Schedule of Consultation Questions
Introductory Remarks
Consulting the condemned man as to what method of execution, the noose or a lethal
injection, he would prefer may well yield the answer that he would prefer not to be executed
at all.
Similarly, although the consultation poses a series of questions and does not invite points
outside of that, I feel that it is important to stress the various other problems that arise which
the consultation does not seek to address.
Terms and Timing of the Consultation
Whilst I appreciate that the terms of the consultation are predicated on the basis that a model
of competitive tendering is going to be introduced, it is necessary to state that this undermines
the whole basis of the consultation. It is surprising that there has been no separate
consultation in relation to what would the biggest change to legal aid since at least the last
fifteen years. In many ways, the only sensible response is to refuse to engage with a
consultation where the most fundamental change, competitive tendering, is not up for debate.
However, I will engage with it and respond to the questions in good faith. Nothing should be
taken as being supportive of the principles proposed.
The Consultation speaks of the loss in confidence in legal aid in the last ten years. This is not
supported by any evidence, which seems to be a symptom of the whole consultation. It is
disheartening to read a consultation which makes a series of assertion with nothing to support
it. Assuming that the Lord Chancellor is correct, then given that the legal aid budget has gone
down in the last few years, one conclusion that could be drawn is the loss of confidence is
caused by the recent cuts and the appropriate response is to reverse them.
It is further surprising that the time period to respond to the consultation is so short. It is not
clear why such a tight timetable has been imposed for both the response, and for the proposed
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introduction of the scheme. It appears to have been conceived in haste and will be forced
through on a timetable which could generously be classed as ambitious.
There are many objections to a competitive tendering model in general, and to the specific
proposals in particular. Some of these are set out below in response to individual questions,
but the main concern in relation to it is that by holding what is in effect a Dutch Auction
quality will have to suffer. Money cannot be taken out of the system without a loss in quality.
The consequences for this will mean that more innocent people will be convicted and,
ultimately, guilty people acquitted.
Secondly, the issue of client choice is a fundamental one. It is the best guarantor of
competition and the provision of a proper service. To remove that is astonishing.
To call this price competitive tendering is a misnomer. It is a ‘low bid’ auction. No realistic
proposals to safeguard quality have been included, and there will be no competition on
quality. There is no opportunity for a business to grow by providing a quality service, there is
no competition in the system.
In the absence of a pilot, it is worth considering the effect to similar exercises in other
common law jurisdictions. The vast majority have not tried to sell of defending to the
cheapest bidder (which speaks volumes of itself). In the places where it has been tried,
notably in the USA, it has not been a success.
I would recommend that the MoJ read, as a minimum, the following papers produced by
neutral and independent bodies:




Quality Control for Indigent Defense Contracts (1988, California Law Review)
Civil Challenges to the use of low-bid Contracts (2000, NYU Law Review)
Contracting for Indigent Defence Services (2000, Department of Justice)
Gideon’s Paradox (2004, Fordham Law Review)
The only paper that could not properly be called neutral is the third one which, it should be
noted, was produced by the US Government.
The experience in those states which have adopted a similar model is that the simple
consequence has been an inadequate service (for example 70% of people pleading guilty at
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their first appearance after having spoken to their lawyer for less than a minute1). That is
hardly surprising. Having a combination of the lowest rates possible with a system whereby a
supplier of services is guaranteed a monopoly on work and will continue to do so irrespective
of their quality can only lead to one thing and that is a lowering of standards.
It is very likely that PCT is a one-way street. Once it is introduced it has a stated aim of
shutting out a minimum of 75% of the firms. A few years down the line those firms, and the
skilled personnel who worked in them will have gone and the current system cannot be
resurrected.
In light of that the haste is all the more surprising. It is not too late to adopt a sensible
approach. Starting again with a consultation on the merits of PCT would be a sign of strength
not a weakness in the MoJ.
Financial Aspects
1. The requirement for further cuts
The consultation states that the aim is to save £220 million off of the MoJ budget. There are
two points that need to made in relation to this. I make these comments bearing in mind para
1.4 :
“When expressing views on those questions, respondents are advised to have the
overall fiscal context firmly in mind ”:
The case has not been made, let alone proved, for further cuts. No-one is suggesting that legal
aid should not be subject to the same scrutiny as other areas of government spending. It must
be remembered that since 1997 there has already been cuts of two thirds in the criminal legal
aid budget. No other area of government spending has been subject to anything like that. The
history of the last seven years, since before the financial crisis that is blamed for the need for
this, has been of constant cuts.
If it were to be suggested that legal aid is cut by 25% since 2006 levels, this would be more
than most, if not all, government departments. An announcement to that effect would be
1
http://www.secondclassjustice.com/wp-content/uploads/2013/03/BrightSanneh_Defiance_And_Resistance_After_Gideon_Yale_L_J_20131.pdf
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welcomed by the public and would inject faith into the legal aid system. It would should that
the Government took their fiscal responsibilities serious. It would however lead to an increase
in legal aid. Legal aid, the provision of legal services to the most vulnerable to stand up and
enforce their rights against the state, is currently being used as a political football.
In my experience the services provided by legal aid lawyers is a quality service, but one that
is provided at somewhere between 1/10th and ¼ of the market rate. The Government (of both
political hues) have abused their monopoly position to drive down the price and are
continuing to do so. Legal aid is a fundamental part of the welfare state but is being used as a
piggy bank to raid as and when the Government feel the need for a cheap headline, with no
thought for the consequences to the people.
So, I bear the overall fiscal context firmly in mind. Even against that backdrop and assuming
that the Government’s strategy for dealing with the deficit is the correct one, further cuts are
unnecessary and are an attack on the poor, on the middle classes, and on the rule of law.
2. The figures presented
It is stated that there is a need to make savings totalling £220 million by 2018/2019. As is
clear from the business plan of the LAA, most of these savings have already been made. The
exact figures are not available at this point, but it would appear that £180 million of savings
has already been made to date. Given the requirement for the further £40 million savings to
be made in six years time, when one considers the likely impact of inflation it would seem
that the savings of £220 million have already been made.
On that basis, this exercise in further cuts is wholly unnecessary, in whole or in part.
Having said all of that, I will respond to the consultation, with the caveat that its premise is
flawed. My main area of interest is the criminal law and so I shall concentrate on that in my
response.
Personal Information
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I am a barrister who is dual-qualified, in independent practice in Chambers, and employed
part-time in a law firm. I specialise mainly in criminal law, but also practice in immigration,
prison and public law.
Chapter Three: Eligibility, Scope and Merits
1) Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be
restricted to the proposed criteria? Please give reasons.
No. There are many meritorious cases that would now no longer be eligible for legal aid.
It should be noted that in 2010 a large amount of prison law work was taken out of scope
(some of which appears to be the cases mentioned in the consultation paper). What impact
assessment has been made in relation to this? Can the MoJ explain why this was not deemed
to resolve matters?
It should be noted that questions of categorisation is intimately linked to the question of
sentence planning and when an individual will be released.
The consultation states (3.18) that “we believe that any matters not satisfying the proposed
scope criteria should be able to be resolved satisfactorily via the prisoner complaints system
or probation complaints system without the need for publicly funded legal advice and
assistance funded by criminal legal aid”. There is no evidence presented to support that belief
which begs the question of (1) whether this belief is a reasonable one supported by the
evidence and (2) what if you are wrong?
Additionally, it is already a requirement that an individual pursue alternative remedies such
as the ombudsman before launching a Judicial Review.
If legal aid is removed from this area, then it is likely that there will be far more prisoners
attempting to conduct their own Judicial Reviews. Most of these will be misconceived or
frivolous, but some will not be. All will have to be considered by a High Court Judge to
determine which category it falls in to. It should be remembered that prisoners could be
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classified, as a group, as people with a large amount of time on their hands and little to lose
by bringing action. The existence of legal aid is an excellent check on that.
There is nothing in the consultation to indicate that this has been considered and what the cost
implications would be on other budgets. Have the Judges of the Administrative Court been
asked for their views?
2) Imposing a financial eligibility threshold in the Crown Court
Q2. Do you agree with the proposal to introduce a financial eligibility threshold on
applications for legal aid in the Crown Court? Please give reasons.
No. Legal aid is a fundamental right and was introduced as an integral part of the welfare
state and should be available to all.
I would start with some comments about the figures and data presented. I put these to the
MoJ for comment and, where an answer was given, have included that:

