Legal Aid

Removal of client choice is a red line – Society

PUBLISHED June 4, 2013

Tuesday 04 June 2013 by Catherine Baksi

The government's 'unworkable and damaging' planned legal aid changes could push the justice system 'beyond breaking point to a devastating collapse', the Law Society has warned in its response to the Ministry of Justice consultation which ends today.

Drawing on two sets of independent analyses - from consultants Andrew Otterburn and Vicky Ling and business advisory firm Deloitte - the Society says that proposals could cause the criminal defence service to collapse.

It suggests that it is not economically or practically possible to deliver what the MoJ is demanding, for the price or in the time frame proposed.

President Lucy Scott-Moncrieff (pictured) said the Society is prepared to discuss alternative ways to make the necessary savings, but she stressed that any plan must retain the right of clients to choose their lawyer, encourage the market to develop organically over a reasonable time and embed quality in the system.

She said: 'The removal of client choice is a red line.'

Scott-Moncrieff said the Society has been advised by leading counsel that the proposed removal of client choice is unlawful - and that even if the government were able to overcome that hurdle, the change would be 'wholly undesirable' for clients, firms and the taxpayer.

'The right of clients to choose is one of the main drivers of quality in the system, as well as helping it to run more cheaply and efficiently,' she said.

'For instance, lawyers who know their clients do not need to take a full history each time. A client is more likely to trust a lawyer if they have chosen them and know they could choose someone else.

'Clients are therefore more likely to accept advice to make admissions in the police station, or to plead guilty, where these are the appropriate courses of action.'

Combined with the proposed cut in fees, Scott-Moncrieff said the potential impact on the quality of justice in this country is 'profound'.

Commenting on the findings of the Society's research, she said: 'This independent evidence shows that one assumption in the ministry's consultation is correct: the supplier base is too fragile to survive a straight cut in rates without significant restructuring of the market.

'It also reinforces our view that these proposals are less likely to support that restructuring than to cause the system to collapse.'

The Society accepts that the ministry is working under significant political and economic constraints, but says that the proposals will fail to deliver the needed savings.

The Chartered Institute of Legal Executives (CILEx) also slammed the proposals, which it called an 'outrageous and disturbing attack' on access to justice.

It highlighted the lack of empirical evidence to support the ministry's claim that the public has lost confidence in the legal aid system and expressed alarm at the government's willingness to 'sacrifice' client choice.

CILEx said the proposed removal of funding from borderline judicial review cases is 'wholly unacceptable' and that the 'arbitrary' residence test to determine legal aid eligibility would leave vulnerable people to fend for themselves in court without representation.

The institute also voiced concern that the proposals could be introduced without parliamentary scrutiny.

Its president Nick Hanning said: 'The government cannot hope to maintain our justice system's reputation in the world if it goes ahead with these proposals. And we as citizens cannot have confidence in a government that seeks to sacrifice fair justice for all in the name of tightening a departmental budget. It is not too late to turn back, and I encourage them to do so,' he said.

Read the Law Society's response.