Weekly round-up, w/c May 13

News Digest for week commencing 13 May 2013

Criminal Lawyers meet with Justice Secretary to discuss tabled programme of reform: On Tuesday, 30 criminal lawyers representing the profession met with the Justice Secretary, Chris Grayling, in the first of two meetings to discuss the Government’s proposed reforms to criminal Legal Aid. The meeting brought together lawyers from different-sized firms and representative groups from across England and Wales, to put their case to the Justice Secretary. Richard Atkinson, the Chair of Law Society Criminal Law Committee said that clients’ ability to choose who represents them is ‘an essential element of the criminal justice system’. Practitioners raised concerns over the feasibility of the proposals, with several lawyers arguing there would be a race to the bottom, and a resultant reduction in the quality of legal services. Others pointed to problems with the size of the suggested contract areas and the proposed time frame to implement the proposed changes. Grayling defended the Government’s proposals saying that while he couldn’t alter the ‘bigger picture’ and the need to make savings, the consultation was ‘not set in stone’ and he was ‘always open to dialogue and sensible solutions’.

Specifically addressing the price-competitive tendering proposals, the Justice Secretary advised he had considered the imposition of a 17.5% reduction on administrative rates across the existing system but said he wanted to achieve a ‘sustainable and longer term solution’, adding that ‘in order to drive down costs we need a new way of doing things’.

Grayling admitted that whilst client choice would ‘have to be’ abolished for the scheme as presently described, he felt that competition for future contracts, in addition to ongoing quality control, would ensure quality service delivery. He said he had asked the Law Society and the Bar Council to consider what this quality threshold would look like.

Concerns were also raised about the explicit intention to re-arrange the fee structure so as to reward a guilty plea more highly than at present. Richard Atkinson commented that this arrangement would present lawyers with ‘a perverse and very troubling financial incentive’. A further meeting with the Justice Secretary is scheduled for early next week, for representatives of local law societies.

BAME representatives urge Government to think again about cataclysmic legal aid reforms: In a letter to the Evening Standardon Tuesday representatives from the London Criminal Courts Solicitors Association; Society of Asian Lawyers;Society of Black Lawyers; Association of Muslim Lawyers; British Nigeria Law Forum; and, the Black Solicitors Network wrote of their ‘shock and dismay’ at the Coalition’s planned reform of criminal legal aid. Quoting Lord Woolf the letter read that the reforms will lead to a ‘factory of mass produced justice’ and ‘miscarriages of justice’.

The authors pointed out that by the Government’s own analysis, the reforms would ‘disproportionately affect BAME defendants because they are disproportionately represented in the criminal justice system’ and that BAME firms will be worst hit. The letter said of the proposals that they ‘tear apart the fabric of the criminal defence system and will ensure that BAME defendants are disenfranchised and unfairly represented in the criminal justice system’. It added that ‘there will be even fewer BAME solicitors who rise to the higher echelons of the judiciary’, calling the reforms a ‘retrograde step’. The authors concluded their emotive plea by urging the Coalition ‘to think again before introducing rash, cataclysmic and irreversible reforms, which will have a devastating effect on the rule of law in this country’.

MoJ announces plans to introduce standards to ensure highest calibre of expert evidence and reduce Legal Aid spending: The Guardian this week highlighted Government plans announced on Thursday to cut the Legal Aid bill by to introducing new standards to ensure that evidence provided in a family court can only be given by ‘qualified, experienced and recognised professionals’. The Ministry of Justice claims the plans will ‘get rid of time-consuming evidence which adds little value in helping judges reach a decision’ and speed up cases. The proposal follows the independent family justice review by David Norgrove, which identified weaknesses in the quality of expert evidence being put forward during proceedings involving children.

Opening the consultation, the Family Justice Minister, Lord McNally, explains that ‘poor quality expert evidence can lead to unacceptable delays for children and their families. By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings. We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly.’ Dr Heather Payne, the chair of the Family Justice Council’s working group on experts, which drafted the standards that are to be introduced, said the standards ‘seek to provide the courts and lawyers with clear guidance on how to ensure that expert evidence is sought from an expert of the appropriate discipline, with appropriate professional qualifications’.

Fixed costs in PI cases said to be encouraging the wrong behaviour: Paul Fenn, the Professor of insurance studies at Nottingham University Business School, and the academic who studied the RTA portal for the Government has warned that the fixed-costs regime for personal injury work risks encouraging undersettlement by claimant solicitors and admissions of liability by defendants when they might otherwise fight. In July 2012 the Ministry of Justice published a report commissioned from Professor Fenn about the RTA portal’s first year of operation.

