Legal Aid

'If we don't do it, there won't be a thriving profession'

PUBLISHED November 28, 2006

Hundreds of placard-bearing solicitors will stage protests today throughout England and Wales. It is the latest public backing for the campaign by the Law Society, their professional body, against the Lord Chancellor?s plans for a revamp of the ?2 billion legal aid scheme.

In an unprecedented protest, 28 leading City firms, including Clifford Chance, Herbert Smith and Eversheds, have also written to Lord Falconer of Thoroton expressing concern that the most vulnerable people will be hit by the proposals. A head of steam is building, too, over the new means-testing of defendants in magistrates? courts, described by solicitors as ?a fiasco and catastrophic?. Last week Vera Baird, QC, the minister in charge, revised the plans. Meanwhile, 175 solicitors have called for a special general meeting on legal aid.  
The man in the eye of this storm, Lord Falconer, was his usual affable self last week. But the message was unequivocal ? there will be no more money. He is to make a series of concessions on the timing of the scheme and will rework proposals for fees in family work but the pot of money is fixed. ?I am absolutely clear: there is no more money I?m afraid. I do want it ? I can?t get it. I?m not in a different position from any of my colleagues. We?ve got to accept what the legal parameters are.?

Solicitors, he acknowledges, will not be happy. ?There is considerable concern . . . but they have got to knuckle down and work out how it will work in practice because what we are talking about is delivering for the client.?

The task was ?never going to be easy?. And it will need a significant reorganisation of the shape of the profession. But, he says: ?If we don?t do it, there won?t be a thriving profession able to serve the needs of those who most need lawyers? help. But I am absolutely committed to going through the difficult period now and I urge solicitors to join with me. I don?t think there is an option. We are absolutely committed to getting Carter (the report from Lord Carter of Coles).?

Just three and a half years into the job, Lord Falconer is securing sweeping reform across two fronts: as well as legal aid there is the Bill for a new tribunals framework plus his Legal Services Bill. On this measure, he insists, there is broad support. He intends to reflect in the Bill concern that the new regulator, the Legal Services Board, must be independent but he will not agree to write in that he must consult with the Lord Chief Justice on its chairman, although he believes it ? extremely unlikely? that the post would be filled without his doing so.

He argues: ?There are very many appointments made by government where the role is completely independent, for example, the president of the Competition Tribunal . . . the Prime Minister appoints the Lord Chief Justice and no one for a moment thinks that undermines independence. And there needs to be accountability, because the critical issue in relation to this, for lawyers, is that there needs to be some degree of regulation that is separate from the legal profession itself.? The board would be that independent regulator.

The Bill also sets up a new office for legal complaints that will be run independently from the professional bodies. Unlike the society, the Bar has a good track record on complaints, but Lord Falconer looks unlikely to accede to its wish to keep the running of complaints handling. ?It will unquestionably improve things for the public and that seems to be the critical test.? In the long run he hopes that it will not be more costly. But all costs will be borne by the lawyers. ?I believe a profession with the importance of law should pay itself for a proper regulation and a proper complaints procedure.?

Away from the profession, Lord Falconer now has a new relationship with the judges. He has shed his legal robes and is no longer head of the judiciary or a judge. But as Lord Chancellor he maintains a crucial role in upholding the rule of law and defending judges when under attack. He told the Lords Constitution Committee last week that he remained ?a staunch and statutory defender of judicial independence within government? ? and his task had ?emphatically not? been hampered by his not being a judge. ?My ministerial colleagues are in no doubt that I will defend the judges privately ? and, where necessary ? publicly,? he said.

The issue came to a head when judges found themselves under fire over ?soft? sentences, fuelled by a sentence imposed on a paedophile, even though it was in line with the legislative framework. There was a day or two?s hiatus when no one appeared to be speaking up for the judges. Lord Falconer says that he and the Lord Chief Justice had spoken privately. ?Judges are by and large reluctant to speak publicly on issues,? he said. ?They want to see whether the thing will pass. When it did not, we agreed the right thing to do was to speak out.?

That job is one both for him and the Lord Chief Justice, depending on circumstance. When necessary, he will remind ministers not to make comments that undermine the rule of law, in breach of their statutory duty. ?I have never had any difficulty in obtaining agreement.?

By this stage in the reform process, Lord Falconer expected to be rid of his title of Lord Chancellor. He not only still has it, he admits that the original plan to scrap the 800-year-old office was wrong. ?It was a mistake,? he says. And the two roles, Lord Chancellor and Secretary of State for Constitutional Affairs, should not be ?decoupled?, he argues, because the job of Lord Chancellor alone would not now be sufficient.

What of the next two to three years? Will Lord Falconer, Tony Blair?s flatmate, survive a transition to Gordon Brown? It?s clear that Lord Falconer wants to carry on ? questions about his future are off limits and he says: ?I think only of my job now. It?s very, very time-consuming. The right thing to do is to focus on the job and not think about the future.? Solicitors, at present, may take a different view. But he remains personally popular and judged on his record Brown could do worse than let him finish the job he has started.