving them a terrible lawyer. But of course, it isn’t true.
That’s one of the annoying things, they claim they’re introducing these changes to introduce competition into the market, but there’s already competition because solicitor’s firms compete on quality. Clients do know whether they’ve had a good lawyer or not before, and they’ll go back to that lawyer or firm because they’ve had good quality representation. So it’s completely wrong to say that clients aren’t aware of what a good lawyer is, and I’d say even if it was true, it’s unjust and wouldn’t justify what they’re trying to do in any event.
What you’re saying about fairness of trial, there’s two big issues there. Firstly, the quality of the representation is going to go down, which is obviously going to have an impact on fairness of trial and whether people get good quality representation. I think we can predict there’s going to to be a huge increase in miscarriages of justice just because there’s going to to be such an incentive for the organisations providing legal service to get through cases quickly.
There’s going to be a big incentive, therefore, to get clients to plead guilty, because it means you can get the case out the way much quicker. So I think clients will be pushed to plead guilty when they’re not. And also, even if they do go to trial, if things are being rushed over, there’s not going to be anywhere near enough time for the lawyers to analyse the case and go into detail and pick up things they might otherwise not in the papers. Some of the biggest miscarriages of justice in history are either evidence that wasn’t given by a prosecution or things that just weren’t picked up, small things that didn’t seem important and analysed, and we’ll see a huge increase in that.
But the other main reason it will effect sentencing of trial over the quality of representation is, in theory, especially if organisations like G4S get involved, there’s going to be a huge conflict of interest. I don’t think it’s been confirmed that G4S are bidding for contracts yet, but it’s very, very, likely. G4S currently run some of the prisons and transport clients between prisons and courts, and already have a very involved role in the justice system, and the punishment point. If they’re also going to be representing people as lawyers, then that’s a huge conflict of interest, because you’ve got someone representing a client, from a company that also has a financial interest in them being sent to jail because they’re running the prisons.