Evidence submitted by JUSTICE
1. JUSTICE is an all-party law reform organisation
that seeks to advance justice, human rights and the rule of law.
It is also the British section of the International Commission
of Jurists.
2. JUSTICE welcomes the investigation by
the committee of legal aid which parallels that being conducted
internally by the Department of Constitutional Affairs (DCA).
The Access to Justice Act 1999 has now been in operation for over
three years and it is an appropriate moment to review the Community
Legal Service (CLS) and the Criminal Defence Service (CDS) which
it is established. This is particularly so because there is a
conflict of perception between:
(a)
the enthusiasm of the Department for Constitutional
Affairs. The Secretary of State told the Legal Aid Practitioners
Group: "I believe, in any balance sheet-style assessment,
the Act has been successful".[102]
(b)
concern on the part of the providers of the service.
In particular, Citizens Advice has stated that it "has serious
concerns about how effective the whole system of advice and representation
services which the CLS represents is at delivering access to justice,
human rights and social exclusion".[103]
HUMAN RIGHTS
AND ACCESS
TO JUSTICE
3. Human rights obligations underlie the
provision of elements of both the Community Legal and Criminal
Defence Services. It may be worth restating them. The primary
source is Article 6 of the European Convention, incorporated into
domestic law by the Human Rights Act. This states, as a general
proposition, that:
"In the determination of his civil rights
and obligations or of any charge against him, everyone is entitled
to a fair and public hearing."[104]
It then gives specific further rights to defendants
and suspects in relation to criminal proceedings, including the
right:
"To defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require."[105]
4. It is important to note that "equality
of arms" obligations under Article 6 relate not only to criminal
proceedings but, more generally to the determination of "civil
rights and obligations". The test is the capacity for "effective"
participation. This has, for example, extended to a requirement
that legal aid be provided for judicial separation proceedings
where, otherwise, a wife would have been severely disadvantaged.[106]
The EU Charter of Fundamental Rights states,
it might be noted, the obligation without reference to any distinction
between civil or criminal rights:
"Everyone whose rights and freedoms guaranteed
by the law of the Union are violated has the right to an effective
remedy before a tribunal . . . legal aid shall be made available
to those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice."[107]
5. Thus, there should be an over-riding
concern in any review of legal aid to ensure compliance with the
convention and to identify whether there are any types of civil
case where legal aid should be more available than is currently
the case. The Access to Justice Act 1999 contains a provision
which allows the Lord Chancellor to fund specific cases if requested
by the Legal Services Commission. The kind of cases that concern
us are those such as discrimination before the employment tribunal.
These are unavoidably complicated, often both in fact and law,
yet would normally be outside the range of cases usually funded.
The Committee might seek information on the extent to which this
provision has been used.
6. The Access to Justice Act 1999 introduced
major changes to legal aid—including impliedly abolishing
its name. The full consequences of this are still working themselves
out. In particular, the Act:
(a)
replaced the previous system of legal aid in civil
cases based on entitlement in accordance with statute and regulation,
with a discretionary structure based on a hierarchy of priorities
and capped expenditure;
(b)
created the Community Legal and Criminal Defence
Services with the Legal Services Commission to administer them;
(c)
substantially extended the purpose of civil legal
aid from assistance and representation, to include "the provision
of general information about the law, legal system and availability
of legal services;"[108]
(d)
gave the Commission a planning role and allowed it
to use contracts with providers to achieve its objectives; and
(e) allowed the Criminal Defence Service to provide
services through salaried employees or contracts with other organisations
as well as through private practitioners.
