Legal aid reform - justice on the cheap

The central tension in the changes to legal aid in Britain is between reducing costs and maintaining quality - the Lord Chancellor appears to have opted for reducing costs, but at what price?

Mike Schwarz John Halford
31 October 2013


On 5 September the Lord Chancellor, Chris Grayling, announced the outcome of the Transforming Legal Aid consultation. Much was made of discussions with the Law Society having shaped the revised proposals for criminal legal aid, now the subject of a further consultation ending shortly. And there has been a real shift: client choice is back; price will not be a factor in MoJ crime tender decisions and crime firms fulfilling basic quality criteria will continue to be able to represent clients who specifically ask for them. All of this has led the Law Society to describe the revised crime proposals as the "best achievable outcome".

But many problems remain and questions arise. Those with the stomach to delve into the 260 pages of new MoJ material that lies behind the headlines, will find no shortage of principle and detail to leave them disturbed and at times uncomprehending or outraged.

In crime two big questions arise - one historical and academic, the other forward-looking and financial.

First, the historic one. The MoJ has abandoned its proposals for price-competitive tendering, a model predicated on the withdrawal of client choice and so fundamental that the MoJ did not even invite comment. Its cornerstone was that if you had been arrested or prosecuted you could no longer choose your lawyer. Instead, you had to be represented by a lawyer picked by the Ministry of Justice. And the Lord Chancellor was to make that selection applying just one criterion - the contract was to be awarded to the bidder who offered to do the work at the lowest price to the public. It would have been a recipe for shoddiness and miscarriages of justice. This was obvious from the outset to just about all right minded lawyers and to the Lord Chancellor half way through the consultation period when he abandoned that aspect of the proposal.   

Constitutional academics will ask whether the original proposals were the result of swivel-eyed dogma, personal political ambition on the part of the Lord Chancellor, a reflection of the divorce of civil servants from the culture and practicalities of their field of responsibility or were a Machiavellian ploy - an opening gambit that was so preposterous that its second generation proposals would pass unchallenged and unremarked.

Second, and of more immediate concern, the proposals for the future. Though a lengthy consultation document, its kernel is straightforward - a 17.5 per cent reduction in fees across the board (30 per cent in the case of very high cost cases).

The further consultation is merely about the mechanics to achieve this - based on separate contracts for defendants who had chosen their lawyers and those who did not have a preference, the common theme being reduced and identical rates for both types of work.

If this objective is realised, the lord chancellor's career ambitions may be preserved, even enhanced with a double-barrelled attack on lawyers and defendants-come-welfare claimants. And in crude financial terms it may secure the £220m reductions sought. But at what cost?

The market of 'providers' is already fragile - with increasing evidence of firms withdrawing from legal aid and, separately, of practices across the piece operating on increased overdrafts and reduced profit margins, even deficits, at risk of insolvency.

There is a tension at the heart of the lord chancellor's proposals. He seeks to secure a significant reduction in fees while purporting to be the guardian of quality legal aid provision ('minimum quality standards' replacing price as the principal criterion for the award of contracts).

The lord chancellor canvasses other mechanisms for assuring the profitability of providers. He wheels out the idea of a 'panel' of experts to look for 'system reform' to increase efficiency - a nod to the long-standing gripe of defence practitioners that they suffer the double-whammy of reduced remuneration, while at the same time having to cope with yearly criminal justice statutes and the failings of the police, prosecution, security officers and courts.

Above all, perhaps, he remains wedded - certainly in relation to duty work - to the principle that big is beautiful, that sausage-factory, national contractors making a smaller margin on more cases can make a better fist of criminal defence work than local, small practices which still - just about - populate the high street, local police stations and courts. In short, he still pins his hopes on the cartel of big solicitors' practices, alternative business structures and the likes of Eddie Stobart’s barristers, G4S and Capita.

Last, little of the arrangements for criminal firms to advise on prison law will survive: only Parole Board and sentence calculation cases in which release is an issue remain in the scheme. Prisoners seeking advice on other issues can do without, says the MoJ, and instead use 'strengthened' complaints mechanisms. There will be no exemptions for child prisoners or those with disabilities or mental health problems - the very groups currently prioritised.

