Criminal Legal Aid

Richard Burgon Excerpts

Tuesday 8th May 2018 Commons Chamber

[Richard Burgon (Leeds East) (Lab)]

I beg to move,

That the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I., 2018, No. 220), dated 20 February 2018, a copy of which was laid before this House on 23 February, be revoked.

The gravest consequences for anyone accused of a serious crime in our criminal justice system is that their liberty is taken away from them. When that is at stake, no one should be left unrepresented in a court. When that is at stake, we have a duty, as a society, to guarantee the future of effective legal representation. Failing to do so creates the real risk of injustices. This motion today is about the threats posed to our justice system and specifically to criminal defence by the Government’s changes to the payments for the criminal legal aid system. These changes are why around 100 chambers are now, in effect, striking, taking co-ordinated industrial action, and refusing more publicly funded work. The serious consequences of this action are clear for all to see. As the BBC reported on 4 April:

“A murder case at the Old Bailey has become one of the first to be affected by a strike by barristers.”

On 9 April WalesOnline explained:

“A woman accused of murdering Swansea pensioner John Williams has appeared in Crown Court without legal representation because of a barristers’ strike.”

There are many other examples.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

The hon. Gentleman must recognise that the Bar was strongly in favour when this was consulted on, with statements such as

“the bar council and the young barristers committee welcome new proposals published today”,

and

“as circuit leaders over the period of the negotiations it is our shared view that we should support the implementation of the scheme”.

The Criminal Bar Association was in favour. So what exactly is the hon. Gentleman talking about?

[Richard Burgon]

Well, this is not the CBA’s scheme and it does have serious concerns about aspects of this provision. Tonight is an opportunity for the Government to think again and make some sensible concessions on the most controversial aspects. If everyone was happy with the measures, the criminal barristers would not have voted by 90% to take strike action.

We have a responsibility to contribute to resolving this situation by encouraging negotiation and facilitating a solution before there is further escalation. That means that the Government should withdraw these controversial changes, go back to the drawing board and come up with a scheme that attracts widespread support, rather than provoking a backlash.

[Simon Hoare (North Dorset) (Con)]

Given the importance of what the hon. Gentleman said in his opening remarks about the right of representation in court—a very serious procedure indeed—does he not agree that barristers withdrawing their services in strike protest is not serving justice at all, and that there should be another way for them to seek redress? Will he take this opportunity to condemn the strike?

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[Richard Burgon]

I will not be taking this opportunity to condemn our barristers because I do not condemn our barristers. The hon. Gentleman may wish to ask whether we support the action. Yes, we support it. We deeply regret the fact that the Government have pushed the barristers into this position. We want the Government to take this opportunity to think again and listen to people who have been backed into a corner.

[Ian C. Lucas (Wrexham) (Lab)]

Does my hon. Friend agree that this action is the cumulative effect of years and years of assault on honest, hard-working lawyers who represent clients? These people are not at the top of the profession in terms of their income or their futures; they are people who are committed to individuals in very difficult situations, and it is the Government who have let them down.

[Richard Burgon]

My hon. Friend makes an important point eloquently. For many of the barristers I have spoken to, this really is the straw that broke the camel’s back.

Before I touch on the precise concerns that have been raised about the new scheme, I will briefly look at the wider context that has caused this issue to be so controversial. As I have said, in many ways this issue is the straw that broke the camel’s back in the justice sector. Our justice system is at tipping point. The deep crisis unleashed by drastic cuts could soon become an emergency. In some areas, it already has.

[James Cartlidge (South Suffolk) (Con)]

The hon. Gentleman is talking about cuts. Does he accept that, had Labour won the 2010 general election, it too would have made substantial cuts to the Ministry of Justice budget based on its own manifesto promises?

[Richard Burgon]

Things have moved on since the 2010 general election.

Since 2010, the budget of the Ministry of Justice has fallen by 40% in the deepest cuts of any Department. A further £600 million—around 10% of the MOJ’s budget—is to be cut in the next two years. It is a system that has already been cut to the bone. The crisis in our prisons is driven by staff and budget cuts, as has been well documented. It has been less well documented that 100 or so courts have been sold off for little more than the price of the average UK house, having negative impacts on victims and witnesses. What has also not been discussed as much as it should have been is the fact that youth offending team budgets have been decimated, with central Government funding halved over the past few years, or the fact that probation privatisation is failing despite hundreds of millions of pounds more recently going into bailing out these failing private companies. But it does not stop there, because on top of this, there are big reductions in police numbers and big reductions in the Crown Prosecution Service budgets. In 2016, the Public Accounts Committee told Members of Parliament that the criminal justice system was at breaking point. After years of cuts, the system is clearly now broken. Let us be clear: an underfunded system risks yet more victims being denied justice and risks yet more miscarriages of justice.

