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Reactions to consultation on legal aid
The consultation paper on legal aid, Transforming legal aid: delivering a more credible and efficient system, which was published last month by the Ministry of Justice (MoJ), puts forward measures to cut a further £220 million from the legal aid budget (see April 2013 Legal Action 4). These include a cut of ten per cent to fees in care proceedings, removal of the 35 per cent uplift in immigration and asylum Upper Tribunal appeal cases and a reduction in barristers’ fees in non-family civil cases. Carol Storer, director of the Legal Aid Practitioners Group, called the proposals a ‘breach of trust’ pointing out that ‘civil practitioners only commenced new contracts on 1 April with reduced fees, only to be told by the government nine days later that they want further fee cuts’.
Alison Harvey, general secretary of the Immigration Law Practitioners’ Association, argues the proposals in the paper ‘make it more difficult to hold the state to account’. She points out that in the last year the courts have found that the government has treated foreign national prisoners in a degrading and inhuman way, ruled against its treatment of foreign national pregnant women and children, and found it to have unlawfully ignored the risk of torture of persons removed to Sri Lanka. She says: ‘To describe effective access to the court as “crucial” in these circumstances is no understatement.’
Much of the document is devoted to plans to introduce price competitive tendering for criminal defence services. Firms will be invited to tender for contracts in police stations, magistrates’ courts and litigation in the Crown Court in procurement areas that will reflect criminal justice area boundaries, apart from London, which will be split into three. Based on data provided by the Legal Aid Agency, firms will be expected to bid for between four and 38 contracts in each procurement area. Successful bidders will be awarded a set proportion of the work in each area. Clients will not have a choice of solicitor, but will be allocated to a firm on a random basis. The MoJ says that the proposals will reduce the number of firms from the current 1,600 to 400.
The government intends to commence the competitive tendering process in autumn 2013 and to award contracts next summer to commence in autumn 2014. The invitation to tender will be split into two parts. The bidder’s quality and capacity to provide the service will be assessed first, followed by an evaluation of its bid price.
Robin Murray, vice-chairperson of the Criminal Law Solicitors’Association, described the proposals as an ‘appalling attack on client choice, treating them as an economic unit rather than a person’. He said that practitioners would resist ‘these totally unworkable proposals’. Andrew Keogh, a specialist criminal solicitor and respected commentator on criminal legal aid, revealed to LAG that he is assisting some firms in launching a judicial review against the proposals based in part on what he believes is the ‘flawed data which is used in the consultation document’. LAG understands that firms are looking at other potential legal challenges to the plans.
Speaking at a conference in London last month, the minister responsible for legal aid, Lord McNally, said that the ‘profession itself needs to restructure and produce efficient business models, but as we know from other sections of the economy this can be painful’. He also pledged that while it would consider responses to the consultation the MoJ ‘wants to keep momentum going on the planned reforms’.