On Wednesday 9th February 2022 CLSA Chair Daniel Bonich appeared at the All-Party Parliamentary Group on Legal Aid alongside the Legal Aid Minister James Cartlidge, CBA Chair Jo Sidhu and LCCSA President Hesham Puri.

15 February 2022

Read below what he said :

Thank you very much for the invitation to be here and it’s a pleasure and an honour to be here alongside some of our distinguished speakers. I have the immense honour of being the chair of the Criminal Law Solicitors’ Association. We represent solicitors doing criminal practice up and down the country and my members are by their very nature highly trained, highly regulated, highly skilled and highly committed. The same observation would go, of course, to our members of the Bar so it is frankly disappointing for our members consistently to feel undervalued by Governments of all colours and persuasions of recent decades. I don’t want to go back and I don’t want to repeat things that we have heard already, I echo entirely everything Stephanie said on behalf of The Law Society and everything that we have just heard from Jo in relation to the position of the Bar, the observations are the same, we have the same difficulty with recruitment and we have the same difficulty on the ground in terms of conditions. But I’d like to, if I may, go back to the question which is effectively the title of this webinar which is ‘where do we go from here’? I suppose it is right if we are looking at solutions that we know why we are here before we work out where we can go next. So absolutely the observations, as I have said, echo what those have already said. I think we have to frankly identify the real difficulty that exists and these difficulties really fall into two if not three categories.

The first is money, I am afraid, and although we all understand there are lots of demands of taxpayers’ money and it is taxpayers’ money, it’s our money, we are all of course taxpayers ourselves, we all share the interest in making sure it’s well spent, but there are some observations I have to make. The first is that in comparison to total government spend, what we spend on criminal legal aid is a fraction of a percent, it’s a relatively small commitment from Government in the grand scheme of things and we have to look at where rates are now compared to where they were. So others who have been around far longer than I will be able to give you even better figures, but certainly in the time that I’ve been qualified fees have dropped in real terms by 45 % and that was before physical and actual cuts, the 8.5% cuts brought in by Christopher Grayling when he was Lord Chancellor. So we are looking at effectively being paid half as much now as we were 20 years ago and that is, as far as I’m concerned unsustainable in any industry and I would challenge any of you to think of anything that you’re buying or spending either as Government or members of the public that costs half as much now as it did 20 years ago; you will not find anything because it’s just not the reality of the situation. If we are looking at the impact of inflation which is what drives those rates down, effectively by the time any Government money arrives under the current time table as we understand it, another 10.8% of inflation on Government figures will have hit us. So the suggestion from Sir Christopher, which was most welcome and I have to thank him for his excellent work, but a suggestion of around a 15% increase is almost all gone by the time we get around to actually bringing it into action compared to where we were when the report was first announced and I have to say the report was a long time coming. Those of us working in the profession will tell you we have been making these points over and over again and it was a result, and I say this with great respect and thanks, that people finally listened and announced a report to get some evidence because for a long time it felt like frankly nobody was listening. So money I’m afraid is point one, but also as far as I can see on a practical level is the easiest thing to address simply because that can happen far more quickly than some of the more complicated recommendations that Sir Christopher makes.

The second problem is a structural one. We often talk about the criminal justice system but it’s not a system, that’s the reality, it’s a lot of systems interacting with each other that don’t talk to each other, that don’t think about the impact of their changes on others and we’ve successfully as a country moved around money within the justice system for decades without actually attacking a single issue and the recommendation therefore of some kind of an oversight again is welcome, we would suggest that in terms of anyone taking a global and holistic view of the criminal justice system must also have the power to make recommendations as to rates and fee schemes which again, if we aren’t to get back here rather quickly, must at the absolute minimum take into account inflation from now on when we are thinking about how much fees should be paid out.

