Tuesday 04 June 2013 by Catherine Baksi
The Ministry of Justice's 'muddled' and 'fundamentally flawed' legal aid reforms have been savaged by the bar's representative and regulatory bodies.
In its 150-page response to the MoJ consultation the Bar Council says it 'completely opposes' the removal of client choice and the 'fundamentally flawed' introduction of price-competitive tendering (PCT), which it suggests will incentivise the 'lowest possible quality' of service and hit some of the most vulnerable in society.
The Bar Standards Board warns that plans to pay advocates the same price for a trial as for a guilty plea could push innocent people to plead guilty and lead to 'crisis in public confidence' in the justice system.
Backed up by economic analysis provided by Professor Martin Chalkley of the University of York and Bob Young, principal of Europe Economic, the Bar Council challenges the assertion that the proposals are a rational way to achieve sustainable savings and questions their evidence base and legitimacy.
It suggests that in its 'muddled' thinking the MoJ has 'failed to consider hard evidence' and has come up with proposals that are 'a breathtakingly convoluted way of finding savings'.
Research from Professor Roger Bowles of the University of York, suggests that such 'jarring' changes are unnecessary as savings are already being made. On the current caseload and spending per-case trends, 'a substantial saving in total expenditure on criminal legal aid might be expected over the next four to five years even if no other changes to the system were to be made'.
The Bar Council says that the removal of client choice ignores fundamental human rights and flies in the face of the government's 2011 'Open Public Services' white paper.
It points to the harm that will be caused to the profession, destroying the livelihoods of many smaller solicitors' firms and 'rapidly' destroying the criminal bar. It warns that the proposals will also reverse efforts to improve the diversity of the profession and the judiciary, which it says will have 'serious implications' for public confidence in the justice system.
Bar chief Maura McGowan QC (pictured) said the proposals will 'emasculate legal aid and irreversibly damage the administration of justice', harming the justice system's worldwide reputation. She said: 'These proposals would move us from having a justice system which is admired all over the world, to a system where price trumps all.'
McGowan urged ministers to heed the strength of opposition to the proposals and said: 'It is not too late for the government to think again.'
The bar's regulator warns that the fee proposals may create an incentive for lawyers to encourage clients to plead guilty.
It voices concern that the plans to cut the number of providers, from 1,600 to 400, and agree contracts on price rather than quality, could increase the likelihood of 'incompetent or inadequate' representation and lead to delay, miscarriage of justice and wrongful convictions, and an increase in the number of appeals, which would create a 'crisis of public confidence' in the justice system among victims, witnesses and jurors.
BSB chair Lady Deech said: 'These reforms may endanger the ability of our legal system to guarantee everyone a fair trial.'
Deech called for the reforms, which the government seeks to introduce through secondary legislation, to be subject to the 'democratic scrutiny' of parliamentary debate to prevent 'lasting harm to the credibility of the criminal justice system'.
Chair of the regulator's quality assurance committee Sam Stein QC said the reforms represent a 'significant upheaval' and will do 'irreparable damage' to people's lives and to the justice system.
He said: 'The BSB acknowledges that it is a matter for the government to decide how much it is prepared to allocate to legal aid spending, but argues that it is also incumbent upon the MoJ to ensure that confidence in the criminal justice system is not eroded.'
The Law Society response was not published at time of writing, but the Society is expected to draw from independent economic analysis to support its case that the government's flawed proposals would improperly restrict client choice and diminish the quality of justice as well as being impractical in the proposed timescales and uneconomic for existing firms and new entrants.
Law Society president Lucy Scott-Moncrieff said: 'The removal of client choice is a red line. We believe, on the advice of leading counsel, that it is unlawful. Even if the government were able to overcome the legal problems, it remains wholly undesirable for clients, firms and the taxpayer.'