In her latest post for the Kent Law Clinic blog (Clinical), Clinic Solicitor Dr Lucy Welsh explains the significance of the government’s recent U-turn over the legal aid fund. She also urges the government to reduce unwieldy bureaucratic procedures rather than continue to focus the blame of costs on lawyers…
The Ministry of Justice has abandoned the implementation of the two tier contracting system for providers of legally aided criminal defence services. Alongside the suspension of a further fee cut, this is an extremely significant victory. While the Ministry did not accept that their decision making processes were flawed, it is noticeable that they were not prepared to go into full scale battle and defend the judicial review claim that was launched by the Fair Crime Contracts Alliance in response to claims that the contracting assessment process was so flawed as to be unlawful. Details of those issues can be found on my earlier blog piece here. The government’s statement suggests that its decision was, at least in part, to save on costs. However it goes without saying that a judicial finding against the Ministry of Justice in this case would have been a severe blow to the credibility of the Ministry’s ability (and desire) to conduct fair contracting processes.
The victory is important in several ways. Practitioners have been able to demonstrate the importance of their role within the justice system (at both a criminal justice and public law level) while also securing (hopefully) a brighter future for their businesses and, by default, their clients and employees. Those who are unfortunate enough to be on the ‘wrong’ side of the criminal justice process should also benefit from the government’s U-turn. They will have better choice about who they want to represent them in court as ordinary market competition mechanisms are more likely to improve quality of service provision than a vastly reduced number of contracted firms. The latter system has potential to create monopolies and thereby reduce quality in the long term.
However, something in the Ministry of Justice’s announcement made me think that this is merely another act in a very long play, rather than the final curtain.
Since 1979, governmental trust in professional decision making has come under severe attack. This has been documented by, among others, Julian LeGrand, whose article is the Guardian can be found here. The Ministry’s announcement expresses a continuation of that distrust. Whereas legal aid lawyers were once seen as altruistic service providers who could protect people from institutionalism, demands for greater efficiency (synonymous with reduced cost) across the public sector have eroded respect for professional decision making. My own empirical research demonstrates the ways in which lawyers are increasingly pressed to justify the decisions that they make in trying to represent their clients to the best of their abilities, despite the traditionally adversarial nature of the criminal courts and despite the generally legally privileged positon occupied by lawyers in defending their clients’ best interests. The Ministry of Justice’s statement suggests that lawyers are not about to be let off the hook yet when it says:
“I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system.”
It’s the last part of this sentence that particularly bothers me because it betrays the now deeply ingrained lack of respect that the Ministry of Justice appears to have for criminal defence solicitors. My own experience, and the findings of my research suggest that much inefficiency in the legal aid system occurs as a result of unnecessary bureaucracy and inconsistent decision making by the Legal Aid Agency and not because lawyers are abusing the system.
I hope that my fears are not realised, and that the government will in fact focus on eliminating unnecessary bureaucratic costs in the system, of which there are plenty. I’m sure everyone would welcome an end to a never ending process of completing unnecessarily complex, yet ‘one size fits all’ case management and legal aid forms. Such bureaucratic procedures take up huge amounts of time at all stages of the system while also manging to reduce complex legal issues to tick box ‘computer says no’ responses. I suspect however that governments will continue to focus the blame of costs on lawyers and that we are seeing an intermission in, rather than finale to, this particular performance.
By Dr Lucy Welsh, Solicitor
Reposted from Clinical, the Kent Law Clinic Blog