Guest Post from David Watts: One Law For Them…?

I’ll be letting others take the reins of this blog for the next few weeks: I have so many projects on at the moment: Oxjam and it’s various fundraisers, setting up a cinema club in Beeston, writing columns for other publications and expanding The Beestonian to a colossal 12 pages I’m simply finding it hard to keep this reguarly updated. However, I’m very keen for others to write on subjects that they are more savvy on than me, or merely feel strongly about. I’m willing to host any view which isn’t overtly bigoted, libellous or batshit. Email me at mattgoold23@hotmail.com if you fancy writing a piece for me.

I’ve recently been concerned about the legal aid reforms that are being imposed, and tried to get my head round them as it seems to be a commodification of justice: the privatisation of the law. If you have more money, you get more ‘justice’. It seems absurd this could happen: surely ‘justice’ is fundamental infrangible foundation to society, rather than a product that can be sold in different quantities and qualities.

Yet I’m no expert, so I decided to ask someone who was. Here follows a piece from Borough Councillor David Watts (LibDem) who IS clued up (he’s a solicitor after all). It’s a quite powerful read:

A few years ago my brother in law, Andrew, a farmer, was driving his tractor and trailer back from a field where he had been working to the farm. Unfortunately a car coming too fast behind him ploughed into the trailer and two people in the car were killed. The police decided that you couldn’t blame the dead driver for the accident (I’m quoting from the accident report here) and so Andrew was prosecuted for causing death by dangerous driving. To prove that it must be Andrew’s fault the police even staged a reconstruction of the scene (at a cost of just over £10,000).

Fortunately Andrew had a good, thorough and hard working solicitor. He was able to get an expert to calculate the speed of the other car and show that when it hit Andrew it was doing over 100 miles an hour, and if the driver had braked at the first moment that he could have seen the tractor he was going so fast that he would still have hit it at speed. As for the reconstruction the defence team were able to show that the police had used the wrong size trailer and the wrong type of car. The lighting on the Volvo they used was far different to the Renault in the accident. Finally the defence were able to prove that a mark on the road that the police said was crucial in determining how the accident happened was in fact nothing to do with the accident at all.

The jury at the trial didn’t take long to find Andrew not guilty. I’ve told this story though to illustrate how easily anyone can get sucked into the criminal justice system. Had Andrew been convicted he would have faced several years in prison. Thank goodness he chose a good solicitor to represent him. Andrew got legal aid for the case as he would not have been able to afford the £25,000 bill for dealing with the case, which took nearly a year before it got to court (all caused by the police or prosecution, none by the defence who wanted the matter resolved as quickly as possible.)

The Government are now planning massive changes to legal aid to reduce eligibility and to take away a person’s right to choose who will represent them. They say that criminal legal aid costs over £1 billion a year and they have to reduce this by £220 million. I’ll confess to an interest here as I am a solicitor, but I’m also a member of a party of Government and I think that these are truly offensive ideas. I’ve spent much of the last few weeks meeting Lib-Dem MP’s at Westminster to discuss the proposals, and most are as opposed to them as I am. Hopefully we can kill off this scheme but it will be a hard fight.

Legal aid lawyers are not fat cats. I’m not complaining about that as I made a conscious choice that I wanted to use my skills to help people rather than make the massive amounts that commercial lawyers can make. The average salary paid to a legal aid solicitor in 2010 (the last time the figures were published) was £25,000 and I’ve certainly not had a pay rise since then. I doubt many others have either. The rates that the Legal Aid Agency pays for criminal legal aid work were last increased in 1996 (17 years ago) and have been cut on a number of occasions since.

So what are these proposals that the Government are putting forward? First they want to reduce the number of firms providing the service. In Nottinghamshire there are currently about 25 firms who provide criminal defence work across the county and they want to reduce it to just 6. Across the country they want to reduce the supplier base from 1,600 firms to just 400.  The vast majority of criminal law firms at the moment are small businesses. The rest of the Government are talking about supporting small businesses but the Ministry of Justice are going in quite the opposite direction.

The Ministry of Justice are proposing that the new contracts should be awarded to firms in a tendering process, so that they go to the lowest bidder. They accept that to make this work they would have to take away a person’s right to choose their solicitor and people would have to accept the solicitor allocated to them by the state. Just think about that for a moment. The state will investigate someone through the police and will prosecute someone (all prosecutions are brought in the name of the Queen). The state will put you in a position where you might lose your good name or even worse your freedom, and now the state want to dictate who you will be represented by. (If you weren’t happy about this and wanted to pay privately you can, but a law that was brought in last year means that even if you are found not guilty you can’t get your money back.)

With a maximum of six firms for Nottingham it is inevitable that at least five of them, if not all six, will be based in the city centre. It is possible that one may be based in Mansfield. There is no chance whatsoever that any of them will be based in Beeston any more, so we will inevitably lose solicitors based locally.

