Who are you kidding, Mr Grayling?

Never in the history of human conflict has so much evidence been so ignored by one man. After 18,000 hostile responses to two consultations, at least two perturbing research papers, endless unsympathetic meetings, and intense doubts expressed in the media and in both houses of parliament, the lord chancellor chooses to carry on regardless with entirely unworkable proposals.

These will destroy access to justice in any meaningful sense.

He says he has ‘listened hard’ to the profession. If anything, disregarding all this unanimous expert opinion (search in vain for a summary of opinion in favour), the final proposals are far worse than anyone could have imagined. I wonder if Mr Grayling has actually read the two most recent reports by Otterburn and KPMG.

I have – and there is nothing there that could remotely encourage Mr Grayling to pursue these frankly bizarre proposals. How much do I loathe them? Let me count the ways.

First, there is the concept of a two-tier criminal legal aid profession. All firms of criminal legal aid solicitors demonstrably under financial stress will now have to cope with an immediate cut of 8.75% (followed in 2015 with a similar cut, totalling 17.5%), without any compensating market consolidation. How do those hoping to win a duty contract gear up financially for the massive expansion necessary to cover their (often vast) criminal justice areas?

How will these duty firms cope with the unfortunate ‘own client firms only’ which, without a duty contract, will cling on like the walking dead, making the duty firms’ chances of survival almost impossible? How long will these latter survive without replenishing their client base with new work converted from duty to own client status by their skill and hard work?

KPMG says: ‘Given the importance of duty provider work in establishing relationships between new clients and solicitors, anecdotal evidence suggests that own client work for those providers without duty contracts will be likely to decline over time.’

But it is far more extraordinary than that. These proposals are predicated upon a bogus and deceitful Ministry of Justice fantasy: the statistical assumption that providers will give up 50% of their own client work. 

On what planet do they think hard-pressed duty firms will voluntarily surrender 50% of their own clients to the surrounding and equally hard-pressed own client firms in their area? Would a supermarket tell a loyal customer kindly to go to a rival, as they had exceeded their 50% quota that month? Of course not. They will, quite rightly, cling on to all work.

It is clear from reading the two research reports that their authors were instructed to deliver their reports incorporating this 50% aspect. This figure is plucked entirely out of the air by the MoJ. They were warned by the profession that there was no basis for an assumption of a 50% fallout of work from duty firms. To proceed on such a dishonest statistical basis is wholly wrong and attempts to offer false hope to own client only firms, which know they will never benefit.

Doesn’t this prove that the lord chancellor does not learn from mistakes? Having recently been forced to abandon the plan to abolish client choice, here he is again minimising the importance of client choice by suggesting that duty firms treat 50% of clients as commodities to be passed around. Once again, he fails to grasp that client choice is the most effective arbiter of quality. But he is not interested in quality, is he?  

The government says: ‘We believe the timescale, although challenging for some, is nonetheless achievable.’ It certainly is not. This is recognised in Otterburn, which says: ‘We have concerns about whether these firms are sufficiently financially robust to (survive) if the proposed fee cuts are implemented in the proposed timescale.’

There are also immense difficulties for duty firms covering vast criminal justice areas. The MoJ says the travelling time between the two delivery points (police station, magistrates’ court, Crown court) that are furthest apart is a maximum of 1.5 hours.

One colleague writes: ‘One procurement area – Haverfordwest to Welshpool – 3.5 hours travel, 172 miles.’

Another writes: ‘1.5 hours? Not unless Devon has shrunk in all this rain. Barnstaple remains decidedly more than 1.5 hours from Torquay and Plymouth. It’s referred to in the paper as a point made but clearly ignored as inconvenient.’

Even more horrific is the level of cuts – in many areas far more than the proposed 17.5%. For example, one solicitor writes: ‘In our area, in which there is a very small volume of work, there are six firms on the duty scheme. With a 17.5% cut, we have worked out that we will, with an extra bit of a volume, still have a cut of 5% – but the police station cut is 28%, so we will face a cut on this, after extra volume, of nearly 14%.’

Many are facing real cuts that will not be attenuated by extra volume. Indeed, Otterburn reveals that the growth required to compensate for the cuts is 43% in London, 77% in urban areas and an astonishing 119% rural areas. The report says: ‘The rates of overall growth, of both own client and duty work, are challenging in urban and rural areas.’ That is a piece of measured understatement if ever there was one.

What is astonishing is that Mr Grayling turned his back on the original Law Society proposals that offered quality-driven planned consolidation and savings which were supported by all the practitioner groups. I urge him to think again before things get progressively out of control. The profession is united in its opposition to his unworkable scheme and will not accept it.  

Robin Murray is a member of Robin Murray and Co and vice chair of the Criminal Law Solicitors’ Association