Bar Council responds to legal aid consultation

4 June 2013

The Bar Council, which represents barristers in England and Wales, has today published its full response to the Ministry of Justice's (MoJ) controversial consultation paper,  Transforming Legal Aid. The response, which runs to over 150 pages, incorporates expert economic and statistical analysis, which forensically examines the Government's proposals, highlighting major flaws.

The Bar Council's response completely opposes the removal of client choice from the criminal legal aid system and the "fundamentally flawed" introduction of price competitive tendering (PCT), which will incentivise the lowest possible quality of service and result in further dramatic changes to civil legal aid hitting some of society's most vulnerable people.

The response also challenges the assertion that these proposals are a rational way of achieving sustainable savings and questions their evidence base and their legitimacy.

The Bar Council response says that the proposals:

  • Risk damaging the British justice system, which is renowned worldwide for fairness and impartiality

  • Fail to include a proper Equality Impact Assessment and will have an adverse impact on access to justice for some of the most vulnerable, deprived, and socially excluded groups, which will have a pernicious consequence in undermining social cohesion 

  • Obliterate client choice in PCT contracts, which is deeply flawed, ignores fundamental human rights and flies in the face of the Government's July 2011 White Paper on 'Open Public Services'

  • Will destroy the livelihoods of many smaller solicitors' firms and rapidly destroy the criminal defence Bar, and

  • Thwart efforts to improve diversity across the legal profession and set back the steps taken to increase diversity in the judiciary for many years, with serious implications for public confidence in the justice system.

The Bar Council also commissioned economic analysis which finds that the MoJ's thinking is "muddled", that it has "failed to consider hard evidence" and that the proposals are "a breathtakingly convoluted way of finding [...] savings". Further academic analysis suggests that savings are being made anyway and such a jarring intervention is not needed. It states that "on current caseload and spending per case trends, a substantial saving in total expenditure on criminal legal aid might be expected over the next four to five years even if no other changes to the system were to be made".

Maura McGowan QC, Chairman of the Bar , said:

"The Ministry of Justice's Consultation Paper claimed that legal aid is the hallmark of a fair, open justice system. We agree, but what is being proposed, so soon after the implementation of the LASPO reforms, will emasculate legal aid and irreversibly damage the administration of justice in our country which has been the envy of the world. 

"The Bar Council's response to this consultation marks the end of eight short weeks of incredibly hard work, across the legal profession and beyond, to explain the deep flaws in the Government's legal aid proposals. We have replied in forensic detail and made our own suggestions for savings in the system.

"There is no avoiding the simple fact that these proposals would move us from having a justice system which is admired all over the world, to a system where price trumps all.  PCT may look as though it achieves short-term savings, but it is a blunt instrument that will leave deep scars on our justice system for far longer. Further cuts to the scope of civil legal aid will limit access to justice for some of the most vulnerable. That is a legacy of which no Government should be proud.

"A Bar Council and ComRes poll conducted last month showed that the British public values legal aid and is deeply concerned about the impact of the Government's proposals. Over 40,000 people signed our petition with 38 Degrees speaking out against these measures. Our response to the Consultation Paper shows that these proposals are unworkable and they will ruin the justice system as we know it.

"The Secretary of State for Justice cannot fail to have registered the strength and breadth of opposition to these proposals. The concerns are being voiced not just by the legal profession but by many other groups and individuals. The proposals simply do not have a sufficient evidence base on which to attract support. We believe that if these proposals are implemented as they stand, the system will go very badly wrong. Once implemented, these measures cannot be easily reversed.

"We want to achieve and maintain a legal aid system which works in the public interest. We invite the Lord Chancellor to engage with the profession in a proper, considered review of legal aid to achieve that system and any required reforms without destroying a world-renowned institution. It is not too late for the Government to think again."

ENDS

Notes to editors:

1.  For further information, please contact the   Bar Council Press Office on 020 7222 2525 or  Press@BarCouncil.org.uk .

2.  The Bar Council's full consultation response and an executive summary is available here.

3.  The economic analysis was provided by Professor Martin Chalkley, University of York, and Bob Young, Principal, Europe Economics, London. The academic analysis was provided by Professor Roger Bowles, University of York. Both reports are annexed within the response.

4.  The Bar Council is promoting a   petition  in partnership with the campaign group 38 Degrees, and encouraging people to sign it. It currently has over 43,000 signatures.

5.  The Bar Council represents barristers in England and Wales. It promotes:

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent   Bar Standards Board.