Peer Pressure


The European Court of Justice pronounced last year that a system of minimum fees was a restriction, contrary to article 49 of the Treaty of Rome, but could be justified on the grounds that it could promote access to justice and prevent lawyers trying to undercut one another on price, which could lead to a deterioration of the service provided.



It said that any such measures should be proportionate and the least restrictive of competition possible, and that other measures to maintain the quality of service should be looked at, such as discipline, ethics, and supervision.



Lord Carter's reforms to criminal legal aid have been largely adopted by the Legal Services Commission (LSC). Of necessity, they involve the fixing of fees and the removal of firms with an as yet undetermined turnover ('the threshold'). To some extent, the proposed allocations of duty solicitor slots, the 20% rule for work outside a boundary area, and the culling of below-threshold firms, is an unwarranted restraint of trade.



Some cases will overpay us and others will underpay us. There is an assumption that peer review will maintain quality as it is obvious that, since remuneration is no longer linked to the amount of time spent on a case, standards may be compromised. Peer review is thus an essential element to prevent many of the reforms falling foul of article 49. The reality that it is merely a sop to the appearance of maintaining standards is beside the point.



The LSC has become a parallel regulatory body in the same way that the Law Society used to be, controlling who may provide services to the vast majority of criminal suspects and defendants.



It seems to me that those of us who facilitate peer review by becoming reviewers are allowing the LSC off the hook, in that without our supervisory co-operation, the quality assurance would be missing, and the reforms may be in breach of competition law.



The Otterburn report questioned the viability of many firms if these reforms were implemented. There will be fewer firms left to competitively tender.



So those peer reviewers who act in that capacity support the takeover of a hitherto independent legal defence service by a controlling state quango. They have it within their power to stop these reforms in their tracks. I for one hope they realise this before it is too late.



Stuart Kaufman, Kaufman & Co, Manchester