The justice secretary has agreed to retain client choice and signalled his support for an alternative tender model proposed by the Law Society, based on a modified version of GP contracts in the NHS.
In advance of his appearance before the House of Commons justice committee on Wednesday, Chris Grayling wrote to the committee’s chair Sir Alan Beith indicating that he will allow choice of client to continue.
He also said he would also ‘explore further’ the Law Society’s suggested alternative proposal to ‘consolidate the market in stages, using quality and capacity criteria to achieve this’.
The Society said that its proposal is based loosely on the rolling General Medical Service contracts for GP surgeries – where a contract is periodically renewed subject to meeting statutory and mandatory obligations.
Mandatory obligations of the legal aid contract would take the form of a quality and capacity framework, which would specify a number of criteria a firm must achieve in order to retain its contract.
In his letter to Beith, Grayling stressed that the Transforming Legal Aid proposal was a ‘genuine consultation’ and that he has listened, and is still listening to, the views of the profession.
‘I have made clear throughout that I am open to alternative proposals that meet the same core objectives, including delivering the same level of savings,’ he said.
He said the proposal to remove client choice, which was intended to guarantee case volumes for providers, had attracted ‘significant response’.
He said the proposal was ‘not a policy objective in its own right’. After listening to the views of the Law Society and others ‘I am therefore looking again at this issue, and expect to make changes to allow a choice of solicitor for clients receiving criminal legal aid,’ he said.
Grayling added that after ‘another constructive discussion’ with the Law Society, he has also ‘agreed to explore further the proposals they have put forward to consolidate the market in stages, using quality and capacity criteria to achieve this’.
With reference to the meeting with the Society, he said: ‘We were both clear that any future scheme for criminal legal aid must guarantee quality legal advice and representation is available, without giving rise to advice deserts. We agreed that in order to meet the challenges of the future, a managed market consolidation is necessary, ensuring services are sustainable.’
Grayling said that it is only through sharing back-office costs, developing new ways of working, and driving economies of scale - in the same way that all businesses and public sector organisations have had to do over the past few years - that legal aid providers can sustainably provide a cost-effective quality service for their clients and the taxpayer.
He said that he has asked his officials to work closely with colleagues at the Law Society to explore their proposals.
Grayling added: ‘My ministerial team and I continue to listen to the views of the professions and other respondents. I am grateful to the all those who have engaged constructively in the consultation process.’
But he added: ‘In light of last week’s Spending Review no one should doubt the need for my department to reduce its expenditure on criminal legal aid as outlined in the consultation document.
‘I am determined to do this in a way that maintains a sustainable legal aid system, with quality at its heart.’
Law Society president Lucy Scott-Moncrieff said: ‘Our meeting with the lord chancellor last week demonstrated the benefits of constructive, though robust, engagement.
‘By listening to us on client choice, the government has shown it is serious about constructive engagement, which I welcome.’
She said the Society’s alternative will not result in ‘flags waving in every solicitor firm’, but following consultation with the main practitioner groups, it is satisfied that it is the ‘least worst solution’. It focuses on three objectives: retaining client choice, bringing certainty to providers and facilitating efficiency in this part of the justice system.
Commenting on the government’s U-turn, she said: ‘It is clear that the MoJ is committed to change.
‘We have composed a properly evidenced and considered alternative approach, which would shelve price-led competitive tendering, retain the important principle of clients being able to choose their solicitor and in doing so, maintain strong incentives for sufficient quantity and high quality of legal advice and representation.
She said: ‘The current model is far from perfect, but if major change is to happen, it must result in a system which offers an attractive career to young lawyers and give commercial comfort so lenders will finance the investments necessary to overcome inefficiencies.
She added: ‘On the evidence of today’s welcome move, I am hopeful that we can work with the lord chancellor and his colleagues to secure a sustainable future for criminal legal aid.’
The Bar Council also welcomed the move. However Maura McGowan QC, chairman, said: ‘We hope [the government] is also listening to the many voices which are clear that price competitive tendering in any form is not a suitable mechanism for allocating legal aid contracts. Legal aid contracts should not just go to the bidders who are willing to do the work for the lowest price.’
Grayling added: ‘Any future scheme for criminal legal aid must guarantee that quality legal advice and representation is available, but we still need to make significant savings.
‘I am therefore pleased the Law Society has acknowledged the government’s requirement for savings. We agree that a managed market consolidation is the best way to meet the challenges of the future. We are discussing their proposal about how to achieve this.’
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