Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by the Society of Asian Lawyers (SAL) (LAR 89)

BACKGROUND INFORMATION

  The society of Asian Lawyers ("SAL") was formed in 1990 and is one of the UK's largest independent legal societies. Members come from a cross section of the legal community. SAL is a non political organisation and receives no government or third party funding. Its aim is to promote the interests of Asian Lawyers, the communities they represent and disadvantaged members of society. This document is drafted by Sundeep Bhatia the joint Vice Chair and Sailesh Mehta the Chairman who have both been actively involved in making representations on these reforms to the Carter review, the Government and the Law Society.

SUMMARY OF MAIN POINTS

  The society of Asian lawyers categorically rejects Lord Carter's proposals because:

    1.  They would unfairly and disproportionately affect BME firms and the communities they serve.

    2.  The reforms would significantly impede access to justice for BME communities.

    3.  Diversity within the legal profession will be set back many decades.

    4.  The planned reforms are not Race Relations Act compliant.

    5.  The planned savings are disproportionate in relation to their effects on the criminal justice system.

    6.  The structure implementation and level of fixed fees has not been carefully thought through.

1.   BME Firms

    (a)  In 2005 the legal services commission planned to introduce price competitive tendering for police stations and magistrates' courts in the London area. An impact assessment was commissioned which was published in April 2006 and which concluded that the proposals would disproportionately effect minority communities and therefore, by implication, breach the terms of the race relations act.

    (b)  Lord Carter, in his report, concludes that his proposals do not disproportionately affect minority firms or solicitors when looked at on a national basis. This does not take into consideration the fact that BME firms are not evenly spread geographically. They are, according to Lord Carter's report, large regional sections of the country where minority firms and solicitors are indeed disproportionately affected. The committee is referred to tables 5.17 and 5.18 on pages 112 and 113 of Lord Carter's report (thus, for example, table 5.17 indicates that in London 22% of black and ethnic minority firms will need to restructure as opposed to 12% of white British firms).

    (c)  The Carter report does not mention precisely how many firms will be affected by the reforms, however a report by LECG, commissioned by the Law Society concludes that 800 firms will be forced out of business, of these a large proportion will be BME firms serving local BME communities. It is therefore crucial that a fully independent impact assessment is carried out in relation to these reforms before any price cuts or restructuring are implemented.

    (d)  At present a suspect arrested at any Police Station in the country can request a solicitor from any firm that holds a criminal contract. This would include firms with fee earners who might speak that suspects native tongue or empathise with their culture.

    (e)  A substantial reduction in firms and the proposal whereby only 20% of work on own client cases can be conducted out of an area where firm has a contract will significantly reduce choice and will mean that suspects would not be able to select solicitors who reflect their culture and language.

    (f)  Lord Carter's report further advocates that all initial telephone advice, whether duty solicitor clients or own clients, will be handled by a LSC funded telephone call centre called CDS direct who will then pass on calls to the relevant duty solicitor or own solicitor as and when the need for interview arises. This means that the suspect, whose native tongue is not English, will be unable to speak to a sympathetic solicitor who empathises with them on a cultural level and who understands their language. It also means that if no police interview is going to take place then the firm that usually represents that client will not be aware that the client has been arrested.

2.

    (a)  Fixed Fees for work will mean a deskilling of the profession and will have a knock on effect on the quality of service provided. At present duty solicitors, conducting police station work out of normal office hours, are paid a percentage of the professional fees the firms they work for are paid. A normal percentage is 50-60%. In London the out of hours payment for duty solicitor work is around £70 an hour. Thus staff are paid £35-£40 per hour.

    (b)  The reforms wish to replace this system with fixed fees per case of £316 (in the London area costs) which includes VAT and which is paid regardless of how many times a suspect has to return to the Police Station and which sum includes travel and waiting for all attendances. It will therefore not be possible to pay current rates to staff or agencies when fixed fees are introduced in March 2007.

    (c)  The only staff who will therefore attend Police Stations out of hours at substantially reduced rates, will be accredited representatives with as few qualifications as possible. They will inevitably be inexperienced and, despite peer reviews there is no substitute for experience. The number of miscarriages of justice is likely to increase.

    (d)  In many ways representation at the Police Station is the most important part of any case. If a client is improperly advised at this stage then it does not matter how good any advocacy provided at a later stage is. The general effect of fixed fees will be to send less qualified staff to both courts and police station. The preferred supplier scheme and peer review cannot ensure high standards are maintained particularly as peer review is carried out at three yearly intervals.

3.   Reduced Diversity

    (a)  The government is keen to increase diversity in the legal community and is keen for judges to be selected amongst BME lawyers.

    (b)  Criminal Justice is one of the few areas where BME firms currently compete on an equal basis with larger longer established non BME firms. There is therefore a wealth of talent from which to select individuals for high office. However the effect of the reforms will be to reduce their influence and thus to reduce this pool.

    (c)  Lord Carter's proposals seek not to award new criminal contracts to firms currently billing less than £50,000 per annum on criminal work.

    (d)  Tables 5.17 and 5.18 of Lord Carter's report shows that, on a regional basis, BME owned firms and consequently the solicitors they employ, will be disproportionately affected. The proprietors of these firms will be forced to (i) merge (ii) be employed as fee earners by non BME firms (iii) form consortia (iv) withdraw from criminal defence work or from legal work in general.

    (e)  All of these options will lead to their diminution within the legal community. Many of these lawyers will have left existing non BME firms after reaching a glass ceiling. These solicitors, in order to advance themselves have taken control of their destiny by means of establishing their own firms which have successfully competed in the existing unfettered marketplace alongside larger and longer established firms.

