The LCCSA submitted its written submissions to the Constitutional Affairs Committee in relation to Lord Carter's proposals for the reform of procurement of publicly funded criminal defence services. 

IS THERE A NEED TO MODERNISE THE PROCUREMENT OF LEGAL AID?

• Many businesses currently operate on edge of profitability. The supplier base is therefore at risk.
• These proposals threaten the sustainability of the supplier base and the structure of the criminal justice system
• Lord Carter?s proposals are based on the premise that the criminal legal aid budget is out of control.  Evidence in support of that premise is limited, as acknowledged by Lord Carter.  The committee should be sure of the true state of affairs particularly given the extreme risks posed to  the criminal justice system and the public of Lord Carter?s ultimate recommendation: competitively tendered criminal defence services.
• The LSC confirms that the budget for police stations and Magistrates Courts is under control.  This is despite massive changes in recent years in the provision of criminal defence services.  The key costs drivers especially in serious cases are outside the control of defence practitioners.  To deal with this by cutting costs in defence services is  illogical and does nothing to tackle the real causes of increasing costs.

IS THE TIMETABLE FOR IMPLEMENTATION SUGGESTED IN LORD CARTER?S REPORT REALISTIC?

• The proposed timetable is unfair to suppliers and unrealistic in its expectations of what the LSC can deliver in the time available.
• The proposed timetable introduces price cuts in advance of proposed benefits:cuts come before volume increases and before consolidation of work into specific contract areas. 
• Many issues have not yet been resolved; others not even considered. Questions asked of the LSC to try to resolve these issues have not been answered and business planning remains virtually impossible.

WHAT BENEFITS MIGHT BE GENERATED FOR DEFENDANTS AND OTHERS BY ADOPTING THESE PROPOSALS?  WHAT IMPACTS / DISADVANTAGES MIGHT RESULT FROM IMPLEMENTATION?

• We do not believe that defendants or the courts will benefit from implementation of these proposals
• Loss of quality of service is the major impact that will result from implementation.  The elements of that loss of quality are set out in detail in the response but in summary:
  • Fixed fees encourage and reward expenditure of minimum time and effort and use of inexperienced and non-professional staff;
  • Increased danger of inappropriate guilty pleas;
  • Lawyers with knowledge of clients and cases lost to the system;
  • Clients no longer have freedom of choice of solicitor.
• This in turn will lead to:
  • Loss of talented lawyers from criminal legal aid system;
  • Shift in balance of criminal justice system  with the  simultaneous loss in defence resources  and increased resources for the police and prosecution weakening the defence.  Weakened defence will in turn lead to failure to hold the prosecution to account;
  • Instability in defence supplier market with increased bureaucracy, loss of profitability, closure of firms and preponderance of a small number of large firms;
  • Loss of public confidence in criminal justice system with increased risk of miscarriages of justice and consequences that flow from that.

THE IMPACT OF THE PROPOSALS ON DIFFERENT COMMUNITIES

• Vulnerable defendants: a fixed fee system will work to their detriment as the model is an incentive for firms to avoid ?demanding? clients.
• Defendants with complex cases: will be disadvantaged since the proposed system creates disincentives for lawyers to take on such cases.
• Lawyers from BME groups: will be disproportionately affected as a far greater proportion than the average work in smaller, newer firms which are more likely to be forced out of business. This is especially so in London where many BME owned firms are located.
• London: clients and lawyers based in London face particular disadvantages, London having more police stations, magistrates? and Crown courts, spread over a greater area, than any other in the country.  The loss of the own-client/solicitor relationship will be particularly felt in London.  The proposed ?20% rule? does not adequately deal with the problem as it arises in London.  Competition on quality and reputation will not be possible given the limited ability for clients to choose their own solicitor.

WHAT IMPACT WILL ANY OR ALL OF THE RECOMMENDATIONS HAVE ON LEGAL AID PROVIDERS? HOW WILL THE PROPOSALS AFFECT FIRMS OF DIFFERING SIZE, STRUCTURE AND PRACTITIONER MIX?

• The proposals will incentivise firms to employ a high proportion of lower-skilled and unqualified staff. Accordingly suppliers with a high proportion of qualified, experienced (and therefore more expensive) staff will be placed at a disadvantage.
• It is unrealistic to expect that smaller or medium size firms will merge.  In particular if they are multi-disciplinary.  They will try to survive; many will close.
• There is a very real risk of a loss of civil supply as many firms also do civil work.

WHETHER THE MEASURES PROPOSED WILL PROMOTE THE PROVISION OF HIGH QUALITY ADVICE AND SUPPORT THE EFFECTIVE AND EFFICIENT OPERATION OF THE JUSTICE SYSTEM

• This is dealt with above.  Introduction of a competitively priced fixed fee system will adversely affect the quality of advice given with potentially devastating effect upon the outcome of individual cases and defendants, the existing balance in and resourcing of the criminal justice system and public confidence in that system.