Examination of Witnesses (Questions 100
- 119)
TUESDAY 9 MARCH 2004
ROGER SMITH,
RICHARD MILLER
AND NONY
ARDILL
Q100 Chairman: Do you think that
the student debt problem will destroy the possibility of people
coming in with a commitment to give a part of their life to Legal
Aid work, let's say five years, but then envisaging that their
career might develop in other ways, perhaps in more lucrative
ways, but that the overhang of debts start to worry them about
salary levels much earlier than they ought to be doing?
Mr Smith: Yes, and you can see
that in the interns which any organisation, including my own,
take in terms. There seems a growing sort of pattern of young
people who will do, say, one to three months basically for free,
or very close to it, for the experience, and what you get at the
moment is some wonderful interns. They are generally extremely
expensively educated, they come from backgrounds which they are
not dependent on salary, at least at the moment, so you get wonderful
assistance, but you are not getting people who would move on to
a career in legal aid. I think the debt overhang—we are
talking about it here in relation to the law—it is clear
we have a much bigger problem, but government really has to look.
This is a major policy change, which the government wants, but
there are some downsides to it, and I think that debt forgiveness
has to be built into any programme of change in funding the way
we are.
Q101 Chairman: Is there some way
in which you could structure the system so that people would not
be discouraged from giving an earlier part of their career to
legal aid with the specific intention of hoping to go on to better
paid work at a later stage, as most people expect, to move to
a higher earning later in life?
Mr Miller: At the moment it works
other way round, that people go into the City with the intention
that they will do this for a few years to clear their debts and
then go on to do the work they want to do. The trouble is the
disparity in levels of income is such that it is impossible, or
almost impossible, to make that step down to the lower standard
of living and lower income once you have been used to having the
high level of income that you get from the commercial work.
Ms Ardill: I think another problem
is that if a solicitor spent five years in legal aid work and
then sought to progress their career into a City firm, they may
well find that by that time their skills were too specialised
in the legal aid field and were not considered acceptable to the
City firm, some of whom have very, very high recruitment standards.
Q102 Mrs Cryer: I just wonder, so
far as young people preparing for a career, having trained for
it and having been to university and gone through the Law Society
exams, how would you slot into that the young people who then
opt for going to the Crown Prosecution Service—the other
side—because I do not think it is just about money? I think
for women, going to the CPS is about recognition of problems of
having children: I mean, taking time off to have children, taking
time off when children are young. Do you think that some law firms
might do better recruiting young women were they a little bit
more family friendly?
Ms Ardill: I think that must be
the case. One certainly hears of firms where there is a long-hours
culture where women struggle to maintain their commitments to
their families and where their prospects of partnership are quite
limited because they simply cannot dedicate their entire lives
to their jobs. On the other hand, the impression we have is that
many legal aid firms need their solicitors to work long hours
in order to make ends meet. So in a sense it is a—
Q103 Mrs Cryer: It is a balance?
Ms Ardill: It is a balance, yes.
Q104 Dr Whitehead: Can I pursue the
question of debt forgiveness. I assume your vision of debt forgiveness
would be accompanied by some form of golden handcuffs, in as much
as if the debt would be given and then the person to whom the
debt had been forgiven disappeared off after a few months that
would be rather an inefficient system?
Mr Smith: Yes. You could do it
in variety of ways. I thought of a fairly simple system where
if you did five years work in a designated area or for designated
employer a designated amount of your debt was forgiven.
Q105 Dr Whitehead: Then Miss Ardill
has said that once you work in a system for a while your skills
then tend to lock you into the system, rather than—
Mr Smith: that is what you would
want.
Q106 Dr Whitehead: So would people
NOT perhaps spot that?
Mr Smith: They might, but you
want to be fairly balanced. You would want to be pretty open-eyed
about it, would you not? What you are talking about is the issue
of getting young people into legal aid. I have no problem with
the notion of there being relatively high benefits to begin with,
but there is no way that legal aid funded at any reasonable level
will give legal aid practitioners the expectations of income you
would get from being one of magic circle firms in the City. So
there has to be a trade off, and the sorts of things you trade
off are early high pay, debt forgiveness, potentially if you are
in the right structures they are family friendly policies, and
it is that kind of package you need to build up.
Q107 Dr Whitehead: We have been talking
about the specific issues, but overall what you have all said
in your written evidence in different ways is that there is a
straightforward correlation between either more money comes from
Government or there is a reduction in access to services, and
there is, as it were, no third way. You have talked about some
areas of how the service could be re-organised, but do you think
there are wider areas in which efficiency savings could be obtained
so that those stark alternatives perhaps are not as stark as they
seem?
Mr Miller: I think there are a
number of areas you can look at. The classic example most people
quote is court listing systems that are very chaotic and often
lead to lawyers hanging around all day being paid by the tax player
to sit around in court doing nothing. It is not just the court
listing systems either. There are other problems within the Criminal
Justice System, such as the delivery of prisoners, which is often
hours late. There are recent problems in London courts where interview
facilities have been removed, so that again is causing further
delays. So there are numerous aspects. It is less marked on the
civil side but on both sides of the court system where greater
efficiency could lead to savings. I think one of the other problems
we face, though, is that over the past few years there have been
so many different legal initiatives, policy initiatives, primarily
from the Home Office in the fields of crime and asylum, but all
of them put greater demands on the legal aid budget. It is not
just that the legal aid budget is going up because lawyers are
doing more work for the hell of it, it is because more demands
are being placed on it as a result of the decisions of other government
departments. I think what you need to do is say is the legal aid
budget delivering an equivalent amount relative to the demands
being placed on it, rather than looking at it in terms of, "Well,
the budget has gone up therefore it must be a problem."
