Catherine Baksi's blogs

Criminal solicitors and barristers are slowly getting to grips with the enormity of the legal aid changes proposed by the Ministry of Justice in its consultation last week. Most were stunned by the plans, which went much further than even the most pessimistic had expected and seemed to have been drafted by people with zero understanding of criminal justice.

The reforms have been universally condemned as unworkable for all firms and a blatant and dangerous attack on justice.

Justice secretary Chris Grayling and the MoJ have achieved what some might have thought impossible – united all criminal lawyers regardless of firm size or legal background.

This could be dangerous for the ministry.

Solicitors and barristers are angry. Facing the prospect of being driven out of work they have little to lose, and, from what I have seen, they will not go down without a fight.

However lawyers are keen to work with the government to mould the proposals into something less devastating, and Grayling would be well advised to listen to their suggestions. If he doesn’t there will be chaos, and that will cost a great deal more than the measly amount he seeks to save.

Price-competitive tendering is designed to consolidate the market, making it cheaper to administer criminal legal aid. The ministry wants to end up with a smaller number of large providers.

But the large criminal firms that I have spoken to say that they will not bid under the current planned scheme because they will have to bid at a loss. Due to the limit on the share of work that any one firm can get, the biggest firms will take a hit and will not be able to do enough work to take advantage of economies of scale.

Meanwhile sole practitioners and small and medium-sized firms lack the money to make the changes to allow them to scale up their practices, and in any event, given the likely returns, it is not worth their while to do so.

In order to participate firms will need quick access to capital. This raises the prospect that it may not be law firms that bid, but other large companies, such as G4S, Serco and Capita. If that happens, wherefore independence? How will it look to defendants if they are represented by people employed by the same company that may also jail them?

The bar will not escape the misery – while Crown court work is excluded from the madness, graduated fees are being cut too and with the other changes the incentive for solicitors to instruct counsel will be even lower than it is now. Solicitors will want to keep hold of as much money as they can, which means keeping as much work in-house as possible.

Aside from the firms that go out of business and lawyers who lose their jobs, the quality of justice for clients will be diminished.

In an extraordinary move, Grayling proposes paying the same amount for short trials as for a guilty plea. With lowly paid junior lawyers representing defendants, there is a strong likelihood that suspects will be encouraged to plead guilty due to economic pressures.

Skimping in this area will inevitably lead to miscarriages of justice. It will also lead to a rise in the number of people in prison. So from the ministry’s point of view, it makes poor economic sense.

If that were not bad enough, there’s the proposal to remove the ability of suspects to choose their solicitor.

This not only ignores the realities of those who find themselves embroiled in the system, but destroys the relationship between solicitors and long-standing clients.

The proposal does not appear congruent with the ministry’s aim. It wants more people to plead guilty, but surely a suspect is more likely to accept advice that they should do that (offer a guilty plea) if it comes from a solicitor whom they trust.

The proposals also seem diametrically opposed to much other public service reform – which tends towards giving the public greater, rather than less, choice.

The change will also require legislative change - to the Police and Criminal Evidence Act 1984, as well as the more recently drafted Legal Aid Sentencing and Punishment of Offenders Act 2012, which enshrine client choice.

And all this upheaval and destruction is for what? To save £220m a year.

Last month Grayling spoke at an event organised by TheCityUK, exhorting wealthy overseas litigants to use British courts.

For many legal aid lawyers, that appeared hypocrisy of the highest order, as Grayling was simultaneously removing the ability of most British people to access the courts.

The fact that the English legal system is held in high esteem by many worldwide is something to be proud of. Grayling is entitled to be pleased that legal services contribute over £20bn to the UK’s GDP each year - 1.6% of the total.

But, if the Treasury is getting all that money from legal services, why is Grayling not fighting for a percentage of that money for his department, so that he can continue to fund a justice system that guarantees to everyone, regardless of means, access to high-quality lawyers?

If legal services bring in £20bn, surely the Treasury could stump up £220m to prevent the destruction of the criminal justice system. Or is the price of justice too high?

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The Ministry of Justice’s deal for the central procurement of court interpreters has now been the subject of three damning reports. The National Audit Office (NAO), the Public Accounts Committee (PAC) and most recently the Justice Committee have criticised almost every aspect of the flawed procurement process and contract management.

