The Government has wasted no time in pursuing its aim to review the legal aid system as promised in the Coalition programme for government published in May.

In a written ministerial statement to Parliament on 23 June, Secretary of State for Justice Kenneth Clarke set out the background of the Government’s immediate priority to reduce the financial deficit and encourage economic recovery. The main burden of the deficit reduction is to be borne by reduced public spending, coupled with the most efficient and effective delivery of public services. He said: “I am seeking to develop an approach to legal aid spending which balances these necessary financial constraints with the interests of justice and the wider public interest. We will seek to develop an approach which is compatible with fair and necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system, and our international legal obligations.” He concluded by stating that the government will consider the policy and intend to seek views on a proposed new approach in the autumn.

The Law Society had already fired its first shot across the bows in late May when it warned that plans announced by the Chancellor of the Exchequer to cut the Ministry of Justice budget by £325 million must not include front line legal aid services at a time when the public needs them the most. This warning came after a recent YouGov poll revealed public support for legal aid. The research, conducted on behalf of legal research company Jures, showed that over two-thirds of consumers backed publicly funded legal advice through the legal aid system for those unable to afford a lawyer. Law Society President Robert Heslett said: “In a time of austerity, it is no doubt tempting to see legal aid as an area where cuts could safely be made without arousing voter concern, but this is precisely the time when legal aid services are most needed, to protect ordinary people from unfair decisions about issues on their employment, housing and benefit entitlement; more than that, to ensure that children receive the best representation in care and family cases.” He added that he hoped the necessary cuts would come from the Legal Service Commission’s own administrative costs and the fees of a very few extremely well paid barristers rather than funds required for legal aid. “We are urging the Justice Secretary to make savings in areas that will not deny the public basic legal rights.”

Up to 75% of criminal legal aid firms will be removed from the market under far-reaching reforms set to be implemented from summer 2011. The Ministry of Justice has announced new proposals for the tendering of criminal legal aid services with the aim of delivering significant savings to taxpayers and a more sustainable future for the legal aid budget It is claimed that the proposed new tendering process would also lead to greater efficiencies for suppliers enabling them to be profitable and sustainable, whilst ensuring that legal aid is available to those most in need.

The proposals would see the criminal legal aid market restructured so that there are a smaller number of large contracts contracted across a Criminal Justice Area, with multiple contracts let in each CJS area. In future there are likely to be no more than eight to ten contracts per CJS area. Arguments are advanced for moving quickly towards a consolidated market that will enable firms to remain viable through access to greater volumes of work. Individuals would continue to have a choice of legal representatives from among the pool of providers who hold contracts. Under the proposed model, contracts would be let for the full range of criminal defence work from the police station through to the Crown Court, with cases followed through to their conclusion. All contracts would include a share of police station and magistrates’ court duty work. The claim is that contract holders would therefore have greater access to the higher value, more profitable work, including the ability to undertake Very High Cost Cases.

In an interview with the ‘Law Gazette’, legal aid minister Lord Bach said: “These proposals are likely to affect a large number of small and medium-sized firms, but the current arrangements are unsustainable. Solicitors have been telling us for some time that the amount they get from legal aid is not enough to keep them profitable. These plans will generate greater efficiencies for suppliers, help people access good advice, and get a better deal for the taxpayer.” He estimated that no more than 500 firms will get contracts, which would mean that up to 75% of the 1,700 firms doing criminal legal aid work face an exit from the market. At the launch of the proposals Jack Straw said: “We have a duty to ensure that the legal aid budget is used effectively and efficiently on behalf of the taxpayer. Even with the necessary savings and reforms, our system of legal aid – civil and criminal – will still be far and away the best funded in the world.”

Responding to the new proposals, Law Society President Robert Heslett said: “We have long argued that the current situation is not sustainable in the medium to long term. We agree with the Ministry that reform is needed”. But he added: “The model proposed by the Ministry bears little resemblance to the market as it is currently structured, and it is not clear how, nor how quickly any move to such a model could be implemented without causing serious disruption to service provision. We do not have an economic environment in which firms will find it easy to make the necessary investment to expand as much as would be required.”

