Even I’m concerned about Chris Grayling’s proposals for criminal legal aid. When the government announced cuts to civil legal aid, I broadly backed them, in contrast to most lawyers. Now, the government’s proposing some further cuts to civil legal aid as well as major changes to the criminal legal aid system most dramatically, a move to competitive tendering of publicly-funded criminal defence work.
It’s important to note that there are a series of proposals here, many of which I basically accept or at least don’t oppose. Anyone writing about public spending has to take seriously the UK’s public spending deficit, and accept that there must be public spending cuts. Any other view is unreal. Even if you think the coalition is causing economic harm by the timing and depth of its cuts and the rhetoric it has used about them, the need to make cuts is unavoidable. I was interested that Ed Balls this week proposed cutting the winter fuel payment to better-off pensioners. I accept the need for cuts and for further ‘tough choices’, even if Labour gets in in two years, and believe the impact should fall as far as possible on the better off.
The only remaining question is whether legal aid is a special case. Frankly, I don’t think it is. Our commitment to the rule of law doesn’t justify maintaining every line of legal aid spending in a fiscal context where other public services are being cut, as are benefits for the poor and for disabled people. If we really believed the need for public funding of law trumped all financial considerations, we’d bring in universal legal aid for all, to create something like a ‘National Justice Service’. But we’re stuck with what we have, and I can’t realistically defend every aspect even of criminal legal aid spending, in the fiscal context of today and the next five or ten years.
So as I say, there are proposals here that I accept.
I’m not happy with, but must accept the cutting of public funds for prison ‘treatment’ disputes. And I accept the introduction of a household disposable income threshold of £37,500 above which defendants would no longer receive criminal legal aid. I’d like to see this limit higher, but I can’t say this figure’s unreasonable. It’s not a threshold of £37,000 gross household income.
I have detailed concerns about the proposed residence test for civil legal aid claimants, and reforms to reduce legal aid for judicial reviews by making lawyers bear the risk of an unsuccessful application for permission. But I’m not sure I can really oppose them.
I worry too about amendments to the civil legal aid merits test to prevent the funding of ‘borderline’ cases with perhaps less than a 50% chance of success. Again, though, I’m not sure I can realistically oppose this.
I accept the proposal to restructure Advocacy Graduated Fees, and a reduction in and tapering of daily trial attendance rates from the third day of a trial. I don’t think this will incentivise lawyers to advise ‘wrong guilty pleas’. That suggestion is a bit of an insult to criminal lawyers. It’s reasonable for public funding to be structured in a way that is biased against long trials.
I accept the proposal to reduce all criminal fees in very high cost cases by 30%. In fact, I’d go further, and cut fees more harshly at the top end, so as to be able to cut them a little less for more junior barristers. It’s not because I share populist anger about highly-paid QCs; it’s just that I believe the better off should bear as much of the burden as possible. The same principle should apply in cutting experts’ fees, by the way. Finally, I accept the proposal to tighten the rules on appointing multiple counsel.
But the most important and by far the most contentious proposal is to move quickly (by the end of next summer) to a new system of paying much of criminal legal aid not by setting fees for existing law firms, but by requiring those firms, or joint ventures involving a number of them, or alternative providers like companies, to bid competitively for a limited number of contracts, in effect setting their own fees.
Even this proposal I’m not opposed to tooth and nail in principle. Maybe something like it could offer more efficient publicly-funded justice. I don’t know. My attitude is not one of visceral dislike of market mechanisms. Criminal legal aid already depends on private sector provision operating in a market for public funds. Nor am I snooty about the sorts of providers who might want to bid for contracts – even Eddie Stobart. Any new providers should be judged on performance, not prejudice.
But still, I have serious concerns about what’s planned. This would be a massive change, and it’s one that should be made, if it is made, with caution. Ministers need to realise that there is some risk of catastrophic failure. I’d prefer to see implementation slowed, and perhaps trialled or piloted in some areas. I’m not yet convinced by the consultation paper’s argument that that’s impossible, and that one big bang is the only way.
I also worry about what the consultation paper calls ‘sustainable procurement’: how the proposed market structure will ensure incumbent contractors face real competition from new entrants, and how any new entrants will be able to build and maintain the capacity to bid and fulfil contracts. I worry that this model could entrench a sort of publicly-funded oligopoly of un-shiftable incumbents who always successfully retain their contracts because challengers can’t find experienced lawyers with the ability to do the work properly. If you believe in a competitive market, you should ensure that’s what you really get.
But my overriding concern is the proposal that criminal suspects and defendants should no longer be able to choose which solicitor they use. Instead, the plan is that each defendant will be allocated one of the approved contractors – and that he or she should not be able to change provider without a good reason. I’m less concerned about limiting the ability to change solicitor: it’s fair enough for the taxpayer to want a good reason for that. It’s also reasonable for the taxpayer to permit only a limited choice of representative (the need for a lawyer to be regulated is already a mild form of this kind of limitation). But it’s wrong to deny clients any choice of lawyer at all. I firmly oppose this idea.
I’m against it partly for traditional, lawyerly reasons. Client choice helps underpin the independence of the legal profession, and the relationship of confidence between client and lawyer. It helps ensure fairness and quality of representation. But I’m also against the proposal for other reasons.
Reading my response to the proposals overall, you’ll probably guess I’m open even to radical changes in public service provision. I rarely think the status quo is best, and I don’t instinctively oppose changes because they’ll bring the private sector in, or offer choice. In fact I tend to support proposals for reform of public services that actually rely on extending choice. Public services should treat us as individuals, and more choice, not less, is probably the best way forward.
Against that background, again I see no reason why publicly-funded law is an exception. If the future is a competitive market among criminal lawyers and the organisations that pay or employ them, then it should be a competitive market based on client choice – not one that tries to eliminate choice. That seems an odd kind of market.
So while I’m far from a stereotypical legal refusenik, and am prepared to accept many of the proposals in this consultation, even I’m worried about competitive tendering. It should be slowed down and tested if at all possible, rather than being rushed. And ministers must rethink so that client choice is placed at the heart of their reforms – not denied.
Barrister and former government lawyer Carl Gardner blogs at Head of Legal. Click here to follow Carl on Twitter.