How will the state allocate your solicitor? They are looking at different ideas. It may depend on your date of birth, or alphabetically on your surname. It may depend on what day of the week you are arrested. I’ve suggested that they could do it on people’s star signs. It makes as much sense as their proposals.

As well as this there are a couple of obstacles that will prevent existing solicitors firms from even bidding for the new contracts. Whilst the Government have said that they want firms to bid for the contracts they have said that the maximum bid must be at least 17.5% below existing rates (those that haven’t increased for 17 years). This ignores a report from the National Audit office last year that said that most criminal law firms were struggling to survive on the rates that were paid then.  (they have already been reduced since.)The most profitable firms turned out to be sole practitioners, but larger firms made only about 4% profit. A cut of 17.5% will drive many firms out of business. There is no more fat to cut.

The second problem is that most firms are, as I said above, small businesses. They haven’t got the resources to provide the levels of cover that the Ministry want to build into each contract. Not only that but they don’t have the option to expand. The contracts the Ministry are offering are only for 3 years and with such short contracts and such low returns banks will simply not lend money to finance growth.

The next problem with the proposals is that the Government want to build in financial incentives for solicitors to advise their clients to plead guilty or, if they insist on having a trial, to keep it short. They refer to this as “harmonising fees” which means that they are proposing to pay the same fee whether the client pleads guilty or has a trial. Solicitors are already paid a flat fee for a case, so if someone pleads guilty in the magistrates court in Nottingham I’m paid a fee of about £160. If they have a trial I’m paid about £300 for the case. The new proposal is that the fee for a guilty plea should be paid for all cases, which will mean that solicitors will have a financial interest in getting clients to plead guilty.

Most defendants appearing in court already plead guilty. Because my clients know me and trust me when I advise them that they have no defence most will accept that advice and plead guilty. This saves the state a huge amount of money that would be wasted if everyone contested every trial. Clients trust me because they know that I have their best interests at heart. Will that still be the case if they think that I have a financial interest in the outcome?

You may expect that before introducing such significant changes the Government would carry out some sort of risk assessment. They have published one. Its conclusion is that they have no idea what the impact of these changes will be. It seems to me that to proceed with such a radical scheme without knowing what the impact will be is negligent in the extreme. I’ve said so to the Minister of Justice face to face. I’m not sure he was listening.

So then, if there are no solicitors firms anymore, who will be the people who get the contracts and will represent you in court? So far one firm has come forward to say that they will bid for a contract – Eddie Stobart. No, you didn’t read that wrong, the haulage company Eddie Stobart have decided that they will bid to run a legal firm to represent people accused of crime. This is not because they have a deep seated desire to promote justice but because they can see profit in it (by paying low wages and making sure no-one contests the charges). Even the Daily Mail thought this was too crazy for words:  www.dailymail.co.uk/news/article-2338231/New-face-of-British-justice-Eddie-Stobart-lorry-boss-who-judge-called-incompetent.html

It is probably the first time I have ever agreed with the Mail about anything, ever.

Other firms will come forward as well. I imagine that G4S will be interested. After all, they already work with the police, provide forensic science services, train magistrates, run prisons, transport prisoners to court and even run probation services. They might as well defend people as well. Provided you’re not worried about justice or fairness, or the obvious conflict of interests in this, this seems a good idea.

On the other hand you might think that it is a bad idea. You might expect that when these ideas come to be debated in parliament there would be a huge outcry. In fact when Labour were in power they changed the rules so that these changes, which would fundamentally change the criminal justice system in this country, don’t have to be debated in parliament at all and can be implemented by statutory instrument. This is just plain wrong.

Now let’s be clear, I’m not opposed to cuts to the Ministry of Justice budget, but they are cutting in the wrong place. First the scale of cuts necessarily is debatable. In the consultation paper the MoJ say that the criminal legal aid budget is £1.1 billion a year, but in their budget for this year (before their proposed cuts) it is only £950 million because of the effect of their last range of cuts. To be precise the proposed spending on legal aid is already £168 million less than they say. Does that mean that we only need to save a further £52 million? The MoJ say no, they still need to cut £220 million, but they haven’t explained why that is. (Although these are big sums they are a tiny part of Government expenditure. We spend, for instance, £112 million a day on interest payments on Government debt.)

Second the Legal Aid Agency, the Government body which administers legal aid, has just published its budget for 2014/15. This shows that 22% of everything that they spend is on their internal costs and administration. One pound in every five apparently spent on legal aid is spent on the civil service administration costs. This is a huge proportion of the budget and cannot be justified.

It is also possible to find the savings in a different way. 43% of all legal aid is spent on just 1% of cases, technically called Very High Cost Criminal Cases. Although some of these are terrorist related the vast majority of them are frauds, and almost certainly company directors are involved. We already require companies to take out third party liability in case of accidents, so why not also require companies to take out insurance so that in the event of a fraud investigation their legal costs will be aid? This is one of the proposals which has been put forward by the Liberal Democrat Lawyers Association, and it alone would save significantly more than £220 million each year, and without destroying our justice system along the way.

