Denying defendants a choice of lawyers is wrong

by Carl Gardner on June 4, 2013

Even I’m concerned about Chris Grayling’s proposals for criminal legal aid. When the government announced cuts to civil legal aid, I broadly backed them, in contrast to most lawyers. Now, the government’s proposing some further cuts to civil legal aid as well as major changes to the criminal legal aid system – most dramatically, a move to competitive tendering of publicly-funded criminal defence work.

Here’s the government’s consultation paper, with various comments from me. The consultation closes today.

It’s important to note that there are a series of proposals here, many of which I basically accept or at least don’t oppose. Anyone writing about public spending has to take seriously the UK’s public spending deficit, and accept that there must be public spending cuts. Any other view is unreal. Even if (like me) you think the coalition is causing economic harm by the timing and depth of its cuts and the rhetoric it has used about them, the need to make cuts is unavoidable. I was interested that Ed Balls yesterday proposed cutting the winter fuel payment to better-off pensioners. To depart from law for a moment, I think he’s right to say that, and I agree with the approach that announcement signifies. I accept the need for cuts and for further “tough choices”, even if Labour gets in in two years, and I think the impact should fall as far as possible on the better off.

The only remaining question is whether legal aid is a special case. Frankly, I don’t think it is. Our commitment to the rule of law doesn’t justify maintaining every line of legal aid spending in a fiscal context where other public services are being cut, as are benefits for the poor and for disabled people. If we really believed the need for public funding of law trumped all financial considerations, we’d bring in universal legal aid for all, to create something like a “National Justice Service”. Indeed I wonder if something like that (or Greg Callus’s “Obamacare”-style insurance idea) might not be a more sustainable model of public legal provision in the future. But we’re stuck with what we have, and I can’t realistically defend every aspect even of criminal legal aid spending, in the fiscal context of today and the next five or ten years.

So as I say, there are proposals here that I accept.

I’m not happy with, but think I must accept the cutting of public funds for prison “treatment” disputes. And I accept the introduction of a household disposable income threshold of £37,500 above which defendants would no longer receive criminal legal aid. I’d like to see this limit higher, but I can’t say this figure’s unreasonable. It’s not a threshold of £37,000 gross household income.

I have detailed concerns about the proposed residence test for civil legal aid claimants, and reforms to reduce legal aid for judicial reviews by making lawyers bear the risk of an unsuccessful application for permission. But I’m not sure I can really oppose them.

I worry too about amendments to the civil legal aid merits test to prevent the funding of “borderline” cases with perhaps less than a 50% chance of success. Again, though, I’m not sure I can realistically oppose this.

I accept the proposal to restructure Advocacy Graduated Fees, and a reduction in and tapering of daily trial attendance rates from the third day of a trial. I don’t think this will incentivise lawyers to advise “wrong guilty pleas”: I think that suggestion is a bit of an insult to criminal lawyers. I accept it’s reasonable for public funding to be structured in a way that is biased against long trials.

I accept the proposal to reduce all criminal fees in Very High Cost Cases by 30%. In fact, I’d go further, and cut fees more harshly at the top end, so as to be able to cut them a little less for more junior barristers. It’s not because I share populist anger about highly-paid QCs; it’s just that (as with every public spending cut) I think the better off should bear as much of the burden as possible. I think the same principle should apply in cutting experts’ fees, by the way, which I accept in principle. But the cardiologist and the accounting partner should accept a far bigger proportionate cut to their already high fees than the occupational therapist to her (and I think it may well be “her”) already much lower one. Finally, I accept the proposal to tighten the rules on appointing multiple counsel.

But the most important and by far the most contentious proposal is to move quickly (by the end of next summer) to a new system of paying much of criminal legal aid not by setting fees done by existing law firms, but by requiring those firms, or joint ventures involving a number of them, or alternative providers like companies, to bid competitively for a limited number of contracts, in effect setting their own fees.

Even this proposal I’m not opposed to tooth and nail in principle. Maybe something like it could offer more efficient publicly-funded justice. I don’t know. My attitude to it is not one of visceral dislike of “marketisation”. Criminal legal aid already depends on private sector provision operating in a market for public funds. Nor am I snooty about the sorts of providers who might want to bid for contracts – even Eddie Stobart. I think any new providers should be judged on performance, not prejudice. But still, I have serious concerns about what’s planned.

This would be a massive change, and it’s one that should be made, if it is made, with caution. Ministers need I think to realise that there is some risk of catastrophic failure here. I’d prefer to see implementation slowed, and perhaps trialled or piloted in some areas. I’m not yet convinced by the consultation paper’s argument that that’s impossible, and that one big bang is the only way.

I also worry about what the consultation paper calls “sustainable procurement”: how the proposed market structure will ensure incumbent contractors face real competition from new entrants, and how any new entrants will be able to build and maintain the capacity to bid and fulfil contracts. I worry that this model could entrench a sort of publicly-funded oligopoly of unshiftable incumbents who always successfully retain their contracts because challengers can’t find experienced lawyers with the ability to do the work properly. If you believe in a competitive market, you should ensure that’s what you really get.

But my overriding concern is the proposal that criminal suspects and defendants should no longer be able to choose which solicitor they use. Instead, the plan is that each defendant will be allocated one of the approved contractors – and that he or she should not be able to change provider without a good reason. I’m less concerned about limiting the ability to change solicitor: I think it’s fair enough for the taxpayer to want a good reason for that. I also think it’s reasonable for the taxpayer to permit only a limited choice of representative (the need for a lawyer to be regulated is already a mild form of this kind of limitation). But it’s wrong to deny clients any choice of lawyer at all. I firmly oppose this idea.

