Lord Chancellor says yes to PCT lite

Legal aid
Echoing the stance taken by the President of the Law Society, the Lord Chancellor, when giving his evidence on Transforming Legal Aid to the Justice Select Committee on 3 July, created clear blue water between price competitive tendering (PCT) and cuts to fees paid under criminal legal aid.


The cuts would be made to save money, whereas “the primary purpose” of PCT was not to save money, but to “deliver change which is sustainable”. Earlier letters exchanged with the Law Society had indicated that the Lord Chancellor was willing substantially to alter the PCT proposals set out in the consultation paper. Before his fellow MPs, he proclaimed that he had read some of the consultation responses, listened to views and decided that it was “the right thing to do” to try to devise a system that included choice. He expected there to be a revised proposal by September, which would be subject to a fresh consultation. In contrast, however, he could not alter the timetable for delivering reduction in costs, or “financial change”. The figure for reductions is 17.5%. This was not an occasion to question those figures.

Throughout, he demonstrated an appetite for scoring points off his critics. He foresaw no shortage of lawyers available for those wishing to tender. He deplored the idea of “advice deserts” (although committee members reminded him that they exist). He had resisted the call to adopt One Case One Fee (OCOF), which was administratively simple: “I decided I needed to protect the independent Bar. I didn’t do [OCOF] because I didn’t want to kill the Bar. I wish they’d recognise that.” He was sure that BME-owned firms had the “entrepreneurial spirit” to meet the challenges. He could see no need to expand the number of salaried advocates.

Speaking as a businessman, he thought firms which were conscious of their cash flow would prefer to use “expert freelancers” rather than to hire employees who needed to be “kept on, rain or shine”. He would thus “strengthen independent advocacy”. He claimed it was a “myth” that he was ignoring quality: “I am not going to accept bids from firms that cannot deliver the services.”

Peer review for “red flag cases” would be restored to 100% of firms. He was proposing choice and competition amongst solicitors’ firms – and after all, it was they who had insisted that that was the way to achieve quality. They would not be guaranteed an equal share of the work, but that was because they said that choice was more important. He had asked both sides of the profession to tell him what quality standards they wanted him to maintain: “You can write the quality portion of the contract.” Solicitors were willing to contribute here, but the Bar was not. He did not accept Steve Brine MP’s description of this as “the poachers writing the rules for the gamekeepers”.

While insisting that the Government had nothing to do with QASA, he said he was “puzzled” by barristers who were concerned that ill-equipped and ill-qualified people would deliver legal services and yet resisted quality standards in the profession. He did not think that paying the same fee for a plea as for a trial would create a danger of undue influence in providing a financial incentive for the lawyer to advise the client to plead guilty. Lawyers are “human beings”, said Gareth Johnson MP, who thought lawyers would be so tempted.

The Lord Chancellor did “not believe for a second any lawyer would persuade a defendant to plead guilty if he is not”, any more than he would persuade someone to plead not guilty at the moment because that would make the lawyer better off. The Chairman, Sir Alan Beith, suggested that the defendant might believe that was happening.

The Committee moved on to areas of the consultation which are less often covered. There was no turning back here, although the Lord Chancellor did not appear to persuade his questioners. In respect of civil legal aid, the Lord Chancellor declared that for “ideological” reasons he did not believe that prisoners should receive legal aid for anything other than matters relating to their sentence. Anything relating to their conditions could be dealt with by the complaints system and the Ombudsman.

Similarly, he defended the “residence” test for civil legal aid which would not apply to criminal work, inquests and those with refugee status. He said that he would look again at cases involving children under the age of 12, but: “I don’t believe British taxpayers should pay for Iraqi citizens to sue the British Government.” As for judicial review, he accepted that it should challenge “material decisions” made by public bodies but not cases which he thought were being brought as delaying or public relations tactics: “I am not going to pay lawyers for failure.”

  • The Lord Chancellor indicated his change of heart on client choice in a letter to Chairman of the Justice Select Committee, Sir Alan Beith, dated 1 July – just two days in advance of his appearance: “I have heard clearly from the Law Society and other respondents that they regard client choice as fundamental to the effective delivery of criminal legal aid. I am therefore looking again at this issue and expect to make changes to allow a choice of solicitor for clients receiving legal aid.”
  • The Bar Council welcomed the new position on client choice, but remains opposed to any form of PCT. It said it was aware that the Law Society was working on an alternative scheme, which does not relate to the Bar, “but had no role in drafting that scheme” and would be “examining it closely”.
  • The legal aid spend of £1.14bn quoted in the paper was based on 2011/12 figures, with £220m savings required. The Legal Aid Agency budget for 2012/13, however, has now been published and shows that the spend has already fallen to £941m – savings of £198m.
  • Lawyers joined hundreds of striking courts staff in Manchester for a protest on 17 June, organised by union PCS, reflected in other half-day walk-outs across the UK. Solicitors and barristers lobbied MPs on successive Mondays in July.
  • An IT glitch caused a fuss when automated emails went out to some of the 16,000 respondents, saying that the email containing their consultation response had been “deleted unread”. The Ministry said that every response would be read by an official – email: LegalAidReformMOJjustice.gsi.gov.uk for confirmation that your response has been received.
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