Criminal Legal Aid

Alex Chalk Excerpts

Tuesday 8th May 2018 Commons Chamber

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I declare any interests that I may have as a non-practising solicitor. The criminal justice system in England and Wales faces many significant and structural problems, but placing all the blame on the regulations and tacking the Criminal Bar’s reaction to them at face value will not solve the underlying problems with which we need to contend. Having said that, my initial reaction to the current SI proposals was that, given the barristers’ strike and Opposition party protest in relation to alleged criminal legal aid cuts, I was somewhat surprised to read the impact assessment, which suggests no cuts and an increase spend on legal aid. That aside, the plans are, in themselves, positive and rational. The Minister has given a strong defence of them today, and they shall have my support.

We are tweaking a scheme that was put in place by Labour in 2007. Since then, effective case management has become rightly more of a priority. I can understand the desirability of unbundling the tasks in fee assessment and the key need to address huge increases in the amount of data now available through discovery. The Opposition and the hon. Member for Leeds East (Richard Burgon) are protesting too much. Labour in government repeatedly proposed reform of criminal legal aid and then repeatedly pulled back, instead resorting to fee cuts.

[Alex Chalk (Cheltenham) (Con)]

Does my hon. Friend agree that the Labour party does not come to this matter with clean hands? In 2007, at a time of rising budgets for health and education, there was never more money for the Bar, even though it needed it. The Opposition’s remarks do not hold up.

[Mr Djanogly]

My hon. Friend is quite right. In fact, many, if not most, of the post-2010 coalition criminal legal aid cuts had been put in place by the losing Labour Administration. Furthermore, during debates on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I recall the Labour spokesman saying that we should make required cuts to criminal legal aid, rather than to civil legal aid. Having engaged in the blame game, we could all just leave it at that, but that would be to once again avoid the harsh reality that we all now need to face up to, namely that this country’s criminal legal aid system is not fit for purpose and needs to be totally restructured.

While consultation with legal practitioners is important, we legislators need to be reminded that no significant reform to the legal professions has ever come about from the practitioners themselves. Someone in government, or indeed in opposition, is going to have to make a move on this. I will admit that the previous Labour Government made some useful justice reforms, much of which I had the honour to oppose from the Front Bench and on which we often worked co-operatively. Why are the Opposition not doing the same on criminal legal aid? Rather than just complain about it, why can they not offer an alternative? The hon. Member for Leeds East told us what the Criminal Bar Association wants, but he did not say what he wants or what he believes, and I think he should.

The fundamental problem is that the legal market generally, and criminal law in particular, is totally fragmented, under-capitalised, technologically semi-illiterate and structurally redundant. Criminal practice is characterised by large numbers of barely profitable firms that are all too often unable to properly serve clients through lack of manpower, inability to invest in training of staff and trainees, and a lamentable lack of technology. I recall trying to persuade criminal defence solicitors to take prosecution evidence online rather than in paper bundles, but the resistance was ferocious. Why? Because large numbers of solicitors were running their small practices from their homes and could not afford to invest in the required technology. That type of inefficiency also goes to the Bar, with advocates often getting court papers late, which may have worked for the single lever arch file deposited in times gone by, but with not the online data dump that can now be sent. As has been said this evening, young barristers will often effectively work for nothing, which itself is a barrier to diversity and to poorer people entering the profession. I could go on with such examples at length, but hon. Members will get the picture.

The answer to this situation, without any doubt, will involve consolidation of this fractured nineteenth-century legal services marketplace. Although the number of small firms has slowly reduced in recent times, the most practical way to aid the process would be a larger-scale system of contracting for legal aid work. That would involve fewer but larger practices operating over a larger area, resulting in fewer firms receiving a larger slice of the remaining pie on a single-fee basis. In turn, it would create firms that have the money to invest in training and technology, and with the size and depth required properly to cover the contract areas.