COMMUNITY LEGAL
SERVICE
7. Attached are statistics taken from the
annual reports of the Legal Services Commission and Legal Aid
Board. These needed to be treated with care and a variety of factors
can affect their usefulness—including changes in how they
are calculated or reasons for variations which are external to
the provision of legal aid eg change in court processes. However,
overall, they indicate the extent to which the creation of the
Community Legal Service has changed the face of provision. It
terms of "licensed work" or former legal aid certificates,
generally for court representation, the CLS has returned civil
legal aid to a primarily family law service. This was its structure
until the 1980s. The number of family certificates has risen slightly
since the Access to Justice Act 1999 was implemented. However,
the number of non-family certificates has plummeted, particularly
if taken over a five year span. In part, this is due to the removal
of personal injury cases, but not entirely. The fall in numbers
would have been even more dramatic if there had not been a rise
in immigration cases—reflecting the rise in applicants for
asylum.
8. Some of the decline in numbers would
seem surprising. Why should the number of consumer, debt, employment,
public law and welfare benefits cases have fallen since the CLS
was established? These are the social welfare law areas which
the government wished to prioritise. The falls may be an indication
that something is failing—whether it might be reduced accessibility
or the effect of low financial eligibility tests. Family law certificates
have not fallen which might suggest that the cause is not financial
eligibility. However, disproportionately more family certificates
will be given to children or to single or divorcing parents without
resources. So, there may be an eligibility issue to be addressed.
9. In terms of providers, the number of
contracted solicitors' offices remains around 5,000 with over
400-not-for profit agencies. This is a major shift in provision
for a scheme which was originally established by the Law Society
for solicitors.
10. The contracting of provision for controlled
work (largely advice and assistance) has allowed for a degree
of planning that was previously impossible; it has also allowed
the Legal Services Commission to deliver financial capping of
the civil scheme. However, it also provides the mechanisms by
which access to service is rationed by allocating in advance the
number of cases that may be begun ("matter starts")
and by limiting the number of providers. The number of overall
providers has fallen steeply over the last decade. It would seem
from widespread reports that there are problems of access in relation
both to:
(a)
"advice deserts", areas of the country
where there are no providers; and
(b)
areas where there are providers but where potential
clients are referred on because particular providers do not have
enough "matter starts" available. Since the Legal Services
Commission's own research[109]
indicates that there is a major problem with "referral fatigue"
and the consequent loss of referred clients, this would seem a
significant problem.
Citizens Advice, though also a provider, is
probably the most objective source of evidence on the problems.
Its report is damning: "Advice deserts are opening up, and
the infrastructure of the CLS is underdeveloped and unsustainable.
Fragmentation and desertification are posing serious challenges
to the long-term viability of the CLS . . ."[110]
Lord Irvine stated the underlying problem with
clarity:
"Cost capping . . . is unattractive in principle,
because legal aid would cease to be a benefit to which a qualifying
individual is entitled. It would in practice become a discretionary
benefit, available at bureaucratic disposal, a benefit which would
have to be disallowed when the money ran out, or when another
category of case was given precedence. Legal aid would cease to
be a service available on an equal basis nationally."[111]
11. Further, the shift of focus of the CLS
from litigation to advice needs scrutiny. It invites three questions:
(a)
Has there been a "dumbing down" of provision,
a shift of money from assistance with litigation to advice that
does not lead to action?
(b)
Has the shift of money towards advice engaged the
CLS in an area of need—for general advice—which, if
not infinite, is certainly massively large?
(c)
Has the CLS managed to fund advice at the appropriate
legal—rather than general—level.
These are issues that might be well suited for
examination by the LSC's Legal Services Research Centre.
Two other issues could be added to such a survey:
It should also be possible to repeat earlier
work and calculate what percentage of the population is eligible
for certain types of help and representation.[112]
This would give some indication of whether eligibility was at
acceptable limits.
The research centre has produced an excellent
report which takes forward work undertaken by Professor Hazel
Genn on surveying legal need.[113]
This could be developed by seeking to identify where the LSC can
get the largest effect from its expenditure.
