This piece is written specifically to address what we believe to be the concerns of the Minister of Justice, namely to go forward with the most efficient and cost effective criminal justice system, and to maximise the scope for “savings” whilst continuing to provide a suitable quality of service.
We write under severe constraint of time and resources, and do so against a disappointing background. There was an opportunity to place on hold both the 8.75% cut and the contracting process known as “two-tier”. To-date those opportunities have not been taken but it is our hope that a constructive dialogue may emerge from the present difficult position, and that opportunity seized.
The Geography of London
The first essential point to grasp is that London is completely different to anywhere else in England and Wales as a legal aid area.
Greater London is over 600 square miles. With its hinterland, the London Metropolitan Region is even larger and the population is rising rapidly projected to rise from about 8 to 9 million people and in the wider projected area 12 to 13 million.
The Criminal Justice System
It has been unplanned. The Minister recently announced an intention to close ancient prisons and we assume this will encompass HMP Pentonville, Wandsworth , Brixton and Wormwood Scrubs.
The question we pose is how is the administration of criminal justice to be planned across the London Metropolitan Region?
At present no Crown Court (with the exception of HMP Belmarsh and Woolwich Crown Court), sits next to any Magistrates Court or police station nor they with each other. This piecemeal development makes the life of lawyers trying to negotiate between office, police stations and Courts extremely difficult. It is an incoherent system.
That incoherence underpins the difficulties of establishing an economy of scale. Fixed fees take no account of travel and waiting, and the vast distances of London inevitably impact upon any attempt to engineer a better economy of scale through “consolidation” or increases in volume.
There are also inevitably limits of what one person can do in a day and again geography impacts on individual productivity .
Localising the work
It has been a consistent complaint of Government that there is scheme inflation in London. This means that there are far too many solicitors on any individual areas duty solicitor rota.
Scheme inflation was directly caused by an agency of Government , namely the Legal Services Commission which took every individuals eligibility for schemes and translated it into placing them onto the maximum number of schemes for which they were eligible, ie, the borough in which they were located, and all contiguous boroughs which held schemes.
There is a simple incredibly cost effective answer. It is a policy proposed by the LCCSA for a decade. It is to limit Solicitors to two or three schemes per person. This would be the borough in which they were located and one or two contiguous schemes. This would instantly make all schemes more local. It would increase the volume of work in the police stations and Courts local to offices, and be better for clients who would find that their Solicitors were also located in the same area as the police station and Court and close to where they live.
Above all this is cost effective. It would cost nothing to implement. It would remove all of the costs of the horrendously complex contracting edifice which has been erected around what is really a very simple idea to provide duty solicitors in police stations. It is a direct alternative to two tier, and can be evaluated in terms of its effect.
For many years the myth was pedalled that there was over provision in London, largely based upon scheme inflation. The KPMG report confirmed however that the number of Solicitors in London is proportionate to the work.
Paradoxically we have a Conservative Government attempting to implement a State driven rigid form of contracting to replace what has arisen as a result of a much more natural market mechanism.
There is no market price because price has depended upon administrative fees, there has however been a very real market force namely reputation. Firms with good reputations attract the clients.
In addition, there is another market force namely entrepreneurs seeking location. Solicitors provide their own capital, take their own risks, and look for business opportunities. This means across the vast metropolitan region Solicitors have looked for gaps in the market and places where they can offer services. It is unfortunate that the complimentary legal aid model of all services under one roof combining Civil and Crime has been broken by mistaken government policies of separating Civil and Criminal contracting.
However, it is still the case that criminal practitioners have found their niches and market opportunities. This has resulted in a highly diverse set of firms which incidentally also have a very diverse ownership and employee base. This reflects London’s vast ethnic diversity .
The variety of firms also reflects the opportunities that arise from London being the centre of Government and finance, producing more varied work than elsewhere.
It was from market forces and entrepreneurial activity that BME diversity arose. Government plans to impose a state driven model will severely impact upon that diversity.
The size of London and its diversity of firms is reflected in the fact that only about 20% of the work is carried out by the top 20 fee earning firms. There is a paucity of London base statistics. It is also true that there are wide disparities of wealth within London, and again the distribution of the firms reflects this. In the Times on the 28th July 2015, Ed Conway the Economics Editor of Sky News wrote that those living on the outskirts of East London have lower disposable incomes than those living in Cumbria.
On the 29th July 2015, it is also reported in The Times that the average price of a house in London is £481,820. There is a serious long term problem of insuring that the young professionals on whom the long term health of the CJS depends can remain economically active within London in an impoverished CJS.
Scope for Improvement
As above, we advance a long term planning proposition that criminal justice in the metropolitan region needs to be planned and the impacts of closing prisons and building new ones considered; such major change will have a substantial impact on Solicitors and Counsel practising in Criminal Law.
There may be greater scope for the closure of Courts. For example in North West London, there are sister Courts, Hendon and Willesden Magistrates’ Court. When Hendon was being expensively redeveloped, (without video link!) all the work was dealt with in Willesden Magistrates’ Court. It remains a peculiar fact that Hendon could in fact have been completely closed, the valuable site sold and all of the work dealt with in Willesden.
Attempts through the Levenson Review and initiatives relating to summary justice have led to what we have long advocated , namely an extended bail date after charge with an opportunity to complete legal aid applications and receive evidence, take instructions and be ready for an early guilty plea. This is still to materialise in practice as a smooth operating method, and is highly jeopardised by severe cuts to the Crown Prosecution Service.
The standards of advocacy could certainly be enhanced and maintained by a common training programme for all advocates.
The Independent Bar, a pool of self-employed available experienced advocates is a necessary adjunct to the rapid to and fro of work in the CJS. We commend the working relationships of litigators and trial advocates and clients. It is a highly effective system which best presents any defendants case and ensures the basis of equality of arms and a fair trial. Access to justice depends in our view, on the maintenance of those arrangements. It is an enormous public good that all those who participate in the CJS experience it as a fair and just system that achieves its fundamental objectives, the conviction of the guilty and the acquittal of the innocent. For the system to be perceived as failing has extremely serious consequences for our collective adherence to common values. Cuts that go too far inevitably do undermine the CJS.
In London there is an extremely cheap mechanism to achieve localisation for work , better economy of scale and to maintain diversity of practice and ethnic diversity within the solicitors profession. The diversity of firms underpins the Independent Bar and is essential for access to justice. There are opportunities for “savings” and efficiency but achievement will depend on joined up thinking, collective action and careful planning.
29 July 2015