As for civil legal aid, the original proposals emerge largely unscathed. Parliamentary scrutiny is to be avoided: the MoJ will not await Joint Committee on Human Rights hearings later in the year, instead planning to press on using delegated legislation.

On judicial review, Legal Aid Authority will have discretion to fund cases resolved before a judge decides on permission to proceed, but it appears this will be exercised retrospectively.

There will be a further mini-consultation here too, focusing on criteria that the Legal Aid Authority will use. But this concession is hollow whatever its outcome because the MoJ still expects claimant firms to take all pre-action steps (including any mediation), to issue and pursue complex cases without any funding in place. The proposed discretion to grant it only once a case is concluded leaves all the risks and linked disincentives intact.

It follows that many legally aided judicial reviews which currently settle pre permission (the majority of those the MoJ funds, in fact) will either need to be litigated far more aggressively than before to maximise the prospects of inter partes costs recovery, or will not be taken in the first place despite having real merit. Complex health, community care and other social welfare cases will be amongst the hardest hit. This is no way to fund a system there to ensure those with the greatest power - public authorities - comply with the rule of law.

More brutal still is the residency test which creates a gateway to civil legal aid through which only those with 12 months' past lawful residence in the UK and physically presence here can pass. This is wholly unprecedented - never before has a class of person been excluded from legal aid for reasons to do with their identity, rather than the type of case they have or its strength.

As with prisoners' advice, the costs savings are negligible at best (and research by Nick Armstrong at Matrix has revealed far greater consequential costs). The MoJ's primary justification is ideological; those without a 'sufficiently strong connection' are simply deemed unworthy of legal aid. The narrow concessions made (for service personnel, lawfully resident babies, successful asylum seekers, detained persons and narrowly prescribed vulnerable groups) leave many others outside the scheme.

So, for example, a victim of extraordinary rendition or torture at the hands of British authorities abroad will be excluded, as will many involved in family cases with an international dimension, along with disabled or mentally ill people seeking help for unforeseen reasons when here lawfully for a short period.

This element of the proposals will almost certainly face judicial review - whether brought by NGOs, solicitors' firms or individuals who will no longer be funded (for example, parents of a child left brain damaged by a medical accident while here on holiday who would be excluded from the scheme might well be advised now to challenge the impact assessment or draft delegated legislation). And the MoJ's 'exceptional' arrangements - touted as a safety net for hard cases - are unlikely to help its defence much. To date less than 2 per cent of applications for such funding made have been successful - hardly a practical and effective means of ensuring compliance with article 6 ECHR.

Unsurprisingly, most proposed civil fees cuts are unchanged. Fixed representation fees paid to solicitors under the Care Proceedings Graduated Fee scheme are to be cut, there will be a levelling down of fees paid to self-employed barristers with those paid to other advocates appearing in civil (non-family) proceedings and the uplifts paid in certain immigration and asylum cases will go (naturally, the parity of treatment of barristers engaged by the state proposed by some consultation responders will not happen). Experts' fees will be reduced save where increases were recently made to address market supply issues. The gulf between what is paid for privately and publicly funded civil work will continue to widen, making profitable legal aid practice harder to sustain.

Legal aid is not a welfare benefit; it is an equalising measure. Its aim is to ensure that everyone subject to UK jurisdiction can enjoy their rights in a meaningful way through access legal advice when it would otherwise be unaffordable and representation funded to the extent necessary to ensure that the merits of any court case will determine the outcome, rather than the relative wealth or power of the opposing parties.

These fundamental principles remain shamelessly compromised by the Government's proposals. It may have pulled back (just) short of the brink in crime, but relief is likely to be short lived and any triumphalism is misplaced. The crime proposals perpetuate a dangerous trend; those for civil work will create a silenced minority whose cases will never be heard by our courts, regardless of their merits or what is at stake. That should be a cause of real alarm and a spur to renewed lobbying and legal action.


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