Criminal Bar (Public Funding)

Robert Buckland Excerpts

Wednesday 15th September 2010 Westminster Hall

[Karl Turner (Kingston upon Hull East) (Lab)]

I apologise for being late, Mr Bone. I am afraid that public transport let me down.

I declare an interest as a criminal lawyer. I was called to the Bar in 2005 and practised criminal law from a firm of solicitors in Hull for a number of years. Shortly before my election to the House, I was in the latter stages of pupillage at my local chambers, of which I remain a member. I hope, therefore, to bring practical experience to the debate as both a junior member of the criminal Bar and a solicitor who has practised criminal law and been heavily reliant on public funding.

In the time allowed, I hope to dispel a couple of myths. The first is that publicly funded criminal lawyers are taking excessive sums from the public purse. In my experience, the opposite is true. Colleagues at the Bar work long hours and receive modest fees for their services. In preparing for this debate, I asked a criminal solicitor in Hull, Mr Waddington of Williamsons solicitors, what a 25% cut to his criminal practice would mean to his business. It is worth mentioning that Williamsons is the biggest criminal firm providing services to my constituents. Mr Waddington described the prospect of 25% cuts as “disastrous”, and greater cuts as “catastrophic”.

Although no one would expect Mr Waddington to clap his hands at such a prospect, it is important to mention that he was also concerned about access to justice for the most vulnerable. As a law-abiding citizen, as he put it, he was particularly concerned about the potential effects on innocent parties in criminal proceedings, such as victims of crime and witnesses who might be subject to cross-examination by unrepresented defendants if criminal solicitors and barristers were forced to refuse instructions.

In my experience, colleagues at the criminal Bar and solicitors do not feel that the previous Government were overly generous during the past 13 years, but the cuts threatened by the new Justice Secretary and the coalition Government are likely to force them to close their doors for good.

Despite the consistent accusations of irresponsible spending, it is indisputable that the previous Labour Government streamlined and made efficiency savings, especially in criminal legal aid. As recently as March, the previous Justice Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), said:

“The Government strongly believe that there must be a significant restructuring of the provision of criminal defence services in order to achieve greater value for money from legal aid, while still ensuring fair access to justice and enabling legal aid providers to remain profitable and sustainable.”—[Official Report, 22 March 2010; Vol. 508, c. 13WS.]

That is a crucial point. The solicitors and barristers to whom I speak are genuinely concerned about their practices and about whether they will be sustainable after £2 billion of cuts to the Ministry of Justice budget.

It is true that the Labour Government carried out significant reform of legal aid. Most prominently, Lord Carter carried out a review of legal aid procurement, a key aim of which was to reduce criminal defence rates. Those were substantially reduced—by 13.5%—but I am not saying that what happened was perfect, because I am aware of examples where injustice resulted. Cutting costs is clearly a priority for the Government, but at what cost? The Justice Secretary has confirmed that his Department will play its part in reducing public spending, but I submit that legal aid has been stretched enough. If the coalition Government try to stretch legal aid yet further, I fear it will snap.

The Labour Government recognised that legal aid could not reasonably be exempt from efficiency savings and, of course, I recognise that the criminal legal aid bill is more than £1 billion. However, I urge the Government to consider a number of issues in the comprehensive spending review. Cuts to criminal legal aid may well lead to defendants being unable to access appropriate legal representation, because criminal practitioners will decide that enough is enough, and that may compel defendants to represent themselves. That will inevitably lead to the system being clogged up, as defendants battle through what is a procedural and legal minefield. Miscarriages of justice may result from poor-quality advocacy caused by defendants representing themselves, or by the inappropriate use of inexperienced advocates, and there may also be expensive delays in court time.

Cuts to legal aid for criminal cases have already encouraged the use of employed higher court advocates, who offer less experienced representation. Speaking from my experience as a criminal solicitor and, indeed, a junior member of the Bar, I can say that there are some good-quality higher court advocates. However, the truth is that the Bar is very special. The training for it is very different, and there is no comparison between higher court advocacy and barristers. The Bar is far superior because barristers do the job all the time. Higher court advocates will waltz into a Crown court once a fortnight or once a month, but a member of the Bar is there continually.

[Mr Robert Buckland (South Swindon) (Con)]

The hon. Gentleman makes a very powerful point about the lack of experience of higher court advocates. Would he agree that one of the absurdities of the Crown Prosecution Service’s obsession with using higher court advocates is that people who are highly qualified in terms of civil service work are taken out of the system and away from the work that they should be doing in reviewing cases? That work is then delegated to often less experienced assistants within the CPS. The public sector unions frequently complain about that current fad, because it puts employees within the CPS under pressure.

[Karl Turner]

I am grateful for that intervention. I could not agree more with the hon. Gentleman or have put it better myself.

Criminal practitioners are still coming to terms with a number of the significant reforms introduced by the previous Government that have impacted on pay and the availability of work. In particular, the graduated fees scheme has led to solicitors keeping work in-house, rather than instructing the criminal Bar.

