Law Society response to Ministry of Justice consultation: ‘Transforming Legal Aid: Next Steps’

31 Oct, 2013

The Law Society has welcomed the revisions to the Ministry of Justice’s original Criminal Legal Aid proposals. However, it continues to have serious concerns around proposals for flat fees in magistrates’ courts and the Crown Court and a single national fixed fee for police station work.

 

The Society remains opposed to proposals to cut fees, and believes that if a viable competitive market is to be maintained and our criminal justice system is not to be undermined and its outcomes subject to legal challenge, modifications will be needed.

 

Law Society President Nicholas Fluck (pictured) said: “We are confident that, with some modifications, the Ministry of Justice’s proposals can ensure that anyone accused of a crime and unable to meet the costs of legal representation has access to a high-quality defence solicitor of their choosing.

 

“To maintain quality, it is vital that we have the most diverse range of solicitors possible in the system within the boundaries of long-term financial viability. The current proposals for a single national fixed fee for police station work will have a disproportionate effect on firms in high-cost areas where the cost of doing business is greater. It is unwise to risk tarnishing the respect in which our justice system both domestically and internationally is held by an apparent incentive to plead guilty, which could jeopardise the relationship of trust between clients and solicitors.

 

“The Law Society has campaigned throughout these consultations to maintain the largest possible number of suppliers of legal aid services, as a functioning open market will drive quality and efficiency. Our ongoing cooperation on the research jointly commissioned with the MoJ is central to this.

 

“The fee cuts as proposed are a severe challenge for our members and it is essential that there is flexibility in the business models available to firms. The Lord Chancellor’s comments during the Justice Select Committee in October, where he envisaged that consortia would be allowed to bid, are welcome.”

 

The Law Society responded to the consultation with the following points:

 

  • Fee reductions: The Society has argued that the proposed fee reduction of 17.5 per cent by Spring 2015 poses significant risks for many criminal law firms. Many firms are in a fragile condition and the number of firms is getting smaller quickly and unpredictably. There is a risk that complex or lengthy – but nevertheless very serious – cases may become uneconomic for solicitors to take on.

 

  • Flat fees in magistrates’ courts and the Crown Court: There is no evidence that lawyers are incorrectly advising clients to plead not guilty and therefore costing the justice system more than necessary. Cases were a client pleads not guilty require much more work than guilty pleas and solicitors should be fairly compensated to take the time to prepare cases properly. There should be no real or perceived barriers to the essential work being done to acquit innocent people.

 

  • Police station fees: Single national fixed fees with no escape mechanism would result in average fee reductions in London and the South East of nearly 30 per cent, and more than 13 per cent in other parts of the country. Serious cases, where police question suspects for up to 96 hours (14 days for terrorism cases), are so disproportionately expensive that the ‘swings and roundabouts’ principle would fail to adequately pay solicitors for their work.

 

  • Procurement areas and size of contracts: Increasing the number of procurement areas is a welcome development. The Otterburn Consulting research – jointly commissioned by the Law Society and MoJ – will provide the essential evidence needed to decide the final number of duty solicitor contracts. The Society is clear that the number should reflect the maximum possible number compatible with financial viability.

 

  • Business models: It is crucial that different types of business arrangements will be able to bid for contracts and the Society was pleased with the Lord Chancellor’s comments to the Justice Select Committee, that he envisaged that consortia would be allowed to bid.

 

Nick Fluck added: “The Law Society has secured significant changes to the original proposals having constructively engaged with the MoJ since April. Client choice has been retained, price competition has been shelved, the number of contracting areas has increased by 50 per cent, the timetable has been extended by nine months and a commitment has been given to award the maximum possible number of duty contracts compatible with viability as assessed by independent research.

 

“We must not lose sight of this progress. We acknowledge that the government faces significant financial challenges, but minor changes to the revised proposals could be achieved within the proposed budget. Our proposed changes would improve the long-term sustainability of criminal law firms and the future viability of the sector.”

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