By Lucy Welsh
In 2013, the government announced 
radical proposals to alter the provision of publicly funded criminal defence services. The most fundamental proposal at that time was the introduction of price competitive tendering, which would see contracts to provide criminal defence representation to firms who could perform the work at the cheapest rate. That proposal provoked demonstrations by solicitors and barristers alike and there were a huge number of responses to the consultation document. Academic staff at Kent Law School and Kent Law Clinic contributed a lengthy response document which set out concerns shared by many. The response from members of Kent Law School can be found via the following this link.
Two years on and lawyers have had some victories – the most notable of which being the then government’s decision not to proceed with the proposal for price competitive tendering. However, the government remained (and remains) firmly of the view that the number of firms providing criminal defence service needs to be drastically reduced (by about three quarters) and that firms are to suffer a fee cut of 17.5% over two years. In fact, with changes to remuneration rates and to the scope of work included in the fixed fee payments that lawyers receive, the cuts represent a much higher fee reduction than 17.5%. The Criminal Law Solicitors’ Association set out their concerns here. The 17.5% cut has been introduced in two phases; lawyers took an 8.75% cut in March 2014. The second cut was not due to take place until after the introduction of the new contracting scheme. The shortlists for the award of contracts are due to be announced in October 2015. Many are concerned that reducing the number of firms able to undertake publicly funded criminal defence work will result in significant ‘advice deserts’. Reports commissioned by the Law Society have demonstrated the fragility of the market in which criminal defence practitioners operate; with profit margins in the region of 1%. That fragility is only likely to be worsened by introducing cuts before firms are properly able to prepare for the new contracting regime.
Adding to lawyers’ concerns, one of the first things the newly elected Conservative government did was to bring in the second fee cut earlier than originally planned – on 1 July 2015. In response, solicitors decided that they would not accept work at the new payment rates. This means that anyone charged with an offence after 1 July 2015 was at significant risk of appearing unrepresented in the proceedings, creating delay and uncertainty in the process. Lawyers essentially say that the cuts mean that a market cannot be sustained, leaving some of the most vulnerable members of society at risk of state-led prosecutions that they are unable to properly engage with because they do not understand the specialist nature of the proceedings. The nature of the action has recently changed to incorporate work at Crown court, as well as cases at magistrates’ court level.
Much media attention has focused on lawyers earning very high incomes from legal aid without acknowledging that such lawyers are very few and far between while junior members of the profession earn on average £25,000 per year. It ought to be noted that the government’s Head of Legal Aid has been given a pay rise which means he receives an overall package worth up to £225,000 (The Guardian: Head of legal aid’s pay rise an ‘insult’ to solicitors after fees fall 17.5% in last year).
Lawyers acknowledge that action of this type is regrettable. Indeed, such extreme forms of protest are unusual in the legal profession, who are usually quite adept at adapting to change. It seems that lawyers have been pushed to the point at which they believe government proposals will not only ruin their business but also any semblance of access to justice. Information about the action and its effects can be found at: