On Monday Chris Grayling announced, in a letter to Sir Alan Beith, chairman of the Justice Select Committee, that he had had a change of heart: client choice could remain at the heart of the criminal legal aid system.
After months of pressure from the Law Society and many others, the justice secretary wrote that he was ready discuss a model that includes client choice. He also indicated, in a meeting with the Law Society, that he was willing to consider more carefully our alternative proposals, which would shelve price-competitive tendering, retain client choice and maintain strong incentives for sufficient quantity and quality of legal advice and representation.
The new plan begins from the premise that the original approach, as set out in the Transforming Legal Aid consultation paper, is completely unworkable. It seeks to balance the competing objectives of the profession, the public and the government.
For once we seem to have Grayling's ear.
The lord chancellor’s serious and very welcome change of heart is only the beginning of extensive discussions around the future of criminal legal aid.
The status quo model is far from perfect. The short-termism that has plagued the sector over the past two decades has had a devastating impact on the financial health of the market and its ability to deal with the challenges of a falling crime rate, over-capacity and a difficult economic climate. The expert analysis we commissioned to inform our consultation response confirmed as much.
This is why we have taken action.
In consultation with the criminal practitioner groups, we have composed a properly evidenced and considered alternative approach.
Our proposal seeks to introduce a system of contracting for criminal legal aid broadly akin to that for GP surgeries. A contract would be retained subject to periodic review so long as certain statutory and mandatory obligations are met. Mandatory obligations under our proposed legal aid contract would take the form of a quality and capacity framework, which would specify the criteria a firm must achieve in order to retain its contract.
The criteria central to the framework, which we will discuss with the Ministry of Justice as well as practitioner groups, would drive both quality and consolidation. Crucially, consolidation would be driven at a more realistic pace than under the ‘big bang’ approach of the ministry.
The framework would be regularly updated, which would allow flexibility to alter the criteria to protect certain areas of the market. As currently proposed, each firm would be required to have two CLAS-accredited duty solicitors in 2014-2015, increasing to three in 2015-2016.
How firms achieve the consolidation is not fixed. Through entering joint-ventures, undertaking sub-contract work or in other ways cooperating could allow firms to stay in business without sacrificing their independence.
It is clear that any move to restructure the market must be accompanied by measures to improve the cashflow of firms, including payments on account and a change to the accounting rules which require legal practice to pay tax on work in progress.
The criminal justice system must also become more efficient and reduce waste. This is why we have called for a stricter wasted costs order regime, whereby the party that causes a delay or additional cost would be forced to pay for it.
Our alternative model, quite deliberately, does not enter into discussion about fees.
Although we must acknowledge the uncomfortable fact that the MoJ is looking for savings in all areas of its budget, including legal aid, it is far from clear that cuts to fees - which already appear to be unsustainably low - would result in real savings.
This rethink by Grayling demonstrates the benefits of a robust yet constructive and engaged approach. Now that he is ready to sit down and talk about our alternative model, we will do all we can to convince him of its merit. Our priorities in any discussion are clear: an economically viable, sustainable and diverse supply base able to provide high-quality legal services for all those accused of a crime who would otherwise be unable to pay.
Richard Miller is head of legal aid, Law Society