Maura McGowan QC, Chairman of the Bar, Lucy Scott-Moncrieff, President of the Law Society, Bill Waddington, Chair of the Criminal Law Solicitors Association and Michael Turner QC, Chairman of the Criminal Bar Association, appeared together at a session whose purpose was to “test the arguments” already put forward.

McGowan pointed out that the Ministry of Justice would have in any event “saved” money due to LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and the falling number of cases going through the criminal courts, and the Bar had already suffered substantial cuts in its fees. She asked for time for that to work through “organically”. Scott-Moncrieff made it clear that price competitive tendering (PCT) is not about saving money – the cut of 17.5% does that – but rather was a proposed means of helping “this fragile market survive the cuts”. She doubted that it would.

Turner pointed out that every criminal justice system service which has been put out to tender has been a failure. In addition, the Crown Prosecution Service does not deliver the savings it claims, it is “creaking if not failing” as a provider of advocacy and “cases are not being properly prosecuted”.  Scott-Moncrieff provided a picture of the economics of criminal legal aid. In reply to a question about the entry into the market  of outside firms such as G4S and Serco, she firmly said that they were not interested in tendering because of the small profits and the fact that they would have to form an SRA-regulated alternative business structure. She predicted the “larger firms” might be able to make PCT work and might use small, BME-owned firms as agents, albeit for the less interesting and less profitable work, but there was no way it could work across the whole country. Any tinkering with the proposal would have a knock-on effect elsewhere.

Turner said the “most important thing” was that “in 10 years’ time you are going to lose your independent judiciary” because “ethics will disappear” in a corporate legal market. Scott-Moncrieff, however, asserted that “the ethics of the solicitors’ profession is exactly the same, whatever vehicle they are  working in”.

Rehman Chishti MP raised the issue of client choice. The leaders of the profession agreed that PCT removed client choice; it did not merely narrow it. McGowan said that a defendant “is more likely to listen to someone he trusts”; correspondingly, the system works because the defendant cooperates with it.

It was left to Roger Smith OBE, formerly director of JUSTICE, in the follow-on session, to declare “this is a public defender scheme with a limited number of public defender contractors”. He knew how public defenders work in the United States; quality depends entirely on how well it was resourced. He saw PCT as an “unholy deal between big providers who have wanted this for a long time” and a government wanting to make savings. He further raised the “rule of law” issue: some defendants, especially terrorists, were already “angry with society”. Giving them a choice in their representation was a way of “reasserting the fairness of society”.

The Lord Chancellor is due to give evidence to the Justice Committee on 3 July.

The MOJ defence: Responding to the concerns expressed by “some lawyers”, Lord Chancellor Chris Grayling said: “We have one of the best legal professions in the world. But at a time of major financial challenges, the legal sector cannot be excluded from the Government’s commitment to getting better value for taxpayers’ money. We believe costs paid to lawyers through legal aid should reflect this. Professional, qualified lawyers will be available, just as they are now, and contracts will only be awarded to lawyers who meet quality standards set by the profession. Wealthy defendants who can afford to pay for their own legal bills should do so. Our proposal is to introduce a threshold on Crown Court legal aid so that people earning around £100,000 a year are no longer automatically granted legal aid. We have one of the most expensive legal aid systems in the world, with about £1 bn a year spent just on criminal legal aid. These changes are about getting the best value for the taxpayer, and will not in any way affect someone’s right to a fair trial.”