Evidence submitted by the Criminal Law
Solicitors' Association (CLSA)
1. INTRODUCTION
1.1 This submission to the Constitutional
Affairs Committee of the House of Commons on its Enquiry into
legal aid is submitted by the Criminal Law Solicitors' Association
of England and Wales (CLSA).
The CLSA represents 1,500 criminal law duty
solicitors outside London and the London Criminal Law Solicitors'
Association (LCCSA) represents over 850 duty solicitors in London.
There are approximately 3,000 firms with criminal law contracts
and the Associations represent the majority of contracted firms.
1.2 The CLSA works in close association
with The Law Society, its Chairman, Vice-Chairman and Director
are members of the Council of The Law Society, and members of
the National Committee of the CLSA are also on the Access to Justice
Committee (Legal Aid) and Criminal Law Committee of the Society.
1.3 The Submission prepared and submitted
by The Law Society has been considered by the CLSA and, indeed,
some members were involved in its preparation. We will therefore
restrict ourselves in this Submission to dealing with a few discreet
or additional points which are of concern to criminal law solicitors
in particular. That having been said, there is a good understanding
of many of the issues surrounding the provision of civil legal
aid since many criminal law firms also have contracts to undertake
civil legal aid work.
2. THE CHANGING
LANDSCAPE
2.1 Twenty years ago and more, the provision
of legal aid was an adjunct to legal services offered by High
Street solicitors throughout England and Wales. The concept then
was that legal aid would supplement the cost of the provision
of legal advice or assistance in most areas of legal work and,
given the eligibility rates at the time, a large number of people
qualified for help subject to a contribution towards the costs.
2.2 Predominantly since the creation of
the Legal Aid Board and then with the creation of the concept
of franchising, and subsequently contracting, the way in which
Law firms operate has changed. Whilst franchising and contracting
have brought with them improvements in quality of advice, they
have also brought specialisation and increasingly the concept
of "legal aid only" Law firms. In some areas of the
country there are now relatively few mixed practices undertaking
private client work as well as legal aid. Instead the legal aid
firms are operating much closer to the law centre model which
was being developed in the late 1960s and early 1970s. With franchising
and contracting so there have developed accreditation panels and
specialist legal advice and, in the case of criminal law, it is
now a requirement (with minor exceptions) that solicitors should
be accredited duty solicitors—an extra qualification—before
they can undertake criminal legal aid work. At the same time that
this evolutionary process has been happening the rates of remuneration
have largely remained static.
2.3 Incentives for legal aid practitioners
to continue legally aided work could be started simply and cost
free. The CLSA has regretted the occasions on which members of
the Government and others have made unnecessary and disparaging
comments about legal aid solicitors. Comments which are wrong
in fact and serve no-one well. It is significant that, of late,
some Ministers have been at pains to acknowledge the devoted low-paid
work of the legal aid lawyer. The public perception of value for
money received from those working within the Community Legal Service
and Criminal Defence service can be readily enhanced by more careful
and balanced choice of expression in referring to what is now
almost a state service.
2.4 Addressing the issues of entrants into
the profession interested in undertaking legal aid work as a career
is something which professional Associations such as the CLSA
and The Law Society have been attempting to address. As long as
legal aid is seen as the poor relation in legal work, with long
hours to be worked, little or no career structure and poorly paid,
the situation is unlikely to improve. Law schools and universities
are realistic about prospects for students and, whilst pro bono
work or other community help is often organised by learning institutions,
a career in legal aid work is not encouraged.
2.5 The difficulties in recruitment are
only the beginning of the problem. Even those firms who manage
to find a trainee and nurse them through to qualification, often
find that the newly qualified solicitor will move to other fields
such as conveyancing or private family law work where they are
likely to be paid more. If they are retained within the law firm
then many of them do not wish to become involved in the running
of law practices by becoming partners because of the financial
risks involved with bank overdrafts and the prospect of a limited
contract from the Legal Services Commission.
2.6 The recruitment problem is now so great
that many firms report that no matter what salary and benefits
they may offer (within the firms range of affordability), the
vacancy remains unfilled.
2.7 It is worthy of note that the recruitment
issue is something which the Legal Services Commission has acknowledged
in its Annual Report and has confirmed as a problem in setting
up the Public Defender Service pilot offices.
2.8 The average age of the members of duty
solicitor schemes around the country is increasing and will, in
a few years time, possibly reach a level where the schemes may
become unstable if not unsustainable.
3. VALUE FOR
MONEY
3.1 Since 1993 there have been three occasions
only when there has been any upward review of the rates of remuneration
and in those eleven years, the total increase amounts to less
than 5%. In that time office expenses have increased by a figure
greater than 60%.