12. The Law Society has advanced a new way
of funding providers—its "GP contract". Under
such a contract, the LSC would presumably buy the time of identified
personnel within a firm. The raises the compatibility of such
a model within a private practice environment which has historically
been somewhat business-oriented than that of the medical practitioners
upon which the GP model is based. It might be that such a contract
would work best within the not-for-profit sector where a countervailing
culture would continue to keep the personnel working to the maximum
extent. A not-for-profit organisation like Greater Boston Legal
Services in the United States provides a very good example of
an organisation which maintains high productivity and standards
within a contractual environment.
13. The sufficiency of remuneration is raised
by all providers—the not-for-profit sector, the Law Society
and the Bar. The government and the LSC may need to make explicit
the levels of payment for individuals during their career that
it finds appropriate at various levels of skill and experience
within the CLS. Inevitably, these are likely to be lower than
those within the privately funded sectors of legal services—though
they should be reasonable. The consequences of this need to be
faced. There is a manifest danger that the best lawyers will not
be attracted to legally aided work and that it becomes seen even
more as a second-class area of practice. The attraction of graduates
of an appropriate quality into public service is a more general
issue than just legal aid. The Commission has begun the process
of attracting applicants by subsidising their education. The government
may need to consider, more generally, whether there should be
programmes which allow for forgiveness of student debt if a graduate
is employed for, say, five years after graduation within the public
sector. In relation to law, this would be five years' full employment
or its equivalent within the CLS or the CDS.
14. The Access to Justice Act 1999 reforms
were intended to increase funding for public law matters and to
dovetail with the Human Rights Act 1998. There is every sign that
they have done so and the government is to be commended for such
innovations as expressly including a "public interest"
criteria within the merits decision on whether funding certificate
should be available.
15. Another commendable advance within the
structure of the CLS is the funding of informational material
and, in particular, the JustAsk website. This has recently been
revamped and seems to provide an increasingly sophisticated example
of what can be done with the format. It is particularly good at
taking an enquirer to a range of providers for advice. The problem
is, of course, that those who are most deprived are most unlikely
to be familiar with the net; have the necessary literacy and other
skills; and have easy access. It may be that the LSC should establish
a unit to lead on educational materials. There is, for example,
much experimental work on the web in the US which could benefit
from being monitored and copied. It is noticeable that an equivalent
of the LSC, the Legal Services Society of British Columbia has
maintained its information output even when cutting services direct
to clients.
16. Another commendable initiative, first
of the Board and continued with the Commission, has been the creation
of a regime of quality assurance with a quality mark. The Board/Commission
were able to take a regulatory role in relation to quality that
the Law Society was unwilling and/or unable to take. The commission
is developing ways in which this might now be carried out with
a "lighter touch". This is desirable. The specialist
mark has proved itself for not-for-profit agencies and solicitors.
The value of the mark in relation to information outlets is less
evident—other than as branding. It may need development
to justify its continuation.
17. The Legal Services Commission's own
research suggests that there needs to be more work done on liaison
and referral links between local agencies. There is a mismatch
between the praise of ministers for community legal service partnerships
at the local level and the perceptions of providers. Citizens
Advice reflects the latter pretty accurately:
"Partnerships are variable in output and
quality, and underdeveloped as an infrastructure for local advice
provision; the partnership concept does not seem to be fulfilling
its potential."[114]
The problem is the function and resources of
these partnerships—which are fine in theory and occasionally
in practice. The lesson from the experiment with regional legal
services committees in the 1980s and 1990s was that they are successful
when resourced, as was Manchester (latterly the North Western),
and unsuccessful when not (eg the fate of the North Eastern committee
for many years).
CRIMINAL DEFENCE
SERVICE
18. Many of the same issues as face the
CLS are relevant to the CDS. Probably the largest is the equivalent
of the role of the not-for-profit sector, the Public Defender
Service offices. Their purpose is not entirely clear. A very small
number have been established, none in London. The offices are
being run effectively as small private practices.
19. PDSOs could perform a number of functions,
including:
(a)
Experiment with new forms of services such as the
outreach rural services that have been developed or education
programmes with youngsters;
(b)
Feedback on the workings of the criminal justice
system and indications on where efficiencies might be made in
procedures throughout it; and
(c)
Testing whether services could be delivered more
cheaply.
