Legal Aid

Senior Judges wade into legal aid row

PUBLISHED February 2, 2007

Pressure mounted on the government this week to call a halt to its legal aid reforms as solicitors showed support for a two-day national work-to-rule next month, and unanimously passed a resolution at a special general meeting (SGM) pressing the Law Society to negotiate new terms for the supply of criminal defence work.

Senior members of the judiciary also lined up this week to criticise the reforms. Appearing before MPs on the constitutional affairs committee, which is scrutinising the proposals, the President of the Family Division, Sir Mark Potter, warned that the government?s plans would ?accelerate the flight? of specialist solicitors from family work. He said the proposals were ?a betrayal? of Lord Carter?s original review and called for the changes to be delayed until April 2008 at least.

The Master of the Rolls, Sir Anthony Clarke, backed the president?s calls for a delay to the civil legal aid reforms, noting that he had made his concerns clear to the Lord Chancellor. Leading legal academic Professor Ed Cape also joined in, telling the committee that the reforms would ?destroy the legal aid profession? in a way that would be ?irreversible?.

However, the government received some support from Lord Justice Thomas, who backed plans to introduce fixed fees for criminal defence work. Paying for time ?encourages inefficiency?, he said.

More than 400 lawyers from around the country descended on the Law Society last week to attend the SGM, and many later agreed to take further action to protest at the criminal legal aid reforms.

The action will take the form of two days? ?work to rule? in February, during which only duty solicitors will act in the police station and magistrates? courts.

Southampton-based solicitor Roger Peach, spokesman for the Criminal Defence Solicitors Union, said there was an appetite for ?escalating? the action if it did not produce the desired results.

Trudy McBride, president of Cardiff and District Law Society, said Cardiff solicitors were ?prepared to go on an indefinite withdrawal of service? ? including the withdrawal of duty solicitors ? if the government does not change tack.

Mr Peach added: ?It has become terribly clear that the anger that solicitors feel is widespread.? He said any attempt by the Legal Services Commission (LSC) to take action against solicitors who protest would ?only inflame the situation?.

In a joint statement, the LSC and Department for Constitutional Affairs (DCA) said it was disappointing that solicitors were considering a national protest, which was not in clients? interests. The Law Society said it could not support solicitors who decide to take action as it may breach competition law.

The SGM resolution, requisitioned by Mr Peach, called on the Law Society?s representation arm to reject price competitive tendering while the DCA remains the sole supplier of criminal defence work. It also demanded that criminal defence firms be awarded contracts of at least five years in length and be remunerated by a formula linked to locally negotiated guideline rates on summary assessment. Clients? choice of which firm to instruct should be pre-eminent, the resolution stressed.

Prosecutors, City lawyers and representatives from the not-for-profit sector joined criminal defence solicitors in speaking in favour of the resolution. However, it is not binding on the Law Society Council, which will discuss the vote this week.

Law Society Vice-President Andrew Holroyd said the meeting highlighted the strength of feeling among solicitors. ?The Law Society wants the same result as all the solicitors who attended ? to secure a sustainable future for legal aid and to protect vulnerable clients,? he said.

Giving evidence last week to the constitutional affairs committee, Law Society chief executive Desmond Hudson said the pace of change was ?foolhardy? and the nature of it was ?ill conceived?.

Lord Carter and the chief executive of the Legal Services Commission (LSC), Carolyn Regan, also appeared before the committee last week. Asked how firms that failed in the first bidding round would survive to bid again in the next round, Lord Carter said: ?Firms for whom criminal legal aid is marginal now are leaving, and people practising in that town will go to another firm. With market management there will be enough firms left in the second, third and fourth rounds.?

Committee member Alan Whitehead MP drew a comparison with local authority tenders for refuse collection, noting that bidding is now dominated by four or five national companies that can sustain losing some bids.

Lord Carter said: ?I certainly do not see the emergence of four or five major law firms... I would not rule out seeing a firm grow to ?100 million [turnover] ? but that would only be 5% of market share.?

Questioned on what would happen if market forces drove the price of legal aid services up rather than down, Ms Regan said: ?We would have to make decisions about the legal aid budget.?

Meanwhile, commercial firms in Birmingham have written an open letter to the Lord Chancellor in support of their legal aid colleagues. Wragge & Co, Martineau Johnson and Shakespeares were among the 11 firms warning that the current proposals threaten access to justice. Some 28 City firms signed a similar letter last November.