The full text of the MoJ report “Restructuring the delivery of criminal defence services” can be found at:

http://www.justice.gov.uk/publications/docs/restructuring-delivery-criminal-defence-services.pdf

Students from low-income backgrounds can no longer afford to become legal aid lawyers, according to a recent report. Social mobility in the legal aid profession is increasingly being curtailed by the financial difficulties of training, and has reached critical levels. Legal aid is becoming a no-go area for ordinary people who want to become lawyers.

So states a report published this week by Young Legal Aid Lawyers (YLAL), an umbrella organisation formed in 2005 to represent the views of law students, solicitors, barristers and paralegals in response to growing concerns over the future of legal aid. Their report is in response to the Government consultation paper ‘New opportunities: Fair Chances for the Future’ and The Panel on Fair Access to the Professions’ report ‘Unleashing Aspirations’.

YLAL claim: “The reasons why social mobility is particularly lacking in the legal aid sector include the lack of subsidised training opportunities, low salaries, and the almost ubiquitous requirement for entry-level candidates to have copious work experience in legal aid, which inevitably can normally only be obtained on an unpaid basis. The result is that those from low-income families cannot afford to become legal aid lawyers and the legal aid profession is therefore becoming less and less representative of the people it serves: those without means”. The recent reforms to the legal aid system have led to a total dearth of training opportunities in the legal aid sector. A few firms continue to take on trainees every year, but these placements have become increasingly competitive. YLAL research showed that a total of 300 or 400 applications per placement is not uncommon, that practitioners are leaving the legal aid sector in droves and that many firms are closing, with no new firms opening. They are also very concerned about the exorbitant costs of undertaking professional qualifications.

According to YLAL the situation is exacerbated by the low rates of remuneration within legal aid. The Law Society recommended minimum wage for trainee solicitors is £16,650, rising to £18,590 in London. Upon qualification, solicitors can expect to earn less than many key workers and in fact most other workers in general. As mentioned in last November’s blog ‘Legal Aid Funding Reforms – Law Society says NO to more fee cuts’, a survey published by the ‘Guardian’ showed that legal aid solicitors earn on average £25,000 per annum – far less than GPs (who earn more than double) and teachers – and less than social workers, nurses, prison officers and sewage plant operatives. The national median salary is £25,816 whereas the median salary for public sector workers is £27,686.

YLAL make 13 recommendations, which include: an immediate review of the prohibitive costs of professional courses required to access the legal profession; an increase in the number of LSC sponsored training contracts; ongoing support and incentives to all firms that demonstrate a commitment to taking on trainees; and improved assistance to parents and others who support a family, who wish to enter the legal aid profession. They conclude: “If our recommendations are not taken on board, increasing restrictions on legal aid means that we risk creating a system where those who cannot afford to pay for legal help are reliant on an unrepresentative cohort of legal aid lawyers…The absolute right to free legal advice from a lawyer of your choice is an essential part of meaningful access to justice”.

 The full text of  “Legal aid lawyers: the lost generation in the ‘national crusade’ on social mobility” can be found at:

 http://www.younglegalaidlawyers.org/files/YLAL_SOCIAL_MOBILITY_REPORT_FEB_2010.pdf

The National Audit Office’s latest report to Parliament on the procurement of Criminal Legal Aid in England and Wales will make uncomfortable reading for the Legal Services Commission.

In 2008-09 the Commission spent more than £1.1 billion on criminal legal aid, £112 million of which was spent on 432 Very High Cost Criminal Cases.  871,000 acts of assistance at police stations and 125,000 acts of assistance at the Crown Court were funded. The LSC spent £22 per capita on criminal legal aid, more than any other comparable developed nation except Northern Ireland. At the other end of the scale France spent £0.9 per capita, though differences are partly attributable to the greater defence costs inherent in an adversarial legal system, in contrast to jurisdictions where judges play a greater investigative role.

The NAO found that the data used by the LSC to make payments for criminal legal aid services is inaccurate and incomplete. The existing controls over the quality of data and the accuracy of payments made to firms are not effective, and the impact of reforms has not been evaluated consistently. At present, gaps in the LSC’s knowledge about its supplier base mean that it has not developed a good understanding of the market, such as the cost structures of different types of firms and their profit margins. The NAO concluded  that “there are significant weaknesses in the way criminal legal aid has been administered…New schemes have not always been piloted…(and) the Commission’s ability to make payments to criminal legal aid suppliers is undermined by poor administration”.