It is not clear how many people over that threshold have historically used legal aid
and what the costs are historically.

How have the costs changed over time?
the number is relatively small but we are not able to release robust precise figures.

I am not sure how helpful it is to talk of ‘average’ figures for Crown Court cases (para
3.29) given the huge variety of cases.

Is the average used the mean or the median? I was told it was the mean.

Given the likely distribution of cost figures, I would question why this was used
rather than the median.
-It is the mean. Case costs do vary in the Crown Court but we acknowledge this in the
consultation and do need to give some indication for readers of costs.

Similarly with para 3.30, how were these examples chosen? Is there no more up to
date data than 2008 given the radical overhaul of legal aid since then?
No answer received.
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It does appear that the figures that have been chosen, the choice of the mean rather than the
median, and the lack of specifics, is designed to mislead.
One problem that has occurred since means testing is the delays caused to the Court by the
granting of legal aid. Whilst a hardship review is welcome, this will inevitably cause further
delays that will impact on unconvicted defendants and victims waiting to give evidence.
One important question is as to how much it costs to administer the means test. The suspicion
is that it actually costs far more than it saves. This needs to be considered.
I would also note in passing what is said at para 3.31 “because case costs within a particular
offence or category of offence also vary according to whether the case is contested, so any
offence-specific threshold would not necessarily be representative of cases within that
category” is one of the many reasons why the proposed cuts to AGFS and structure of LGF
under 500 pages is misconceived.
Q3. Do you agree that the proposed threshold is set an appropriate level? Please give
reasons.
Firstly, I do not agree that a threshold test should be imposed.
If one is to be brought in, then it would be better to set a figure based on absolute income
rather than one based on disposable income as this would create more certainty and reduce
administrative costs.
I do not agree that defendants who are forced (and, more generally, choose) to pay privately
should have their rates capped at legal aid rates. Why should this be? The basic principle
should be that followed in all other cases – the losing party should pay the costs of the
winning party, provided that they are reasonably incurred. The Bar Council/BSB has
determined that legal aid rates are unacceptably low and, it is clear that reasonable rates of
pay are higher than the legal aid rates.
To say that “Capping the amount reimbursed at legal aid rates would prevent high net worth
individuals receiving significant sums from the public purse” is misconceived. To have costs
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reimbursed is not a windfall, but recompense for having to defend against a legal case that
was lost by the party bringing it. They would ‘receive’ nothing, merely the costs incurred.
It has always been the case that if people paid privately then any bill of costs would be taxed.
If payments had been incurred unreasonably, then they would not have been authorised. That
is a sufficient protection against abuse.
The Consultation recognises that it is important to stop having unnecessary hearings and
shorter cases. Introducing a system whereby the CPS were to pay the costs of a successful
defendant would go a great length towards achieving that laudable aim by ensuring that the
CPS properly and actively review the cases they bring.
3) Introducing a residence test
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong
connection with the UK? Please give reasons.
No.
I posed the following questions that arise from the Consultation document to the MoJ :

How many people who ‘have never set foot in England or Wales’ have been granted
legal aid in the last five years (in absolute terms, and as a percentage of total grants of
legal aid)? – 3.42

In how many cases in the last 5 years does the MoJ have evidence that people have
brought their legal disputes to the UK in order to take advantage of legal aid?

Could examples be given?