The PAC concluded that the MoJ ‘was not an intelligent customer’. It described the exercise as ‘an object lesson in how not to contract out a public service’.

Here are some snippets from the three reports:

- Lack of understanding of the service the MoJ was buying:

The MoJ did not have a sufficient understanding of the complexities of court interpreting work prior to initiating the procurement of a new service. (JC)

It started the process ‘without basic management information on language services’, including the cost of interpreters or what languages were required in which location and at what notice. (PAC)

- Weak due diligence

All three reports highlighted weaknesses in the department’s due diligence and risk mitigation procedures.

A financial report commissioned by the ministry advised that Applied Language Solutions, the company awarded the contract, was too small to be given any business worth more than £1m a year. Despite this, the MoJ went ahead and gave Applied a contract worth an estimated £90m over five years.

‘The ministry failed to undertake proper due diligence on [Applied’s] winning bid. It did not heed financial and other advice that [Applied] was too small and would struggle to scale up to meet the Ministry's requirements in time.’ (JC)

- Failure to listen to warnings from interpreters

During the consultation process, interpreters raised concerns over the quality of interpreters used by Applied, due to the low fee rates, and training and accreditation standards.

The MoJ ‘did not give sufficient weight to the concerns and dissatisfaction that many interpreters expressed.’ (NAO)

The ministry ‘ignored strong opposition from the interpreter community… The procurement and later implementation might have been more effective had the strongly held views expressed by experienced interpreters and trade bodies during the ministry's consultation been given greater weight.’ (JC)

‘The MoJ and its contractor appear to have buried their heads in the sand. Many of the concerns that interpreters raised regarding the nature of the new operating model were realised during implementation, were utterly predictable, and should have been properly considered from the outset.’ ( JC)

‘The MoJ was, at best, naïve to view the new arrangements simply as an “outsourced booking process”. Interpreters had repeatedly raised significant concerns about the new terms and conditions under which they were expected to work.’ (JC)

- Failure to ensure the standards of interpreters:

‘Applied did not make it clear to the MoJ that the three-tier system for interpreters had not been supported by the independent expert it had consulted. The department has sanctioned, untested, a tiering system that imposes major changes to professional occupational standards and has significant potential to undermine the progress that has been made in professional development and resulting improvements in the quality of interpreting services provided in the justice sector.’ (JC)

‘The ministry was unable to confirm that all interpreters working under the contract had the required qualifications, experience and enhanced CRB checks.’ (PAC)

During its inquiry the PAC was given written evidence that revealed the lax vetting processes in operation – interpreters were able to register fake names with obviously fictitious contact details. One person even registered a rabbit, another a cat. The committee heard that some fictitious recruits were offered work by Applied, without having been vetted.

- Terminology misunderstandings:

Evidence given to the PAC showed that basic mistakes were made during the contract process. NAO director Aileen Murphie said that at the start of the contract the MoJ and Applied had different understandings of what it meant for an interpreter to be ‘registered’. The MoJ thought it meant that they were fully accredited, vetted and ready to work, while Applied used it to mean interpreters who had registered an interest in working for them.

This in part is the reason why the contract went live with only 280 interpreters ready to work, out of the estimated 1,200 required.

The MoJ’s director general of finance and corporate services, Ann Beasley, reassured the committee: ‘I think we have learned a number of lessons from this contract. In particular, we have made sure that we get the terminology right, so that we understand the same things as the suppliers.’

- Contract fulfillment and fines:

In the first week of the contracted arrangements, Applied (which had by then been bought by Capita and was trading as Capita Translation and Interpreting) fulfilled 40% of requests made to it, rising to 65% in the first month. By November fulfillment rates had risen to 95%, still short of the 98% target. More than 2,000 complaints were received in the first quarter of operation, comprising 13% of assignments that the company fulfilled.

Despite this, Applied/Capita TI has received a financial penalty of only £1,100.

The reports found that the contract did not include a strong enough incentive for Applied to meet the requirements of the contract right from the start.

Beasley told the justice committee that it is not unusual to take a couple of months to get up to service levels in new contracts, indicating that the MoJ would not seek to implement penalty clauses within that time.

Peter Hancock, chief executive of HMCTS, told the committee ‘the level of penalties that may be deployed under the contract are very small in any event’.

The lack of financial penalty for failing to meet service levels seems to send out a dangerous message to businesses looking to make a fast buck.

