QC at Lincoln House Chambers | Tower 12 | Manchester
As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the Minister of Justice, that “access to justice should not be determined by your ability to pay”, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution
A key element of the proposals is the removal of choice. Contrary to the government’s policies in other areas such as the NHS and education, suspects and defendants will not be able to choose their lawyer. Instead, they will be allocated a legal aid lawyer (or “supplier” to use the language of the consultation) who, because of the way contracts will be distributed, may be based many miles away. For example, a defendant in Bristol may be allocated a supplier in Gloucester. Furthermore, whilst that supplier is required to act for the accused until the case is completed, if the person is arrested again they are likely to be allocated a different supplier – and a supplier may be a large corporation rather than a law firm.
The lawyer-client relationship is at the heart of effective legal representation. It ensures the necessary trust required for the client to make full disclosure and for the lawyer to provide appropriate advice. This is especially important for the large number of vulnerable suspects and defendants who appear before the courts. Lawyers who know their clients can pre-empt difficult issues, provide (sometimes unpalatable) advice which is more likely to be accepted, and help the courts run more effectively and efficiently. The current proposals abandon the professional lawyer-client relationship and treat advice as an impersonal commodity.
Before its abolition in April 2013, the Legal Services Commission (LSC), which administered legal aid, devoted considerable resources to improving the quality of legal services. Although painful for the legal profession, the LSC, underpinned by independent research and evaluation, successfully introduced a range of measures that enhanced the quality of legal advice and representation. All of this is now under threat. Without client choice, the market will no longer regulate quality. Those firms lucky enough to secure a contract – the government plans to reduce the number from about 1,600 to 400 – will receive a guaranteed share of the work however well or badly they represent their clients. Since contracts will be awarded to the lowest bidder – and bids will have to start at least 17.5 per cent lower than existing average costs – the quality of legal representation will be an early casualty. Suppliers will have a strong financial imperative to do as little work as possible, and to persuade clients to plead guilty irrespective of the merits of their case.
The government does not have a good record when it comes to contracting, as the recent debacle over court interpretation services demonstrates. And yet the Minister of Justice has given only eight weeks for consultation on the proposals, and unlike previous less dramatic changes to legal aid, there is no intention to pilot the new contracts nor evaluate their effectiveness. As Lord Woolf, the former Lord Chief Justice, has said, the long-term effects will be devastating and once the damage has been done it will be extremely hard to put right. The legal profession will be decimated, and defendants, the police and the courts – and ultimately the taxpayer – will pay the price.
Professor Jacqueline Hodgson (University of Warwick)
Professor Ed Cape (University of the West of England)
Lee Bridges (Emeritus Professor, University of Warwick)
Professor Ian Dennis (University College London)
Professor Nicola Lacey (University of Oxford)
Professor Richard Moorhead (University College London)
Professor Tim Newburn (London School of Economics)
Professor Andrew Sanders (University of Birmingham)
Michael Zander QC (Emeritus Professor, London School of Economics)