3.2 In criminal law work the average cost
per case, following the introduction of fixed fees some ten years
ago, has remained relatively static. It is also true that with
more people being helped, the total cost of the Criminal Defence
Service has continued to increase. The response by government
has been that the extra cost of that increase means that there
can be no review of rates of remuneration. The same logic is not
applied in the health service. If more operations and treatment
is carried out, there is not a resultant pay freeze for staff.
3.3 The reason for the increase in the costs
is that the larger numbers of people being arrested and going
through the Courts are eligible for, or being granted, legal aid
to be represented. The large increase in the numbers of people
in prison is indicative of the additional burden on the Courts
and pressure on the legal aid budget.
3.4 More people are now entitled to free
criminal legal advice than before 1998 as a result of changes
aimed at speeding up the through-put of cases in the courts. Changes
to create an extension of Advocacy Assistance and then the abolition
of the means test were not properly piloted and their cost consequences
little understood. Whilst the legal profession was happy at the
increase in the numbers of people that could be helped in the
criminal process it was not surprised when the provision of that
assistance resulted in increases in legal aid spend. We have urged
both the Legal Services Commission and the Department to fully
research the cost and other consequences across the criminal justice
system before introducing major changes.
3.5 It is not acceptable year on year to
say that the provision of the service is costing more and as a
result the rates of payment for that provision of service cannot
be increased. The CLSA is anxious to join in discussing ways in
which that spiral of decline may be tackled effectively.
4. THE PROVISION
OF A
PUBLICLY FUNDED
SALARIED SERVICE
4.1 The CLSA has watched with interest the
development of the Public Defender Service pilot offices. Members
of the PDS are members of the CLSA.
4.2 Whilst the detailed research report
will only be available at the conclusion of the four year pilot
(over a year from now) the early indications are, from the Annual
Report of the PDS, that average costs are substantially higher
than in the private sector.
4.3 The CLSA has, however, had concern in
respect of two main areas:
(a) Public confidence. The independence
of the defence lawyer is a cornerstone of an effective adversarial
judicial system. Whilst the CLSA has no concerns as to the independence
of the PDS in its current form, there may not be the same public
confidence for an enlarged national body, perhaps of the same
size as or larger than the Crown Prosecution Service
(b) A recent report into the pilot undertaken
for the Scottish Public Defender Service Office has shown that
although their clients pleaded guilty earlier they did not get
better sentences as a result and more of their clients were convicted.
Such evidence is going to be damaging to the public confidence
irrespective of the likely additional costs.
The CLSA does see a role for considering revised
processes of contracting and finance for the provision of criminal
defence services and is already in discussion with the Legal Services
Commission about such possibilities.
5. CONCLUSION
5.1 In this Submission we have restricted
ourselves to some additional comments beyond those already submitted
by The Law Society. There has been considerable uncertainty for
criminal legal aid lawyers throughout the last year as a result
of the early termination of the general criminal contract by the
Legal Services Commission and the publication of a large number
of consultation papers by the DCA without decisions or announcements
being made subsequently. Indeed, in June last year, the then Lord
Chancellor asked for representations by way of consultation as
to rates of remuneration. The closing date for those responses
was the 31st July 2003. To date there has been no response from
the Department.
5.2 On the 28th January 2004 approximately 500
solicitors attended a meeting at the Conway Hall, Red Lion Square,
London to discuss the issues facing the profession including a
suggestion from the Legal Services Commission that there should
be a dramatic reduction in the number of firms with whom it contracts
in the London area (referred to as a cull). There is no suggestion
that there is an over-supply of solicitors. There is simply, apparently,
a hope that solicitors will leave the practices that are not successful
in retaining contracts and join those that are. There has been
some suggestion that there may be a move in some large metropolitan
areas towards competitive tendering. The CLSA is most concerned
at this suggestion where there are inevitably to be losers in
the tendering process. It is likely that the losers in that process
will simply go to work in other branches of the law, reducing
still further the number of solicitors available to undertake
the work. If competitive tendering is to be considered as an option
then it should be restricted to a pilot of fixed duration in a
specific area of law so as to fully understand its workings and
long-term consequences before progressing further. The system
is too fragile to withstand inappropriate decisions based on guesswork
or assumptions.
5.3 Virtually every change in the legal
aid system is undertaken as a result of a crystallised idea and
often without research. The result is often unexpected. It is
worthy of note that the abolition of the Means Test for Representation
Orders in the Magistrates Court in 2001 (which came as a surprise
to the CLSA) has resulted in the granting of more Representation
Orders and it is now proposed, on the Minister's recent statement,
that Means Testing should be reintroduced. Such decision-making
processes must change.
5.4 We look to a more cohesive, strategic
approach to the partnership which the Legal services Commission
seek.
Criminal Law Solicitor's Association
February 2004
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