City law firms have joined the attack on the government’s legal aid cuts, warning that they ‘pose a potentially irreversible risk to the standards and reputation of English justice’.
In a letter to the Law Society, the chairman of the City of London Law Society Alasdair Douglas criticised the ‘grossly disproportionate’ plans to limit legal aid for judicial review, which he said has been an ‘unparalleled success story in advertising the UK’s commitment to the rule of law'.
He said the proposals to introduce price-competitive tendering are the government’s ‘latest exercise in short-termism’.
‘As a mechanism for a monopoly purchaser to sustain a long-term capability, it is difficult to imagine anything less meritocratic or more counter-productive than PCT.'
He said the scheme appears to ‘promote price above quality’ and suppresses the ‘general pro-quality dynamic of client choice.’
Douglas said: ‘In the absence of any other pro-quality features, PCT will inevitably prompt a race to the rock-bottom of price, choice and quality.’
Commenting on the impact of the reforms, Douglas said: ‘The City firms and their professional clients have relied to a huge extent on the contribution made by individual solicitors and the high street firms.
‘The success of the legal profession in sustaining, thus far, a tolerable equilibrium in the historic relationship between the state and the individual has played a crucial part in developing the global reputation of English law as a trusted and predictably even-handed feature of business’.
He said: ‘We will all suffer if the legal profession can no longer maintain the equilibrium: individuals will no longer view access to the law as a tool for "their" use, and other jurisdictions will be quick to point to the consequent decline in English law’s reputation for even-handedness.’
Douglas refers to comments made to him by one senior partner at a City firm who pointed out: ‘Many of our corporate clients have their headquarters in this country because the rule of law applies, and because of the justice system across the spectrum – which includes access to justice.
‘Diminution in reputation harms us both domestically and internationally and erodes a key strength of ours in the global market.’
Douglas said that the current problems were the fault of successive governments' failure to address the issues of legal aid, but he said the legal profession has contributed to the difficulties.
‘For years, publicly funded law has been a hand-to-mouth issue for all concerned,' he said.
But he recounted changes proposed nearly a decade ago to cut the number of criminal legal aid suppliers from 2,500 to 750, that floundered ‘in the face of a hostile profession’ and a government unwilling to invest to make the changes work.
He said that CLLS remains ‘fearful at the lack of any plans for the sustainable development of the publicly funded legal aid system.’
The CLLS did not itself respond to the Transforming Legal Aid consultation, but expresses support for much of the Law Society’s own response.
In the letter to Law Society president Lucy Scott-Moncrieff, Douglas said: ‘I do not think it would be realistic for us merely to oppose financial cuts at a time of genuine national difficulty, without being in a position to offer any detailed alternatives.’
He supports the Law Society’s aim to develop a series of alternative proposals, and suggests there is scope for ‘trade-offs’ between the Law Society’s opposition to the removal of client choice and the ministry’s fixation on price.
He said: ‘It seems to me that neither of these two positions is tenable unless each position is underpinned by assurance of the necessary standard of quality.
‘Under those circumstances, there seems to be considerable potential for a trade-off between quality and client choice, and/or between quality and price.’
Douglas continued: ‘Intuitively that makes sense, inasmuch as no public purchaser can afford too high (or too low) a level of quality; likewise, client choice should be limited by exception of the lowest actual quality levels are high enough.’
‘Hence I suggest that if there must be a highest common factor, it should be the level of quality,’ he said, which would put the responsibility on the regulator.
Douglas was extremely critical of the government’s proposals to limit legal aid for judicial review, which he warned would be particularly damaging for the country’s reputation.
He said: ‘If there is a single nexus of the issues of access to justice and the rule of law, it comes in the form of judicial review.’
Leaving aside its occasional effect as an ‘irritant to government’, Douglas said judicial review is an ‘unparalleled success story in advertising the UK’s commitment to the rule of law’.
‘It is a catalyst for the development of the English common law, and has become a litmus test for good national governance. It entrenches legal certainty, and favours neither the individual nor the state,’ he said.
Under the government’s proposals, legal aid will only be granted to cases that reach the permission stage. Douglas said that correlating failure at the permission with unmeritorious claims, is to ‘compare apples to oranges’ and is a ‘grossly disproportionate’ measure.
Douglas apologised if he had ‘trodden on any corns’, but predicted that there will have to be a ‘little pain’ in finding ‘at least a partial fit’ with the government’s goal of saving money.
He added that CLLS is keen that solicitors and the bar have a constructive discourse with the ministry.