Criminal legal aid: what now?

A fortnight ago the government published a revised set of proposals for contracting criminal legal aid, following discussions with the Law Society. Many aspects of those proposals – not least the retention of client choice, shelving of PCT and provision for all who meet a minimum quality standard to be able to undertake unlimited own client work – are the result of a compromise between the ministry and the Law Society.

We reached that compromise, and welcomed the extent to which the lord chancellor had moved, not because it was a perfect outcome but because it represented the best possible deal in the circumstances.

The key area of disagreement was over planned fee cuts. We opposed and continue to oppose further cuts. We have warned consistently that the ministry must take account of the fragility of the supplier base in their decision-making and referred to the evidence we filed with our first consultation response which demonstrates the risk these cuts pose to firms. We continue to deliver this message very clearly to the lord chancellor.

However, as a mature professional body we have to work for the best outcome for our members within the boundaries of what is realistically possible. We don’t like it, but there is no majority in Westminster to ringfence the current legal aid budget. We must face the practical reality. There were going to be cuts. Our agreement is the best available package.

We also failed to reach agreement over the value, size and extent of the proposed duty solicitor contracts. We are agreed with the lord chancellor, however, that this decision must be firmly grounded in the best available evidence.

For this reason we have jointly commissioned Otterburn Consulting to undertake and publish a detailed market assessment. This will look at how firms will deliver the duty solicitor contracts and estimate the turnover they will require in order to be financially viable for the long-term.

To successfully undertake this task, and provide a sound evidential base, Otterburn requires data from as many criminal law firms as possible. By estimating the volume necessary for long-term financial viability this research will inform the size and value of the contracts, but will also provide invaluable information on the best size of the procurement areas to be used.

An area of concern is the rapidity of the move towards national fixed fees. While we support simplification in what is a complex fees landscape, there may be a disproportionate impact on some areas and, in the case of the magistrates’ court, the creation of perverse incentives. Otterburn’s research will necessarily have to consider the impact of fee policies, so this is a further area where your responses will be vital to assist in designing the right system for the future.

Over the coming weeks we will be undertaking a national programme of roadshows, aimed at setting out the detail of the consultation proposals, explaining what they will mean for you and telling you what the Law Society is now doing to help you prepare and adapt to better meet future challenges.

Our package of measures will be aimed at helping members adapt to the new criminal legal aid market. This will include guidance and advice for those looking at joint working arrangements, template documentation for firms to collaborate to bid for contracts and support in meeting digitisation and other back-office requirements.

Our primary objective is to secure the best possible deal for our members and to provide all of the necessary support for meeting future challenges. Please let us know if there are further measures we could take, and we will be happy to see whether we can provide additional help.

Desmond Hudson is chief executive of the Law Society