Commissioner’s response to consultation on Ministry of Justice Transforming Legal Aid – Next Steps
1st November 2013
Consultation on Ministry of Justice Transforming Legal Aid: Next Steps
Response from Vera Baird QC Police and Crime Commissioner for Northumbria
1 November 2013
Introduction
The Commissioner is pleased to see that the original proposals contained in Transforming Legal Aid have been revaluated and acknowledged as containing elements, including introducing Price Competitive Tendering and the removal of a client’s right to choose their own defence, that were largely unworkable, have now been dropped.
We acknowledge that there are budgetary pressure facing the Ministry of Justice (MoJ) but while the new proposals are an improvement on the original set, concerns do remain on the sustainability of the market which will be set out in the response below.
We are also cognisant of the regard the British justice system is held in internationally and the requirements of Governments to ensure that high quality criminal justice is maintained and that access to it is equal for everyone.
Introducing Competition in the Criminal Legal Aid market
We agree with the decision to dispense with the proposal to introduce Price Competitive Tendering (PCT). Our prime concern is ensuring that people have the right of access to high quality of legal representation regardless of their financial position as a fundamental principle of our society.
We are concerned that the evidence for the adoption of the proposed two tier system, of providers bidding for an unlimited supply of contracts to deliver criminal legal aid services to their own clients anywhere in England and Wales and additionally those seeking to provide services to those clients who do not have their own lawyer via a competitive tendering process is not yet available. The Criminal Law Association wrote to the Lord Chancellor in September 2013, stating that although the Law Society would instruct Otterburn [1] to analyse the financial viability of firms but that the outcome of his research will not be available, prior to commencement of the first set of cuts occurring. This will mean firms are trying to respond to this consultation, which will potentially have serious implications for their future and is going to be speculative.
In some of the proposed contract areas, firms faced with serious cuts over the previous years will still have difficulty delivering a low volume service across large areas. Through previous analysis by Otterburn [2] of the impact of a cut of 17.5% has suggested a potentially damaging impact on providers.
The analysis suggested:
- Many firms would not be able to survive such a cut with many of their costs fixed and firms operating with low numbers of staff;
- Overheads still require payment and firms having to maintain the current financial contribution to their criminal departments meaning a 17.5% cut over two years in fees would mean that salaries in the criminal department would need to be cut by an estimated 24%;
- The biggest threat to the MoJ from such an option would be the significant disruption to the supplier base that would result and their potential difficulty maintaining a criminal defence service during this period.
This gives rise for concern on the potential for a robust market to be maintained after the implementation of these proposals, expressed in our initial response. It is the access to duty solicitor contracts that will allow firms to, if not flourish, then to survive. We are therefore concerned that the arbitrary figure of £220m of savings has little relation to the principle of allowing access to a robust, sustainable legal market which encourages new entrants but is rather a figure plucked out of the ether with the term savings and efficiency being confused, as they often are, with less choice and a potentially lower quality service. Ceasing the PCT model and replacing it with a two tier systems, together with a cut of 17.5% over two years may end up achieving the same result as PCT, if eventually all that remains is a market dominated, in some areas, by several large providers with little consumer choice.
Timeframe
We remain concerned by the timeframe proposed by the MoJ for this change is needlessly tight and similar to that being pursued by the department’s Transforming Rehabilitation agenda. While we accept the need for savings the MoJ has a responsibility to get the implementation of policy right, not merely done quickly. It may be advisable, if the MoJ is determined to use the 17.5% cut as a working figure, in addition to previous cuts still working through the system, to explore how the split over the two years is to formulated to provide maximum opportunity for firms to adjust to the inevitable drop in income and to utilise the time to try and create a working model for sustainable business model for 2015 and beyond. It may be prudent to explore the potential and merits of reducing the cut in the first year by a lower figure than the 8.75% cut proposed to allow providers greater opportunity to adapt and meet the 17.5% cut over the two years.
Volume
With the coalition claiming a 10% reduction in crime, it is logical to assume there is a reduction in cases already and so the volume of cases and to a degree the cost of the legal aid budget must fall as a result of this sustained downturn in reported offending over the current millennium.
Proposed remuneration mechanisms under the modified model.