Fenn concluded a further review was needed after more experience of the portal had been felt, before an extension could be contemplated. Fenn also argued that fixed costs should be proportional to damages and that an integrated approach to fixed costs within and outside the portal was needed. Speaking Westminster Legal Policy Forum seminar in London on Monday of this week, Professor Fenn reported that the Government had ‘completely ignored’ his recommendation to make fixed costs proportional to damages for reasons of simplicity.

However, Fenn argued, the unaltered framework takes away lawyers’ incentives to act in the best interests of their clients and risks reducing client damage because lawyers are better off settling quickly where liability is not disputed. Fenn pointed to the “highly proportional” fixed-costs regime in Germany, where lawyers are paid on a sliding scale rather than receiving a fixed fee like lawyers here. Fenn told the seminar’s attendees that while the disparity between fixed costs inside and outside the portal previously encouraged defendants to fight, because they were often better off financially leaving the portal, the situation has now gone the other way because the “reward for an admission of liability is now too high”.

Fenn added that “If we’re going to move to a no-fault system, we should do so explicitly rather than by accident” and without it, Fenn said, “we could have a much cheaper system”.

Legal aid success stories wanted for blog to dispel mainstream media stereotypes: Lawyers and clients can submit their stories on a new blog, which is trying to challenge the stereotypes about legal aid lawyers and their clients within the mainstream media.

Alice Cullingworth, the blog’s author explains: ‘I hope to show the human face of legal aid by profiling case studies submitted by legal aid lawyers and their clients. These case studies tell the stories of clients on whose behalf legal aid lawyers fight every day: the same people you sit next to on the bus and the parents of kids who attend your local school.’ Cullingworth continues: ‘I believe that the government is relying on several pernicious stereotypes in order to justify the withdrawal of legal support to vulnerable people. By spreading the word about the work of legal aid lawyers, we can have a better informed debate about how to preserve legal aid within difficult economic times.’ Lawyers and their clients with a story should therefore visit the Don’t Keep Calm: Save Legal Aid blog to submit their short stories on how Legal Aid has worked for them.

Drummer from Blur speaks out against latest raft of reform proposed for Legal Aid system: In an unlikely story published on Saturday, the Guardian managed to combine Britpop and the justice system with quotes from Dave Rowntree, otherwise known as the drummer from Blur but less commonly known as a trained solicitor. Rowntree said he was ‘appalled and outraged’ by the Government’s proposed reforms to Legal Aid and fears they will create a two-tier justice system: one for the rich and one for the poor. ‘Justice for one should be justice for all, regardless of means,’ Rowntree added.

Reflecting on the proposed price-competitive tendering model, in which firms would bid to see who could provide legal services for the lowest cost, Rowntree suggested this would mean ‘cases will be run on the cheap by under-qualified, inexperienced, low-cost staff… and when you skimp on defence, you send the wrong people to prison’.

The Blur drummer continued by saying that ‘the government proposals only require a lawyer to provide a just-above-acceptable service – “adequate” is the word they use, which is staggering when you consider what’s at stake. The results will be devastating for the general public who will lose the right to choose their own lawyer at a time when their liberty is on the line’. Speaking of criminal legal aid lawyers, Rowntree explained: ‘They do it because they believe in serving the community, and giving anyone and everyone a right to be innocent until proven guilty. It’s not glamorous, but they are the cogs that oil our justice system and help it to run smoothly. They don’t deserve the kicking the government is giving them.’

Meeting to consider latest round of proposals on civil Legal Aid reform: Next Monday will see LSE host a meeting to consider the proposals for civil legal aid and public law, set out in the Government’s latest consultation paper. The informal meeting will focus on cases that will not be capable of being brought under the new proposals. The meeting will be chaired by Professor Conor Gearty and the speakers will include Nathalie Lieven QC and Simon Creighton of Bhatt Murphy, who will consider the prison aspects of the reforms; Polly Glynn of Deighton Pierce Glynn, who will focus on the implications for social welfare implications; and, Nick Armstrong of Matrix Chambers, who specialises in public law and legal aid and its regulation. Walkers on Monday’s London Legal Walk have been expressly invited to join the meeting once they finished their sponsored walk around the capital.

Sir David Latham, the former Lord Justice of Appeal and former Chair of the Parole Board, sent a message with his apologies that he could not be present at the LSE meeting, saying: ‘I am extremely concerned that the present proposals are likely to inhibit proper scrutiny of executive decisions. It is likely to be the same for the family courts. As you know, my preferred remedy has always been robust, and I mean very robust, judicial control, not executive interference. I have been disappointed by the judges’ failure to understand the need for this tight discipline. It has been the excuse for Daily Mail politics to piggy back on Treasury financial constraints.’

Finally, Walker by name, walker by nature: Next week I (Emma Walker, author of Legal Voice’s weekly news round-up) will be pounding the Capital’s streets on the London Legal Walk to help the London Legal Support Trust raise funds for Islington Legal Advice. Any donations would be greatly welcome. Thank you.


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