An NAO survey of 369 firms delivering criminal legal aid found that it accounted for almost 60 per cent of turnover. Firms reported an average profit margin of 18.4 per cent in the last financial year, a fall from 21.6 per cent three years ago. They reported a wide range of profits, with 16 per cent of firms reporting no profit in the last financial year. Almost 80 per cent of firms which also conducted private legal work reported that criminal legal aid was less profitable, and firms which had withdrawn from contracts reported the main reason was that remuneration compared unfavourably with other types of legal work.  In their survey, 28 per cent of firms reported it unlikely they would be conducting criminal legal aid work in five years’ time, due mainly to lack of profitability and the prospect of tendering. The survey also revealed tensions in the relationship between the profession and the LSC. Of those who responded to the survey, 36 per cent of solicitors perceived the LSC as ‘unhelpful’, 29 per cent believed the LSC did not fully understand the legal system and 18 per cent cited the Commission’s “constant change of the system, processes and rules.”

The Law Society has welcomed the report. Legal aid manager Richard Miller said:

“This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many of them are not even earning any income from the work they do at all. This is a picture of a supplier base on the point of crumbling into insolvency. It is those requiring access to justice who will lose out in the long run if there are not enough solicitors providing legal aid criminal defence services.” He called for a major overhaul of the system to simplify criminal defence contracts so that they are easier and less expensive for the legal aid solicitors and LSC to administer.

For the full text of the NAO report ‘The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission’ go to: http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx 

and follow the links.

The last blog looked at the proposals for legal aid reform. This item concentrates on one specific aspect of the proposed reforms, the reduction in police station fees.

The LSC currently spends £180m on police station advice and this spend is distributed across a network of police station duty schemes, all of which have separate fees. The claim is that there is inconsistency in the LSC’s current police station fees model. Quoted figures are that the fixed fee levels now in place vary widely across different schemes, between £140 and £340 per matter, including those that are geographically close to each other or have similar characteristics. Examples given are that fixed fees in London range from £249 in Bexley to £340 in Heathrow, while, in the Humberside criminal justice area, fees range from £163 in Scunthorpe to £226 in Goole. It was hoped that any inefficiencies in these fees would be resolved through best value tendering, but implementation depends on the pilot evaluation in 2012, with full roll-out not occurring until 2013 at the earliest. Therefore MoJ believe “that the current high levels of disparity in fees between areas should be narrowed now in order to reduce these in-built inconsistencies”.

The proposal is to rationalise the cost of police station duty schemes which combine the highest cost with the most oversubscription, excluding those areas that are best value tendering pilot areas. A total of 88 police duty schemes have been identified which are oversubscribed by over 400 per cent. These schemes also have fees which are above the national median national fee of £200. These fees are to be reduced by around 11 per cent, with the preferred option to reduce fees in areas that are both over-subscribed and have above median fees. 50% of these areas are located in London. It is not apparently proposed to reduce exceptional case thresholds.

The Law Society has launched a robust rebuttal of the proposals but their case would be considerably strengthened if everyone involved added their views. The consultation poses two specific questions:-

Question 1: Do you agree that reductions should be made only against areas that are both over-subscribed with above median fees?

Question 2: Do you have any other suggestions that would tackle the fee inequalities and deliver the required savings?

Answer these questions by all means, but do not be restricted by their limited range. You have nothing to lose by giving your views and, just possibly, something to gain. As my mother used to say, it’s better to light one small candle than curse the darkness.
You have until 12 November to make submissions. The full text of the consultation exercise can be found at:-

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-reforms.pdf

Introducing proposals for legal aid reform last week, Legal Aid Minister, Willy Bach, said that the UK has one of the best funded legal aid systems in the world. He went on to say that “legal aid practitioners provide a fantastic service and should be paid accordingly; and that means rebalancing some fee structures so that there is greater fairness across the board. Today’s consultation paper sets out proposals to make better use of the legal aid budget and ensure access for as many people as possible”.

The proposals set out to rebalance the legal aid budget seek to ensure that the £2 billion currently spent every year goes as far as possible in favour of civil help for those who need it most. “Legal advice, in the fields of housing, debt, and welfare benefits, can solve people’s legal problems, with the result that their lives and lives of their families are improved. It can literally change people’s lives”, said Lord Bach. During the current economic downturn “more people who are homeowners, consumers, employees and those facing financial hardship, are vulnerable in ways that require them to use the civil law system”.

