Wednesday 12 June 2013 by Catherine Baksi
Senior judges led by the lord chief justice and master of the rolls have weighed in to the fevered debate about Transforming Legal Aid by issuing their own sharply worded critique of the plans.
The 10-strong Judicial Executive Board's 25-page response to the consultation, seen by the Gazette, raises fundamental concerns about access to justice, the likely adverse impact on the legal profession, and the potential for 'false economies' that will see costs merely shunted elsewhere in the system rather than actually saved.
The judges acknowledge the need for savings and greater efficiency. But they voice fears that the proposed model for price-competitive tendering (PCT) will compromise the performance of the courts and the administration of justice, by reducing the quality of case preparation and representation.
The judges note that 'many lawyers' have already ceased to act in legal aid cases and that those entering the profession seek to avoid publicly funded work 'if their ability and promise permit them the choice'.
They add: 'Able practitioners who remain active in publicly funded fields, particularly in crime, family and judicial review, are often in evident overstretch, because, unsurprisingly, the services they offer are in greater demand than those offered by their less competent colleagues.' The judges say the reforms will exacerbate that situation.
The judges steer clear of addressing the principle of competition and client choice, saying it would not be appropriate for them to comment on government policy.
However, they warn of 'significant practical problems' of such a 'fundamental change of approach'.
They highlight the importance of the relationship of 'mutual trust' between a client and their representative in ensuring that the justice system works efficiently, particularly for repeat offenders who have often used the same firm for years.
'The relationship is likely to be more constructive when the parties have entered into it freely, rather than when it was imposed,' they add. 'Most defendants are not interested in the efficient operation of the criminal justice system…Their co-operation is usually achieved by their accepting the advice from a solicitor with whom they have an existing relationship.'
With the removal of client choice, one of the current 'safeguards' against poor quality, they stress the need for a 'robust quality review and assurance process' which will guarantee high-quality provision.
Without this, there is 'real risk that the firms obtaining contracts will employ those who will take the lowest salary in order to maximise the firm's profits'. They cite the example of immigration law, where 'in order to maximise profits, solicitors are employing trainees or unqualified staff to conduct work that should be done by qualified lawyers'.
The market chaos wrought by cutting the number of providers from 1,600 to 400 will mean 'significant transition' as smaller firms either restructure or close, which 'may have an adverse impact on the performance of the criminal courts', they add.
In the longer term, there is a 'danger that the anticipated reduction in the number of solicitors' firm may make legal services a difficult market for new bidders to enter' in subsequent tendering rounds.
Fee levels are a matter for the government, the judges say, but they draw attention to their impact on the quality of advocacy and equality of arms.
They add: 'Many young and talented lawyers are no longer choosing to practise in crime. However, if the more talented lawyers do not work in crime, the impact will be not only on the quality of defence, but also on the quality of the prosecution, many of whom are drawn from the same pool, whether currently employed by the CPS or working as self-employed practitioners.
'In the long term, there will be a negative impact on the quality of the judiciary.'
They also express concern that the removal of an uplift for immigration and asylum upper tribunal cases, will make the that area of law 'uneconomic' and lead to the 'collapse' of firms working in that field.
They note: 'The level of fees must be commensurate with the level of responsibility and sufficient to attract able people into publicly funded work and to retain them.'
Some of the proposed changes, they warn, are likely to 'transfer' rather than save costs. They highlight the fact that good advocacy reduces costs, as cases take less time and the risk of miscarriages of justice is reduced.
Their response points out that defendants in criminal cases, whose means exceed the financial eligibility threshold, may be left to represent themselves, adding to the length and cost of cases.
They express 'principled reservations' about limiting the ability of defendants who are not entitled to legal aid to reclaim costs where they are acquitted, stating that in general acquitted defendants should be entitled to reclaim the 'reasonable cost' of their defence.
On other aspects of the PCT model, the judges question whether the large contract areas will ensure sufficient coverage, and express the need for any contractual arrangements to make provision for Welsh-speaking representatives, currently absent from the consultation.
They also warn of the 'inherent risk' in allowing entities to bid for contracts without being subject to regulation and the relevant quality standards, and question what will happen if a successful bidder fails to meet the standards.
On other aspects of the consultation, the judges 'generally accept' the proposals to restrict legal aid for prison law. The judges suggest that permission hearings for judicial review should be funded, except in cases that are 'totally without merit'.
In relation to 'borderline' cases, the judges suggest the re-creation of local communities of lawyers to advise the Legal Aid Agency on whether it should fund cases.
The judges welcome the government's 'commendable objectives' to maintain an independent bar, protect the earnings of young barristers and ditch the introduction of 'one-case, one-fee'.
The senior judges' response is couched in judicial language, but following excoriating attacks on the proposals by the Council of Circuit Judges and criticism from the Magistrates' Association, it amounts to another embarrassment for the government.
The consultation, which has been condemned not just by lawyers, but by charities, human rights groups and the former lord chancellor Lord Mackay, has received an unprecedented response.
Lord McNally told BBC Radio 4's Law in Action, that 15,000-20,000 responses had been received, although he indicated that some had been submitted as part of an orchestrated campaign rather than by individuals.
The Judicial Executive Board comprises: