The Bar Standards Board (BSB) has waded into the controversy over government plans to introduce price competitive tendering (PCT) in criminal work by warning that it risks causing irreparable harm to the credibility of the criminal justice system and incentivises lawyers to encourage guilty pleas.
In an uncompromising response to the Transforming legal aid consultation, which ends today, the board said the Ministry of Justice (MoJ) was pursuing a “high risk strategy” which put the interest of taxpayers over that of the public as a whole.
Adding its voice to a chorus of disapproval of tendering from lawyers’ groups, the BSB said PCT risked having the opposite effect to that intended by reducing competition. A greatly reduced number of barristers able to operate in the criminal sphere would in turn threaten the integrity of the criminal justice system.
If as the MoJ proposed, the number of criminal legal aid contracts awarded was cut from 1,600 to 400, “the BSB questions the extent to which economies of scale will truly materialise from such significant constriction of the market”.
If they did not, “providers who are successful in the initial tendering will necessarily raise their prices in future rounds or move out of the publicly funded sector. By that time, providers who were unsuccessful in the initial round, or who were unable to take part, may have been removed from the market”.
The BSB insisted it was commenting only on proposals it believed would have consequences that touched on its regulatory remit. Crucially, it warned, the fee taper proposed by the government that sets the same fee for not-guilty pleas and longer trials “provides a significant financial incentive for legal advisers to encourage their client to plead guilty, regardless of whether that is in the client’s best interests”.
Legal regulators “may not be able to mitigate that risk effectively, since it cannot safely be assumed that abuses will necessarily come to light”. Miscarriages of justice would result that could take years to discover. Even if advocates resisted the temptation, clients would still have to be told that a conflict of interest existed, denting public confidence, the BSB maintained.
The quality of advocacy would suffer, it argued, since tendering rewarded those who offered the lowest price rather than a combination of price and quality. Meanwhile, the fee structure would encourage providers to keep Crown Court advocacy in-house, removing an incentive to compete on quality.
Removing client choice in the provider allocated to them, coupled with competition on price alone within a shrinking market “will mean that quality of representation is not safeguarded and suffers as a result”.
The BSB continued: “Persons charged with criminal offences, and in need of legal aid, are just as much consumers of a public service as patients or benefit recipients, and the principles of choice should apply equally to drive quality and competition.”
BSB chair Baroness Ruth Deech said: “These reforms may endanger the ability of our legal system to guarantee everyone a fair trial. While we accept that the current austerity measures are a consequence of the financial climate, protecting the public, and ensuring criminal cases are dealt with fairly and justly, remain of the utmost importance.
“As a regulator, we seek assurances from the MoJ that the public interest will be a central factor in reaching decisions on the final shape of the legal aid fee structure. At the very least, these proposals should be subject to the democratic scrutiny of parliamentary debate to prevent lasting harm to the credibility of the criminal justice system.”
The Legal Services Board and Solicitors Regulation Authority both confirmed that they would not be responding to the consultation.