We retain our concern over the flat fee for all types of outcome, as those cases going to trial will obviously present a much greater cost to firms in terms of preparation and overall time spent on a case. Therefore the perverse incentive to try and keep a trial out of court by encouraging guilty pleas remains and we’re unconvinced that this is entirely beneficial to individuals in receipt of legal advice or on firms following a late change of heart by a defendant. It may be more appropriate to have a reimbursement system in place that better reflects the work undertaken by advocates. This supports the strong argument to slow the pace of reform until tangible, thought through payment mechanisms, that support fairness to clients, providers and the taxpayer are fully developed and in receipt of industry broad provider support.
Advocacy fee reforms
Given the two options being consulted on in this exercise, we would prefer Option 2, with reservations on both proposals. While we support the simplification and number of remuneration schemes we feel Option 1 – revising the harmonisation and tapering proposal – still seems to give a perverse incentive which we raised in our previous consultation response during the summer. In that response we expressed our concern that the payments received by an advocate provides a potential conflict with that of their client and incentivises a provider seek the most rapid conclusion of a case rather than work for the benefit of the client. This remains in place with Option 1.
The payments for cracked cases seems to penalise the profession for the decisions of the clients and appears to encourage the profession to actively encourage an early guilty plea and goes against the ethos of our system in that it is based around a presumption of innocence. We are therefore concerned that the advice provided by some in the profession may be tainted in cases by the actual remuneration ‘system’. When added to the reduction in fees and the inevitable cost pressures facing legal providers we feel this is a distinct possibility as a result of financial pressure. We feel this also gives rise to a loss of faith in the criminal justice system, the possibility of future miscarriages of justice as well as having indirect impact on other parts of the Government’s expenditure e.g. a rise in prison numbers and the transfer of savings from the Legal Aid budget being used to prop up another part of the MoJs responsibility.
We feel on balance that of would of the two choices provided Option 2, based largely on the modified advocacy scheme model proposed by the Bar Council is preferable. We believe the savings figure identified remains is an arbitrary figure that is driving the reforms and the cut to fees proposed over and above the Bar Council proposals still poses the question whether providers will be able to deliver a high quality service or will exit the market, making the legal arena weaker overall especially when current reductions in fees are added to previous reductions.
Impact Assessments
We note that in the Impact Assessment that the Government do not consider that the reforms will put women or BAME practitioners at a particular disadvantage over others or that these proposals would ultimate reduce the diversity of the pool of practitioners applying for judicial office. However, we are not convinced that the financial pressures facing the industry due to these cuts will in any way encourage new providers to step forward or new providers from BAME legal providers to establish new firms or that existing BAME majority managed firms, which the Government acknowledges tend to be smaller firms, to flourish. Indeed with such firms often engaged by clients with English as a second language, there is potential additional costs for translation services which could disproportionately impact BAME managed firms. We remain sceptical of the Government’s stance on the impact on BAME majority managed firms, although acknowledge the movement from the MoJ on eliminating the proposals to remove client choice from their revised proposals which would have been a whole lot worse.
Conclusion
We are cognisant of the high volume of responses the original Transforming Legal Aid consultation attracted and the consternation the many of the proposals caused. We are pleased to see the MoJ has begun a process of engagement with sections of the legal profession to improve proposals, which has led to the removal of plans to deny choice of legal representation to people and also of Price Competitive Tendering.
These new proposals still leave areas where we are uncomfortable with. Polling[3] has showed deep public concern over the proposed cuts to legal aid with the Lord Chancellor badly misjudging the national mood in regard to legal aid and the importance and value a quality legal system provides to people. We are yet to be convinced that these proposals will leave a better service in place, with a real threat that the market will lead to firms withdrawing leading to the degradation of the existing market, especially impacting on providers delivering services to minority groups.
We are particularly concerned about the decision to forge ahead with reforms of Judicial Review, not mentioned in this consultation, and the continuation of the proposed ‘borderline’ prospects of success assessment. By definition, borderline means there isn’t clarity, so continuing to deny the opportunity of a review where there lacks a compelling case for denial is matter of some concern for cases of high public interest.
We would therefore urge the MoJ to actively continue to engage with the sector to develop reform that actually improves the situation rather than one that threatens the worldwide reputation of our justice system and fractures the market that provides these legal services.
End
1 Otterburn Legal Consulting http://www.otterburn.co.uk/
2 Price Competitive Tendering for Criminal Defence Services 2013, A Report for The Law Society of England and Wales, June 2013
Connect with us on:
