Legal aid concession offered by ministers

Protest against changes to legal aid in Westminster in May The proposals to change legal aid have faced protests in a number of quarters

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Plans to remove the right of legal aid defendants in criminal cases in England and Wales to choose their solicitor have been scrapped.

Ministers planned to put the onus on lawyers competing for contracts but have said it now recognises choice is seen as "fundamental".

The Ministry of Justice said it was now "developing alternatives" to include competitive tendering and "some extent" of choice for defendants.

Labour called the move "embarrassing".

The plan to remove defendants' right to choose was part of the government's drive to cut £220m from the annual criminal case legal aid budget in England and Wales.

Other aspects of the scheme, such as a suggestion defendants with a disposable income of more than £37,500 should not get automatic access to legal aid, remain unchanged.

Legal aid costs taxpayers about £2bn every year and criminal defence makes up more than half of the expenditure, a situation which ministers say is unsustainable in the current financial climate.

'Greater certainty'

Analysis

Why was the proposal to deny an accused person the choice of which legal aid solicitor represented him, so contentious?

For many in the legal profession and outside, it struck at a fundamental protection that they felt should be the right of every citizen.

When the state brings all of its power and resources to bear in prosecuting an individual, it was seen as a fundamental protection that the person prosecuted could chose a lawyer to defend him.

Establishing a system in which the state prosecutes a person, and then tells that person which legal firm will defend them, was felt by many to be quite wrong.

Under the proposed system the law firm or corporate provider of legal services that won the competitive tendering process and secured the contract to provide legal aid in a particular area, would have been the law firm assigned to those arrested and charged in that area.

The justice secretary has listened to the concerns and indicated he will not now proceed with a system that denies a defendant the legal aid lawyer of his choice.

The government wants to see fewer but bigger organisations providing legal aid as part of a streamlined system.

But the Bar Council has argued this would result in the end of the long-held right of a defendant to choose a legal aid solicitor and people would effectively be allocated a representative on the basis of cost.

A senior judge warned last month people with disabilities would not be able to choose a lawyer who understood their condition, and those involved in complex cases would not be able to seek out specialists.

An online petition against "depriving citizens of legal aid or the right to representation by the solicitor of their choice" received more than 100,000 signatures - the threshold required to be considered for a parliamentary debate.

Justice Secretary Chris Grayling said he was prepared to reconsider the original proposal as long as it still met the "core objectives" of his reforms to create a more cost-effective and efficient system.

"The rationale for proposing this change was to give greater certainty of case volume for providers, making it easier and more predictable for them to organise their businesses," he wrote in a letter to Commons Justice Committee chairman Sir Alan Beith.

"It is not a policy objective in its own right. However, I have heard clearly from the Law Society and other respondents that they regard client choice as fundamental to the effective delivery of criminal legal aid."

Mr Grayling said he was also prepared to consider arguments for a gradual consolidation of legal aid providers in order to preserve quality of representation and prevent "advice deserts" in certain areas.

He added: "I have made clear throughout that I am open to alternative proposals that meet the same objectives, including delivering the same level of savings."

Original legal aid changes

  • Proposals introduce price-related tendering to represent defendants
  • Ends current position where legally-aided defendants can choose a solicitor
  • Critics say defendants will not get a fair trial if they need specialist advice in complicated cases such as fraud
  • Expert law firms in particular areas say they will go out of business
  • Government says reform is needed to cut legal aid bill
  • Other proposals include axing legal aid for cases relating to prison conditions

But the justice secretary said his department's settlement in the recent Spending Review - which will see it have to make a further 10% cuts in 2015-16 - should "leave no-one in any doubt" about the need for savings in legal aid.

A Ministry of Justice spokesman said it was considering how to combine competitive tendering by law firms with "some extent" of choice for defendants.

Shadow justice minister Andy Slaughter said the decision on choice of legal aid solicitors was an "embarrassing U-turn" for the government.

The Law Society, which represents solicitors, welcomed the move.

"Client choice is important not just as a matter of principle but also as a matter of practicality," president Lucy Scott-Moncrieff told BBC Radio 4's Today programme.

"If people can choose their lawyer then lawyers will make every effort to attract work by doing their job as well as they can."

And the Bar Council said the concession was a "significant victory" for opponents of the government's wider proposals.

"We welcome the government's change of heart on this, but we hope it 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," Maura McGowan QC, chairwoman of the council, said.

"Legal aid contracts should not just go to the bidders who are willing to do the work for the lowest price."

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