20. In some ways, the most interesting opportunity
would be as the second, a feedback loop on the working of the
system. Under such a model, the public defender service offices
would work in a way which allowed and encouraged them to report
on eg how well the courts or police stations with whom they dealt
were managed; are their improvements to CPS procedures which could
help; are there savings which committed defence lawyers would
agree were acceptable; are there any practices which defence lawyers
undertake in private practice whose goal is more dominated by
economics than the interests of clients? There is, however, little
indication that this kind of role is being maximised. It should
be.
21. There are lessons from the use of public
defenders in other jurisdictions, particularly the United States
of America. A Legal Action Group study of such lessons of looking
at successful US public defenders, funded by the Nuffield Foundation
and published in 1998, came up with a number of recommendations
that may remain relevant, including:
— Public defenders may work best in
relation to relatively routine caseloads. An inference from this
finding is that public defender offices should be funded to use
external advocates and perhaps other external consultants to handle
non-routine cases.
— The best public defender operations
have overflow arrangements to deal with excess workloads. Indeed,
their existence or not is almost a determinant of the quality
of the public defender scheme.
— There should be adequate independence
of provider and funder.
— There should be adequate funding.[115]
At present, the PDS offices are run as part
of the Legal Services Commission with a member of the Commission
operating as a "professional" head of service to provide
some protection against undue influence by management. There is
an additional code of practice for lawyers employed by the PDS.
If the experiment is to continue then there must be a good case
for creating the individual offices (or the whole group of them)
as a separate entity with its own board to underline the difference
both to clients (who may wonder at a conflict of interest between
a government agency and themselves as clients) and as protection
for the staff themselves.
CONCLUSION
22. The Access to Justice Act 1999 has had
enormous effects and legal aid is beginning to change dramatically
from the form that dominated its existence for its first 50 years.
A sense of crisis, however, pervades its providers and there does
seem to be sufficient evidence that this goes beyond the manifest
self-interest in remuneration. Within the CLS, too much has probably
been squeezed out of the budget. The highly desirable extension
of provision and services has been possible only at the expense
of cutting back on eligibility, scope and remuneration. This process
has now gone too far and something will have to give—if
services are to be maintained at current levels, this may have
to be the Treasury. In relation to the CDS, the main issue is
the future development of the public defender service offices.
STATISTICS FROM
THE ANNUAL
REPORTS OF
THE LEGAL
SERVICES COMMISSION
AND LEGAL
AID BOARD
FOR THE
RELEVANT YEARS
|
| Cost per year in £ million | 1998-99
| 1999-2000 | 2000-01
| 2001-02 | 2002-03
|
|
| Civil | | |
| | |
| Civil representation net | |
| 560.2 | 476.2
| 483.3 |
| Legal help | |
| 231.7 | 258.3
| 329.5 |
| Total Civil | 836.4
| 768.5 | 791.9
| 734.5 | 812.8
|
| Crime | | |
| | |
| Criminal defence net | 401.7
| 411.6 | 450.4
| 508.3 | 526.4
|
| Higher Courts | |
| 422 | 474.1
| 569.3 |
| Total Crime | |
| 872.4 | 982.4
| 1,095.7 |
| Total Civil and Crime |
| | 1,664.4
| 1,716.9 | 1,908.5
|
