THE BLOG
03/07/2013 05:01 BST | Updated 01/09/2013 06:12 BST

Legal Aid: The Questions That Grayling Must Answer

Chris Grayling may have been forced into a humiliating climb-down on his plans to eliminate client choice from criminal legal aid, but don't jump for joy just yet. It's just one battle in a war on many fronts. Other aspects of his legal aid reforms are just as egregious and he shows no sign of backing down on them.

Today, Grayling will be appearing before the Justice Select Committee for a grilling by a panel of MPs. Questions that MPs on the committee should ask him include:

Criminal legal aid

Will the new legal aid contracts still incentivise guilty pleas?

According to the consultation document, the contracts will offer a fixed fee for all cases, so lawyers get paid the same rate when the client pleads guilty as when they don't, even though the latter are for more difficult and time-consuming. This could lead to pressure on clients to plead guilty creating a risk of miscarriages of justice.

What is the extent of his new-found commitment to client choice?

Will client choice still extend to the right to change your representation during the course of the investigation/prosecution if the defendant is concerned about the quality of their legal advice?

How many providers will defendants be able to choose from in the post-price competitive tendering world?

Price competitive tendering means that large legal aid contracts will be auctioned to the cheapest provider. This will bring about a consolidation in the market as smaller firms unable to beat bigger providers on cost for a major contract are unlikely to survive a failed bid. While some choice is better than no choice, will that choice be between Serco and G4S?

Is he still committed to setting the ball rolling for the tendering process in autumn 2013 - a timescale so tight that it confers an automatic lead to the "usual suspects" of public sector tendering?

Small solicitors firms are going to have to band together to deliver the back office savings that will make their bids price-competitive enough, but are going to have hardly any time to do this. Initial proposals will have to be ready by November this year and finalised by February 2014. Companies such as G4S and Serco have lots of experience doing this and so will have a headstart.

Civil legal aid

Grayling's letter to the Committee chair only dealt with his proposals for criminal legal aid. The Ministry of Justice also wants to make a number of drastic changes to what's left of legal aid for civil cases, in particular judicial review - the mechanism by which members of the public can challenge public bodies that act outside of their powers. He also wants to impose a residency test for legal aid claimants from outside the UK and to take legal aid away from prisoners in matters concerning their treatment inside.

Is he going to press ahead with changes to legal aid for judicial review that even government lawyers and the attorney general himself have warned will damage the justice system?

In an unprecedented move, the government's own lawyers wrote to the Attorney General, Dominic Grieve, to say that the changes were "unconscionable" and "impossible to reconcile with the rule of law". Grieve wrote back, describing the Bar's criticism of the plans as "thoughtful yet powerful" and urged it to use the consultation exercise to explain "why these proposals will damage the justice system and what the overall impact will be."

Is he still committed to refusing legal aid for the preparatory work for judicial review?

Grayling wants to abolish legal aid for all work done by lawyers on a case prior to it being given permission to proceed. However, this preparatory work, which underpins the bid, is often the most labour-intensive stage of the process. Removing legal aid from this is basically a sneaky way of removing it altogether.

Is he still committed to refusing legal aid to test cases?

These are cases where the law is uncertain and it could be argued either way. They are cases at the cutting edge of our constitution. They are about where government power ends and freedom of the individual begins. It's these cases that tend to lead to landmark judgements. Removing legal aid from these cases will give the government a free rein to come up with new ways to abuse its power.

Is he confident that the changes will even deliver the savings he says they will?

For example, if prisoners can no longer challenge what category of prison they are kept in, more prisoners will be kept inappropriately in more expensive high-security detention for longer. This is just one example of how great care will have to be taken to make sure that these cuts are not false economies that just cause bottlenecks elsewhere in the system.

An exhaustive list of questions raised by this deluge of half-baked, ham-fisted reforms would run into many volumes, so I have outlined just a few. I'm sure the committee will have more. Whatever they do, they'd better not let him off the hook.