Law Society agrees on reform but questions government's new criminal legal aid proposals

23 March 2010

The Law Society has reacted to new proposals for the tendering of criminal legal aid services announced today by the Ministry of Justice.

The Ministry of Justice [MoJ] said it plans to introduce a smaller number of large criminal legal aid contracts, which would reduce the number of firms to around a quarter of the current number.

Responding to the new proposals Law Society President Robert Heslett said, "we have long argued that the current situation is not sustainable in the medium to long term. We agree with the Ministry that reform is needed".

He said the Society is committed to working with the Ministry to shape that reform, whilst understanding that ultimately, the Ministry will make the final decision. "It is encouraging to see Jack Straw recognise the serious concerns about the viability of the present arrangements, and the concerns about the financial survival of the supplier base."

Commenting on the proposals for consolidation, Robert Heslett, said:

"There are many factors currently driving the market towards a smaller number of larger firms, including the advent of alternative business structures, the activities of insurance companies and other bulk purchasers of legal services, and the general economic environment. In the criminal defence market, it must be recognised that legal services must be delivered wherever the client is, for example, in the police station or at court. This means that the scope for consolidation may not be as great as it is for other bulk purchasers. The situation will be very different in urban areas from in market towns and rural areas."

He added, "The model proposed by the Ministry bears little resemblance to the market as it is currently structured, and it is not clear how, nor how quickly any move to such a model could be implemented without causing serious disruption to service provision. We do not have an economic environment in which firms will find it easy to make the necessary investment to expand as much as would be required."

The MoJ proposal suggests that new contracts tendered under these arrangements could be in place as early as summer 2011. As a result firms that thought they were tendering for a three year contract in the current tender round may find that they only have one year instead. The Law Society is urging the Ministry to identify the selected areas at the earliest possible opportunity in order to give firms the maximum warning that they may be affected.

Robert Heslett said, "We are pleased to see that the Ministry has made a long overdue commitment to tackle the crippling bureaucracy and micromanagement facing firms undertaking work within the legal aid scheme, but it will be essential that this is actually achieved. We will be glad to work with the Ministry to discuss how this can be achieved. It will also be essential to ensure that the savings from the reduction in bureaucracy are realised before firms are asked to share those savings with the Ministry."

Reacting to the MoJ's comment regarding offering value for money, Robert Heslett said, "It is possibly misleading for Jack Straw to compare the legal aid budget today with the budget in 1982. It was after this date that the extensive concerns about the behaviour of the police led to the introduction of safeguards through the Police and Criminal Evidence Act. Moreover, at that time the prison population was only half what it is today. In recent years, the number of new laws passed by this Government has been a major driver of costs, as has the increasing use of technological developments such as CCTV, computer analysis and DNA testing in criminal investigations. The recession has caused a significant increase in the number of clients who qualify for legal aid and who need help. The Baby P case has led to local authorities issuing many more applications for care orders. All of these factors have added new demands on the legal aid budget that did not exist in 1982."

In 2001, there were 4,952 firms undertaking civil and family legal aid work, and 3,500 undertaking criminal defence work. Today, there are 3,001 and 2,209 respectively. Legal aid rates have been frozen or cut since then, so the only increases in the budget have been caused by an increase in the volume of work required on behalf of eligible clients. The number of lawyers is not a relevant factor.