| Administration cost | 59.9
| 62.4 | 72.4
| 71.6 | 73.4
|
| % total that is crime | |
| 52.4153 | 57.2194
| 57.412 |
|
Notes:
1. The figures for expenditure in 2002-03 are taken from
p2 of the annual report for 2002-03
2. The figures for expenditure in 2001-02 are taken from
p1 of the annual report for 2001-02
3. The figures for expenditure in 2000-01 are taken from
p1 of the 2000-01 annual report
4. The figures for expenditure in 1998-99 and 1999-2000
are taken from the 2000 annual report and for civil in 1998-99
are the addition of £423.5 matrimonial and family plus £412.9
non-family and for 1999-2000 the addition of £387.7 million
for matrimonial plus £380.8 million for non-matrimonial
5. Comparable figures for legal help are difficult to
establish before 2000-01
|
| Crime | 1998-99
| 1999-2000 | 2000-01
| 2001-02 | 2002-03
|
|
| Nos of contracted solicitors' offices |
| | | 2,909
| 2,900 |
| Nos of Public Defender Service offices |
| | | 4
| 8 |
| PDS offices cases | |
| | | 3,849
|
| Cost PDS offices | |
| | £2.58
| £3.5m |
Duty Solicitor and pre-charge cost in
£ million
| | | |
| |
| Total | | 109.1
| 117.3 | 140.2
| 168.2 |
| Magistrates court representation orders
| | | |
| |
| Total | | |
| 426,395
| 575,526 |
| Lower Standard fee cases | |
| | 35,245.2
| 449,921 |
| Total cost in £ million |
| | | 114.9
| 155 |
| Average cost in £ | |
| | 33.6
| 344 |
| Higher Standard fee cases | |
| | 4,878.5
| 91,866 |
| Total cost in £ million |
| | | 49
| 80 |
| Average cost in £ | |
| | 824
| 868 |
| Others number | |
| | 1,453.5 |
32,818 |
| Total cost in £m |
| | | 23.7
| 64 |
| Average cost in £ | |
| | 163.2
| 1,882 |
| Deferred sentence numbers | |
| | | 921
|
| Total cost in £m |
| | | | 243
|
| Average cost in £ | |
| | | 264
|
|
COMMUNITY LEGAL
SERVICE LICENSED
WORK—CERTIFICATES
ISSUED
|
| 1998-99
| 1999-2000 | 2000-01
| 2001-02 | 2002-03
|
|
| Total | |
| 174,018 | 161,895
| 164,096 |
| Family | | |
129,366 | 128,723
| 134,765 |
| Non-family | 125,184*
| 99,521.0* | 44,651
| 33,172 | 29,331
|
| Actions against the police |
| | 1,217 |
1,067 | 1,008
|
| Clinical negligence | |
| 7,329 | 7,309
| 6,307 |
| Community care | |
| 289 | 425
| 433 |
| Consumer | |
| 1,372 | 999
| 780 |
| Debt | | |
691 | 504
| 542 |
| Education | |
| 556 | 764
| 662 |
| Employment | |
| 153 | 138
| 137 |
| Housing | | |
12,421 | 12,788
| 12,576 |
| Immigration | |
| 1,764 | 2,513
| 2,915 |
| Mental health | |
| 164 | 199
| 163 |
| Personal injury | |
| 13,267 | 2,910
| 980 |
| Public law | |
| 1,469 | 943
| 900 |
| Welfare benefits | |
| 245 | 143
| 87 |
| Miscellaneous | |
| 3,714 | 2,470
| 1,841 |
| Total excluding personal injury |
| | 160,751
| 158,985 | 163,116
|
| *non family legal aid certs |
| | | |
|
|
Notes:
1. Figures for 2002-03 are from tables CLS 7 and CLS
5 in the annual report for 2002-3
2. Figures for 2001-02 are from tables CLS 5 and CLS8
in the annual report for 2001-2
3. Figures for 2000-01 are on pages 19 and 21 of the
annual report for 2000-02
4. Figures for 1998-99 and 1999-2000 are on p92, table
civil 8, of the 1999-2000 annual report
COMMUNITY LEGAL
SERVICE—FAMILY
CERTIFICATES ISSUED
|
| 2000-01
| 2001-02 | 2002-03
|
|
| Special childrens Act | 23,204
| 24,543 | 27,066
|
| Other public law childrens Act | 8,610
| 8,645 | 8,795
|
| Private law children Act | 47,444
| 45,875 | 47,595
|
| Domestic violence | 22,307
| 22,074 | 21,841
|
| Financial provision | 24,811
| 23,321 | 24,358
|
| Combined family | 290
| 194 | 116
|
| Other family | 1,307
| 1,118 | 1,061
|
| Help with mediation | 1,393
| 2,953 | 3,933
|
| Total | 129,366
| 128,723 | 134,765
|
|
COMMUNITY LEGAL
SERVICE CASES
COMMENCED IN
THE YEAR—
CONTROLLED WORK
I.E.