How much money does the MoJ estimate will be saved by this?
The following answer was received :
The Legal Aid Agency does not record the nationality of legal aid claimants, and so
cannot provide the costs, frequency or other details of such cases.
The proposals outlined in our consultation paper “Transforming Legal aid:
delivering a more credible and efficient system” published on 9th April, aim to boost
public confidence in, and drive greater efficiency in the legal aid system. Under our
proposals, applicants for civil legal aid would have to satisfy a residence test in order
to be eligible for civil legal aid. This would ensure that civil legal aid is targeted at
those who have a strong connection to the UK.
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This would appear to suggest that this proposal has been made without any evidence. In light
of that, and the fact that there is no evidence to suggest it will any real savings, the proposal
cannot be supported. Making wild assertions without evidence can hardly increase public
confidence.
I would suggest that those who are adversely affected by decisions of the UK government
should be granted legal aid.
The consultation recognises (3.56) that asylum seekers tend to “be amongst the most
vulnerable in society”. For this reason, they should not lose the protection of legal aid if they
are granted leave to remain. Their vulnerability remains.
There are many examples of ‘fresh claims’ that have been successful. These are invariably
funded by legal aid and, if these proposals are pursued, there will be people who will be at
risk of being sent to a country where their lives are in danger. It is not hyperbole to say that
peoples lives will be at risk if these proposals are introduced.
4) Paying for permission work in judicial review cases
Q5. Do you agree with the proposal that providers should only be paid for work carried out
on an application for judicial review, including a request for reconsideration of the application
at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if
permission is granted by the Court (but that reasonable disbursements should be payable in
any event)? Please give reasons.
No.
There is already a merits test at which a judge must give permission. Research done by the
academics Varda Bondy and Maurice Sunkin2 suggests that of the 11,359 cases issued in
2011, there were 6,264 permission decisions. That means that around half the cases stop
between the issue and permission stage. Bondy and Sunkin conclude that 34% of cases are
withdrawn as they reach settlement, or more straightforwardly succeed.
2
http://www.publiclawproject.org.uk/documents/TheDynamicsofJudicialReviewLitigation.pdf
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Providers should also be paid if the claim is successful in the sense that the decision being
challenged is withdrawn or a consent order drafted.
Alternative Proposal
The thrust of the consultation document in all areas is that there should be an incentive to
shorten hearings. To that end, a public body who unsuccessfully defends a Judicial Review
should have to pay a fixed fee at the end of the hearing, over and above the normal costs
orders, to fund legal aid. This should encourage good decision making.
I would suggest a figure of £500 if this is done after permission is granted, rising to £1,500 at
a full hearing (the differential is important to stop public bodies defending bad decisions).
5) Civil merits test – removing legal aid for borderline cases
Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed
as having “borderline” prospects of success? Please give reasons.
No.
No evidence has been provided that the current situation is causing a problem. How many
cases have been identified by the Government as being ones that would be affected? What
impact will this have?
at 3.87 “Therefore it is already a principle of the current shceme that all cases, even those
which concern issues of great importance, must be sufficiently meritorious to warrant
funding”. Again, given this is the case why is reform necessary?
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Chapter Four: Introducing Competition in the Criminal Legal Aid Market
i) Scope of the new contract
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed?
Please give reasons.
No. The idea of contracting by way of a Dutch auction is fundamentally wrong. Given that,
as little should be in scope as possible. Again, I would commend the draft response of the
CBA in relation to that.
On the basis that the MoJ will do this, it is not clear why it is not possible to bit for specific
parts of the contract, for example, just for police station work.
Savings could be made if the CPS were also to go through a similar tendering exercise. The
MoJ should consider this.
The fact that a detainee will not be able to use their own lawyer means that the role of the
DCSS call centre should be reconsidered.
Q8. Do you agree that, given the need to deliver further savings, a 17.5% reduction in the
rates payable for those classes of work not determined by the price competition is
reasonable? Please give reasons.
Again, the premise is flawed. It is clear that a straight 17.5% cut across will have a hugely
negative impact on justice. To introduce tendering at all, let alone with these terms, without a
pilot scheme is reckless in the extreme and not compatible with good government.
No justification has been given for this, or alternative methods of cutting, proposed.
ii) Contract length
Q9. Do you agree with the proposal under the competition model that three years, with the
possibility of extending the contract term by up to two further years and a provision for
compensation in certain circumstances for early termination, is an appropriate length of
contract? Please give reasons.
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How was the length of three years set? Why is extendable by the Government for two years?
It is not clear what the answers to these questions are, or why that length of time has been
chosen.
There is a concern that after five years the skills of any firm who does not have a contract
will have atrophied and will not be able to successfully bid in the next contracting round.
Given the nature of employment law, a successful firm may well be wary about employing
people with the uncertainty of what would happen at the end of the three year period.
The consultation specifically envisages a scenario where contracts are extended in some areas
but not others (4.39). Given that some entities will likely have contracts in more than one area
this could be hugely problematic if one or other of the contracts are not renewed.
It is not possible to comment on the possibility of compensation for early termination without
knowing what level this would be set at.
iii) Geographical areas for the procurement and delivery of services
Q10. Do you agree with the proposal under the competition model that with the exception of
London, Warwickshire/West Mercia and Avon and Somerset /Gloucestershire, procurement
areas should be set by the current criminal justice system areas? Please give reasons.
There appears to be no reason why it should be set by CJS areas rather than some other
method – tendering for an area by Crown Court for example
The advantage of having contracts running across, rather than congruent with, CJS areas is
that it allows a greater cross-fertilisation of ideas and best practice to develop. The best
practices from each area may be adopted.
It is currently the position that cases are transferred between different Crown Courts that
would go into different contract areas. What provisions will be in place to stop Courts from
doing this in future?
12
Many of the areas are geographically large. Will there be any requirements to have more than
one office in the area?
Q11. Do you agree with the proposal under the competition model to join the following
criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with
Avon and Somerset, to form two new procurement areas? Please give reasons.
The concern here is that these areas are geographically too large to properly cover. It also
appears unfair to rural firms who will have to spend large sums of money to cover the police
stations and courts.
This will also cause great difficulty to clients. Providers will only be able to afford to have
one office and it will cost clients a great deal of time and money in attending to the office to
come and give instructions. This will impact disproportionately on those who are the poorest
and those with disabilities.
Q12. Do you agree with the proposal under the competition model that London should be
divided into three procurement areas, aligned with the area boundaries used by the Crown
Prosecution Service? Please give reasons.
It is not sensible to have such different sizes, resulting in radically different contract numbers,
driven by arbitrary lines (it should be remembered that the CPS London CJS areas are less
than six months old). It would be possible to divide London into three or four roughly equal
areas.
Please also see the answer to q10. The concerns about transferring cases between different
Courts is likely to be more acute in London.
It is not clear how this will work with the Central Criminal Court. This will be located in
(presumably) the West and Central Region, but is it envisaged that cases will be, as currently,
transferred into the Old Bailey from all London courts?
Q13. Do you agree with the proposal under the competition model that work tendered should
be exclusively available to those who have won competitively tendered contracts within the
applicable procurement areas? Please give reasons.
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I am not clear what this question means. There are other questions relating to client choice.
In relation to the transfer of cases between Courts, I would suggest that the practice of
