Legal Aid. When legal aid starts to go by the board
4 September 1996
The Lord Chancellor has displayed his usual Caledonian canniness in cutting back criminal legal aid.
No-one would care if there were no solicitor to represent those accused and by definition guilty of some heinous or indeed petty crime. The assertion set out in last year's Green Paper, that representation in criminal cases will "continue to be available... as in the present scheme" despite a fixed budget will naturally cease to apply when the budget runs out. We are being sold the absurd notion that a fixed budget will still provide adequate cover even if it runs out towards the end of the financial year.
The police and the Crown Prosecution Service already have this problem so fewer people are arrested and processed towards the end of the financial year. If we are lucky, all that will happen in future is that the law's delay will be accentuated. Should there be a lack of synchronisation between the annual police go-slow and the lack of defending solicitors, many defendants may well be wrongly convicted. They will in the main be unfashionable little people in the eyes of the media so their cases will never get to be be reinvestigated.
The nationwide network of solicitors which deals with criminal legal aid work is not yet a bureaucratic monster like the CPS although the proposed "reforms" of legal aid may be designed to produce one.
Solicitors, of course, are not people without low cunning or other marketable skills: they run private businesses. If they are expected to survive on fixed contracts with ever worsening conditions, while the Government exploits its monopoly of funding to try to break their independence, many will quit.
Given that the Government can arbitrarily refuse to renew a legal aid contract at the end of each and every one of the three-year fixed-term periods proposed by the Lord Chancellor, a private business will not want to lease private premises or hire staff if there is no alternative body to which the services can be sold. He may be able to get away with vandalising the legal aid provisions while the economy is in its present trouble but if and when the situation improves, even those who are attracted to criminal legal aid by a sense of its value to society will decide it is no longer worth it and branch into some other form of business instead. A contrived absence of demand today will mean an absence of supply tomorrow.
A key element in the Lord Chancellor's strategy is the franchising of the system so that a solicitor's firm, in theory, voluntarily surrenders its professional independence to the Legal Aid Board, which then moves in with an army of unqualified "auditors" equipped with checklists and tick-boxes to check its office procedures. Each firm must have an office manual, business plan and marketing strategy, none of which are likely to bear much relation to the needs of defendants.
It will presumably be insufficient for a solicitor to put down on his business plan that no forecasts can be made since it all depends on how much the Lord Chancellor is prepared to pay. All this auditing will cost money and no-one is saying how much. Like health service administrators, the auditors will produce nothing and grow mightily in number. Since it is not planned that they will have any legal training they will be forced to work on the absurd principle that every case can and must proceed in a predictable and orderly fashion so that they can criticise the management of the files, this petty skill being the only one they are likely to possess.
The Lord Chancellor has hinted he will be spending vast sums of our money on advertising the "benefits" of franchising. Some solicitors, desperate to retain a vestige of independence, are already talking about taking out block advertisements in national and local papers to emphasise the benefits of instructing independent firms. Not every client wants to know that Legal Aid Board auditors, who have no tradition of observing confidentiality, are wandering in and out of his solicitor's office and know every detail of his case even before it has come to trial.
Some of the bigger firms which already have franchises are hoping to make a quick profit by annexing the caseloads of their smaller brethren in the short term and dumping legal aid work altogether when the system becomes unworkable. There is a singular absence of moral lead from the Law Society's headquarters in Chancery Lane. Most legal aid practitioners would have preferred the society to have said at a much earlier stage that the concept of franchising was anathema to an independent profession.
It is only now that the full extent of the intended centralised bureaucratic control is becoming apparent. The old guard of the Law Society even published a suggested office manual containing some real gems of advice, such as that the last person out of the office should shut the door "in such a manner that it cannot be opened by a push". Solicitors will wonder how they ever managed without such a manual, or how a firm which had a need for such twaddle ever managed to get into business.
The advice many solicitors have received has often been to sign up for franchising and shut up. How are they going to explain to the public that if the Lord Chancellor has his way with his proposed block contracts and competitive tendering it could be as difficult to find a legal aid solicitor in five years' time as it is to find an NHS dentist today? They will need to make the public understand that franchising means more paperwork and that their solicitor will probably spend less time explaining their legal problems to them personally. Again, the parallel is today's NHS dentists who are inundated with inane paperwork like the bizarrely named "treatment plans". Most patients would prefer the dentist to devote all his time to fixing their teeth properly.
The only criticisms, though, are likely to come from solicitors approaching the end of their careers. No-one has forgotten that the board tried to include a "gagging" clause in the franchising contract, prohibiting solicitors from criticising it. Many practising solicitors are too frightened to speak out because no-one has any confidence that the system for awarding contracts will be fair. It is clear that contracts will be within the arbitrary gift of the Legal Aid Board with no independent appeals procedure.
The Green Paper arrogantly states that the client is not in the best position to decide who ought to represent him. It admits that proposals for block contracts only given to certain firms will limit consumer choice and impudently asserts that the solicitor who has looked after your interests for many years now is no longer fit to do so. If, when arrested, you ask the police to ring a solicitor who happens not to have a block contract, the board will not pay for that advice. You will be advised by a total stranger.
It is fascinating to observe a Conservative government going out of its way to alienate its natural supporters one by one: dentists, doctors, teachers and now lawyers. It has few friends at the moment among solicitors in the magistrates courts, nor does it have many among the relevant Bar members who realise they will be the next up for deprivatisation. Civil servants do not like independent professions and will always do something vindictive to bring them under Government control. There is a certain irony in this introduction of socialism in the interests of limiting Government spending. Perhaps we shall only fully appreciate that has happened when the Government is forced to set up a national Public Defender service at the same vast expense as the Crown Prosecution Service - and when we, the taxpayers, are forced to pay for it.