The future of legal aid remains under threat unless the government changes its stubborn approach to reforms and, as Alan Beith tells Rupert White, carefully rethinks its policies


Last week saw the Legal Services Commission (LSC) delay imposing Lord Carter’s market stability measures for criminal legal aid until January 2008. But, it seems, this does little to change the approach of the LSC to reform generally and the impacts it is having.



This is not just the view of the Law Society, solicitors and other stakeholders, but also of Alan Beith MP, chairman of the constitutional affairs select committee (CASC). Interviewed shortly before the summer recess, he was far from happy about the way the government is going about the reforms.



Though Whitehall does listen to the CASC, Mr Beith says, the legal aid reforms have been pushed ahead with scant regard to counsel from within or without.



‘The only changes that have been made are very minor adjustments which have emerged as much in the consultation process as in our [May 2007] report,’ he says. ‘The government haven’t really addressed either the real difficulty of running a successful market-based system… or the absurd way in which they’ve gone to a system of fixed fees, generating enormous concern that that in itself will put a lot of people out of business, or out of the business of legal aid, when it’s actually only a temporary measure anyway.’



The distress fixed fees and other reforms have caused legal aid lawyers may be blinding them to the greater challenges beyond them, namely the ‘market system’ goal for legal aid, he says.



From the outside, the whole affair, it could be said, has been handled so badly that it might look to some as if the government was sucker-punching legal aid providers to distract them from the uppercut to come. The truth is less cynical, counters Mr Beith, but no less concerning: plain bullheadedness.



‘I think the government just decided that this is the way to move towards the market system. They didn’t see any evidence that it really was a good way to move towards a market system; certainly, if it reduces the number of potential suppliers in a market system, then it’s made it less likely that a market system could provide legal aid for those who need it.’



In essence, the former Liberal Democrat deputy leader still feels that Whitehall might be blindly dissolving the bedrock of the future market system. He likens this to the problems experienced following the privatisation of the railways – the creation of a competition base so denuded that the goal of privatisation, namely creating better services through competition for monopoly-buyer funds, is unattainable. It is certainly not creating a market system for ‘consumers’, he says, but it may not end up creating a market at all.



‘The advantages in a market system are in getting value for money for the taxpayer and promoting efficiency among the suppliers. It’s only of benefit to the purchaser if there’s enough genuine competition to deliver more value, otherwise you’re back where you started, without the regulated purchasing provision that the existing system has. But there’s no point in doing it if, at the end of the day, you can’t deliver legal advice to those who need it in a way that’s good value for the taxpayer,’ he says.



‘The existing system doesn’t work that badly; the innate problem areas are not the ones that this appears to be attempting to address. The innate problem areas have been in family and in high-cost criminal cases.’



Is he hopeful that any of the proposals will deliver legal aid and better value? ‘I’m not hopeful at all, because I don’t think the government has addressed the dangers that we’ve pointed out.’



Worse, he says, by ploughing on with the reforms – with the problems they will bring – the government may be forced to rethink at a very late stage if it finds it cannot even begin to operate a market system. Meanwhile, the new legal aid contracts from the LSC are strong-arming firms into a competition base they cannot all afford to be in. ‘Signing up is happening because these law firms have got guns to their heads. If they want to stay in business at all with a legal aid component, they have to sign up.’



Overall, the government’s response to the CASC’s widely praised report into its legal aid reforms has been woeful, Mr Beith says. ‘I think it’s a pathetically inadequate response in terms of rethinking policy to what we said on this issue, to a much greater extent than I’ve experienced on other reports.’



But why? Because, he says, the government has set a course and then stuck to it regardless of mounting evidence against that course. ‘I think they’re still in denial about the damages the system of changes presents.’



Something else Mr Beith believes the Ministry of Justice is in denial about is the potentially disastrous impact if the Lord Chief Justice, Lord Phillips, decides he cannot guarantee the independence of the judiciary following the creation of the department earlier this year.



Once again, the CASC put out a report detailing the problems with the government’s shake-up. Once again, the government ignored the committee.



Lord Phillips’s ill-named ‘nuclear option’ of making a statement to Parliament on the matter is still on the table, says Mr Beith. ‘What is at stake,’ he says, ‘is something that is not of day-to-day interest among people, but it’s fundamental to our constitution.’



Any threat to the independence of the judiciary strikes at the heart of justice and the British constitution, and senior judges think their independence could be threatened, he adds. ‘And [this is] against the background that many ministers are pretty cavalier in their willingness to undermine the judiciary with intemperate attacks in relation to individual cases.’



In the past, he says, the tradition was that it was the Lord Chancellor’s job occasionally to ‘slap down ministers who misbehaved in this way’. Now, the defence of the judiciary increasingly falls to Lord Phillips and the committee.



A problem that has seemed to hang in the air at CASC meetings, and was especially apparent whenever Lord Falconer was before the members, was to what degree the government took notice of

the committee.



Lord Falconer often seemed to simply brush serious concerns aside with a smile. On several occasions this year, committee members felt the need to point out that answers he was giving were not supposed to be funny. At times, there was almost a feeling that interviewee and interviewers appeared to be having separate conversations.



But, according to Mr Beith, there are times when things go the committee’s way and times when they do not. ‘When the government can’t deny that something’s going badly wrong, then they really do have to listen to the committee. And when the government’s trying to make up its mind, then I think we do engage effectively. Sometimes we finish up, as it were, on the losing side.’



There might be hope on the horizon, however. The new justice minister and Lord Chancellor, Jack Straw, represents a chance for a more two-way and constitutionally-minded approach to the problems of the judges and the wider issues examined by the CASC, says Mr Beith.



‘He’s always had a [push] to make Parliament effective. He thinks in constitutional terms about these various relationships and he’s in a relatively strong position, having been put in by the Prime Minister with a commitment to what I’d call constitutionalism; all of those things are potentially helpful. He’s also a politician [with concomitant budget concerns], but I still nurture the hope that in this job, he will take Parliament and the select committee seriously, and that he will see the significance of getting some of these things right.’



With the reopening of Parliament imminent, we may be about to find out whether those hopes will be fulfilled.