transferring cases between Courts in different contract area should be stopped. If that is not
followed, then there is a risk that contract providers will have to regularly appear outside their
‘own area’. Given the extremely tight margins, this will cause problems.
The entities that have contracts will not be able to practically factor that in to their bid. It
would be fairer that if a case is moved to a different area, then a provider in that area picks it
up. Given the stated aim of the consultation to remove choice and quality, this would be the
appropriate method of dealing with it.
iv) Number of contracts
Q14. Do you agree with the proposal under the competition model to vary the number of
contracts in each procurement area? Please give reasons.
Given that the procurement areas are so different, it is clearly sensible that there should be
different numbers of contracts in the different areas.
It is surprising that the consultation is asking questions such as this where the answer is
obvious without troubling to ask the fundamental question of whether the tendering system is
desirable or not.
It is not clear that having only four contracts in many areas is enough to prevent a conflict of
interest. The assumption that this will be sufficient is based on the number of defendants in
multi-handed cases, but it is clear that it is more complicated than that.
For example, is an individual had previously assaulted a member (or number of members) of
staff of one of the firms, it may be that they are permanently excluded from representing
them.
The fact that many clients will not be happy with the loss of choice of having their own
solicitor may lead to them ‘kicking off’ and generating conflicts. Has this been factored in?
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Q15. Do you agree with the factors that we propose to take into consideration and are there
any other factors that should to be taken into consideration in determining the appropriate
number of contracts in each procurement area under the competition model? Please give
reasons.
It seems fundamentally unfair that the Public Defender Service is excluded from the
competitive process. How will the budget of the PDS be determined? I would suggest that it
should be allocated funds at the rate of the mean successful bid of the other contract holders.
There is a concern as to what provision there is for market failure. There does not appear to
be any provision for this in the consultation document. Currently, there are enough providers
to take up any slack, but this will not be the case under the proposed model. Particularly in
those areas of the country where there are only four contracts, what will happen if one of the
providers goes bankrupt or is intervened by the SRA? Given that solicitors firms are currently
already at the border of profitability, there is a great risk that a cut of 20% or more to their
income will push some into bankruptcy.
The problem is particularly acute in relation to police stations. The collapse of one firm in,
for example, Humberside which has 4 contracts and an average of 12,661 police station
attendances a year will leave 3,165 police stations a year to be covered (this is 61 a week, so
the problem will arise quickly). Who will do this? Existing firms will no longer be working,
so presumably this will be shared between the other three providers? What provision for
payment of these will be made.
The fact that there does not appear to be a plan for market failure, especially when the whole
model appears to be predicated on encouraging the lowest (and therefore most economically
vulnerable) bids, makes the plan appear to be reckless in the extreme.
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vi) Contract value
Q16. Do you agree with the proposal under the competition model that work would be
shared equally between providers in each procurement area? Please give reasons.
No reasons are given for this. The obvious problem is that it forces firms to be all the same
size. There is nothing to suggest that this is desirable and, experience shows, it is better to
have different models. It will also cause maximum disruption to existing firms unless they
happen to be of the right size.
It is not clear how it will be ensured that multiple bids are not put in by organisations that are
different legal entities but have either the same controlling mind, or an overlap of personnel?
It seems that no details of the members of staff have to be given (presumably to allow staff to
be employed if a contract is given)? The requirement to name agents with whom there is an
existing relationship appear to place existing firms in an advantageous position and is unfair
on other potential entrants to the market.
Under the 2010 General Criminal Contract : “Agent” means an individual or organisation
(other than Counsel) engaged by you to undertake legal work under this Contract in
accordance with the provisions of the Specification; (emphasis added). Is that to remain the
same under the new proposal?
vii) Client choice
Q17. Do you agree with the proposal under the competition model that clients would
generally have no choice in the representative allocated to them at the outset? Please give
reasons.
It is startling to find this proposal in a document that purports to promote competition.
The own client system (whereby currently 50% of cases are ‘own client’ rather than ‘duty)
encourages competition and quality by requiring solicitors to provide a good service so that
they will get repeat business. The consequence of the cuts in 2007 (Carter Reforms) meant
that a duty solicitor could not support their own salary on ‘duty work’ alone.
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This means that if a firm does not attract and keep their own clients, then currently they will
not survive. If client choice is abolished then there is no incentive for a firm to provide a
good service and, given the extreme cuts, this creates a perfect storm. The only rational
response to this from a bidding entity is to provide as poor a service as is possible in order to
survive economically.
I am not aware of any sensible entity that was procuring services that would operate in such a
manner as to tie itself into a contract with no effective quality control and where the provider
gets paid the same whether they do a good or a bad job.
There is a danger of being overly dramatic in a response, but the proposals on client choice
are, unfortunately, borne more of the economic practices of Stalinist central planning than the
free market.
There are also huge savings to the system as a whole by the current system. The regular
lawyer will know their client well and will be able to get to the heart of the problem quickly.
It is also likely to save money in the long run as if there is a level of trust then that will be
likely to lead to clients taking a more ‘realistic’ approach to advice that is offered.
I do not understand why the government would wish to enter into a contract, paid for by the
taxpayers, where it is explicit in the contract that poor service will be financially rewarded
rather than the other way around.
viii) Case allocation
Q18. Which of the following police station case allocation methods should feature in the
competition model? Please give reasons.
Option 1(a) – cases allocated on a case by case basis
Option 1(b) – cases allocated based on the client’s day of month of birth
Option 1(c) – cases allocated based on the client’s surname initial
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Option 2 – cases allocated to the provider on duty
Other
Option 2 is the only sensible and sustainable method. This will allow certainty in planning in
that the firm can know when and where they will be required to attend a police station. With
the other methods, cover will have to be provided 24/7, 365 days a year. This will greatly
increase the costs (and would have to be factored into any bid).
There is the risk of an ‘adverse relationship’ being built up between client and lawyer with
the other systems as they will have the repeat business. Under the current system, where there
is choice, this is a huge advantage. Once the choice element is removed however, there is a
danger that there may be resentment between client and solicitor which would repeat itself
over the duration of the contract.
It is acknowledged that there are advantages that come from continuity in representation. For
example, the provided will have a good knowledge of the client’s circumstances and their
needs which will speed matters up, but this will only arise if there is a relationship of trust
built up by good work from the solicitor where the client can choose, rather than where the
solicitor is foisted on the client.
It is clear that it is possible to divide the letters and dates equally, there are other problems in
relation to this. A look at any PNC will see that many suspects have aliases (sometimes this is
merely misspellings by the police, or difficulties with transliteration of foreign names) – how
will this be managed?
Will this be the name that they give to the police or that they are booked in to the custody
suite with? Given that, for example, Smith is a very common surname, in many cases there
will be a cut off around that name, so what happens if someone is booked in that spelling but
they are in fact Smyth and that puts them in a different provider? What if someone changes
their name, because they get married or they wish to (or even, in an extreme case, to choose
their own solicitor)?
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Similar issues can arise with dates of birth. For example, if there 38 contracts then someone
will be allocated a part of the month. Someone born on 3rd August would be allocated one
provider, but what if they give their date of birth in the American style as 8/3/19?? This is a
recipe for chaos, as well as abuse.
