The scheme is designed to introduce competition between solicitors on price for blocks of Police Station and Magistrates court work.

The consultation for this scheme was announced on 27th January when it was understood that the LSC’s intention was to pilot it in London. It raises matters of deep concern for the public, solicitors and the Bar, and is likely to cause serious and irreversible damage to the very fabric of the Criminal Justice System.

The LSC’s position now is that it intends, subject to consultation, to implement the scheme without the benefit of it having been tested by a pilot.

This shift accelerates the likelihood of damage, damage which will be all the greater if the scheme is not piloted.

This proposal yet again lays bare the truth that the LSC is determined to sacrifice choice, quality and specialist skill in the pursuit of a cut-price justice system. Yet again mere lip service is paid to ‘a quality threshold’ and to ‘the interests of the consumer’. The reality of this proposal is that as usual there is only one active criterion for the LSC – cost.

Although this phase of introducing competition primarily concerns solicitors, it nevertheless will impact upon the Bar, especially the junior Bar.

Moreover it is likely to be an indicator of Government thinking about future schemes whereby it will purchase services from solicitors and the Bar in the Crown Court.

The scheme

The scheme will replace existing criminal contracts throughout London.

It is likely to lead to a “cull” of smaller solicitors’ firms that do criminal work. In the past the LSC has spoken openly about reducing the number of firms with a contract by between one third and one half. The LSC is presently less willing to state this as an objective but recognises it is a likely consequence.

Bidding for bulk work will have two stages. The first will be a quality threshold set by reference to success outcomes that have yet to be defined. It is anticipated 90-95% of firms will pass this threshold. They will then move to the second stage. The 5-10% who fail will be able to move to a peer review system, with provision for an appeal, which may yet see them able to bid for work. On any view the quality threshold is low.

The second stage will be the allocation of blocks of work based solely on unit cost bids. The lowest bid will be given the first block of work, the next lowest the next block, and so on until no further duty solicitor slots or case starts are available. The block of work contracted for will be paid on the basis of a fixed price per case regardless of size, length or complexity. The LSC wish to pay for “case outcomes” rather than the amount of work reasonably and necessarily done, which may be in conflict with lawyers’ professional duties and create further downward pressure on quality.

Matters of public concern

The cull is likely to arise because the pressure would be to bid low to the point it becomes uneconomic to take on work.

It is envisaged that smaller firms are most likely to suffer because they do not enjoy the economies of scale, which attach to larger firms. Among the smaller firms are those with specialist practices, and, it is thought, a considerable number of Black and Ethnic Minority firms.

To operate economically it is likely that firms, which win contracts, are likely to spend less time on individual cases thereby driving down the quality of advice.

Thus there are very serious and justifiable concerns about introducing such a scheme, which will both restrict client choice and reduce the quality of service provided, particularly if there is to be no pilot. Many high street firms will simply be driven out of work, their disappearance creating gaps in the provision of other publicly funded legal services.

Particular concerns for the Bar

Whether the advocacy work is provided in-house, contracted out to solicitor agents, or sent to the junior Bar will be decided by solicitors. There will be enormous commercial pressure on firms to take the cheapest possible option. Plainly, only the work, which does not provide a commercial return to the solicitor based on unit price, will be sent out.

I am concerned about the level of work for the junior Bar, the level of fees the Bar could negotiate and the likelihood of payment. The consultation paper proposed the abolition of the system whereby assigned counsel is paid directly by the LSC to be replaced by payment by solicitors.

I fear there will be very much less work, perhaps none, for the junior Bar. Solicitors will be encouraged by ‘market forces’ to sub-contract at rock bottom rates ‘cost ineffective’ cases to young barristers who themselves are struggling to repay the costs of their lengthy training. Then there is the risk of non-payment of fees because there is a well-documented history, particularly in London, of a small number of solicitors’ firms regularly failing to pay counsel sufficiently or in some cases at all.

In Shapland and Sorsby’s 2002 survey of the junior Bar they commented:

“… most of our respondents had recovered from their financial difficulties by the term of the survey (3-4 years after pupillage). Some 15% in London and 20% out of London were still finding it difficult or very difficult to manage at that time. However, those primarily involved in publicly funded legal work especially criminal defence work …, now faced a new set of problems. This was the level of remuneration for appearing at court on pre-trial matters, coupled with delays in receiving fees. The problems of fees in criminal work had begun to be apparent in 1997, but have clearly worsened significantly since then. We find this quite appalling. Clearly there is a need not to be profligate with legal assistance, but criminal defence work is one of the key areas where human rights are most at risk. Either solicitors are not passing on to those they instruct a reasonable sum for representing their own clients, or the level of fees is derisory, particularly given travel costs.”

The Criminal Bar Association will propose to the LSC that:

1. advocates’ payments should be increased but at the very least must be at a level which is not less than that provided for the Magistrates’ Court Fees Protocol;

2. payments for advocates should be ring-fenced within the bid price per case for a contract;

3. payments should be made direct to counsel by the LSC.

Conclusion

The Bar’s commitment to publicly funded work is being tested to its very limit. The profession invests a significant amount of its income each year in fostering, training and subsidising young entrants who want to perform publicly funded work. For this they are being paid less and less with each passing year and each new LSC scheme. The implications for diversity and choice could not be plainer. The movement of our most talented young barristers away from publicly funded work has inevitable implications for the CJS. In particular, squeezing counsel out of legal aid work in the Magistrates’ Court is likely to have an adverse effect on the diversity of entrants to the Bar, many of whom support themselves in their early years of practice by doing publicly funded criminal work.

The Bar should support solicitors who oppose this scheme.