Whether driven by political dogma or economic necessity, it is clear that the Ministry of Justice will have to find savings in criminal legal aid. Few businesses or individuals have been left unscathed by the ongoing austerity measures undertaken by the government or the UK’s broader economic malaise.
However, the price-competitive tendering (PCT) plans do not pass the most lightweight forensic examination. They promise a bulldozer through our criminal justice system for the sake of savings which are unlikely to be achieved. Impacts would be serious and long-term.
It is somewhat reassuring that the lord chancellor Chris Grayling is listening to the legal profession. Last week, the Society arranged for a group of 30 criminal law members from all sorts of practices, from all over the country, to meet him. He listened carefully to their concerns over his proposed ‘reforms’, concerns born of frontline knowledge and experience. But we all know – and after that meeting he should know too – listening will be nowhere near enough.
We understand cuts must be made, but the proposal is ill-conceived. If implemented – especially to the proposed breakneck schedule – it would cost a lot more than it saves, and not just in monetary terms. Solicitors’ firms will go under, innocent people will go to jail and guilty people will walk free. The court system may grind to a halt. The electorate is unlikely to reward such failures.
The entire model is poorly thought-through, but thanks to Treasury demands for MoJ cuts – massive and soon – there is very little time to stop and consider the wider consequences. Our reservations about the current proposed PCT scheme are well known. Among other issues we have stressed the importance of quality assessment in any form of tendering, but that such a scheme needs to be proportionate and simple. We will investigate the provision of a possible means of assessing quality as part of response to the consultation.
It is easy for the press and ministers to vilify criminal legal aid, especially amid the political rhetoric of cuts. But currently, everyone in this country who is accused of a crime is properly represented. That is something we are rightly proud of. It must not be undermined.
No one is immune to being falsely accused of a crime but, up to now, regardless of your financial circumstances, you can be assured of quality legal representation of your choice. But under the government’s proposals, if you are accused of a crime, you will have to take the solicitor allocated to you. Not only would this create a disincentive for quality, but it is not clear that the government’s own LASPO act allows it.
Make no mistake, price-competitive tendering will cause a race to the bottom. The 17.5% cut in fees will mean for many lawyers, undertaking this work makes little economic sense. Driving firms out of the sector may not be the government’s intention, but it will be the effect – and if fewer providers remain, it will be the government which ultimately pays more. The upshot will be that quality will suffer.
There is a better way. Any cut of this magnitude carries a significant risk of triggering the collapse of the supplier base, but there are other ways the government could go about this that would lower that risk. This would entail a mix of administrative cuts with measures to consolidate the market and improve cashflow, enabling at least a few firms to absorb the cuts and survive.
No solicitor is drawn towards legal aid for its glamorous lifestyle or generous pay packet. Criminal legal aid means working in police stations throughout the night and long days in court, all for comparatively low financial rewards. It is already a hard path to go down and PCT would make the track rougher and steeper. The lord chancellor must appreciate that the rule of law is much too precious to be sacrificed in ill-considered and hasty upheaval to deliver savings which are likely to prove short-term and even illusory.
Desmond Hudson is chief executive of the Law Society