The current consultation on changes to criminal legal aid - the proposed introduction of price-competitive tendering (PCT) - casts a dark shadow over the future of hundreds of solicitors and their firms.
Writing in the Times on 18 April (legal aid challenges) the lord chancellor spoke of his concern for the future of the bar. He made no mention of any similar concerns for independent solicitors or their thousands of employees. Like many of you, I was therefore very concerned indeed to read the note published by the south-eastern circuit (Revealed: Grayling's plan to drive a wedge between bar and solicitors) last week which purported to be a record of a meeting between the bar circuit leaders and the lord chancellor.
If accurate, it indicates an inappropriate degree of favouritism for the bar, at the expense of solicitors. That it follows the earlier article in the Times and the words in the consultation paper, simply adds to the level of concern. Just how far will the Ministry of Justice be prepared to go to protect an independent bar? Suppose ‘too many’ well-qualified solicitor-advocates have the temerity to practise advocacy in the Crown court to the detriment of the bar (though certainly in the interests of their clients); would that mean the MoJ should interfere in the market to protect an independent bar? Either the MoJ wants market disciplines (so, as the Treasury might claim, competition will drive down the cost borne by the taxpayer) or it does not. Or is competition fine for solicitors, who frankly appear to be expendable, but not the bar?
As soon as we saw the note, we made urgent contact with the Ministry to let it know the strength of feeling within Chancery Lane about the minister’s reported comments and to invite them to clarify or correct the position. Its public comments to date do neither. There is an obvious temptation in the face of such provocation to break off all engagement with the Ministry, and we gave very serious thought as to whether that is what we should do. However, for a number of reasons, we concluded that that is not in the profession’s best interests.
First, engagement can deliver results, even if nowhere near as much as we would like. Awful as LASPO was, some ideas, such as the interest on lawyers’ accounts scheme, the Supplementary Legal Aid Scheme and a few of the scope cuts were reversed as a result of our engagement in the process. Similarly within this process, while we are under no illusions that we can make the cuts go away, we do believe that there may be scope to influence how they are implemented. Given the egregious nature of these proposals we must do all we can to address their enormity and see how they can be mitigated. Moreover, it is not clear that the status quo provides over the medium-term a sustainable business model for solicitors firms operating criminal legal aid. We all need to work on alternatives.
Secondly, some of the reported comments of the lord chancellor are perhaps more positive from our perspective and we should keep an open mind until the MoJ or he respond unequivocally to the south-eastern circuit note. The lord chancellor has said that if the profession can come up with alternatives to PCT that deliver the scale of cash-cuts required, he is open to the possibility of dropping PCT. He is also reported to have given a commitment that he would not implement good ideas that consultees come up with to save money in addition to making the cuts indicated in his consultation, and a promise that there would be no further cuts to legal aid after these cuts take effect. It is clearly in the profession’s interests that we secure equivalent assurances for our members.
Thirdly, in the event that changes are not made, and the lord chancellor insists on pressing ahead with a scheme that we believe will do immense damage to our criminal justice system, the bar and solicitors, we will need to be able to show to relevant select committees, and others whom we may call upon to help us try to stop the proposals, that we did everything we could to explain and provide evidence of the difficulties we have identified.
We have written to the lord chancellor and will raise directly with him to ensure that he understands the anger of the profession at his reported remarks. In the meantime we will continue to make the case that these proposals are unworkable and will be a disaster for the whole of the profession, the criminal justice system, the public interest and the taxpayer.
Desmond Hudson is chief executive of the Law Society