‘Justice is not a commodity. We are not selling widgets’

JUSTICE COMMITTEE REPORT: Speaking before the justice select committee, legal aid lawyer and Law Society president Lucy Scott-Moncrieff was given in the MP’s words ‘an opportunity to kill the myth of the fat cat lawyer’, reports Jon Robins.

‘The average salary of a legal aid lawyer is £25,000,’ she began; adding that the average salary of a nurse was nearly £30,000; £34,000 for teachers and £56,000 for GPs. ‘I believe it’s around £65,000 for MPs. We are not fat cat lawyers,’ she added.

The president of the Law Society, together with Bill Waddington, Michael Turner QC and Maura McGowan QC – representing respectively the Criminal Law Solicitors Association, Criminal Bar Association and Bar Council – all voiced their opposition to price competitive tendering (PCT) as proposed in the government’s Transforming legal aid consultation.

There was ‘no ideological opposition to PCT’, insisted Scott-Moncrieff. ‘We already compete on quality. We have done for years.’ But she went on to argue that introducing a tendering model predicated on the highest bid being 17.5% below existing rates was ‘completely unsustainable’. ‘Proper price competitive tendering would allow prices to go up as well as down and wouldn’t have artificial constraints. This is not price competitive tendering. It is a way of forcing through reorganisation.’

‘Justice is not a commodity. We are not selling widgets,’ Maura McGowan told the committee. ‘We are providing an institutional plank in a democratic society. Sorry if that sounds pompous but it’s as important as that. Of course, cost is important but it can never be the determining factor.’ Lucy Scott Moncrieff talked about the financial fragility of the defence profession. ‘Some of them are in negative profit in the sense that their criminal legal aid work is supported by other work. Some firms that were very efficiently might have profit levels of 6% which isn’t a huge return on investment considering the risk that the owners of these firms have to take.’

Stunning alternatives
The MPs quoted Chris Grayling’s interview where he argued that ‘unless somebody’s got a stunning alternative to PCT’, it will go ahead in some form. Scott-Moncrieff and Turner insisted that there were options. ‘We think there is an alternative way to do it and this is an alternative should appealed to the government because it is market-driven rather than being a state controlled system,’ the Law Society president said.

Michael Turner QC reckoned that if PCT was introduced then it could lead to the end of the ‘independent judiciary’ within a decade. ‘

Once you introduce the corporate supplier into this market, the ethics disappear. The Bar supplies the independent judiciary and once the Bar is brought up in the atmosphere with those competing interests then the independent judiciary will disappear.’
Michael Turner QC

An observation which was, according to one member of the committee, ‘a pretty severe criticism of the apparent inability of your members to maintain professional ethics’.

Roger Smith, the former director of JUSTICE, argued that the PCT proposals amounted to ‘a contracted public defender scheme with a limited number of contracted public defenders’. ‘Yes, you can make that work; but you have to get much more involved in the questions of quality and delivery that will unavoidably arise than this document does’.

‘The problem is the government is imposing this rigid arithmetic formula and depriving people of choice [to select their own lawyer] to do so in order to get the price right down,’ Smith argued; adding that there were ‘all sorts of problems with that’. ‘A lot of people who go through the criminal justice system are pretty angry about society as a whole,’ he argued, citing the example of someone accused of terrorism. ‘What you want to happen is that the process of going through court includes having a lawyer in which they have confidence. You reassert the fairness of the society against anybody who wants to challenge it.’ He said that there only a small number of firms that specialised in terrorism offence (‘probably three solicitors’) and, under PCT, they would be ‘carved out of the system.

The Welsh question
How would the ‘Welsh language issue’ had been dealt with by the consultation? Under PCT, 21 contracts would be awarded to provide criminal legal aid work to cover the whole of Wales – nine in South Wales and four each in North Wales, Gwent and Dyfed Powys. The concern is that Welsh clients would be represented by English firms without Welsh language provision.

‘It hadn’t been been mentioned at all as far I can see,’ replied Tudur Owen, senior partner at Tudur Owen Roberts Glynne and Company. In fact it transpired that the consultation was only published in Welsh later inhte ocnsukltation process. ‘Welsh is a living language and the reality is that it’s used all the time. I saw about nine people on Friday [on the duty scheme] and I spoke to five in Welsh and three chose to have whole or part of their case dealt with in Welsh.’


About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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