Amjid Jabbar, Partner at Stokoe Partnership Solicitors, discusses Gove’s decision to end planned cuts to legal aid for The Barrister.

This article has been published in The Barrister on February 29th, 2016.

Gove’s legal aid u-turn

Margaret Thatcher’s intransigence was characterised by a line in one of her speeches: “U-turn if you want to, the lady’s not for turning.” By contrast, Michael Gove has turned this phrase on its head, and claimed the reverse message as his own trademark: in the nine months since he was appointed as both Lord Chancellor and Justice Secretary, he has performed a u-turn no less than five times on controversial policies inherited from his immediate predecessor, Chris Grayling.

Last year, Gove lifted the ban on books being sent to prisoners by family and friends; he scrapped a proposed £85m mega prison for teenagers on cost grounds; he forced the cancellation of a controversial £5.9m deal by the Ministry of Justice which was bidding to run Saudi Arabia’s prison services; and in response to the potential resignation of more than 100 protesting magistrates, he dispensed with the mandatory criminal court charges.

In January, he went still further and removed two central planks of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which is partly designed to consolidate the legal profession and force many solicitors’ firms to merge or close. The plans anticipated a dramatic reduction – from 1,600 to 527 – in the number of legal aid contracts for duty criminal solicitors representing suspects in magistrates courts and police stations.

Gove’s key changes involved suspending the cuts (until at least April 2017) to legal aid fees for duty criminal solicitors, and abandoning the 8.75% fee cut, a controversial contract-tendering procedure, restricting the number of law firms allowed to undertake duty legal aid work. Both cost-saving reforms, initiated by Grayling, had proved to be extremely unpopular.

Since they were first mooted, there have been numerous warnings from solicitors, barristers and judges about the potentially calamitous effects resulting from the civil legal aid cuts and plans for competitive tendering for criminal legal aid solicitors. Lawyers lobbied vigorously and they protested. Shortly after Gove’s appointment last summer, they held 52 days of industrial action against the proposed policies. Behind the scenes, senior judges also made their voices heard.

Gove recently revealed that there were “real problems” with the reforms, not least that his department faced “99 separate legal challenges over the procurement process.” He went on to comment that he did not want his “department and the legal aid market to face months if not years of continuing uncertainty, and expensive litigation, while it is heard.”

As a man for whom u-turns have become a favourite manoeuvre, he has once again proved himself to be someone who listens to the legal profession’s concerns about access to justice and responds pragmatically, even if the choice was made for him by the weight of legal challenges.

And Gove certainly needs to listen and respond. Since the introduction of LASPO, approximately 400,000 people per year have been cut off from legal aid funding. In making his biggest u-turn to date, his decisions were well-judged, and equally well-received. He has received justified praise right across the profession. The Criminal Bar Association praised Gove’s “courage”, and Dinah Rose QC tweeted: ““MoJ’s own expert advice from KPMG made clear that the fee cut and two tier contracts were unsustainable. Delighted Gove has pulled the plug.”

The suspension of fee cuts, in particular, will allow the legal sector to continue to provide aid to those who are most vulnerable in society. As Gove himself put it: “By not pressing ahead with dual contracting, and suspending the fee cut, at this stage we will, I hope, make it easier in all circumstances for litigators to instruct the best advocates, enhancing the quality of representation in our courts.”

While this is an optimistic assessment, Gove’s u-turns provide some relief for legal aid lawyers, and for those who are dependent on the receiving the best representation. But the Lord Chief Justice’s recent warnings that increasing numbers of people are now forced to represent themselves in court highlights the extent of the problem that still exists. Meanwhile, for numerous state-funded criminal and civil justice practitioners, the challenge of maintaining a viable practice also remains.

U-turns are a good start. But we need to keep driving in a reverse direction on legal aid to ensure that individuals are properly represented and that lawyers are properly rewarded.