ADVICE AND
ASSISTANCE
|
| 2000-01
| 2001-02 | 2002-03
|
|
| Family | 317,903
| 324,602 | 338,888
|
| Solicitors | |
| 338,319 |
| Not for profit | |
| 569 |
| Non Family | 446,794
| 461,572 | 472,960
|
| Solicitors | |
| 352,510 |
| Not for profit | |
| 120,450 |
| Total | 764,697
| 786,174 | 811,848
|
| Actions v Police | 5,348
| 5,380 | 5,432
|
| Solicitors | |
| 5,430 |
| Not for profit | |
| 2 |
| Clinical negligence | 4,800
| 4,903 | 4,554
|
| Solicitors | |
| 4,552 |
| Not for profit | |
| 2 |
| Community care | 2,136
| 2181 | 2764
|
| Solicitors | |
| 2,535 |
| Not for profit | |
| 299 |
| Consumer | 9,239
| 9,373 | 7,321
|
| Solicitors | |
| 6,828 |
| Not for profit | |
| 493 |
| Debt | 48,751
| 50,197 | 53,842
|
| Solicitors | |
| 22,101 |
| Not for profit | |
| 31,741 |
| Education | 3,371
| 3,408 | 3,498
|
| Solicitors | |
| 2,801 |
| Not for profit | |
| 697 |
| Employment | 1,091.6
| 11,140 | 11,827
|
| Solicitors | |
| 8,212 |
| Not for profit | |
| 3,615 |
| Housing | 84,502
| 87,177 | 87,931
|
| Solicitors | |
| 63,964 |
| Not for profit | |
| 239,967 |
| Immigration | 134,238
| 141,189 | 155,865
|
| Solicitors | |
| 142,186 |
| Not for profit | |
| 13,679 |
| Mental Health | 25,931
| 26,401 | 28,544
|
| Solicitors | |
| 28,275 |
| Not for profit | |
| 269 |
| Personal Injury | 7,265
| 7,315 | 5,784
|
| Solicitors | |
| 5,778 |
| Not for profit | |
| 6 |
| Public Law | 1,412
| 1,447 | 1,803
|
| Solicitors | |
| 1,778 |
| Not for profit | |
| 25 |
| Welfare Benefits | 80,633
| 82,627 | 80,898
|
| Solicitors | |
| 35,285 |
| Not for profit | |
| 45,613 |
| Miscellaneous | 28,252
| 28,832 | 22,897
|
| Solicitors | |
| 22,785 |
| Not for profit | |
| 112 |
|
102
17 October 2003. Back
103
CAB evidence briefing, December 2003. Back
104
Article 6(1). Back
105
Article 6(3)(c). Back
106
Airey v Ireland ECHR (1979) 2 EHRR 305. Back
107
Article 47. Back
108
s4(2)(a) Access to Justice Act 1999. Back
109
Causes of Action: civil law and social justice, P Pleasance
et al, Legal Services Commission, 2004. Back
110
Geography of Advice, Citizens Advice, February 2004, p3. Back
111
Speech to Bar Conference, 29 September 1996. Back
112
See eg A Strategy for Justice, Legal Action Group, 1992. Back
113
See above. Back
114
Geography of Advice: an overview, Citizens Advice, February
2004, p57. Back
115
Contracting legal aid: lessons from North America, R Smith,
Legal Action Group, 1998. Back
|