One proposal is to rationalise the rate of pay for barristers in Crown Court cases. On average, barristers acting for the prosecution receive 23% less pay than if they were acting for the defence. Ending the current duplication of fees, which remunerates litigators for preparation for committal hearing but which also remunerates the same litigators for consideration of the Committals Bundle in preparation for trial in the Crown Court, is also proposed, with one fixed fee to be paid out of the Litigator Graduate Fee Scheme. The anomaly by which practitioners in criminal cases receive a fee for file reviews which does not apply in civil cases is to be removed, with the ending of payments for criminal file reviews.

A particularly controversial proposal is the reduction in police station fees in the most expensive and oversubscribed areas. The Law Society is clear that many solicitors will not be able to provide a service if rates are reduced further. This will be particularly the case in London, where, it claims, solicitors work on the very edges of profitability. Many of the worst affected solicitors will be from the BME community, who provide important advice to members of that community, who are statistically more likely to be arrested. Des Hudson, Law Society Chief Executive, said: “Solicitors don’t create the demand for advice in police stations; they simply respond to requests from people who’ve been arrested… Arbitrarily cutting the fees that they are paid will reduce access to this vital service for the people who need it most”.

In addition, the Legal Services Commission have been asked to consider changes to payments made to experts in both criminal and civil cases. Currently, the legal aid budget pays different amounts for the same work by different experts and across categories of law. The change would see payments standardised “to ensure better value for money”.
If you wish to have your say, you have until 12 November 2009, when the consultation will close. Following consultation, MoJ intend to publish their response by December 2009. The full text of the consultation paper ‘Legal aid: funding reforms’ can be found at:-

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-reforms.pdf

Criminal firms have seen the introduction of fixed fee schemes for police work and a standard fee system in magistrates courts following a review of legal services by Lord Carter three years ago. Now the consultations on proposals for competitive tendering by criminal defence work firms have come to an end, with solicitors’ firms across the country voicing strong opposition to the proposed system.

The Law Society, the Bar Council and the Criminal Bar Association are all gravely concerned about BVT as currently proposed by the LSC, involving a limited scheme which would cover lower crime work in police stations and the Magistrates’ Courts. This would probably be extended should it prove successful. BVT involves competitive tendering based on price for criminal defence work, as solicitors’ firms will bid for blocks of work, with the lowest bidder getting the work. Strong concerns are expressed that criminal legal aid firms could be drastically reduced, meaning the number of firms available to clients will diminish, as the already financially vulnerable supplier base is put at risk. “The widespread use of BVT is likely to… deny clients access to many competent and dedicated solicitors who want to serve them. The bidding processes proposed are opaque and not suited to the commissioning of professional services, where the freedom of the individual is put at risk”, said Paul Marsh, Law Society President.

In their response to the proposals, the Law Society said that they will have a hugely detrimental impact on the quality of representation in police stations, and thereby damage the criminal justice system as a whole. Of equal concern is the failure to conduct a full and proper impact assessment, taking account of the potential disproportionate impact on women and BME practitioners. Desmond Browne QC, the Chairman of the Bar, said that “we cannot afford to sacrifice the present robust system for a scheme which lacks all economic justification, and which will have a disproportionate impact on BME practitioners. The LSC’s failure properly to assess the impact on BME practitioners is potentially discriminatory and may be unlawful; it has a statutory duty to avoid discrimination and promote equality of opportunity, and it has comprehensively failed to comply with this requirement”.

Speaking at a conference organised by the Legal Action Group to celebrate 60 years of legal aid, justice department minister Lord Bach said that BVT is “not a simple cost cutting exercise. It’s aimed at securing a sustainable, effective and efficient supplier base”. In an interview with the ‘Guardian’ he acknowledged that his policies are deeply unpopular among many former colleagues, adding that “I have to do what I can to ensure the legal aid is spent in the best possible way, and that’s what I’m trying to do.”

