For the first time its budget is to be capped and citizens denied free choice amongst competent solicitors willing to take their cases. Further, since criminal legal aid is to have budget priority, civil legal aid will only get what is left.
The Lord Chancellor was right when he told the Bar Conference in 1996 that "cost capping is unattractive in principle [and] would in practice become a discretionary benefit, available at bureaucratic disposal; a benefit which would have to be disallowed when the money ran out ... ".
The highly dirigiste system by which the Legal Services Commission will keep within the cap will reduce the 10,600 solicitors' offices which currently do legal aid to about 3,000 quality-assured firms. This will be primarily achieved by competitive block tendering, which, according to classical wholesaling assumptions, will enable the commission to buy bulk legal services at cut prices.
This is, however, cloud-cuckoo land (especially since the Government claims that quality will not be affected). Legal aid is already the lowest- paying work done by solicitors, yielding roughly half what private client work returns.
If all that is not enough, money claims (particularly personal injury ones) are to be excluded from legal aid on the basis that poor claimants can in future find solicitors to act under conditional fee agreements. But solicitors won't want difficult or low-value cases, and with soaring premiums for costs insurance, and pre-agreement costs to pay for, thousands of people will lose their chance of redress.
It is not even as if the Legal Aid budget is any longer "out of control". The existing regime has largely taken care of that and could go further if available checks and balances were better used.
The Law Society, the Bar Council, the Legal Action Group, the Legal Aid Practitioners Group and many experienced Labour lawyers are urging the Government to think again. It would be greatly to their credit if they did.
Lord PHILLIPS OF SUDBURY
House of Lords