The government’s legal aid reform program had not had a ‘substantial negative impact’ on the profession and there was ‘an appetite’ on the part of firms to work on reduced fees, Lord Faulks told peers in a debate in the House of Lords earlier in the week. The justice minister was responding to a regret motion tabled by Lord Beecham over the implementation of the Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations 2015.
The Labour peer expressed concern over the government’s perceived failure to review ‘the impact and coherence’ of the cuts to litigators’ fees and its ‘lack of engagement’ with lawyers and those affected by its reforms. He referred to a previous exchange between Lord Trefgarne, and Lord Faulks which, he said, ‘reflected the customary complacency of the Ministry of Justice’. The Conservative peer asked two questions: what evidence was there as to ‘the maintenance of quality, promptness and reliability of the service’; and, as 1,099 bids had been made for 527 contracts, ‘what would happen to the unsuccessful applicants and was there a risk of market distortion’.
Faulks insisted his government was ‘not complacent’. ‘We acknowledge the value of the legal profession in providing proper representation and the importance of making sure that that is still available. We will continue to monitor that,’ he said; before adding that the legal aid service remained ‘one of the most expensive in the world… and the most expensive in Europe’.
‘All the further consideration undertaken reassured us that the legal aid reforms so far have not had any substantial negative impact on the sustainability of the service.’
The minister ruled out the possibility of legal aid deserts emerging. ‘The level of interest in duty contracts – when the likely reduction in fees was already known – suggested that there remained an appetite to undertake criminal legal aid work under the new regime,’ he said. ‘Having considered all these matters, we decided to press ahead with the second 8.75% reduction in litigators’ fees that was first announced by the coalition Government.’
Faulks also denied that there had been a lack of engagement in this process, saying that there had been ‘three consultation exercises over a period of almost two years, two of them relating specifically to the fee reduction’. He pointed out that Chris Grayling had ‘worked closely with the Law Society to shape the proposals for the new contracting regime’. ‘The present Lord Chancellor and minister for legal aid have continued, and will continue, to engage with a broad range of legal aid providers,’ he added.
On two tier contracts, Beecham said that there was ‘a widely held view’ that many firms would ‘fall away because of the limited number of cases in what is in any case a declining number of cases overall, as testified by the court closure programme’. ‘National and civil legal aid expenditure fell by 11% in the last quarter of 2014 compared to the same period in 2013. The number of magistrates’ court cases fell by 17%, committals for sentence by 29%, and all non-Crown Court crime by 7% in volume and 14% in value,’ he said.
Beecham asked that minister to inform the house of ‘contingency plans’ if an insufficient number of firms of solicitors accepted duty contracts or contracts became unviable.
The Lib Dem peer and barrister Lord Carlisle raised the legal aid cuts to prisoners which, as he put it, had coincided with ‘an unprecedented deterioration of safety standards in English and Welsh prisons; a rise in suicides; an increase in mental illness among prisoners; and a reduction in the effectiveness of treatment for this’. He cited that ‘advice, never mind litigation’ about access to mother and baby units, prolonged segregation and support for vulnerable prisoners, including children, on release were no longer within the legal aid scheme.
Faulks said that ‘the overall principle’ of the Government’s approach ‘remains a good one’ – i.e., that legal aid should be focussed on ‘aspects of prison law where individuals’ liberty is at stake’ rather than on some of ‘the more trivial aspects’ which were previously pursued.
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