Planned legal aid cuts pose ‘significant risks’ to the stability of the criminal justice system, the Law Society has stressed in a letter from the chief executive to ‘correct any false impressions’ over its stance on the government’s proposals.
In an open letter to the profession, Desmond Hudson acknowledged the ‘clearly expressed’ opposition of the profession to the cuts and the criticism made of the Law Society’s engagement with the Ministry of Justice.
Hudson said: ‘Many of our members would have preferred us to take a much more oppositional stance, refusing to engage, standing firm, just saying no, and supporting direct action. There is no doubt that the Society could have made itself more popular by taking such an approach.’
But he said the Society cannot see any path that would have achieved a better outcome, other than engaging with the ministry.
Hudson said he understood the profession’s view and did ‘not dismiss it lightly’, adding that the Society had given a ‘lot of thought’ to its strategy.
Highlighting the imbalance of power between the Society and the government, he said: ‘It is important to remember that the ministry is free to set both the strategic direction and the detailed arrangement for criminal legal aid.’
He said the Law Society had presented ‘all available arguments’ as to why fee cuts were not the best way to achieve savings, stressing that the it could not require the ministry to accept its arguments and adding that maintaining current fee levels would not have been supported by a majority in parliament.
Hudson said the profession had been ‘admirably united’ in its opposition to price-competitive tendering (PCT), but had not been united in proposing any ‘positive alternative agenda’, the absence of which, he said, enabled the lord chancellor Chris Grayling to ignore its opposition.
In contrast, Hudson said the Law Society had suggested an alternative, which had ‘secured the crucial breakthrough’ in persuading the MoJ to ditch PCT and consult on the proposed new contracts.
Acknowledging that the profession’s opposition to the MoJ plans had been a ‘necessary backdrop’ to the ‘progress’ made, he stressed ‘it is engagement that has secured the changes’.
While the resulting proposals – for a two-tier contract model for own-client and duty solicitor work and more procurement areas – he said were not the Society’s ‘preferred approach’, Hudson said the he believed it was ‘the best settlement that was realistically achievable in the circumstances’.
The Society, he said would have preferred a single-tier structure of contracts that included duty solicitor work, but he said the MoJ suggested ‘procurement law problems’ with the approach, which the Society’s lawyers indicated were ‘not entirely fanciful’.
Hudson reiterated that the Society ‘unequivocally’ opposes the ‘damaging’ fee cuts and stressed that the Society’s agreement with the ministry’s ‘framework’ does not include agreement as to the detail of fee structures.
He flagged up two ‘major concerns’ with the fee structures proposed – the national fixed fees that could result in 40% cuts in some areas, and the flattening of fees for magistrates courts irrespective of whether there is a guilty plea or a trial, and insisted that the society will be making representations to the MoJ.
Hudson urged solicitors to alert their local MPs but also importantly, the government, via their consultation and via the Otterburn survey. Respondents to the latter are guaranteed anonymity but the Society believes a large number of responses will require the government to seriously consider the resulting evidence about the financial impact on firms.
He told solicitors that they still face an ‘incredibly tough future’, but assured them that the Society will continue ‘seeking improvements in the proposals’.
Meanwhile, following a request by the House of Commons justice select committee, the Society has revealed that its draft response to the government’s ‘Next Steps’ consultation warns of ‘significant risks’ posed to the stability of the criminal justice system.
The response echoes the points made in Hudson’s letter.
Commenting on the changes, Law Society president Nicholas Fluck said: ‘Before taking the risk of proceeding with fee cuts, the ministry must be very sure that the solicitors and their firms are on a robust enough financial footing to withstand this.’