Criminal solicitors and barristers are slowly getting to grips with the enormity of the legal aid changes proposed by the Ministry of Justice in its consultation last week. Most were stunned by the plans, which went much further than even the most pessimistic had expected and seemed to have been drafted by people with zero understanding of criminal justice.
The reforms have been universally condemned as unworkable for all firms and a blatant and dangerous attack on justice.
Justice secretary Chris Grayling and the MoJ have achieved what some might have thought impossible – united all criminal lawyers regardless of firm size or legal background.
This could be dangerous for the ministry.
Solicitors and barristers are angry. Facing the prospect of being driven out of work they have little to lose, and, from what I have seen, they will not go down without a fight.
However lawyers are keen to work with the government to mould the proposals into something less devastating, and Grayling would be well advised to listen to their suggestions. If he doesn’t there will be chaos, and that will cost a great deal more than the measly amount he seeks to save.
Price-competitive tendering is designed to consolidate the market, making it cheaper to administer criminal legal aid. The ministry wants to end up with a smaller number of large providers.
But the large criminal firms that I have spoken to say that they will not bid under the current planned scheme because they will have to bid at a loss. Due to the limit on the share of work that any one firm can get, the biggest firms will take a hit and will not be able to do enough work to take advantage of economies of scale.
Meanwhile sole practitioners and small and medium-sized firms lack the money to make the changes to allow them to scale up their practices, and in any event, given the likely returns, it is not worth their while to do so.
In order to participate firms will need quick access to capital. This raises the prospect that it may not be law firms that bid, but other large companies, such as G4S, Serco and Capita. If that happens, wherefore independence? How will it look to defendants if they are represented by people employed by the same company that may also jail them?
The bar will not escape the misery – while Crown court work is excluded from the madness, graduated fees are being cut too and with the other changes the incentive for solicitors to instruct counsel will be even lower than it is now. Solicitors will want to keep hold of as much money as they can, which means keeping as much work in-house as possible.
Aside from the firms that go out of business and lawyers who lose their jobs, the quality of justice for clients will be diminished.
In an extraordinary move, Grayling proposes paying the same amount for short trials as for a guilty plea. With lowly paid junior lawyers representing defendants, there is a strong likelihood that suspects will be encouraged to plead guilty due to economic pressures.
Skimping in this area will inevitably lead to miscarriages of justice. It will also lead to a rise in the number of people in prison. So from the ministry’s point of view, it makes poor economic sense.
If that were not bad enough, there’s the proposal to remove the ability of suspects to choose their solicitor.
This not only ignores the realities of those who find themselves embroiled in the system, but destroys the relationship between solicitors and long-standing clients.
The proposal does not appear congruent with the ministry’s aim. It wants more people to plead guilty, but surely a suspect is more likely to accept advice that they should do that (offer a guilty plea) if it comes from a solicitor whom they trust.
The proposals also seem diametrically opposed to much other public service reform – which tends towards giving the public greater, rather than less, choice.
The change will also require legislative change - to the Police and Criminal Evidence Act 1984, as well as the more recently drafted Legal Aid Sentencing and Punishment of Offenders Act 2012, which enshrine client choice.
And all this upheaval and destruction is for what? To save £220m a year.
Last month Grayling spoke at an event organised by TheCityUK, exhorting wealthy overseas litigants to use British courts.
For many legal aid lawyers, that appeared hypocrisy of the highest order, as Grayling was simultaneously removing the ability of most British people to access the courts.
The fact that the English legal system is held in high esteem by many worldwide is something to be proud of. Grayling is entitled to be pleased that legal services contribute over £20bn to the UK’s GDP each year - 1.6% of the total.
But, if the Treasury is getting all that money from legal services, why is Grayling not fighting for a percentage of that money for his department, so that he can continue to fund a justice system that guarantees to everyone, regardless of means, access to high-quality lawyers?
If legal services bring in £20bn, surely the Treasury could stump up £220m to prevent the destruction of the criminal justice system. Or is the price of justice too high?