Today we are discussing cuts related to legal aid. Our democracy and the rule of law, despite the hon. Member for North Dorset (Simon Hoare) advocating people being banned from not going to work, depends on people being able to defend their rights. Our welfare state, created in the aftermath of the second world war, was about defending people’s basic human rights. It was about guaranteeing every citizen access to the human rights of education and healthcare but also of access to justice. In civil cases, when people cannot access justice, the consequences are grave.

[Sandy Martin (Ipswich) (Lab)]

Does my hon. Friend agree that one of the basic fundamentals of our society is equality before the law, and that without access to legal aid, very many people are being denied equality before the law?

[Richard Burgon]

If people do not have access to justice—access to legal representation—and are not equal before the law, then basically some of our hard-won rights are not worth the paper they are written on. My hon. Friend makes a very good point.

As I said, in civil cases, when people cannot access legal aid, the consequences are grave. To illustrate that idea, let us look at what has happened in recent days and recent weeks. A migrant, or perhaps someone who was thought to look like a migrant, is not able to get legal advice after the Government slashed access. Without legal help, as I said, the rights that we have—often rights hard won by social justice campaigners across the decades—are simply not worth the paper they are written on.

[Mike Kane (Wythenshawe and Sale East) (Lab)]

My hon. Friend is making a powerful point. My constituent Caitriona McLaughlin works in the particular area of migrants and justice. With the Bar refusing to take new work at the new rates, she says that more and more people will suffer miscarriages of justice because of this statutory instrument. Does he agree with her?

[Richard Burgon]

I do agree. My hon. Friend makes a powerful point from his constituent’s experience. That is why I have been forced to bring this motion before the House to revoke the statutory instrument.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Will the hon. Gentleman give way?

[Richard Burgon]

I will make some progress if that is okay.

The crisis in legal aid goes much wider than the civil sector, with criminal cases affected too. As I said, that has the gravest of consequences. We now have more people representing themselves, even in the most serious of criminal cases—those tried at the Crown court. I want to draw the House’s attention to Ministry of Justice research published last week. The summary paper —only a summary—was published only after dogged pressure from journalists like Emily Dugan. It highlights judges’ concerns about people representing themselves, referring to

“unrepresented defendants not understanding how to present evidence about their case at hearings, how to prepare defence statements, or how to ask questions in court.”

The obvious result of this is that some judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty. The legal system should not be skewed towards wealthier people. Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take co-ordinated action in refusing to take up legal aid work because of changes to the Government’s funding scheme.

Labour Members are proud to have submitted this motion to annul the legislation changing the scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown court—the so-called advocates graduated fee scheme. The motion has now won the backing of over 130 Members of Parliament. We welcome the fact that, albeit belatedly, time was given for a parliamentary vote to annul this legislation.



I hope that Conservative Members who understand and respect our legal system and the importance to justice of proper access to criminal defence will not vote along party lines tonight. I hope they will help to forge a consensus that helps the Government to rethink this flawed scheme.

[Victoria Prentis (Banbury) (Con)]

When these negotiations were in process, Bar circuit leaders said:

“As the Circuit Leaders over the period of the negotiations, it is our shared view that we should support the implementation of this proposed scheme.”

Does the hon. Gentleman not think it is important to listen to those who are working in our criminal courts day after day?

[Richard Burgon]

It is not the Criminal Bar Association’s scheme. The CBA has serious concerns about the controversial aspects of the scheme. If the scheme were fine, 90% of criminal barristers would not have voted to take this action. It is clear that something has gone wrong and that the Government have backed these barristers into a corner rather than forging the consensus we need.

The Government’s scheme fundamentally changes the way in which criminal defence advocates are paid for carrying out publicly funded work in the Crown court. The new fee system means that the vast majority of cases will now receive a flat fee for a case, so that a case with 250 pages pays the same as a case with 5,000 pages. A rape case with a single complainant and defendant will have the same fee as a rape case involving multiple victims and multiple defendants. That disincentivises lawyers from undertaking complex cases, which often require weeks of preparation.

[Andy Slaughter (Hammersmith) (Lab)]

My hon. Friend is making a powerful speech. The main losers in this are senior-level junior practitioners, who prepare and research complex cases. There is no fee for looking at prosecution disclosure, which means there is a greater chance of miscarriages of justice. Is this not completely misconceived in the way it has been put together? As he says, it will simply lead to cases either not being taken or not being prepared to the standard that they should be.

[Richard Burgon]

My hon. Friend makes a powerful point. We cannot tolerate a situation where either the guilty walk free or the innocent go to prison.

The scheme fails to recognise the growing work required to deal with the increasing amount of evidential and unused material. Advocates are expected to consider that material without specific payments, however much additional material is served. That is especially worrying, given the fact that a series of trials, including rape trials, have recently collapsed because of failings in the disclosure of evidence.

