Conclusions and recommendations
BACKGROUND
1. The
Criminal Defence Service budget is demand led. Increases in spending
on criminal legal aid reduce the availability of money for civil
help and representation. Provision for civil legal aid has been
squeezed by the twin pressures of the Government's reluctance
to devote more money to legal aid and the growth in criminal legal
aid, as well as the cost of asylum cases. Whatever action the
Government may take to reduce the financial impact of asylum cases
on the legal aid system, it is likely that the growth in criminal
legal aid will continue to be a burden. There may be scope for
bearing down on the cost of criminal legal aid by better case
management and a new criminal procedure code. The Government should
ring fence the civil and criminal legal aid budgets so that the
funding for civil work is protected (as immigration work is) and
considered quite separately from criminal defence funding. (Paragraph
13)
2. It is vital for
the Government to ensure that part of the cost calculation of
policy initiatives includes an assessment of the impact on the
legal aid budget and that there is adequate liaison between the
Constitutional Affairs Department and departments such as the
Home Office which legislate in relevant areas. This is a key recommendation;
we expect the Government to be able to demonstrate that it has
significantly improved its system for ensuring that legislative
changes proposed by departments are costed to take into account
the full impact on the legal aid budget. (Paragraph 15)
3. When making its
forward planning for matter starts, the Legal Services Commission
must take into account the need for solicitors' firms to make
similar forward planning. It is entirely unreasonable to expect
solicitors' firms to be able to function without making such forward
business plans. (Paragraph 29)
4. Despite the factors
raised by the Legal Services Commission, we are satisfied that
there is still ample evidence of unmet demand. When there is no
evidence of reduced demand the number of people helped is a key
indication of how successful the system is. It is unacceptable
that the system is helping fewer people. (Paragraph 35)
IMPACT ON SUPPLIERS
5. The
evidence on the difficulties of recruiting solicitors and barristers
to legal aid work and retaining them underlines one of the most
serious threats to the provision of publicly funded legal advice.
The significant trend of young lawyers away from legal aid work
puts into question the future of the civil legal aid system. (Paragraph
49)
6. There is a role
that "outreach" programmes can play in adding to the
range of services giving advice to the public. The details of
their implementation are, however, of crucial importance. They
can be an effective complement to other services if they encourage
people to take advice who might be reluctant for any reason to
consult a solicitor or who do not know how to go about seeing
one. "Outreach" programmes can provide good cover for
legal advice in a wide range of cases. If proper use is to be
made of such facilities, they must not be irregular or infrequent
and they must integrate properly with other legal services to
enable proper referral. (Paragraph 53)
7. We are in no doubt
that the term "advice deserts" reflects the concerns
which exist in some geographical areas and in some fields of law
where advice is not readily accessible. (Paragraph 61)
8. If it is the policy
of the Legal Services Commission to deal with fewer firms, this
creates a number of problems. For example, if fewer solicitors'
firms have contracts the problems of supply in rural areas will
be exacerbated, especially in family law disputes which require
different solicitors' firms for each of the parties. In time,
the limited sourcing of legal aid work to fewer firms may result
in higher fees being charged, since the bargaining position of
the Department will be weaker. Fewer contracts with firms would
involve the loss of investment in resources which the current
body of experienced, trained and motivated legal aid practitioners
represents. Once these valuable practitioners are lost, they will
be hard to replace. (Paragraph 67)
9. At present, it
is possible to take advice from a wide range of firms in which
there is a good general spread of expertise. Over-specialisation
in certain areas of legal aid work may tend to prevent solicitors
from providing a holistic approach to the advice given, unless
steps are taken to avoid this. Although specialisation can provide
a concentration of expertise which allows a better service to
be given, firms must be able to offer a "joined up"
service, since many people turn to solicitors with a series of
connected problems that require expertise in different legal areas.
For example, a divorce may result in debt problems, mental health
problems and, perhaps, housing problems. (Paragraph 68)
10. There is a serious
risk that if legally aided work is associated with very low fees,
this may have a serious impact on the quality of people who undertake
legally aided cases. The problems that are faced by clients who
require legal aid support are often of the most complex variety.
Many vulnerable citizens have problems which come in "clusters".
It is vitally important that they have access to justice which
can only be guaranteed by recourse to fully competent advisers.