The third limb of the difficulties is the admin. It’s the administration of these complicated schemes. It’s the administration of the entire operation of legal aid in solicitors’ experience. Our friends at the Bar have a much better experience I think with the Legal Aid Agency than we do – they may not believe that given their own experience, but they don’t have the same level of oversight that we have. We are already, as I started by saying, a highly regulated profession but we are effectively regulated again by the Legal Aid Agency through the contract route. I made this observation to somebody yesterday, we talk about an adversarial system, often it feels on the ground that our adversary is not the Crown Prosecution Service it is the Legal Aid Agency because my members spend as much time dealing with issues with administration as they do sometimes with case preparation. That may be a symptom of complicated schemes and arrangements and we have to look at those if we are going to make any real progress.

We’ve heard some compelling figures from Jo in relation to average barrister earnings, certainly in the first three years, solicitor earnings are also of course reflected in Sir Christopher’s report, you will see that whilst on average a duty solicitor can earn anywhere between £30,000 and £40,000 a year, you’ll see that the average partner take home pay from public funds in recent years has averaged at £17,000. Now those who have any expertise and experience in legal aid and the justice system will know that in terms of career progression, being a partner in a firm is what you would aim for, as a solicitor that is, that is effectively your career progression from trainee to duty solicitor perhaps to a supervisor and then to a partner. What we are effectively seeing on the ground is in order to take the final step, to take the risk of running your own firm, you’re probably going to have to take a pay cut and you would almost be better off looking at where the government cap falls on benefits, actually claiming government support, so that is not sustainable and that is why we have lost a third of firms in less than a decade and similar number of practitioners. Solicitors on the ground are gone, they are going. In fact, Sir Christopher identifies the difficulty we have, I said a moment ago that often the biggest adversary we have is the Legal Aid Agency, where the Crown Prosecution Service is a true adversary in the sense of the adversarial system is that they keep taking our staff frankly because they can compete far better, the salaries they can afford to pay are far better, the conditions are better, the entire remuneration package and benefits are better. These are effectively people whose qualifications haven’t changed, the work hasn’t particularly changed, they are equally as qualified, there can be no sensible reason, and in fact no reason based in fairness where the prosecution are able to spend so much more on its staff compared with those who are defending, that frankly violates every concept of equality of arms that there is.

In terms of solutions we’ve heard from Sir Christopher on a number of recommendations, I endorse all of them. We recognise that things like fee changes and fee structures will take some time, I hope that work can start on that quickly, but I recognise that that is not straightforward. But what is straightforward we would say is a need for this emergency investment. Sir Christopher’s report is an excellent piece of work, but you have to read all of it to really understand, you can’t jump in I’m afraid to the conclusion section and see 15% and think hoorah, it is a recognition that is in effect the minimum that is needed to even stabilise the patient. We have arrived in A&E, we need to stabilise, we need to identify what the issues are for fee structure reforms and then we need to actually look at cure. There is a lot to do, what we would say to you Minister is that we do not believe that these changes and reforms need to be delivered as a single block of changes, they can be staged, some can by their very nature can be deployed far more quickly than others, and we would suggest that the absolute minimum extra investment should be worked on now and should be delivered as soon as possible, thank you.

Closing Remarks

When I was giving some examples of the system, I said it was dysfunctional and there were two fairly recent examples. One is the announced intention to give Magistrates greater sentencing power to help clear the backlog. The knock-on effect of that is that the sending fee that was part of our accelerated items, £50 million package, will effectively be cut. There will be fewer cases being sent because there will be more in the Magistrates Court. So one of the measures we took as an emergency measure just two years ago we are already chipping away at. The second that I touched very briefly on is the changes in rates paid for court appointed advocates, which is a fairly new topic that has come to our intention. In fact the Legal Aid Agency and the National Taxing Team have decided not to follow the increase in guideline rates from the Senior Court Costs Office, in fact they have decided to half what’s been paid for travel and waiting. That was a stealth cut done I’m afraid in the background without any consultation. While we are talking – as you say Minister we are in the middle of a consultation – and they have decided to cut rates and that doesn’t go down well in terms of morale or achieving our aims of creating a sustainable system.