As I have said, there has been a real reduction in fees of 13.5% over three years. A 4.5% reduction took place this financial year, which is bound to have a significant impact. Regardless of the merits of the reforms, they have resulted in a considerable upheaval in the funding of the criminal Bar. That should be taken into account in any future review and in any decision that the Minister needs to take. Further cuts to criminal legal aid, whether to the criminal Bar or to criminal solicitors’ fees, will lead to the social exclusion of the most vulnerable at a time when they are already likely to be suffering cuts in other publicly funded services, on which they rely heavily.

In conclusion, the criminal Bar plays an essential role in maintaining a fair justice system. Further cuts to legal aid will result in an unfair system, with access to justice being available only to those who are able to pay for it. That will inevitably undermine democracy and justice. Given the lack of sympathy that the electorate will have for the offender, it seems too easy to attack criminal legal aid. However, there is a real danger of taking that less politically damaging action and, in doing so, seriously undermining the very foundation of our society. I am very proud of being a member of the Bar and of the traditions of the profession, which I respectfully submit are being put at risk by the actions that I believe will be taken by the Government. I therefore urge the coalition to carefully consider those points and to resist dropping the axe on criminal legal aid and on such essential services.

--- Later in debate ---

[Tom Brake (Carshalton and Wallington) (LD)]

It is a pleasure to serve under your chairmanship, Mr Bone. I congratulate the hon. and learned Member for Torridge and West Devon (Mr Cox) on securing this debate. I shall not attempt to claim anything like the level of detailed expertise that he and other hon. Members have on this subject, nor shall I be able to defend the livelihood of the criminal Bar quite as assiduously as they have this morning. The hon. Member for Enfield, Southgate (Mr Burrowes) referred to special pleading. I am not sure whether any of what has been said this morning falls into that category. I feel that perhaps my role here is to make it clear to anyone flicking through the TV channels who stumbles across this debate that they are not actually watching a courtroom drama.

I am pleased that the coalition programme includes a fundamental review of the legal aid system. That was inevitable and unavoidable, in today’s economic climate. The hon. Member for Enfield, Southgate referred to the fact that we have the most generous system of legal aid in the common-law world. Of course, we should be proud of that, if all the money is being spent well.

I acknowledge that a comparison of the costs of our legal aid system and those incurred in inquisitorial systems is not necessarily straightforward because of the differences between the two. The basic principle, which I am sure that all of us support, is that, whatever the outcome of the comprehensive spending review as it relates to the legal aid system, we should not be in a position where people are not represented in criminal cases.

There are clearly some failings in the present system. All the previous speakers expressed concerns about the level of fees. As Members will know, if 50% of the legal aid budget is being spent on 1% of the cases, it may not be that the fees are excessively high but that perhaps the cases are taking longer than is necessary—not deliberately, but perhaps there is a slight incentive to ensure that they go on longer than is totally necessary. That needs to be looked at, particularly if it means that less funding is available for less high-profile cases in which we would also want people to be properly represented.

I assume that what the Prime Minister said about senior people working in the public sector earning a multiple of no more than 20 times what the lowest-paid workers in their field receive may impose some interesting restrictions on the level of fees that might be available to barristers doing work that is funded by legal aid. I wonder whether the Minister would like to comment on that when he responds to the debate.

On another aspect that I am sure other Members are concerned about—the hon. and learned Member for Torridge and West Devon referred to the availability of legal aid in MPs’ expenses cases—the name van Hoogstraten will be familiar to all Members here today. The safest thing I can say is that he is a colourful gentleman. Estimates of his fortune vary widely—hundreds of millions would probably be a safe figure to quote—yet apparently he received £1.12 million in legal aid. I do not know whether there have been changes since he received that funding that would preclude that from happening now. Very helpfully, the hon. and learned Gentleman shakes his head, which indicates that perhaps nothing has changed, and that such funding would still be available to someone who claims that they have no cash assets—Mr van Hoogstraten’s assets had been frozen. We clearly have to address that.

[Mr Buckland]

rose—

[Tom Brake]

What sort of action can we take? If a small number of complex cases ties down half the available funding for legal aid, can anything be done to shorten the process without impacting on the quality of legal advice and the handling of the case? The difficult balance between setting the fees at a publicly acceptable level, and setting them at one that ensures that there are people able and willing to advocate, needs to be found. When the Minister responds, I hope that he will clarify his view on whether the Legal Services Commission has a better idea of the costs and profits associated with legal aid cases, to which other hon. Members referred. The Minister will know that the Legal Services Commission was criticised by the Public Accounts Committee.

There are no panaceas. Some have advocated no win, no fee arrangements as a solution, but, clearly, it is unlikely that anyone would want to pursue, on that basis, cases involving the police.

--- Later in debate ---

[Mr Buckland]

I am grateful for the hon. Gentleman’s analysis of the problem of funding criminal legal aid cases, but does he accept that one problem is whether it is right to make people of means who are acquitted pay for their legal representation when they emerge from the court free and not guilty? We have to grapple with that question. Ultimately, although van Hoogstraten was convicted by a jury, the Court of Appeal ordered a retrial and, for legal reasons, it was adjudged that there could be no further trial, so he is not, perhaps, the best example. We should focus on people of means who have been convicted. Finally, and I do not want to take up too much time, one problem is—

[Mr Peter Bone (in the Chair)]

Order.

[Mr Buckland]

Forgive me.

[Mr Peter Bone (in the Chair)]

It is difficult when we have a room of lawyers, but interventions are supposed to be short.