(Paragraph 75)
11. Those who receive
public money for providing a public service need to maintain proper
professional standards. However, the current system of auditing
solicitors costs is arbitrary, inaccurate and bureaucratic. Furthermore,
it is not linked to quality of advice given. It is clearly punishing
competent and honest solicitors and is operated in a way which
completely fails to attract the support of the profession. This
is the most serious criticism of the current system for managing
legal aid work that we have found. A solution is urgently needed.
(Paragraph 87)
12. The principle
that two successive category "3" marks means automatic
loss of contract—"two strikes and you are out"—is
unnecessarily draconian. Even if it were based on a recognisably
fair system it would be harsh, but the combination of this rule
with the arbitrary application of the LSC's rules make it unacceptable.
A similar mark should begin a process of consultation and assistance
which would help solicitors, who may be providing a perfectly
good service to the community, to improve their management systems.
Simply eliminating them from the list of contract holders is wasteful
and counter-productive. (Paragraph 89)
13. Peer review has
been accepted by all parties as providing an appropriate means
of audit for practitioners. If properly implemented it should
reduce bureaucracy and provide a much clearer picture of the value
of the service provided. (Paragraph 94)
14. We were impressed
with the strong commitment of many of the solicitors and advice
sector workers whom we met. The public service which they carry
out deserves wider recognition, as they are often the only barrier
between a citizen and complete denial of legal rights. A proper
system of access to justice for all the community depends entirely
on such professionals. (Paragraph 95)
15. We think that
the idea of financial support for those newly qualified entrants
into the legal profession who will provide publicly funded legal
services is a good one. Initiatives of this kind will become a
necessity in order to ensure the public service provided by legal
aid solicitors is maintained. We commend the work by the Legal
Services Commission in developing policy in this area. (Paragraph
101)
IMPACT ON CUSTOMERS
16. At
present, the legal aid system is increasingly being restricted
to those with no means at all. There is a substantial risk that
many people of modest means but who are homeowners effectively
will fall out of the ambit of legal aid. In many cases this may
amount to a serious denial of access to justice. (Paragraph 105)
17. It is not acceptable
that in employment cases employees can be forced to represent
themselves in circumstances where private employers are able to
employ lawyers to represent them. If proceedings are to be fair,
there needs to be equality of arms. Legal aid should not automatically
be excluded from such tribunal hearings. (Paragraph 111)
18. Any system of
civil legal aid must cater for the most vulnerable in society.
These are the people whose problems may often to come in "clusters".
They also include some of the people who are most likely to suffer
from "referral fatigue". We believe that the current
system of referring people results in many people giving up on
legitimate claims. (Paragraph 114)
BROADENING MEANS OF PROVISION
19. There
is considerable scope for employing knowledgeable advisers who
are not solicitors to give advice in specific areas. Often such
advisers are at least as good as or better than solicitors in
providing for the needs of clients in their area of specialism,
for example, welfare benefits or debt. Law Centres provide an
established example of how such advice can successfully be provided.
(Paragraph 118)
20. Non-independent
sources of advice can only be a complement to and never a replacement
for services available from solicitors and independent advice
agencies. Ideally, they should be independent of the organization
against which the citizen is claiming and they should not be the
only avenue of advice. (Paragraph 121)
21. More research
on the viability of a salaried service should be undertaken, following
assessment of the LSC's Public Defender Scheme. If any salaried
system is introduced it must be properly funded. (Paragraph 131)
22. Legal Expenses
Insurance can be useful as a supplement to the Legal Aid system.
It has the advantage of already being available for some areas
of law or for specific purposes. If it were to be relied on as
an important addition to the general system of civil legal cover
it could to be part of the usual household insurance contract.
This might require an element of compulsion. (Paragraph 134)
23. We support the
view that telephone advice could be made more widely available
as a cost-effective source of first-stage advice. It is possible
that, in urban areas, face-to-face services would need to be expanded
to keep pace with the demand generated by referrals from telephone
services. (Paragraph 141)
24. New and alternative
technologies can complement services provided under the legal
aid system, especially when dealing with hard to reach groups.
They provide an important way forward for combining an affordable
system with quality advice. If their use is to be successful they
must integrate with the rest of the system to enable ease of access
for clients and transfer of files between advisers. They must
also receive adequate funding. Further research is needed on improving
electronic means of access to advice, in particular to enable
less literate groups to use information technology. (Paragraph
143)
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