Yes, we have more data than ever before, but charging to read it on a per page basis is simply outdated. Most of the extra data is useless guff from, say, social media. The answer is to have firms of lawyers that are able to invest in the technology now available to sort the wheat from the chaff. That will only come from market consolidation, and a vital aspect of that will be to treat barristers and solicitor equally. If teams of barristers wish to compete for legal aid contracts, they should be free to do so, in the same way as sole-practitioner solicitors band together with other solicitors, or indeed with barristers, to bid for contracts.

The Legal Services Act 2007, brought in by the last Labour Government with Conservative support, provides the necessary mechanism—the alternative business structures—for that to happen. Solicitors and barristers could work together, and the alternative business structures could raise capital and employ non-legal executive managers to run an effective business. We would then start to see a sustainable market taking shape.

I have some sympathy with those who complain that the criminal justice system is creaking at the seams, but rather less sympathy with those who say that the answer is more of the same. We need to face up to the need to change the rules of the game and of the marketplace. The tools and answers are certainly out there if we are prepared to take the required steps.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

When it comes to the opposition to the changes to the graduated fee scheme, the Government are entitled to feel a little perplexed because the changes were discussed with the leadership of the Bar. Francis Fitzgibbon, QC, then chair of the CBA, said that

“the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.”

Secondly, the aim of the changes, to rebalance public funding so it rewards the junior Bar more fairly, is unassailable. On that point, I will support the Government tonight.

It would be a great mistake to misread the message coming from the Bar, because my clear sense is that its protest is not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future.

The Bar is in a fragile state and needs decisive support, but it does not lie in the mouth of the Labour Opposition to make criticisms about on that, because I know full well from having been a practitioner at the time that, at a time of rising budgets across the piece in health and education during the late 1990s and in the first decade of the 21st century, Labour failed time after time to put more money into the Bar. In 2003, Tony Blair spoke of the “gravy train” of legal aid. In 2006, Lord Falconer referred to the legal aid bill as being “unsustainable”, and there were further plans to cut it in 2010. One has to consider those remarks with great care.

I wish to make some brief observations in the time available; I wanted to say a lot more but I shall confine myself to this. When considering the amount we spend on justice and legal aid, we should put it in context. Treasury Red Book figures show that total public sector spending for 2018-19 is expected to be £809 billion. The total Ministry of Justice budget is less than £7 billion. To put that in context, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid—about £14 billion—is approximately double the entire justice budget. To put it another way, we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.

There are concerns about where this all heads. There will be difficulties with recruitment and retention, and we cannot have a situation where this is a just a job for posh kids with a private income. There is also a risk of injustice. If people are not available to do the work we require them to do, it will not just be a case of people being convicted when they should not be; there is a danger of people not being convicted if juries take matters into their own hands and decide that they want to deliver their own brand of justice.

I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable. Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.

[Robert Neill]

My hon. Friend is absolutely right on that last point about the motivation of barristers. Does he agree that one of the important qualities that the independent Bar brings, as indeed does an objective solicitor, is precisely that word—objectivity? The objectivity brought by a barrister has been seen in many cases, for example, those where disclosure failures have occurred, and in the willingness to root out what is absolutely necessary, fearlessly, on behalf of a client. That cannot be replicated.

[Alex Chalk]

That objectivity is vital. In the United States, they have dyed-in-the-wool prosecutors. I remember the case of Michael Jackson, with Tom “Mad Dog” Sneddon; all these people do is prosecute. One great value we have in this country is that people prosecute and defend. That level of objectivity is fantastic. It also means that people are incentivised to go the extra mile, because you are only as good as your last brief.

The criminal Bar is precious. This is not about sentiment. This is a flinty-eyed assessment of a real and pressing need. Once this matter is over tonight—I will vote with the Government, because the Opposition’s proposal is, with respect, misconceived—I urge the Government to look again at how the criminal Bar can be supported, as there is a pressing need.