I’m against it partly for traditional, lawyerly reasons. I think client choice helps underpin the independence of the legal profession, and the relationship of confidence between client and lawyer. I think it helps ensure fairness and quality of representation. But I’m also against the proposal for other reasons.

Reading my response to the proposals overall, you’ll probably guess I’m open even to radical changes in public service provision. I rarely think the status quo is best, and I don’t instinctively oppose changes because they’ll bring the private sector in, or offer choice. In fact I tend to support proposals for reform of public services that actually rely on extending choice – whether that’s choice for parents and children in education, or choice for patients in the health service. I think public services should treat us as individuals, and that more choice, not less, is probably the best way forward.

Against that background, again I see no reason why publicly-funded law is an exception. It’s not. If the future is a competitive market among criminal lawyers and the organisations that pay or employ them, then it should be a competitive market based on client choice – not one that tries to eliminate choice. That’d seem an odd kind of market to me.

So while I’m far from a stereotypical legal refusenik, and am prepared to accept many of the proposals in this consultation, even I’m worried about competitive tendering. It should be slowed down and tested if at all possible, rather than being rushed. And ministers must rethink so that client choice is placed at the heart of their reforms – not denied.

{ 3 comments… read them below or add one }

1 Konran June 4, 2013 at 14:39

I don’t think you should just accept public spending cuts as a given; on the basis that we have a deficit.

Cuts to public services are not the only way to reduce the deficit and a bland acceptance that they must be done is based on an idealogical mindset rather than a reasoned argument.

You want to see public spending cut, that is fine, that is your choice to make, but to wrap that up in the idea that it must be done and no reasoned argument could be given against it….because look we have a deficit, is a disservice to reasoned arguments.

As a very simple retort, and not to get too far into it but simply to prove that spending cuts are not the only answer; we can get better at collecting tax. We can hit companies that have venues in this country and tax them on the income that they generate, before they employ various tax “schemes” to avoid paying tax by paying huge costs to external companies merely to avoid paying tax in this country.

This is not the same as “international” commercial companies that may up sticks and leave, resulting in a loss of tax revenue. If Starbucks does not want to pay tax here, I am sure Costa Coffee and the numerous other brands that exist will happily take up their custom and pay tax.

There, a reasoned argument that spending cuts is not the only answer.

You belie your personal beliefs rather than a real requirement, which just undermines everything else you have to say.

2 Carl Gardner June 4, 2013 at 15:02

Of course my beliefs come through in this, Konran, as do yours.

I want us to be better at collecting tax, to increase taxes for the better off, to increase corporation tax, and to crack down hard on tax avoidance and tricks like those Amazon, Starbucks and Google are getting up to. I’m pleased to see the intense scrutiny there’s been or HMRC sweetheart deals, and I want to see unilateral, EU and international action on tax havens, tax avoidance and every kind of tax dodge. I’m happy celebrities have been outed as tax avoiders.

But I also agree with Ed Balls, who said yesterday:

But this is not some easy pot of gold. Tax avoidance has to be tackled billion by billion. Given the global complexity of this problem, the suggestion that any individual government can easily find billions more in unpaid tax simply through one Budget speech or a Finance Bill clause is not realistic.

I think he’s absolutely right to argue for public service reform and redesign to deliver better public services with less money. I think any UK government has to face that reality. As I said in my post, “no cuts” isn’t a credible position. The real questions are “how deep do we have to cut”, “when should we cut”, “who should bear the brunt of the cuts” and “can we do this in a radically different way that’s fair and sustainable even with a lower budget”.

By the way, you’ve not said whether legal aid would be the first thing you’d protect, or whether you’d prioritise the health service, say, or benefits, or winter fuel payment, over legal aid. Which is it? Or do you just say enough tax can be raised so that the deficit can be eliminated without a single cut in any item of public spending at all?

3 suzanne June 5, 2013 at 10:46

It seems to me the question is about whether the proposed cuts and competition amount to a major upgrade of a system in need of improvement or whether it is only tinkering at the edges of administrative processes working on the brink of failure.

The profession’s response to the proposals that the MOJ has come up with indicates they are neither revolutionary enough to inspire anyone to follow them, nor are they likely to be effective in saving costs – examples of “radical” reform in other ministries point to significant ancillary and additional costs being incurred (see DCMS restructures, or the NHS) and in some cases additional inefficiencies being brought to the system (see court interpreters and private transport provisions to and from courts).

What is most galling in these proposals is that it returns defendants in need of financial support to the state of disempowered recipients of the bounty of the state: allocated a solicitor not of their choosing, they can like it or lump it, while the other side retains the freedom to hire the best they can afford.

Why not invest the time in genuinely rethinking the administration of justice? Can it really not be done better, while also placing the end user at the heart of the system? Legal aid users are not a by product of the law, likely to reduce in numbers if the supply of aid is cut, they are the by-products of a society where inequalities exist and go increasingly unchecked.

It is the laziness of the approach which adds insult to injury, one which is happy to conflate defendants with those found guilty of crimes; one which assumes that money is the only incentive for lawyers and that access to justice is a privilege to be parsimoniously measured out rather than a right afforded all citizens of a civilised country.

And yes, to my mind universal provision of assistance to understand, interpret and apply the law should still be the objective, even if it takes a truly radical rethinking of how it is done if it is to be afforded.

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