The errors made in this contract have caused delay and expense for the courts, with trials and hearing adjourned and defendants needlessly detained in custody.

Aside for the risks to the fairness of trials and waste of public money, the mistakes made are especially worrying because of the ministry’s declared intention of entering more much larger and more complicated contracts with the private sector – in relation to the probation service and the rehabilitation of offenders. A fact that was not lost on the two commons committees.

After the MoJ’s ‘shambolic’ handling of the court interpreter contract, can it really be trusted to outsource more services to the private sector?

Catherine Baksi is a reporter on the Gazette

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After shooting civil legal aid to smithereens the government now has the criminal bar in its sights. Twice in the past week lord chancellor and justice secretary Chris Grayling has indicated that there is not enough money for criminal legal aid - and cuts have to be made.

To The Sunday Times, he started off saying all the right stuff about justice and fair representation in criminal trials. 'There must always be the right to a defence. It is our guarantee that we will seek to ensure justice is done. We may sometimes find it distasteful, we may hate the people we are defending, but it is an essential part of our system.'

He continued: 'Access to justice and fair representation are fundamental, non-negotiable. They must be provided to those that need them most, where liberty is at stake.' He even praised the lawyers: 'We have the best lawyers in the world. London is probably the leading global centre for legal services. Students come from around the world to learn our approach. None of that must change.'

But, he goes on - and it is a big but - the price of justice appears to be too high and the and taxpayer, he says can no longer afford to pay for it.

He rightly pointed out that a large proportion of the £1bn spent each year on criminal legal aid is 'swallowed up by a small number of high-profile, expensive cases'. The solution, he mooted, was to allow fewer cases to employ the skills of a silk or 'a legal Rolls-Royce' as he put it, or to instruct teams of lawyers.

I am not sure how many criminal cases Grayling has watched lately, but very few have the teams of lawyers that he suggests - it is simply not economic for barristers to be accompanied by a solicitor, and solicitor advocates will be on their own too. I am told that it is often an uphill battle to get a silk.

Grayling continued his theme talking to BBC Radio 4's Today programme on Monday. Basically, he is saying that people should be represented, but unless they can afford it, they are not entitled to the best.

The Crown Prosecution Service annual report shows that just under 20% of defendants in the Crown court are acquitted. Everyone is innocent until proven guilty - shouldn't they be entitled to the best lawyers to defend them? In these times of austerity, will Grayling seek to apply the same measures to the CPS as to the criminal bar and to solicitor advocates, or will the courts witness the dropping away of equality of arms in criminal trials, where the state would be represented by a QC and the defendant by someone more junior?

And does it signal an intention that the Ministry of Justice and other government departments will no longer seek to avail themselves of the services of the likes of Jonathan Sumption QC when they have a case to answer themselves? It is no surprise that Grayling is seeking to cut criminal fees. His intention was made clear at the end of last year, when he slipped out figures on the lawyers who earn the most from legal aid to a couple of right-wing papers.

There may be a case for removing or cutting silks' fees, but the way to do it is not through kite-flying articles in the press and on the radio. Grayling should engage properly with the professions and tell them exactly what he trying to do. He should also, maybe, start listening to what they have to say about where money can be saved.

Catherine Baksi is a reporter on the Gazette

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Could family lawyers be doing more to win business? The findings of a YouGov poll published last week to coincide with the government’s launch of a web app to provide advice to separating couples suggest they could.

The survey showed that more than half (52%) of UK adults found it hard to access the help they needed when they separated. Of the 2,505 participants, 39% said they did not access any professional support after the split. Of those, 25% said it was because they couldn't find the right help or felt embarrassed.

That indicates a large unmet need among the public, which lawyers are could be capitalising on.

A survey published this week by the Law Society’s Law Management Section showed that the volume of family work did not increase over the second and third quarters of this year, or over the previous quarter last year. This was in sharp contrast to other areas of work like conveyancing and corporate, which are on the up.

Co-operative Legal Services is one organisation that clearly thinks there is money to be made from offering family law advice - it launched its family law practice this autumn to a great fanfare.

But how can high street firms that lack the geographical reach and marketing budget of the Co-op let the public know that they exist? Ambitious collective branding ventures like the one revealed by the Gazette today at Connect2Law perhaps offer a clue.

Catherine Baksi is a reporter on the Gazette

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