On 6 September, the Lord Chancellor announced his response to the consultation regarding the most recent wave of legal aid reforms. A number of amendments were made to the original proposals and a new consultation was opened in order to debate the most substantial changes. The new consultation document can be found here. It is this document which will be considered below with specific focus given to the modified proposals for a price competitive tendering system and a new model for advocacy fees. The first part of this series can be found here.
The competitive tendering system will now be based on quality and capacity, rather than price.
The new amendments have come about largely due to the Lord Chancellor’s negotiations with the Law Society. Both parties have stated that this period of communication was approached with a shared want ‘to ensure the continued provision of high-quality legal services for those accused of a crime and to secure long-term sustainability in the criminal legal aid sector.’ With the understanding that it could not be a realistic notion to argue for no change in the face of such deep cuts to the Ministry of Justice (MoJ) budget, many commentators have welcomed the new amendments. However, the Law Society and the MoJ have been accused of isolating the Bar Council in the process of their deliberations. The blog of Obiter J suggests that by allowing for the consolidation of criminal legal aid by law firms, these new amendments bring to mind the old maxim of: ‘divide and rule.’
Political intrigue aside, it is worth considering the new ‘Next Steps’ document on its own merits. To do so, this article has included a summary of the proposals which were set out before the changes on Thursday. It will then consider the effect of the new amendments:
Proposed Reforms (Original):
1. Proposals for Introducing Competition into the Criminal Legal Aid Market:
- Introduction of a price competitive tendering system for legal aid contracts
- Contracts to cover the entire scope of criminal justice
- Requirement for bids to be at least 17.5% less than current legal aid costs
- Abolition of client’s freedom of choice regarding their solicitor.
2. Proposals for Reforming Fees in Criminal Legal Aid cases not included in competition reforms:
- Restructuring current Advocacy Graduated Fees Scheme to encourage earlier resolution and more efficient working through a harmonisation of guilty plea
- Reduction in tapering of daily trial attendance rates from day three
- Reduction of Very High Cost Case rates by 30%
- Tightening rules governing decisions to appoint multiple counsel from litigation teams.
1. Competition in the Criminal Legal Aid System
This section of reforms gave rise to the greatest amount of criticism from the legal community. The arguments raised were best summarised by the Law Society who stated that:
the proposal wholly fails to achieve the government’s stated aim of a restructuring of the market so that the winning bidders would be able to absorb cuts of the magnitude proposed in the time scale provided.
The key concerns centred around the impact on small firms, the ability of large firms to compensate for the proposed cuts, the time frame for restructuring in line with the new contracts and the loss of client choice regarding their lawyer. The new amendments have sought to address these issues by moving the tender process away from price competitiveness, introducing Own Client and Duty Client contracts and reinstating client choice. In addition, more time has been granted for firms to prepare for the new contract arrangements.
The competitive tendering system will now be based on quality and capacity, rather than price. Combined with the introduction of Duty Client Contracts this move is seen to aid smaller firms. The new proposals increase the likelihood that these firms will be able to compete financially, without needing to increase infrastructure and management costs in order to cover cases across the entire criminal law area. In addition, the maintenance of client choice has been universally welcomed. Not only is this deemed to be good for clients, but it is also seen to legitimise and reinforce the positive effect of competition on the legal aid market.
The cut to costs will, however, remain. Both the Law Society and the MoJ have stressed that, whilst these measures will create challenging times for legal aid providers, the new proposals put forward the best deal possible for a sustainable future with ‘genuine opportunities.’ The Chairman of the Bar Council, Maura McGowan QC, has however added that ‘it is deeply regrettable that the Ministry does not appear to have moved on many other areas of justified and evidenced concern.’
2. Reforming Fees in Criminal Legal Aid
The General Bar Council and the Criminal Bar Association have published staunch criticisms regarding previous proposals to cut criminal legal aid fees. A particular example of this is the joint response document, ‘Legal Aid: Reforming Advocates Graduated Fees’. This response is strongly worded and accuses the decision makers of buying into the incorrect assumption that the average criminal barrister is a ‘fat cat.’ In particular, it deplores the fact that criminal barristers have not been protected as front line service providers. Whilst, at the time of writing, the Bar Council has not published a response to the most recent proposals. It is clear that criminal law advocates are already under a great financial strain.
The new proposals have taken on board previous objections with the result of bringing forward two options for reform.
The cuts to Very High Cost Cases appear to be going ahead. The Lord Chancellor has stated that such cases cost a disproportionate amount of the legal aid budget. These cases tend to be long-running, however, the MOJ has also announced the need for change regarding to the use of court time for shorter procedural issues. A panel of lawyers will be charged with looking at ways to decrease the burden on court resources, and lawyer’s time, that such cases can cause.
An Uncertain Future
Despite the recent amendments, a number of commentators are still worried as to the future of legal aid providers. The Bar Council has stated concerns over the sustainable influx of new advocates to the criminal bar. In the ‘Joint Response’ document above anecdotal evidence is highlighted which suggests students are now being advised against pursuing publicly funded work. In the Law Society’s response to the latest consultation it is stated that ‘the Society has not persuaded the Ministry of the significant risk to the long-term sustainability of the supplier base if significant cuts are introduced.’ Such statements are to be found across the legal profession. Obiter J has suggested that ‘the severe cuts to fees seem set to drive many criminal legal aid practitioners out of the market and the future of the independent criminal bar looks very bleak indeed.’
The legal aid system is already feeling the strain of government cuts. The latest wave of reforms has generated a great deal of debate and a new consultation period has been opened. Amendments have been made to the previous proposals which introduce a new quality-based tendering system and allow for consultation on two possible advocacy fee reforms. These new developments are far from a perfect scenario and leave many pondering the future fate of legal aid service providers. In particular, there are concerns as to an increasingly isolated Bar after the new reforms were discussed largely between the Law Society and the Lord Chancellor. The Bar is yet to release a detailed response regarding the above reforms, however it is doubtful that such a document will be complimentary.
The details discussed in both parts of this article are only those which have attracted the greatest debate. There are many aspects of the legal aid reforms which are not covered by this article. The documents referred above provide a more detailed account of the reforms and associated issues.
This article is the second in a two-part series. The first, which outlines the most controversial reforms, can be found here.