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Should solicitors help draw legal aid red lines?
Friday 11 May 2012 by Catherine Baksi
How far should solicitors go to help the government formulate its criminal justice spending plans and what are the red lines that cannot be crossed when it comes to cuts?
These were the questions underlying a thought-provoking speech given by the Law Society’s head of legal aid policy Richard Miller at last week’s criminal law conference.
Noting that the high-water mark of the criminal justice system was in the late 1980s - when lawyers were entitled to operate at all stages of the criminal process paid at an hourly rate similar to that charged for privately funded work - Miller said: ‘We have dropped from an excellent system to an adequate one.’
In the current fiscal environment, with ‘zero chance’ of the government putting more money into the criminal legal aid system, he said the best that can be hoped for is that rates are frozen until 2015.
So with that reality, he suggested it was in the interests of the profession to be proactive and come up with proposals to redirect funding and ensure that funding for those areas considered sacrosanct is not washed away by the tide of ‘receding resources’.
This need, he suggested was particularly pressing given the government’s intention to look again at plans to introduce price-competitive tendering for criminal defence services.
While the government has yet to come up with concrete proposals as to how this will work, the revised European Union procurement directive likely to emerge over the next 12 months will impose a greater emphasis on price tendering in the supply of legal services.
‘If you do not want to die the death of a thousand cuts, or have competitive tendering foisted upon you, the onus is on us to present the government with a cost neutral or better still cost-saving alternative. There is a lot to be said for trying to take more control over our own destiny, by coming up with our own proposals to put to government,’ he said.
Proposals mooted (for discussion, not as indication of Law Society policy) to squeeze savings out of the system included the government tendering for a small number of national contracts and requiring head contractors to sub-contract with independent firms around the country.
A more ‘evolutionary idea’, he suggested, would be to require firms to deliver the majority of their services in-house, rather than relying on agents and clerks, and to set minimum volumes of work that firms would be expected to conduct.
Another approach would be for firms to consolidate back-office functions while maintaining their separate identities and existence as independent businesses. This, he said, might enable firms to reduce overheads and improve their prospects of survival as rates shrink in real terms.
Some suggest that there is an over-supply of criminal solicitors and firms in London. To address that point, Miller asked whether the London duty solicitor scheme should be reformed, so that firms could only be on their local scheme and one from an adjoining borough.
And should the system be changed so that duty slots are allocated on the basis of firms, rather than individual duty solicitors?
Miller also asked about the merit of a system of block contract - where firms are paid a lump sum for the work they do, rather than on a case-by-case basis.
Miller touched on savings proposals already put forward by the Law Society - requiring the Crown Prosecution Service to meet the cost to the legal aid budget of dropped cases, and imposing a levy on the financial services industry to meet the cost of serious fraud cases.
On ways to redirect rates within current payment schemes, Miller suggested rebalancing the litigators graduated fee scheme so that less money is paid for really big cases and more on the more routine ones. Top-up fees might also be an answer, with legal aid covering a ‘basic service’ and clients paying an additional fee for anything more.
In a devil’s advocate moment, Miller even asked practitioners to consider whether all clients should be entitled to representation in the magistrates’ court.
‘If someone has been charged with, say, an assault, and they are insisting in the face of overwhelming evidence that they are not guilty, is that such a high priority that it is worth risking the ongoing viability of police station and Crown court services in order to provide it?
‘And even if there are some cases where it is essential, are there some that currently get representation where, realistically, justice would not be seriously impaired if they do not?’ he asked.
Miller asked what would be the impact on justice if representation in the magistrates’ court were replaced with an expanded court duty solicitor scheme and no own-client service, or conversely, if the court duty scheme should be abolished and the money saved put to better use elsewhere in the system?
Many will find some of these questions unpalatable to even consider, but in these challenging times, unpalatable as they are, they need to be considered, if only, as Miller said, to establish the red lines that cannot be crossed and need to be defended.
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