Q19. Do you agree with the proposal under the competition model that for clients who
cannot be represented by one of the contracted providers in the procurement area (for a
reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the
next available nearest provider in a different procurement area? Please give reasons.
As I read the consultation it is proposed that those clients would go to other firms in the area
rather than out of area (unless at the police station)? I am slightly confused by the question.
The first step should also be to allocate to another firm within the contract area. In the event
of a conflict, it could be allocated when the next duty allocation starts, or taken to a different
police station.
Will it be a contractual requirement to take cases from another area? What provision for extra
payment will be made in those circumstances?
Q20. Do you agree with the proposal under the competition model that clients would be
required to stay with their allocated provider for the duration of the case, subject to
exceptional circumstances? Please give reasons.
That is the case currently.
Please see above about allocation of cases that are transferred to a different area.
I am not aware of any evidence that the current situation is being abused.
With the model proposed, where the aim seems to be to drive down quality, one safeguard
would be to allow transfers of legal aid more easily to introduce some sort of competition into
19
the marketplace. For that reason, I would suggest that if these proposals are introduced then it
should be easier rather than harder to transfer.
20
ix) Remuneration
Q21. Do you agree with the following proposed remuneration mechanism under the
competition model? Please give reasons.
Block payment for all police station attendance work per provider per procurement area
based on the historical volume in area and the bid price
Fixed fee per provider per procurement area based on their bid price for magistrates’ court
representation
Fixed fee per provider per procurement area based on their bid price for Crown Court
litigation (for cases where the pages of prosecution evidence does not exceed 500)
Current graduated fee scheme for Crown Court litigation (for cases where the pages of
prosecution evidence exceed 500 only) but at discounted rates as proposed by each
provider in the procurement area
No. Fixed fees have a simple consequence – they promote an economic model whereby the
less work is done, the more profitable the firm. Give the fact that the payment is so low,
coupled with the lack of any quality guarantees or competition, the consequence will be to
drive down standards.
Taking Crown Court litigation, it can be seen that the situation is absurd. The difference in
preparation work between, say, a benefit fraud with 450 pages and a shoplifting with 10
pages (to take two examples that I have dealt with recently) is huge.
The system also encourages entities to exaggerate, exacerbate, or even manufacture, a
conflict so as to jettison the cases which are unprofitable.
It is the same in the Magistrates Court. To suggest that it is just to pay the same for someone
who pleads guilty to possession of cannabis and fined on their first appearance as a Youth
Court rape trial that lasts six days (again, examples of cases I have dealt with) is manifestly
nonsense.
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Without any robust quality checks, and the lack of competition, this cannot be anything but a
disaster for the Criminal Justice System.
Given that inadequate preparation leads to trials lasting longer, and being more disorganised,
it is not clear that this will save money.
But on a non-financial level, the people that will lose out the most are those who are wrongly
accused of a criminal offence (for obvious reasons) and victims of crime who will have to
suffer the consequences of an underfunded system.
It should also be noted that fixed fees for the defence are further unfair because of the delays
that are out of their hands. The CPS is responsible for most of the delays in the Criminal
Justice System and yet it is the defence that are penalised for that.
If the aim is to improve efficiency, then the ability for the Court to award costs against the
CPS (and other bodies) in favour of the defence lawyers is vital.
Q22. Do you agree with the proposal under the competition model that applicants be
required to include the cost of any travel and subsistence disbursements under each fixed
fee and the graduated fee when submitting their bids? Please give reasons.
No.
No evidence has been provided to suggest that expenses and disbursements have ever been
improperly claimed. In light of that, and the fact that there is no suggestion that that is so, it is
not clear why these are being included. It is not clear why the figures were calculated in this
way.
In any event, travel and disbursements are not ‘payments’, they are expenses necessarily
incurred in doing the job. In London during normal working hours this may be acceptable,
otherwise not.
It should be stated again that it is highly disingenuous to include disbursement figures before
applying the reduction of 17.5% as the disbursement costs are fixed figures. I asked the MoJ
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to supply information as to the mean and median disbursement claims in the different CJS
areas, as that information is not publicly available. The answer that I received from the MoJ
is that the information will be provided by 4th June (which is too late to include in this
response). The request was made on 6th May.
Without that information it is impossible to give exact figures, but, by way of example, if the
fixed fee (exclusive of VAT) is £200 with disbursements of £20 per police station (which I
am advised is a reasonable figure in a rural area) then it can be seen that applying the 17.5%
reduction to the total is £181.50, the actual reduction in the total being £38.50. However,
because the £20 costs will be fixed by the petrol station or bus or train companies, the fee will
actually be reduced from £200 to £161.50, a reduction of 19.25% as the maximum starting
bid (rather than 17.5%).
It would be helpful if the police were directed, presumably through legislation, that they can
only interview suspects between 8am and 6pm. This would assist in ameliorating some of the
consequences of this.
x) Procurement process
Q23. Are there any other factors to be taken into consideration in designing the technical
criteria for the Pre Qualification Questionnaire stage of the tendering process under the
competition model? Please give reasons.
The details are scant. As such, it is not possible to give a full answer to that. I would suggest
that the ability to deliver similar scale (non-legal) projects should not be a factor that is given
much, if any, weight.
Will there be any requirements for people in the firm to have CLAS/MCQ/PSQ/PSRAS?
A general point I would make in relation to the design of the tender process is that the lack of
details appears to suggest that no or little thought has gone into the proposed model. The
guarantee of quality is a crucial part of any tendering process if it is to have any long term
public support.
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For this reason I would suggest that there is a separate consultation on the requirements of the
tender process. This consultation has been rushed through which is extremely dangerous.
Q24. Are there any other factors to be taken into consideration in designing the criteria
against which to test the Delivery Plan submitted by applicants in response to the Invitation
to Tender under the competition model? Please give reasons.
There is a concern as to how quality will be protected.
I am not satisfied that the protection against ‘suicide bids’ is sufficient. One way of resolving
this is for the bids to be no lower that 10% lower than the PDS budget for that particular area,
extrapolated to other areas. Alternatively, the minimum bid should be no lower overall than
25% less than the current rates.
In relation to the PDS, it is not clear if they will receive the same funding as the providers in
that area? In any event, is the MoJ paying the PDS too much? Presumably not. I would
assume that the funding for the PDS is set at the level that the MoJ feels is the lowest amount
to ensure that the job is done properly. If the MoJ are in fact paying more, then they should
makes savings there. If that is not the case (and it would be surprising if that is so) then it is a
useful baseline as to what the minimum amount is that can be bid. If someone is bidding
lower than the amount paid to the PDS then this is an indicator that it is a unsustainable bid.
Please see the above general points in addition.
Q25. Do you agree with the proposal under the competition model to impose a price cap for
each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and
a discount on the graduated fee below the relevant price cap? Please give reasons.
Given that the contract winners will have to cover every aspect of work, it makes no
difference how it is structured. I do not see how the proposal provides any protection against
low bids. There is no requirement that the firm must have to spend all the money allocated to
the police station on police station work and so on. They will receive payment and allocate it
as appropriate. This is implicit in the consultation document which recognises that the
amount paid will not be in strict proportion to the amount of work done.
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For that reason, I do not see how this makes a difference.
Further, please see the above general point.
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Chapter Five: Reforming Fees in Criminal Legal Aid
1) Restructuring the Advocates’ Graduated Fee Scheme
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:

