Open Letter to The Rt Honourable Brandon Lewis

Criminal Law Solicitors’ Association National Conference

Friday, 14th October 2022 – Mary Ward Conference Centre, London

Dear Lord Chancellor

Firstly, we congratulate you on your appointment to this important and historic role, which includes the heavy burden of protecting access to Justice for citizens of England and Wales. We understand that in the next few weeks much Government business is paused due to the loss of Her Majesty Queen Elizabeth II, but it is also right that we raise a matter of some urgency so that you can address it when matters resume at pace after the period of National Mourning ends.

We should like to repeat an invitation to attend, and speak at, our annual conference in London on Friday 14th October. That offer is extended to any of your ministers.

This is an open letter that we shall be publishing on our website for the benefit of our members.

The Criminal Law Solicitors’ Association represents Criminal Defence Solicitors across England and Wales. You will be aware of the vital role that Defence Solicitors play in the Criminal Justice System. For example, the Police and Criminal Evidence Act 1984 gives to a suspect detained at a police station the right to have a solicitor present at any interview, carried out by the police for the purpose of gaining evidence. Such advice is provided by our members and the Duty Solicitor Scheme ensures that a legal advisor will attend any police station at any time of the day or night 365 days of the year.

It is vital to bear in mind that without this provision police officers cannot interview suspects and progress cases, delaying and denying justice to victims, not to mention infringement of the rights of detained persons. This work is invariably carried out under the Legal Aid scheme.

That duty solicitor scheme, and indeed the whole supply of Defence Solicitors firms, is close to collapse – by way of example there is now just one duty solicitor in Barnstaple who cannot possibly cover the scheme. Schemes at Skegness, the Isle of Wight and Ceredigion are barely functioning. The average age of duty Solicitors is over 50. Firms cannot recruit young solicitors. All of these problems were highlighted by the report the Government commissioned, the Criminal Legal Aid Independent Review, which was a tremendous piece of work by the now Baron Bellamy, KC. The reason for this collapse echoes the current dispute with the Criminal Bar. Decades of under funding, no fee increases for 20 years and, indeed, for Solicitors an 8.75% reduction in legal aid fees in 2014.

Members of the Criminal Bar have reluctantly chosen to refuse to work at the existing rates in Crown Court cases. That advocacy is vital to the process of justice but it must also be remembered that preparing Crown Court cases is a task carried out by Solicitors and paid for under the much-discredited Litigator Graduated Fee Scheme. Solicitors also provide advice and assistance in the Police Station and in the Magistrates Courts and is only a small percentage of cases that reach the Crown Court.

It would be an error to assume because Solicitors are not as yet “striking” that they accept the current position. This is simply not the case, and it is of great concern that there has been, and continues to be, a wholesale abandonment of criminal defence work by Solicitors. There is wholesale discontentment amongst our members as the profession reaches breaking point. This, of course, is also the case with the Criminal Bar.

The figures are stark. In 2010 there were 1,688 criminal legal aid firms. There are now just 964, a drop of 43% in firms offering advice to those who cannot afford to pay and require Legal Aid. This dramatic fall in the number of firms is not just a result of a consolidation of the market, as the number of Duty Solicitors has also fallen substantially from 5,240 solicitors in 2017, to 3825 this year, a 28% collapse in just 5 years.

Solicitors firms across England and Wales are diverse, embedded in their communities and are generally the small and medium sized businesses that are the backbone of the UK economy.

To its credit, a previous Government did recognise the crisis and commissioned an inquiry into the funding of Criminal Defence by the then Sir Christopher Bellamy, QC, a distinguished lawyer and now Baron Bellamy, KC, a colleague of yours at the Ministry of Justice. He led an evidence-based inquiry and in November 2021 he published a detailed report which we are sure you would have read or will do doubt read.

The briefest of summaries is that Baron Christopher considered the funding of criminal defence work to be in “intensive care” and found that only an immediate 15% increase in fees could stabilize the “patient”.

He made clear before the House of Commons Select Committee, chaired by your colleague Sir Bob Neil, that the 15% figure was the “bare minimum” and not a negotiating stance. That 15% increase was calculated before inflation became rampant, meaning even a 15% increase would have now been eroded beyond recognition.

The response of your predecessor was a 15% fee increase for advocacy (the work done primarily by barristers) on new cases, a 15% increase for Police Station and Magistrates Court work, but regrettably an increase that works out at just 4% for the preparation (litigation) of Crown Court work by Solicitors. It is that work that reduces the issues, helps the court manage cases and expedites the process. This worked out at an overall fee increase of just 9% for Solicitors firms, coming into effect only for new cases from 30th September 2022.

This reflects neither the urgency that Sir Christopher recognised nor the bare minimum level of increase required and will do nothing to mitigate or curtail the continuing fall away of the numbers of duty solicitors.

We are aware that you are meeting with the Criminal Bar Association shortly. No doubt they will press their case for:-

• A 25% increase in fees to reflect the under-funding over the last 20 years

• That increase to apply to current cases

• A pay review body to advise annually on fee rates

We support our colleagues at the Bar and have done so throughout their current action. The above demands reflect the delay since Sir Christopher’s report and, most importantly, all apply equally to Solicitors.

If you are persuaded, as we respectfully suggest that you should be, that the fee increase should apply to existing cases then a new funding order will be required. This provides an opportunity to stabilise and even revive the ailing patient that are your criminal legal aid providers. This would require a very simple statutory instrument applying any increase to every Criminal Defence Legal Aid fee and applying to cases where a Representation Order is in place as at a certain date. Whilst there is a cost, in the larger scheme of Government funding it is a fraction of a fraction of a percentage point and provides excellent value to taxpayers to ensure survival of this vital cog of the Justice system and our democracy. The cost of persuading Solicitors and Barristers back into this work once they have left would be far higher, not to mention this would cause a significant delay. Other proposed measures such as expanding the Public Defender Service will be expensive, result in additional administration, and would struggle in any event to recruit the necessary solicitors for the very reasons firms are unable to recruit.

We should also remind you that a former minister at the MOJ, Sarah Dines MP, accepted that application of a fee increase to existing cases, when discussing the for the Bar would, in fairness, also have to be applied to Solicitors’ Crown Court fees. In her letter to the CBA of 29th July she said:

Complying with your request to pay new fees for existing cases would require fundamental changes to the existing AGFS structure (and LGFS as we would need to deliver similar changes for solicitors.

This must be right, of course. A copy of her letter is attached for ease.

Lord Chancellor, the failure of front-line duty solicitors’ schemes is a “canary in the coalmine” for the health of Criminal Defence Solicitors firms. The rates of pay and rewards compared not just with other areas of law but with other professions make this not just an unattractive option for young graduates today but one that is not financially viable. Legal Aid provision is performed by highly qualified, highly trained, highly skilled, highly audited and highly regulated professionals, and yet, by comparison, Police officers and nurses qualify on higher salaries than those committed to public service through Legal Aid. This applies equally to Solicitors and Barristers.

If your Government is committed at all to this country’s proud and historic respect for the right of everyone to be dealt with fairly before the law, and the principles of our justice system that have been exported and lauded across globe, then you must ensure an immediate, substantial increase in all fees.

If your Government is committed to the protection of victims and ensuring that the police can progress the case against offenders in a timely manner and bring them to justice then you will ensure an immediate, substantial increase in all fees.

We should be glad of the opportunity to meet with you at any time to discuss the above and to work with you to ensure a sustainable criminal justice system to allow your Government to meet its stated aims of reducing crime and punishing offenders.

Yours faithfully

Daniel Bonich

CLSA Chair