Planned legal aid reforms are causing “deep anxiety” to solicitors andbarristers, the senior government official responsible for them told me on Tuesday evening.
Dr Elizabeth Gibby, head of legal aid policy at the Ministry of Justice, was answering questions at the first in a series of open meetings arranged by the department and advertised, very discreetly, on its website. This one took place at a hotel in Reading and attracted more than 100 lawyers; there are to be another 12 this month around England and Wales.
“We appreciate that the proposals [in Transforming Legal Aid] are causing deep anxiety and concern,” Gibby said, “and people have genuine worries about aspects of the [reform] model. That’s why we genuinely want to hear from people. I know people often think that responding to government consultations is a waste of time. All I would say to you is that we want to hear your views. We want to hear your suggestions.”
Why, then, was the government allowing only eight weeks for responses to the proposals, a lawyer asked. “We need to make progress,” she replied.
Gibby had a tough time being cross-examined by some of the country’s most experienced criminal advocates. One said her plans would “decimate the system”. Another spoke of Armageddon. But it was the forensic questioning that hit home.
“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.
“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.
“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.
Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.
Tim Mouseley QC, head of chambers at 2 King’s Bench Walk, then questioned her on an assertion by Chris Grayling. In his foreword to the consultation paper, the justice secretary said that legal aid had “lost much of its credibility with the public” over the past decade.
“Where is the evidence that the public have a lack of confidence in the legal system as it currently is?” the QC asked.
Gibby made it clear that this line had not come from her. “The proposals to address public confidence, credibility, in the legal aid scheme is what ministers want addressed.”
“But where’s the evidence?” Mouseley repeated. “We deal with evidence.”
“Well, we as civil servants serve ministers. And ministers want certain things to — as far as they’re concerned — address the credibility of the scheme.”
Another lawyer then asked Gibby if she had any examples of this lack of confidence. Ministers had been presented with examples by their constituents, she recalled. Such as?
“People having access to legal aid who are not resident in the country,” she replied. A groan went round the 100 or so lawyers in the room.
Gibby rightly devoted most of her presentation to competitive tendering for criminal legal aid, regarded as the most contentious part of the consultation paper.
Under the proposals, England and Wales would be divided into 42 procurement areas. Law firms would tender for a share in the right to provide most criminal legal aid services within an area. Clients would no longer be represented by a lawyer of their choice unless they had specific needs.
The government expects to offer around 400 contracts across England and Wales. Since there are currently 1600 providers at present, firms will have to merge, do other work or close down. To give one example, there would be just four providers in the whole Thames Valley area, including Milton Keynes, Reading, Oxford, Banbury, Slough and other towns.
Tenders would have to be at least 17.5% below current rates. Only those providers who met prescribed standards would be permitted to tender. In general, contracts will go to those who offer to do the work for the lowest price.
Firms would not know whether they had won contacts until June of next year and they would have three months in which to recruit staff and gear up to start work in September 2014. This timetable attracted derision at the meeting.
The government is genuinely open to suggestions on some of the details. Since defendants will no longer be able to choose their own lawyers, they would have to allocated at random. How should the work be divided up among four or five firms?
One person at the meeting suggested it might be by the defendant’s star sign. But that’s hardly far-fetched. Officials are considering whether to allocate work according to the day of the month on which the defendant was born.
The government believes that “greater certainty about the volume of work, with each successful applicant gaining an equal share of the work in the relevant procurement area, should give applicants more confidence to make competitive tenders”. As one lawyer pointed out, that takes no account of fluctuations in the level of crime.
What struck me as I heard Gibby explain all this is that officials really cannot be sure that any of this is going to work. Only one solicitor at the meeting in Reading said he would seek a contract. He could not afford not to, he said, not entirely convincingly. Many of the leading firms have said they will not bid for contracts on the government’s cut-rate terms. If lawyers boycott the scheme, ministers will have to think again. A much greater fear is that, in some areas of the country at least, the government will be forced to lower its standards and accept bids from legal service providers who simply do not have the skills or resources required to deliver.
“What drives quality is client choice,” one lawyer told Gibby. “If they don’t like you, they’ll go somewhere else and get a better quality of service. If you are guaranteed the work — one case in every four — it makes no difference if you are good or bad. I’d like to know what thought has been given to assessing the quality of service that will be provided.”
Gibby sounded slightly anxious. “We would very much like the profession’s suggestions about how you as a profession should be monitored if you are contract-holders in the future.”
Retain choice, said the questioner.
“Well, this is why we need you to respond to the consultation document,” Gibby replied.
“Is that an invitation to consult on the principle?” a lawyer asked.
“If you wish to respond by saying that the model of price-competitive tendering that we have consulted on needs to be changed for a different model, we’d be very grateful for your suggestions.”
She sounded as if she meant it. But removal of choice is fundamental to the government’s plans. Ministers apparently believe that a guaranteed level of work is the only way to persuade law firms to accept lower fees. If clients can move from one firm to another, even within the four or five providers in a particular area, one or two of those firms might then collapse.
Even so, Gibby seemed open to what she summarised as a client-choice model, “so that if people win contracts, they will not be guaranteed a percentage of business in their area”.
Lawyers tried to explain to Gibby and her team that the entire criminal justice scheme was kept going by the goodwill of lawyers. What incentive was there for them to do work for which they would not be paid if work was guaranteed and clients could not switch to another provider?
Gibby sounded genuinely open-minded. Why else would a civil servant have submitted herself to a series of 90-minute public grillings? But many lawyers told her that the problems in what she was proposing were so obvious that they should never have been put forward. One solicitor told me afterwards that the consultation paper was “fundamentally flawed in its understanding of business and economics”.
And, however open to argument the government may be, its imperative remains to reduce public spending. Gibby believes she can save £220 million per year by 2018/19. But at what cost to justice?