Joshua Rozenberg began by recalling what Lord McNally had recently said to him on Law in Action, namely, that the response to the consultation had been ‘hysterical in terms of the realities’. Did the other panellists agree with this? Speaking as those who had themselves responded, they did not. Maura McGowan QC stoutly defended the Bar Council’s long, considered, detailed, and well-argued paper which was based on the public and not on a vested interest. Andy Slaughter said he had seen some ‘extremely persuasive responses’ displaying anger at the ‘dismantling of the legal aid system’ including ‘perverse incentives to plead guilty’. Steve Hynes noted that he had ‘never known a consultation which has managed to unite everyone’.
Anyone doing their prep before the session would have been well advised to read what Steve Hynes had written in 2011 about the attempt in 2009 by the then Labour Government to introduce ‘best value tendering’ (BVT). While some saw something superior in “best value” as compared to “price competitive”, in fact the intention was to use the tendering mechanism to reduce spending on legal aid: (‘no other field of government expenditure has grown as much as legal aid’, Lord McNally’s predecessor, Lord Bach complained at the time). Back in 2009 there were large firms of solicitors in the proposed pilot area who saw nothing wrong with reducing the number or firms locally by 85%. Labour abandoned the plans in 2009 when they decided that BVT would not produce the savings they wanted. Instead in 2010 they cut fees by 13.5% over three years. In 2013 the Government has separated the two strands. The proposed cuts of 17.5% would produce the savings required by the Treasury. Price competitive tendering (PCT) was not there to achieve savings but to restructure the delivery of legal services, allegedly to make them ‘sustainable’ in a world in which the cuts had already been made.
What the panel on 18 June did not know was that in a matter of weeks solicitors would again show themselves amenable to discussing restructuring their profession, though in less drastic ways than proposed in the consultation paper. In turn the Lord Chancellor, after two months of being attacked for removing choice and competition, would agree to retaining it. That of course still left the question of the cuts.
Lord McNally, who spoke last on the first question, stuck to his guns. ‘Don’t be too thin-skinned’, he told the Bar, ‘you can have all your high minded public interest but let’s not kid ourselves, we are also in a wage negotiation. You have a vested interest in this outcome’. He claimed that we would still have the most generous Legal Aid system in the world, but the cost would go down from £2.2 billion to £1.5 billion. Later he predicted that there was no chance of Labour restoring that when next in power—if that was a bluff, the Opposition has not yet called it. ‘There is ample room for the profession to adjust’. Later in the session he reminded the audience that the Ministry had already cut 10,000 civil servants. This produced a few surprised looks from the panel who may not have noticed the redundancy process at the time and had not publicly protested about it. A visit to the website of the union would show a number of reminiscent remarks about the effect the redundancies would have on the quality of justice. Lord McNally promised that this was a consultation, and ‘we are going to listen’, something which in the event does in part seem to have happened. Maura McGowan QC said that the Bar was ‘more than happy to continue discussions’. She denied that it was a battle over wages. ‘This is very much more important than that’.
The subject then turned to the question of the economic effect on young barristers without other means of support and especially women and BME’s. Diversity especially amongst entrants includes women, BME’s and those from low income backgrounds, but those characteristics are not interchangeable. Would the criminal Bar be ‘disproportionately’ affected? In fact the relevant statistics can be found in the most recent Barristers’ Working Lives. The Bar overall is 34% female and 9% BME, though at entry it is closer to 50% and 13%. The most diverse branches, which were not under discussion on 18 June, are family (64% female and 10% BME) and civil (32% female and 14% BME) followed by crime which is 31% female and 8% BME. If reducing the latter’s fees is disproportionate then presumably the same applied to Labour’s reduction of 13.5% in 2010.
Lord McNally thought that we have to think about retention at the criminal Bar but he thought that changes ‘will take place irrespective of the cuts’. He was ‘extremely worried about lack of social mobility in the legal profession’ but he did not think that could be put just at the door of restructuring. The panel generally felt that diversity was the Bar’s responsibility. ‘Put your own house in order,’ Steve Hynes said, but although he saw nothing wrong with restructuring and with ABSs such as Co-op Law, crucially one needed competition and one needed small, BME firms to prosper. He pointed out that the ‘one man band’ firm can be extremely efficient. Andy Slaughter, who practised at the Bar before entering the House, said that the profession had done a lot but that BME and women lawyers in small firms would be disproportionately affected by the proposed changes. Maura McGowan QC similarly defended the record of the Bar and of the judiciary in widening entry. Doing this was not the direct responsibility of the Government, but the Government ought to consider the consequences of their proposals. One questioner from the floor predicted legal challenges. Concluding this, Lord McNally suggested that the profession should think about the structure which leaves jobs at the bottom to women and to BME’s. Whatever that was meant to convey, Maura McGowan ‘deeply resented’ the idea that ‘we structure the profession to ensure that women and BME candidates do the lowest paid work’. ‘We are happy to adapt’, she added.
The panel was then asked about the Labour Party’s track record on PCT. Perhaps least was achieved here though we heard about what the Attorney General said when in Opposition and the fact that although the Labour Party Manifesto did pledge to cut legal aid, the Liberal Democrat Party Manifesto did not. However this was an opportunity for Maura McGowan to repeat her call to take ‘one step back’ and look at all the reviews of the legal system together: instead, legal aid, resourcing and administration of the court system, regulation, dealing with witnesses, and other core processes were all going ahead in ‘separate compartments’. Her plea was echoed by Andy Slaughter—‘let’s look at root and branch reform’. Steve Hynes was also happy to discuss things but suggested that the higher earners at the Bar take a pay cut in order to retain scope. Lord McNally said, ‘we have to make the professions face up to the changes’. He pledged that the Government ‘was not going to buckle’ though in respect of which changes he did not say.
Finally the panel was asked about quality. Inevitably people recalled the Lord Chancellor’s recent remark that seasoned offenders were not ‘great connoisseurs’ of legal advice. The media has paraphrased it as ‘too thick to pick’ though it may have meant that he thought that defendents were more interested in whether they were acquitted than in the quality of the way in which their advocate achieved that aim. Lord McNally insisted that this was ‘not a race to the bottom’. Maura McGowan QC repeated that the Bar would not take up the invitation to help to design the quality assurance aspect of the new system. Steve Hynes said that ‘client choice is the best determinative’ of quality, an opinion now used by the Lord Chancellor as evidence that the structure on which he will be consulting in September will indeed imbed quality. Speaking before the Ministry of Justice had its change of heart on the issue, Lord McNally said that ‘the idea that a 20-year criminal should have the brief of his choice on the payroll seems to be rather bizarre’.
It no longer is thought to be bizarre by the Lord Chancellor but at Question Time Maura McGowan QC got there first. She pointed out that the 20-year criminal might not be guilty this time. She did concede that choice can be limited at the moment, with perhaps only two firms being willing to come to the police station at an unsocial hour to advise a detainee. Of course that assumed that any solicitor would be going to the police station at all: no one cited the study featured in the June Counsel which showed how infrequent that is. Andy Slaughter pointed out that court fees in civil actions might even price out litigants in person from representing themselves.
One hoped that in an hour of lively opinions from highly qualified people, we could have avoided any reference to the Eddie Stobart group, who have become the curious poster boy for PCT despite the fact that they will be taking no part in any tendering exercise unless and until they can set up an ABS accredited by the Solicitors’ Regulation Authority. However Andy Slaughter did bring them in at the end, relying for his facts, perhaps surprisingly for a Labour MP, on the Mail Online.
David Wurtzel is Consultant Editor of Counsel