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)