The Law Society’s response to the Legal Services Commission’s consultation on best value tendering for CDS contracts 2010 can be found at:-
http://www.lawsociety.org.uk/secure/file/180185/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/bvt_response180609.pdf

I reckon that the busiest groups of civil servants currently are those monitoring Government sponsored consultation processes. Under the present Government there are literally hundreds of consultations launched every year. The official line is that consultation is about making government more open and policies more effective by listening to and taking on board views of the public and interested groups, and has become an integral part of the policy-making process.

And here comes another, launched by the Ministry of Justice, which department alone has over 80 consultation exercises in progress at the moment. It concerns proposals to reform the way costs from central funds are awarded in the defence of privately funded defendants acquitted in criminal cases in England and Wales. This is in the context that the Government is committed to the principle that state funding in the form of legal aid should be available to individual defendants who cannot afford to pay for their own representation. “But it also believes that those who can afford to pay towards the cost of their defence should do so. For these reasons, means testing was reintroduced in the magistrates’ court in 2006 and we are currently consulting on a pilot of means testing in the crown court.” Changes are not proposed to the current arrangements for private prosecutor, witness, medical expert or interpreter costs, which are also paid from central funds.

What is being proposed is that, in future, any individual who does not apply for legal aid in defending their case would no longer be able to receive back their legal costs from central funds. This would be a reversal of the practice that those found innocent of charges brought by the state are compensated for the costs they have incurred in defending themselves. Under the Prosecution of Offences Act 1985, if an individual pays for their defence privately they can usually reclaim reasonable costs and expenses from central funds if they are acquitted. An interesting, if debatable, analogy with private education is offered in support. “Just as an individual who chooses to put their child through private education does not reclaim this cost from the education system, nor should public funding recompense those that choose to pay privately for a lawyer when a publicly funded alternative is available.”

According to ‘The Times’, the proposals have prompted outrage. Frances Gibb reports that, amongst others, motoring groups and lawyers have criticised them as a fundamental breach of principle. She quotes Edmund King, president of the AA, as saying that the proposal is “against the common law and against the common man”; and Ian Kelcey, head of the Law Society’s criminal law committee, as condemning the proposal as a “disgrace.”

The consultation will close on 29 January 2009. Full details are available at
http://www.justice.gov.uk/docs/award-costs-central-funds.pdf

If you want to see the full range and extent of current consultation exercises, navigate your way round
http://www.direct.gov.uk/en/Governmentcitizensandrights/UKgovernment/PublicConsultations/DG_4003113

The Legal Services Commission (LSC), after lengthy discussions with the Law Society, has agreed a number of changes to its legal aid proposals. The Law Society is holding free events to update civil and criminal legal aid practitioners and:-

• To explain the terms of the settlement secured by the Law Society from the LSC/MoJ.
• To inform legal aid practitioners how these changes affect them and to help them understand the business implications of the new structures.
• To hear from practitioners their view of the future of their legal aid work and to explore how the Society can support them as they prepare for that.
• The way forward on achieving a sustainable future: what the Society is continuing to do to tackle ongoing concerns about the legal aid system.
• Information on help and support available from the Society.

The timing of all the events is 17:30 – 19:30, with registration and refreshments at 17:00. A speaker at every event is Richard Miller, now Legal Aid manager for the Law Society, formerly head of the Legal Aid Practitioners Group (LAPG). He is accompanied by any combination of Andrew Holroyd, president; Paul Marsh, vice president; Bob Heslett, deputy vice president; and Des Hudson, chief executive, depending on the location.

Some events have already been held, but those still outstanding are:-

Bristol – 29 April – Armada House, Conference Centre, Telephone Avenue, Bristol.

London – 30 April – Law Society Common Room, 113 Chancery Lane, London.

Llandudno – 6 May – North Wales Theatre & Conference Centre, The Promenade, Llandudno.

Nottingham – 7 May – Castle Suite, Rutland Square Hotel, St James Street, Nottingham.

Cambridge – 8 May – Homerton College, Hills Road, Cambridge.

Wakefield – 12 May – Cedar Court Hotel, Denby Dale Road, Wakefield.

Manchester – 13 May – Park Suite, Ramada Manchester Piccadilly, Piccadilly Plaza, Manchester.

Newcastle – 15 May – Conference Room Central Square, 4th Street, Newcastle-upon-Tyne.

To book a place you are advised to e-mail: regionalsupport@lawsociety.org.uk quoting ref: ZZZ/CELS and the location. Places are limited and will be allocated on a first come, first served basis.