“Transforming Legal Aid” and Buggins Turn

Criminal legal aid work is already dogged by rock bottom hourly rates and unsocial hours. It now faces its Waterloo. Given the desperation of this government to cut public expenditure there is a real risk that the vision set out in the consultation “Transforming Legal Aid”* may actually come to pass.

In a nutshell, the MOJ proposes that the 1600 firms in England & Wales which undertake the work at present will enter into a cutthroat price competition sometime this autumn. Only 400 will emerge with exclusive contracts to carry out publicly funded work. In London the attrition rate will be something approaching 80% of all firms. The winners will be those prepared to take the responsibility of defending criminal cases for the very lowest figures.

The present scheme is not an efficient one, and reform was inevitable at the hands of a government strapped for cash. However, any reform must pass a critical test of assuring the quality of representation given to defendants.

The consultation paper pays no more than lip service to quality. It proposes that “threshold competence” is an adequate standard. I recall clearly, when serving as a Commissioner on the recently dismantled Legal Services Commission, being shown a sample of peer reviewed “threshold competence” files which contained elementary mistakes on the law. It is to the eternal shame of the LSC that it permitted “threshold competent” firms to stay in business.

Under the present system a defendant can choose their own lawyer. The better informed do find their way to the firms which display higher quality standards. The consultation proposes that this choice should end. The defendant will become “market share” and will be allocated by Buggins turn. Inevitably some will be represented on serious charges by the equivalent of Stafford Hospital, with no right to change lawyers no matter how bad things are.

That this is the opposite of how a market functions seems to have escaped the Ministry of Justice.

* https://www.gov.uk/government/consultations/transforming-legal-aid-delivering-a-more-credible-and-efficient-system#download

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