    (f)  In place of entrepreneurship and hard work Lord Carter's reforms seek to protect minority solicitors by introducing monitoring and by compelling firms to produce diversity policies.

    (g)  The society has no faith in the ability of such proposals to protect the influence and presence of BME solicitors in the criminal justice system. Moreover such proposals do nothing to safeguard the presence of BME solicitors at the highest levels of the criminal justice system.

    (h)  The reforms advocate loans and grants to allow firms to merge, streamline and become more efficient. However the Society has the following concerns over these proposals (i) The Law Society have not published any details as to how and when such grants and loans are to be made available. (ii) The report lays emphasis on increased borrowing. Criminal defence firms operate at low profit margins due to, (a) the fact that there have been no rate increases since 1996 and there have been decreases in the amount payable for telephone advice and return on bails during that period. (b) Many criminal firms already have large borrowings and increased borrowing together with substantially lower rates are likely to overstretch such firms and to put them out of business.

    (i)  Small BME firms offer opportunities to BME lawyers who are not taken on by non BME firms. The disappearance of such firms will once again reduce diversity in the criminal justice system. The reforms will also cause a further reduction in recruitment, since low wages, low fees and longer hours will not encourage cash strapped students to enter the profession.

    (j)  The neutering of duty solicitor status, as a result of allocating duty slots to firms on the basis of historical capacity rather than on the basis of the number of duty solicitors, will also make the work less attractive to BME students.

    (k)  The reforms will loosen the regulations and will allow less experienced staff to do duty solicitor work. Thus the amount paid out of hours will be reduced and there will be no incentive on solicitors to become duty solicitors. Thus the work will become less attractive due to the lack of a career path.

    (l)  The Society's own research suggests that many BME proprietors of criminal justices firms are considering withdrawing from criminal work if the proposals, as currently drafted, are introduced.

        If this happens, a valuable resource in the criminal justice system will be lost and BME clients who are processed by the criminal justice systems will feel disenfranchised as a result of not seeing themselves reflected in the advocates or solicitors representing them or in the Judges trying their cases.

        If this valuable resource is lost and specialist BME firms disappear, then the government and the LSC will not be able to persuade them back into practice. It will be a case of once bitten twice shy.

    (m)  The proposals, as currently drafted, will also result in the disappearance of many specialist BME firms who obtain their cases by means of recommendations and ties with their local communities rather than by means of access to duty solicitor schemes. The reforms need to take into consideration the fact that such firms provide a valuable role to the BME communities they represent.

    (n)  There will also be a knock on effect on BME members of the criminal Bar

        BME firms often (but not exclusively) instruct members of the criminal bar who reflect their clients linguistic and cultural needs.

        If the small criminal practices instructing BME barristers disappear then the criminal practices of those BME barristers are likely to disappear with them. If 800 firms are going to disappear then this effect will be substantial.

4.

    (a)  The implementation time table is not realistic. The fixed fees (amounting to rate reductions) in March 2007 are being implemented before any planned efficiencies under Lord Carter's proposal are introduced.

    (b)  The current rates mean that small firms operating at tight margins will be forced out of business unless the rates are rethought or any rate cuts are not brought in until such time as the planned efficiencies have been introduced. It is not possible for small firms to restructure themselves efficiently by March 2007 in order to survive the effects of these cuts.

    (c)  The fixed fees at Police Stations are unrealistic in any event. The removal of a travel and waiting element fees at the Police Station and the Magistrates' Court will impact heavily on BME firms.

    (d)  Many specialist BME firms represent members of ethnic communities outside of the geographic area where they operate due to recommendation and due to possible non availability of BME firms in areas where those clients live. As a result of these reforms those defendants may find it difficult or impossible to obtain a solicitor they can empathise with linguistically or culturally due to the removal of travel and waiting along with the 20% own client out of area.

    (e)  The society also fears that the litigators fee proposals at the Crown Court will significantly reduce income in the Crown Court for solicitors due to their current inflexibility and lack of enough suitable proxies. More research needs to be done in such areas in order for the system to be workable.

RECOMMENDATION

    (a)  Before any of these proposals are introduced a full impact assessment needs to be conducted as to the effect of these reforms on BME firms, solicitors and BME communities.

    (b)  The LSC and Government should reconsider the 20% own client out of area rule. Firms should be allowed to represent own clients wherever they are arrested. The fact that such firms will not be paid a travel and waiting element is an incentive for them not to do so.

    (c)  The LSC and Government must reconsider the decision for all telephone advice, both own and duty solicitor, to go via the CDS direct call centre. Such a move destroys the perceived independence of criminal defence firms and will alienate non English speaking clients and the long established goodwill between firms and the clients they represent.

    (d)  The decision to allocate duty solicitors slots to firms on the basis of historical capacity rather than number of duty solicitors, should be reversed since it destroys the career path of young solicitors in criminal defence work and will inevitably lead to a deskilling of representation at police stations.

    (e)  The level of fixed fees at the police station needs to be revised. The current fees represent a significant decrease in income which will cause many firms, BME amongst them, to shut their doors.

    (f)  Fees should not be reduced until such time as the perceived "efficiencies" under Lord Carter's proposals have been implemented and firms have been given sufficient time and opportunity to restructure.

    (g)  The litigators graduated fee scheme needs to be re thought so that sufficient proxies are introduced.

    (h)  The exact nature of grants and loans being paid to firms to restructure and to update IT systems must be published in full and implemented before any reforms, fixed fees or price cuts are introduced.

    (i)  Unless the government can show that these proposals are Race Relations Act compliant they should not be implemented.

Sundeep Bhatia and Sailesh Mehta

October 2006





 
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