introduce a single harmonised basic fee, payable in all cases (other than those that
attract a fixed fee), based on the current basic fee for a cracked trial;

reduce the initial daily attendance fee for trials by between approximately 20 and
30%; and

taper rates so that a decreased fee would be payable for every additional day of trial?
Please give reasons.
In relation to all three suggestions, the only sensible answer is no.
If the government were to change the law so that a lawyer is entitled to enter a guilty plea on
behalf of her client, when the client wishes to have a trial, then these proposals might be
acceptable. That would obviously be unacceptable, but appears to be the premise of the
proposed suggestions.
Alternatively, can a litigator cause the legal aid order revoked, or the Advocate return
instructions, on the basis that the client will not accept advice which, in the view of the
lawyer, is reasonable?
There is no evidence provided to say that defence lawyers cause any delays, let alone the
majority of them. If the MoJ wishes to reduce delays, it is vital that they tackle the actual
causes of the delays. This is primarily the CPS but also, Serco, List Officers etc.
If the government wished to shorten trials, a system of cross-payments between CPS and the
other bodies would be the only sensible way forward.
If the tapering system is introduced, then it should also be applied to Judges, CPS and list
office employees.
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If, as the MoJ seem to believe, defence lawyers behaviour is effected by remuneration, then
this will lead to a situation where there are more applications for misjoinder and/or severance.
This of itself will take more Court time, and as many will be granted, this will lead to more
trials and more cost to the Government.
The cuts that advocates have been subject to over the last ten years have already made a huge
impact on justice in terms of corners being cut.
It has also meant that the Bar, which is still the provider of most Crown Court advocacy, has
had a huge paycut.
Further cuts are not sustainable. It will lead to a situation where the Bar is the preserve of the
rich and is hugely damaging to social mobility.
2) Reducing litigator and advocate fees in Very High Cost Cases (Crime)
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%?
Please give reasons.
No.
The current figures are too low and to reduce by 30% is just silly.
Q28. Do you agree that the reduction should be applied to future work under current
contracts as well as future contracts? Please give reasons.
No.
What will the MoJ do if someone, having signed a contract, decides that it is no longer
economically viable to continue with the work and withdraw?
3) Reducing the use of multiple advocates
Q29. Do you agree with the proposals:

to tighten the current criteria which inform the decision on allowing the use of multiple
advocates;
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
to develop a clearer requirement in the new litigation contracts that the litigation team
must provide appropriate support to advocates in the Crown Court; and

