The Ministry of Justice will publish a second ‘short’ consultation on its ‘finalised’ legal aid proposals in September before ‘pressing on’, the justice secretary announced this morning.
Giving evidence to the House of Commons justice committee, Chris Grayling said: ‘We will move shortly to bring forward alternative thoughts based on our discussions with the Law Society.’
It was unclear what the scope of the second consultation would be.
Grayling (pictured) also said that he did not accept his decision to retain client choice would cause the whole of the planned criminal legal aid reforms to unravel.
Allowing client choice, he said would mean that equal shares of work between providers could not be guaranteed, but he said the market had told him that the preservation of client choice was more important.
He did not accept that he made a U-turn on the policy or that the concession had been made to due to fears that the scheme would be illegal or unworkable, but said he had listened to views and his instinct told him that it was the ‘right thing to do’.
Grayling said that his aim is to find a way to make the necessary savings while creating a sustainable system. Simply making a 17.5% fee cut, he said could not be done, because he has been advised by the profession that the system could not sustain the cuts while operating in its current form.
‘Financial change has to come with reform,’ in order for the market to be sustainable and to avoid the possibility of advice deserts, he said, stressing that he is keen to ‘get it right’.
He said the Law Society and government share the view that too many organisations are providing criminal legal aid - and both parties are trying to seek a ‘sensible’ way to achieve ‘managed market consolidation’.
But he said it is a ‘myth’ that the changes will lead to the legal market being opened up to handful of giant companies, which he said had expressed no interest in bidding. Instead, he said, the changes will leave a market of medium-sized firms offering a sustainable service at an affordable price.
In a move that will seen as an attempt to ‘divide and rule’ the two main legal professions, Grayling criticised the bar’s lack of engagement with the ministry, despite the fact that he had sought to protect the independent criminal bar by abandoning the introduction of ‘one case, one fee’.
He said: ‘There has not been the same level of constructive representations from the bar as from the Law Society.’
Grayling dismissed as ‘a myth’ the suggestion that quality of service had been ignored in the consultation, saying there is a ‘whacking great box’ on page 66.
He said he had been ‘really surprised’ by the profession’s warning that the reforms would destroy quality and result in ‘cheap and cheerful’ legal services, while it was unwilling to engage with his request to shape quality standards.
In particular, he said he was ‘puzzled’ by the contradictory attitude of the bar – on the one hand warning that the changes would reduce quality, while resisting the introduction of the Quality Assurance Scheme for Advocates.
The Law Society, he said, is now working with the ministry on the relevant quality standards, but he said the Bar Council, which he met yesterday, remains unwilling to help.
One of the measures in the plans designed to ensure quality would require the peer review of all firms with criminal legal contracts. Currently only 10% of firms are peer reviewed.
The Legal Aid Agency’s director of commissioning, Hugh Barrett, told the committee that peer review had been scaled back due to cost. He estimated that it would cost around £2m a year to peer review all criminal firms, but he said it would be a ‘good value-for-money proposition’.
On the residence test for eligibility, Grayling said the case of babies under 12 months was the ‘one area’ that the government will look again at. He did not accept that the test would have a ‘serious’ effect on other vulnerable people such as victims of trafficking or immigrants suffering domestic violence.
He stressed that asylum seekers are not included in the test, saying the UK has always been a ‘welcome refuge’, but he said legal aid should not be given to failed asylum seekers.
Many other cases highlighted by opponents of the proposals, such as that of Jean Charles de Menezes, he said would still be funded through the exceptional funding provisions and other caveats.
Changes to proposals to remove legal aid for prison law and to restrict funding for judicial review seem unlikely to be among any future amendments.
Grayling said he is ideologically opposed to the provision of legal aid for prisoners other than to appeal their sentences.
On judicial review, Grayling said the mechanism has expanded beyond what it was intended to do, but is often used as a public relations tool or for ‘grandstanding’ and too many cases are unsuccessful.
He did not accept that the proposed changes posed any constitutional issues.
Grayling did not accept that black and minority ethnic (BME) firms would be disproportionately affected by the proposals, saying that BME lawyers were no less capable of adapting to the challenges of delivering new business models than others.
Neither did Grayling accept that paying the same price for a guilty plea as for a trial would lead to clients being encouraged to plead guilty. He said he did not ‘believe for a second that high professional standards would lead to any danger’ of that happening.
Plaid Cymru MP Elfyn Llwyd questioned Grayling on the consultation’s lack of reference to the provision of services for Welsh speakers, saying he did not believe Grayling’s response that the issue had not been addressed because provision of services in Welsh is ‘the law’ and ‘a given’.
The secretary of state was referred to a report in the Gazette in 2004, in which the attorney general Dominic Grieve QC, then in opposition, warned that price-competitive tendering could lead to allegations of ‘corner-cutting’ and ‘incompetence’ against solicitors and raised considerable ethical concerns.
Grayling said that he had discussed the proposals ‘extensively’ with Grieve and suggested that today’s world is ‘very different’ from the world in 2004 and the public sector has to adapt to ‘tough and challenging times’.
Questioned on whether he was surprised that Grieve had not publicly expressed support for the current proposals, Grayling said it was not the role of the attorney general to do so.
Labour MP Jeremy Corbyn questioned Grayling on reports that some respondees to the consultation had received an email message from the MoJ, telling them their response had been ‘deleted unread’.
Grayling gave an assurance that no responses had been deleted and all would be considered. He rejected an invitation from Corbyn to publish all responses, saying it was not the ministry’s practice.