The MoJ consultation ‘Transforming Legal Aid: Delivering a more credible and efficient system’ was recently published. The proposals include the removal of legal aid from all prison law matters, save for: sentence length issues that specifically engage article 5 and the right to a review of ongoing detention (basically parole and minimum tariff setting); disciplinary matters where article 6 and the right to a fair hearing are in play; and cases before the Independent Adjudicator or where prison governors have themselves authorised legal representation.
Other ‘reforms’ include price-competitive tendering, 17.5% fee cuts and the removal of clients’ freedom to choose their defence lawyer. In respect of judicial review, firms will have to shoulder the financial risk of bringing cases – you only get paid if you get permission.
The eight-week response period, and the fact that the measures are to be introduced by way of statutory instrument, thus obviating any need for debate or a vote in parliament, suggest that Grayling has already determined the outcome. This view is reinforced by comments from Dr Elizabeth Gibby, the justice ministry official responsible for the reforms, that only the model rather than the principle of competitive tendering is up for discussion.
The government will trot out the well-worn economic rationale of a criminal legal aid budget of £1.1bn (never viewed in the context of a total criminal justice spend of £23bn), more than any comparable nation. Savings need to be made and we can no longer afford a ‘Rolls-Royce’ service. Looming large behind the economics, and the insinuation of legal aid lawyers being as rich as Croesus, is of course an ideological argument, namely that public money should not be spent on the ‘undeserving’ anyway. They will be less keen to talk about some of the real reasons why the criminal legal aid budget is what it is.
Put simply, we have more cases. As a country, we report more crime to the police and they interview more suspects, prosecute more accused, convict more defendants and imprison more people. So the prison law budget is largely dictated by the fact that we have the highest ‘lifer’ population in Europe, all of whom require the Parole Board to release them.
A decade ago there was much talk of firms refusing to sign their contracts in the face of the Carter review, before one notable firm broke ranks in a ‘race to the bottom’, and others quickly followed suit. People should respond to the consultation in the hope of influencing the decision-making process. However, as a profession, we should also be actively considering other forms of resistance, such as strikes, and a unified refusal to sign contracts when they are handed out, rather than simply ‘sleepwalking’ into accepting unworkable and unfair proposals.
Matthew Evans, managing solicitor, Prisoners Advice Service, London EC1