Scotland's incoming fixed fees are nothing to celebrate, says Mike Dailly. Lawyers will put the quantity of work before its quality and the real victims will be clients.
Fixed fees are coming to Scotland. But does anyone want them? And does it matter that the consultation paper is a sham – little more than a long polemical letter? What Scottish Home Affairs Minister Henry McLeish forgot to mention was that fixed fees will come to Scotland in January 1999. This begs the question what is there to consult on? The answer is the draft statutory instrument.
There is a big difference between the introduction in England six years ago of fixed or standard fees and their forthcoming arrival in Scotland.
Fixed fees came to the English magistrates' court at the end of 1992. But they were only introduced after four years of planning – two statistical surveys were done by the Lord Chancellor's Department, one by Price Waterhouse. The political climate in 1992 demanded cost controls. Accordingly, the standard fee was introduced on a “cost neutrality” basis, so that solicitors did not lose short-term income.
The agenda in Scotland is anything but sophisticated. Like his reform plan, McLeish's aim is crude and simple. In one swift move, legal aid expenditure on non-jury cases will be slashed by about 20 per cent. Solicitors will receive a maximum of £475 for the conduct of a summary trial, where an accused can be sentenced to a maximum of 12 months imprisonment. This is inclusive of fee, outlays and waiting time. If a trial runs on to a second day, a fee of £100 will be paid – equivalent to £20 per hour for a court day, a rate which is considerably cheaper than that charged by the average motor mechanic or plumber.
Unless there is pause for thought, solicitors will be forced to embrace the business ethics of a fast food chain. Professional advice and legal representation will be dispensed en masse like a cheeseburger, and clients – now faceless – will become “fixed fees”. The reputation and credibility of the legal profession is at stake, and more importantly, the ability of legal aid clients to secure access to justice.
The taxpayer has every right to demand value for legal aid money and reform is necessary. But the proposal by the Scottish Minister has nothing to do with quality or justice and everything to do with slashing and capping the legal aid budget. And it seeks to copy the legal butchery the Lord Chancellor intends to inflict on England and Wales: block contracting, exclusive franchising and competitive tendering for civil and criminal court work.
There is no evidence that fixed fees provide value for money in England. In fact, the evidence shows the system forces lawyers to focus on the quantity not quality of work they do at the expense of client needs. And as Greg Lewis, policy executive with the Law Society of England and Wales points out, an English system cannot be tacked on to Scotland.
He says: “Any proposed system for Scotland needs to take account of complex cases. There is no right of disclosure and all sorts of systemic factors that are not applicable in England. If the Scottish Office is simply attempting to achieve an arbitrary slashing of the legal aid budget, then the introduction of fixed fees in Scotland will affect criminal justice much more than standard fees did in England.”
The current political climate is worrying for access to justice on both sides of the border. Fixed fees are crude. They offer more problems than they solve. If the Scottish Office has a genuine desire to reform the legal aid system for the good of the Scottish people, it must think again. Thoughtful reform, research and open debate is the way to proceed if justice is not to become a cheap-rate commodity.
Mike Dailly is a solicitor at the Legal Services Agency – a charitable law centre – and editor of the SCOLAE legal journal.