to take steps to ensure that they are applied more consistently and robustly in all
cases by the Presiding Judges?
Please give reasons.
I will deal with the first and third together:
“to tighten the current criteria which inform the decision on allowing the use of multiple
advocates;” and “to take steps to ensure that they are applied more consistently and robustly
in all cases by the Presiding Judges?
It is not clear whether this will make a significant difference to current practice, other than
introducing a further layer of bureaucracy. Are the Presiding Judges in agreement with the
suggestions?
It is already very difficult to get proper level of representation – cases where there should be
a QC and Junior, or two Juniors are getting one Junior advocate. There is no evidence that the
MoJ have presented to suggest that there is a problem.
“to develop a clearer requirement in the new litigation contracts that the litigation team must
provide appropriate support to advocates in the Crown Court; and”
Whilst the Consultation at 5.44 refers to the fact that “In practice, however, litigators do not
now routinely send a representative to the Crown Court”. That is of course true. It does not
happen for the very simple reason that they are not paid to do that.
It is not economically viable to expect a firm to routinely send a representative to the Crown
Court. Having such a representative does however enormously improve the quality of
representation as well as, frequently, saving money in allowing cases to proceed more
smoothly.
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I would suggest therefore that, as was previously the case, the Judge can made an order at a
PCMH that a representative should be sent and the firm bill the LAA separately for this. The
payment should not come out of the contract. The requirement for this to be approved by a
Judge is sufficient safeguard against abuse.
It is not clear whether it is actually proposed that it will be a requirement to send a litigator.
That would seem to follow from 5.44 but is not actually mentioned as a requirement in 5.47.
The requirement to provide proper litigation support is already present in the contract but is
effectively unenforceable as mere platitudes. If there is a proposal to require a firm to send a
‘representative’ to Court, then this will encourage the firm to send their own in-house
advocate (as this will be a ‘representative’ and a qualified litigator) rather than a freelance
advocate (solicitor or barrister). This will be particularly damaging to barristers chambers.
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Chapter Six: Reforming Fees in Civil Legal Aid
1) Reducing the fixed representation fees paid to solicitors in family cases
covered by the Care Proceedings Graduated Fee Scheme:
Q30. Do you agree with the proposal that the public family law representation fee should be
reduced by 10%? Please give reasons.
Given the cuts that have already been introduced, no sufficient justification has been given
for further reductions.
I would like to draw attention to two quotes from the Consultation Document :
The existing rates for representation may not accurately reflect the amount of work involved
(6.3) and We also propose to address some differentials in payment rates which have no
basis in the type or level of service provided, to ensure that fees are fair and consistent (6.4)
These are both good points, they are however wholly at odds with what is said previously in
the consultation in relation to the payment rates in crime.
2) Harmonising fees paid to self-employed barristers with those paid to other
advocates appearing in civil (non-family) proceedings
Q31. Do you agree with the proposal that fees for self-employed barristers appearing in civil
(non-family) proceedings in the County Court and High Court should be harmonised with
those for other advocates appearing in those courts. Please give reasons.
No.
Firstly, I would suggest that fees for self-employed barristers be paid at the rates paid by the
Government to the advocates that they instruct. It is not stated in the consultation whether this
would lead to an increase or a decrease, but it is assumed that the Government is currently
getting value for money from their legal representatives.
Also, while the question speaks of ‘harmonising’ the fees, the consultation appears to see a
simple cut in the fees of some advocates, rather than an increase in others, or an averaging of
the two. That is not harmonisation.
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3) Removing the uplift in the rate paid for immigration and asylum Upper Tribunal
cases
Q32. Do you agree with the proposal that the higher legal aid civil fee rate, incorporating a
35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished?
Please give reasons.
No. No evidence has been given for the assertion at 6.30 that the payment rates have
incentivised appeals in weak cases.
It is entirely appropriate, in any event, that there should be a higher payment for Upper
Tribunal cases to reflect the greater seriousness and complexity of the issues involved.
The rates paid to advocates should be comparable to the rates paid by the Home Office to
counsel that they instruct in appeals to the Upper Tribunal. It is to be assumed that the
Government will be achieving proper value for money and, in circumstances where it is the
state versus the individual, I assume that the Government would want that equality of arms.
It should also be noted that in the last 11 years the pay rates have stayed the same, apart from
a cut of 10% last year. This is equivalent to a cut in real terms of slightly over 35% already.
In light of that, if there is to be a change, it should be an increase in the rates for the First-Tier
Tribunal.
Chapter Seven: Expert Fees in Civil, Family, and Criminal Proceedings
Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%?
Please give reasons.
No.
In relation to crime, there is already a difficulty in getting experts on the fees available. There
is clearly an issue here as to ‘equality of arms’. The CPS is able to instruct whichever expert
they choose, and without having to go through an application process to an external body,
which already gives them a huge advantage.
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It is stated that the CPS pay less than defence. It is not clear if this is because the CPS
generally use cheaper experts, or because they have a greater volume of work, or some other
reason. It is also not clear why (7.7) the rates for CPS experts are compared to family work.
It is also revealing that in all cases, the Government appear to pay experts far more than they
pay lawyers.
Chapter Eight: Equalities Impact
Q34. Do you agree that we have correctly identified the range of impacts under the
proposals set out in this consultation paper? Please give reasons.
The range of impacts you have identified are all correct, but there are insufficient safeguards
in place to protect people from these impacts. Further, the data sets that are used are
insufficient and out of date. It does seem as well that there will be a whole range of
unintended consequences, which is why a pilot of the scheme is absolutely vital.
Q35. Do you agree that we have correctly identified the extent of impacts under these
proposals? Please give reasons.
No. To find in a consultation the statement “were any disadvantage to materialise, we believe
it would be a proportionate means of achieving a legitimate aim and therefore justified for
the reasons set out above” is astonishing. The position of the MoJ appears to be ‘whatever
happens it will be proportionate’ which is clearly fallacious. These issues need to be resolved
before a scheme is implemented rather than adopting a ‘fingers crossed and hope for the best’
approach. Again, the need for a pilot is clear.
How does limiting civil legal aid to those with a strong connection to the UK ensure equality
is maintained? On the contrary, this will significantly hinder the ability of those people in
obtaining justice. These people, both due to language barriers and unfamiliarity with the legal
system, may not be able to properly understand the proceedings.
It is clear that further reductions in payment for legal aid providers (particularly for barristers)
