It’s no mean feat to get the various branches of the profession and legal regulators singing from the same hymn sheet but controversial government proposals to slice £220m off the annual criminal legal aid budget have managed just that. As the consultation today (4 June) closes on the Ministry of Justice’s (MoJ’s) ‘Transforming Legal Aid‘ proposals, the Law Society, Bar Council and Bar Standards Board (BSB) have combined to condemn the move.
The MoJ proposals include the introduction of price competitive tendering (PCT) for legal aid contracts, the removal of the automatic right to legal aid for defendants with disposable income of more than £37,500 and the restriction of the right for defendants to choose their own solicitor. The model is based on encouraging consolidation among legal service providers – echoing the 2006 Carter review of legal aid.
The package has been championed by justice secretary Chris Grayling (pictured) as a means of reducing the £1.1bn spent annually on criminal legal aid. The government has already pushed through sweeping reform of civil legal aid, withdrawing state support in a host of areas under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). The policy is estimated to save £350m a year, against an annual budget on civil legal aid of around £900m.
The wave of opposition to the latest attempt to scale back legal aid has been considerably more robust than the concerted (and largely failed) attempt to win concessions on the LASPO.
The Bar Council has dubbed the removal of client choice from the criminal legal aid system and the introduction of PCT as ‘fundamentally flawed’.
Bar Council chair Maura McGowan QC said: ‘There is no avoiding the simple fact that these proposals would move us from having a justice system which is admired all over the world, to a system where price trumps all. PCT may look as though it achieves short-term savings, but it is a blunt instrument that will leave deep scars on our justice system for far longer.’
The BSB in its response to the consultation goes as far to say that the reforms could push people to plead guilty as the government proposes to pay legal aid lawyers the same amount for a guilty or not guilty plea. The Bar regulator argues that agreeing contracts on price rather than quality could lead to inadequate representation at trial.
‘These reforms may endanger the ability of our legal system to guarantee everyone a fair trial,’ said Baroness Ruth Deech, chair of the BSB.
The Law Society has been an equally strong critic of the proposals with Chancery Lane chief executive Desmond Hudson recently commenting: ‘There is a very high level of concern across all legal practitioners at these proposals. Among many examples, the attack on a defendant’s right to freedom of choice of his or her lawyer is grave. The state will prosecute you and then decide who can represent you.’
Other signs of opposition saw 90 QCs last week criticise the reforms in an open letter to The Daily Telegraph. Signees included the Attorney General Lord Goldsmith QC and the former director of Public Prosecutions Lord Macdonald QC.
The letter said: ‘The Ministry of Justice is proposing changes to criminal legal aid which will deny choice and effective representation to those accused of crimes, leading to a rapid and probably irreversible fall in standards of representation. We urge the government to withdraw these unjust proposals.’
Other high profile opponents of the reforms include human rights charities such as Liberty and Sir Anthony Hopper, a former Court of Appeal judge. Concerns over the issue have been further heightened by indications that the MoJ is considering selling off elements of the court service to the private sector.
Whether wide-ranging opposition will have any impact is far from certain. Opposing legal aid cuts has historically proved challenging as a divided legal profession has struggled to galvanize public opinion in a complex area of public policy. In addition, lack of sympathy with ‘fat cat’ lawyers has often made legal aid an easy target, despite earnings for many young, publicly-funded lawyers having fallen to less than £25,000.
The MoJ has already seen steeper cuts under the coalition government’s austerity drive than many other Whitehall departments and the legal aid budget had been substantially pruned over the last 15 years, despite having fallen in real terms by around 20% against 1998-99, even before the recent cuts to civil legal aid.
But with a hard-line justice secretary pushing for reform ranged against a profession increasingly contemplating aggressive action – criminal legal aid reform looks to be the biggest trial of strength on legal policy since the 1980s.
Click here for the Bar Council’s submission on legal aid reform
Click here for the Law Society’s submission on legal aid reform