Proposals to remove right to choose lawyer unlawful

The government's proposals for price competitive tendering for criminal legal aid are unworkable and unlawful, the Law Society has said in response to the Ministry of Justice's 'Transforming Legal Aid' consultation.

Not only were the proposals uneconomic for both existing firms and new entrants, as well as impractical in the timescales, but they would also improperly restrict a client's ability to choose their own lawyer, Chancery Lane said in a statement.

"The removal of client choice is a red line," said Law Society president Lucy Scott-Moncrieff. "We believe, on the advice of leading counsel, that it is unlawful. Even if the government was able to overcome the legal problems, it remains wholly undesirable for clients, firms and the taxpayer."

Last month some firms expressed their opposition to the reforms by agreeing not to bid for cut-price contracts, and a petition against the cuts gathered more than 47,000 signatures.

Scott-Moncrieff, who yesterday took part in the one-minute protest against the reforms outside the high Court, said clients' right to choose their lawyers was one of the main drivers of quality in the system, as well as helping it to run more cheaply and efficiently.

"Lawyers who know their clients do not need to take a full history each time. A client is more likely to trust a lawyer if they have chosen them and know they could choose someone else," she said.

She went on: "Clients are therefore more likely to accept advice to make admissions in the police station, or to plead guilty, where these are the appropriate courses of action. Combined with the cut in fees, the potential impact on the quality of justice in this country is profound."

The society's response follows a report it commissioned from Otterburn Legal Consulting's Andrew Otterburn and Vicky Ling, which looked into the financial position of criminal legal aid firms and assessed the likely impact of the government proposal on the supplier base.

Published earlier this month, the report found that the reforms would not work as visualised by the Ministry of Justice for numerous reasons.

New entrants would be unlikely to secure the support of banks because of the difficulty in generating profits and the size of some of the contracts were too low to be viable, the report said.

Meanwhile, existing suppliers would, in addition, would be required to dramatically overhaul their IT and employment structures, with some finding themselves unable to bid for contracts as doing so could lead to a financial risk incompatible with regulatory requirements.

The result, the Law Society commented, was that the proposals were "so unworkable and damaging that they are likely to push the justice system beyond breaking point to a devastating collapse."

Chancery Lane said the Otterburn evidence showed one assumption in the MoJ's consultation was correct: that the supplier base was too fragile to survive a straight cut in rates without significant restructuring of the market.

"It also reinforces our view that these proposals, are less likely to support that restructuring than to cause the system to collapse. It is not economically or practically possible to deliver what the Ministry is demanding, for the price, and in the timeframe, that the MoJ has proposed," Scott-Moncrieff said.