will have a simple result – the Bar will become the preserve of rich white men. It is likely that
a similar (but hopefully less serious) impact will be felt in the solicitors profession. The legal
profession have historically been criticised for not doing enough to ensure access to women
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and ethnic minorities. A lot of work has been done in relation to this which will be undone if
these proposals are pushed through.
Q36. Are there forms of mitigation in relation to impacts that we have not considered?
The simplest way is to scrap the consultation. At the very least, the reckless pace should be
paused and a proper pilot conducted to see if the fears of, as far as I am aware, every lawyer
who has responded to the consultation are groundless or not.
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Alternative Proposals to save money
It feels that suggesting alternatives is a waste of time given that the MoJ’s historic attitude to
cost savings suggestions has been to ignore them. For that reason, I have only addressed a
few points below.
Efficiency Savings
Further efficiency savings can be considered by making the CPS and Court systems more
effective (for example, a move to an electronic working practice would save a great deal of
money).
One particular example I would stress as it is one that the Judiciary are fully in support of. It
beggars belief that an effective costs regime has not been revisited so as to have an effective
sanction against non-compliance by the CPS (following R (CPS) v Bolton Crown Court
[2012] EWHC 3570 (Admin)). The Divisional Court in that case urged the MoJ to act quickly
in relation to this. They haven’t. It is very simple, for example, s19(3) Prosecution of
Offenders Act 1985 empowers the Lord Chancellor to make regulations “to compensate ...
any ... person who in the opinion of the court necessarily attends for the purpose of the
proceedings otherwise than to give evidence, for the expense, trouble or loss of time properly
incurred in or incidental to his attendance;”. This is just one of the ways that this could be
resolved. If the MoJ actually took saving the public purse seriously, and were the slightest bit
concerned about ensuring the guilty were convicted, they would have acted swiftly to deal
with this (in face the problem had previously been flagged the year before).
CBA Proposals
I would also endorse the suggestions of the CBA (and numerous others) in relation to th e
Magistrates’ Association and the Bank Levy. It is clear that these alone would produce
savings far in excess of what is claimed is needed. Why is this not a route down which the
MoJ will go?
I have included below a few other proposals to save further money or plug the ‘gap’ (which
has not been shown to exist). Some are more sensible and realistic than others.
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Judicial Review
If a JR is successful, then the losing party should have to pay an ‘uplift’ of the costs, or a
fixed fee, to fund legal aid. This would apply once permission is granted. This should
encourage good decision making as well as early consideration by the public authority.
Suggested rates:
Pre Hearing - £500
At hearing – £1,000
This should provide savings3 in the order of £1.1 million (unless this lead to fewer cases
being strung out by public authorities which would provide perhaps greater savings to the
public purse in the long run).
Fraud and Theft Levy
Every year the public picks up the tab for prosecuting on behalf of multinationals. Many of
these are straightforward cases of shoplifting, some are multi million pound frauds. The
companies get the huge benefits of the deterrent effect of the systems being in place to
prosecute offenders, and make large profits without having to pay a penny towards this
(apart from in taxes which, it seems, are optional for such companies).
These companies have then been able to use the convictions to launch an action for civil
recovery (which does not require a conviction). Their practices to in relation to civil recovery
have been heavily criticised by the Law Commission in 20124. This provides further reason
why these companies should pay a contribution to the investigation and prosecution of these
cases.
It should also be noted that, particularly in relation to the banks, their practices have leant
themselves to being the victims of high-level fraud. This strengthens the argument for
imposing a surcharge on these financial institutions. For example, the Court of Appeal said in
a recent case that the Bank had5:
3
Based on 1,900 grants of permission with 150 successful at a final hearing
(https://www.gov.uk/government/news/action-on-time-wasting-judicial-reviews)
4
See para 9.28 and onwards from - http://lawcommission.justice.gov.uk/docs/lc332_consumer_redress.pdf
55
Kallakis & Williams [2013] EWCA Crim 709
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“undoubtedly acted carelessly … Indeed [the Bank of Scotland] was given clear and
precise warnings by its lawyers about the risks of accepting assurances in a letter
from an alleged co-conspirator, a Swiss lawyer. It almost beggars belief senior
management chose to disregard that warning and rushed to complete the deal at all
costs. It is apparent … both the defendants took full advantage of the prevailing
banking culture in which corners are cut, and checks on them superficial and
cursory”
It is therefore appropriate that companies with a turnover in excess of, for example, £1
million pay a small contribution to the prosecution of such matters. This is both in
recognition of the value of the service that the get from the state for such assistance and to act
as incentive to tighten up their security and reduce crime. This would be banded, depending
on the value of the crime (it would be the total amount charged by the police, rather than the
amount unrecovered).
The average shoplifting is £93, most of which is taken from high-value companies that would
fall in to the proposed scheme. It seems that the average value of those who are prosecuted
was £40 (with 90% under £200) in 2006. There are currently over 80,000 cases of shoplifting
prosecuted every year6.
The exact number of these that are from ‘large’ shops is unknown, but would appear to be in
the region of 60,000.
This would not apply to attempts.
Without the exact figures being publically available it is difficult to give an exact figure for
the amount of revenue generated. It would seem that even with a modest levy of under 1%,
£1.5 million from shoplifting cases alone is a conservative estimate.
6
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/201092/Fact_sheet_lowvalue_shoplifting.pdf
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Privatising the CPS
There is no reason why the CPS should be exempt from the market. If competitive tendering
is believed to work in relation to the defence in reducing costs whilst ensuring that quality
and legal ethics are maintained, then the same should apply for the CPS.
Applying the same reduction of 17.5% to the CPS budget, would produce a saving of £103
million (based on £589 million in 2011-2012).
As to whether this will work, I would adopt the same approach as the Ministry of Justice –
there is no evidence that it will, but I believe that it will, which is sufficient. As a precaution,
Cornwall and Norfolk CPS can be kept as they are now in the event of market failure.
Amendments to Bail
In the US the amount bail bonds issued is $14 billion annually7. The industry creates a profit
of approximately $980 million annually. The bail bond industry is all in private hands.
Allowing for the relative populations and felony prosecution rates, this would equate to a
revenue of £87 million if it were to be kept in the public hands.
On this basis, the Government could move from the current system to a more Americanised
version of bail. There have been numerous concerns in the US that the bail bond industry
discriminates against the poor and ethnic minorities and raises various ethical issues, which
may unfortunately be seen as a positive in the MoJ.
7
http://www.justicepolicy.org/news/4389
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