As I mentioned above the Government could push through their proposals without a debate in parliament. If, having read this, you think that this is wrong then please sign this petition to oppose the proposals http://epetitions.direct.gov.uk/petitions/48628. If we reach 100,000 signatures then the matter will be debated in parliament, and we are up to 87,000 signatures already. Your signature on the petition will help to make a real difference and stop these proposals. Please sign it and ask all your friends to do so as well. We can change the Governments mind but it needs everyone to stand up and be counted. It is your rights that they want to take away. David Watts.

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9 thoughts on “Guest Post from David Watts: One Law For Them…?

  1. Jan barber says:

    I am so glad someone has explained this in language I can understand!

  2. simon cross says:

    David’s appraisal and summary of planned legal aid ‘reforms’ can in fact be transposed in all sorts of areas including health, education, citizens advice, to name but a few. My question is: why are rank and file Lib Dems (including David) not demanding their leadership pull out of this ideologically zealous coalition. This coalition has no electoral mandate for the size and scale of public sector cuts yet Lib Dems like David are going along with this wanton destruction under some kind of delusion that its ‘necessary’. Any number of global think tanks say no it is not. so, David’s appeal – passionately expressed and restrained in its angry tone – leaves me cold when I remember that legal aid cuts are the thin end of a wedge of so-called ‘austerity’ cuts that he overtly and/or tacitly supports. Perhaps David now realises what many of us understood some years back: that this coalition is a social disaster for the most vulnerable and that includes all of us who may at some point require the legal safety net of what we will soon fondly remember as legal aid.

    • David Watts says:

      Simon, the point I didn’t cover in the article was that Labour proposed in their manifesto to do just this. Not being in coalition would not stop this happening. By being a part of Government we can protect peoples rights. We stopped the snoopers charter precisely because we were in Government, and I’m pretty sure that if we weren’t there the Tories would have tried to do away with the Human Rights Act as well. We won on them and we can win on this. I’m working on getting all Lib-Dem MP’s opposed to there proposals, and if we can do that then it will not happen. We can win this.

      (By the way, prior to the election we said that there would have to be “savage” cuts. All three parties said that they would be making cuts, so I would dispute whether or not the coalition has an electoral mandate. However that is a debate for another time, I want to focus on winning this battle first.)

      • Mike says:

        Labour proposed in their manifesto to do just this.
        Labour … changed the rules so that these changes … can be implemented by statutory instrument.
        Would you link to a reference, please? I’m completely ignorant of this sort of thing.

  3. Geoffcc says:

    Excellent article. I had my misgivings when I first heard about the reforms, but did not realise how far they went or how badly thought out they were. I appreciate that we are only getting one side of the argument for change, but it does seem that the Governments position is hard to defend. It will mean that justice will only be sure for those who have the money to afford it.

  4. kathz says:

    Access to law has become out of reach for most people. Court fees alone cause serious problems. I’m in a position where, because I’m taking responsibility for an ill parent, I have to pay more than £500 in court fees – and it’s no comfort that I can probably reclaim them in six or nine months. I’m advised to use a solicitor as well but guess what? – I don’t have enough in savings to pay a solicitor’s fees. And I’m lucky enough to have a well-paid job at the moment, though in the current climate no-one can feel secure in employment.

    Add that to the effect of legal aid cuts and I no longer feel protected by the law. Law and justice seem to be growing some way apart. If the law no longer protects me, I wonder if I’m still bound to obey it. Obviously I still have a moral responsibility to act ethically but that’s not quite the same thing.

  5. David Watts says:

    Mike – sorry it’s taken a few days but the following links should help to show the mess that legal aid was in under Labour. It’s a shame that the coalition are making it even worse:

    http://www.guardian.co.uk/commentisfree/2008/mar/10/justice.law

    http://www.parliament.uk/briefing-papers/SN05840.pdf‎ (This has a good summary of the history of legal aid over the past few years. I didn’t know until I read it that during the period of the Labour Government there were no less than 30 reviews of legal aid!)

    David

  6. kathz says:

    The reply that “it was a mess under Labour” may well be accurate but I don’t see where that gets anyone. What is needed is a focus on justice and the future. It’s pretty easy to say what was wrong in the past but a lot harder to deal with the key questions. I remember that, in the days before the coalition, the Lib Dems used to boast about being above what they termed “yah boo politics”. (They weren’t alone in this.) They claimed to concentrate on issues. I know that was a whole four years ago but it seemed like quite a good idea, The original post is good and needs to be developed by looking at core principles in relation to future possibilities; how can justice be made available and equal to all and how can all people be equal before the law? I know those principles have never actually been put into practice, which means that all three main parties have fallen seriously short of the ideal. So what would you do about it – and, if you can’t offer equality before the law, who do you think should be denied justice?

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