The legal profession needs to face up to “some hard facts” – including an oversupply of lawyers – that go beyond government plans for legal aid reform, justice minister Lord McNally warned yesterday.
He also said that opponents are wrong to claim that 1,200 criminal law firms will disappear as a result of the changes.
He was responding to a debate on the legal aid proposals which was initiated by Bar Standards Board chair Baroness Deech and saw a string of peers – mainly, but by no means exclusively, lawyers – express deep concerns about and opposition to the reform agenda.
Lord McNally said there continues to be oversupply in both parts of the profession, “with too many lawyers chasing a limited amount of publicly funded work”.
He continued: “Lawyers themselves have to address the further issues of quality and consolidation which will remain long after this present argument has been settled. Alternative business structures, the Jackson reforms, no-win no-fee, damage-based agreements and conditional fee agreements, will all impact on the organisation and structure of the profession.
“There are wider issues, such as a lack of social mobility and diversity which cannot be solved simply by tweaking the legal aid scheme.”
The Liberal Democrat peer said that “in some ways I have been disappointed at the way in which those who have responsibilities in these areas have refused to engage with these fundamental issues”.
He agreed with barrister Lord Marks of Henley-on-Thames QC that there needs to be “a new settlement” on legal aid.
Lord Marks said: “The starting points are that we recognise the need to save money in this area and that the professions must recognise that the government do not owe them a living. However, the government must accept that the professions are not simply special pleading but have genuine and justified concerns about access to justice for the many who need, but who cannot afford to pay, lawyers.
“Of course, they include the most vulnerable in our society, but we should not forget that they also include millions of ordinary people who can meet their day-to-day expenses but cannot afford the sudden demands of expensive legal costs for them or their families.”
Lord McNally also argued that “much of what has been said about our proposals on price competition has quite simply been false. The debate has been dogged by a baffling conflation of the government’s intention to manage the criminal legal aid scheme, through around a quarter of the current number of contracts, with a mythical intention to see only around a quarter of the present number of firms”.
The Transforming legal aid consultation said that whilst it was encouraging consolidation, those providers that do not win contracts under tendering may still have a future as agents in the relevant procurement area.
“Giving providers the opportunity to be more flexible in the way they structure their business and in doing so deliver the service, whether that is through joint ventures, use of agents or ABS is also essential if a more efficient and cost effective criminal legal aid system is to be established,” it said.