Despite Government promises of cost neutrality, the CBA says that the scheme amounts to a £2 million cut, and no future-proofing is built into it, resulting in a year-on-year inflationary cut. The new scheme does not address the damage caused to the system by substantial real-terms cuts to legal aid rates over recent years of 40%. As a result of these reductions, there are pressing concerns about the ability to retain younger barristers and recruit the next generation into criminal defence work. After two decades without any sort of basic cost-of-living pay rise, criminal law is no longer an attractive career option for young solicitors or young barristers entering the system saddled with debt, and others are leaving because of the increasingly unreasonable demands made on them to do more and more for less and less.

[Ms Karen Buck (Westminster North) (Lab)]

My hon. Friend is making a powerful speech. On the issue of recruitment, is he not particularly concerned that if the Bar is to reflect the whole of society and is to draw more widely on people from less privileged backgrounds, black and minority ethnic backgrounds and so forth, it is essential that a career at the Bar is seen to provide a reasonable income?

[Richard Burgon]

My hon. Friend makes an important point. We are running the risk, with the path we have been taking in recent years in the justice sector, of the death knell being sounded on social mobility in the legal professions.

These changes also threaten the insufficient but none the less hard-won progress made on diversity and, as my hon. Friend says, social mobility. That has profound consequences, not just for people hoping for a career in the law but for public trust, as the judicial professions and institutions cease to reflect the communities they are there to serve. As Lady Justice Hallett has explained,

“cuts to legal aid and the publicly-funded criminal justice system will set back the cause of improving diversity on the bench.”

Criminal solicitors face similar problems with their fee scheme—the litigators graduated fee scheme. They have not received any fee increase since 1998, and the number of firms in England and Wales registered for criminal defence work has recently fallen from 1,600 to 1,200. The profession is in crisis, with an ageing demographic profile. In fact, new Law Society data paint a very bleak picture indeed of “advice deserts”, where the remaining criminal solicitors will retire and no younger solicitors are coming in to take their place. That is hardly surprising when Young Legal Aid Lawyers figures show that 53% of survey respondents earn less than £25,000 per year, and those figures relate to people qualified for up to 10 years.

[Ian C. Lucas]

Does my hon. Friend agree that the combination of the closure of courts and the reduction in the number of solicitors firms in market towns across the country is having a massive impact on these towns, and Conservative Members just do not seem to believe in a Britain that supports its local towns?

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[Richard Burgon]

That is a very important point. The whole swathe of court closures that have occurred have really done damage to the principle of justice accessible to all and delivered locally, so that point is very important.

The Law Society has issued judicial review proceedings against the Government in relation to further cuts to solicitors’ fees for Crown court work, and that crisis is not one that will go away. The issue for barristers will not be settled if the Government vote against our motion and carry on regardless. I understand that there is a presumption that barristers are all highly paid and some will want to paint this as being about more money going to the wealthy, but the CBA briefing points out that average pre-tax pay is about £28,000. Barristers are self-employed and the headline figures often exclude expenses, including the costs of office space, travel, staff, insurance, pension and sick pay, which the CBA estimates account for about half of a barrister’s turnover.

To draw my remarks to a conclusion, I want to cite an anecdote published by one criminal defence lawyer:

“Today I helped a colleague out by prosecuting the sentencing hearing in one of his cases, in a court 94 miles away from my home. The fee for that hearing is £60. £10 of that goes straight to my chambers as rent. I spent £33 on petrol and £6.30 on parking. The CPS do pay some travel—I think I’ll get £23.50 for this. Therefore, I come out with £34. The offence, by the way, was an assault on a baby. It was a 2pm hearing, so I left home at 10 and got home at 5. During those 7 hours, apart from the 10 mins I spent eating my packed lunch, I was either driving, getting ready for the hearing, in court, or explaining the outcome (a prison sentence) to the baby’s family. I don’t wish to sound ungrateful for my £34. I just can’t help but feel a little undervalued. I’ve been at the criminal Bar for 9 years. The government decides how much to pay me, and I think they take advantage of me, my skills, and my sense of public duty. #TheLawIsBroken”.

I hope you will forgive me, Mr Deputy Speaker, if, when the hon. Member for North Dorset, who has left the Chamber, invites me to condemn people such as that barrister, I do not do so. I hope you will forgive me if, when the hon. Gentleman who has left says that this person should be forced to go to work, I say that I do not agree with such a cruel and detached analysis.

The Government will say that they sought consensus on these issues, and that the Ministry of Justice has worked with the CBA and the Bar Council, although there are different accounts of those talks. The truth of the matter is that the Government have failed, as hundreds of barristers are now taking direct action. They have failed, as there is press speculation of further barrister action if they press on with this scheme tonight, with walkouts and returns not being done, which would send our courts into chaos. The Government have failed, as people in our justice system are being affected. Whatever one makes of it, the Government’s approach has not created consensus; it has created a backlash. When they are in a hole, the Government should stop digging.

The Criminal Bar Association has made a formal request for the Ministry of Justice to delay, withdraw, amend or reconsider the implementation of this statutory instrument. The Government should listen to the CBA, not deny that there is a problem. They should put the new scheme on hold and set about fixing it. To do that, they should do the right thing in tonight’s vote. I commend the motion to the House.