Mr Smith: I think in a way, oddly
enough, we have been through a golden decade where first under
the Tory administration and then under Labour, the legal aid budget
was squeezed, and it was undoubtedly practitioner driven, but
actually over the last decade it had been squeezed and the miracle
has happened. We have been able to get more out of—more
than you would expect for a budget which has risen a bit, but
we have got the advantages of that. I would have thought that
probably here and there are bits that you could squeeze, but now
you are into choosing and so I think it is a really hard time.
When I was writing about legal aid 15 years ago it was much easier
because there was space in the system. You could fund new initiatives
without calling for more money. I can see no realistic future
in which legal aid spending goes up much above the RPI. This is
the territory we are in. We are micro-managing the system. There
is no magic bullet, but I think there are some things to look
at. There are a whole series of issues in relation to the Criminal
Justice System which Richard raises. One of the uses—it
is one of the disappointments to me in relation to the experiment
with public defenders—is that they have been set up in a
completely odd model. They are little private practices which
just happen to have sound lawyers in them, in Cheltenham, Swansea,
Liverpool. It is odd, this system. You might think they have been
set up as a sop to some notion, because they are not being properly
used. If you got them up to a bit more size you could use those
systems for a whole new purpose, which is to identify within the
Criminal Justice System where there is waste and use it as part
of a feed back mechanism. I can see how in crime, if you had goodwill
and a willingness to listen, you would get much more feed back
into the system. In relation to civil I think you are looking
at this enormous hike in the advice budget and you are saying,
"Are we getting the best value for this?" Are we right
to have restricted civil legal aid, as it was called, the benefit
formerly known as civil legal aid, in the way we have. Do we need
to look at means and how does that trade off against advice and
are we putting money from legal advice into general advice and
you have got some very precise judgments. I do not think there
is any magic bullet, but I do think realistically you go round
saying, "The answer is 1.9 billion, what is the question?"
Q108 Dr Whitehead: Mr Miller, you
said in your evidence, "However, the system is well-funded
by international standards."
Mr Miller: Yes, that is right.
Q109 Dr Whitehead: Are they doing
something that we do not know about?
Mr Miller: One thing they do is
they have an inquisitorial system in many jurisdictions, which
means that it is the judge or the tribunal that undertakes a lot
of the work that in this country is undertaken by the lawyers.
I think it is probably also true that many of these other countries
do not have as good provision of early advice. Why they have reached
that decision, I do not know, but that seems to be the conclusion
that they have reached. If you look at America, for example, they
have public defender systems in some jurisdictions, they have
some private practice criminal lawyers, but the funding of the
criminal defence system in America is miserable compared with
what it is in this country. When I was talking to a public defender
from San Francisco recently I mentioned that about £1.1 billion
was spent on criminal defence work in this country. He was absolutely
gob-smacked?
Mr Smith: And you have to be extremely
careful about international comparisons. I went and looked at
public defenders in the States, the federal public defenders are
really well-funded. I was talking to one them saying: "How
many cases do you do a year?"
Ms Ardill: It is all plea-bargaining:
you have bad levels of funding, but the whole system depends on
plea bargaining. That might be quite well adapted to public defender
type operations, and, as Richard is saying, you have got a civil
law system on the Continent, so you have to be terribly careful
about these international comparisons.
Q110 Dr Whitehead: Returning then
to our system, on the one hand you have static remuneration levels,
but you have then got the expenditure on the schemes that are
continuing to grow. I think, Mr Miller, again in your written
evidence you suggested that a number of firms were cherry-picking
cases which would actually retain the level of remuneration but
give the greater amount of remuneration for the case as a whole.
Is that something that you, firstly, have observed on a widespread
basis, and do you believe that there is any way in which that
might be addressed?
Mr Miller: I think it is happening,
yes, because firms are faced with the fact that if that they have
a limited number of matters they can start—they need to
keep the fee earner busy and need to keep that fee earner generating
fees for a full year, and if the number of matter starts in current
number of cases would generate perhaps half the fee earner's time,
they need to cherry-pick make sure they are dealing with more
complex cases in order to fill the whole of that fee earner's
time. It is an economic incentive within the system that they
do that, and certainly the information I get from our members
is that firms do choose which cases to take on, they do choose
the cases which are likely to be more complex and, indeed, in
one respect that is what the Commission has been asking solicitors
to do. They have taken the view that less complex cases should
be being dealt with by telephone advice services, by the advice
agencies, by the non-solicitor advisers, but at the same time
when solicitors do that, which is exactly what they are being
asked to do, the firms are penalised by having the number matter
starts reduced because of the increase in the average cost per
case. I think while you have the matter starts system this will
always be a problem. If you switch to a different system, which
would be by buying hours or by salaried services or whatever it
might be, there will no longer be that incentive to turn away
more simple cases and concentrate only on the more complex ones.
Q111 Andrew Rosindell: I wonder if
you could outline your ideas in terms of improving the auditing
process whilst at the same time guarding public funds?
Mr Miller: I think it is universally
accepted in the profession that as we are receiving public money
we have to be accountable for it. The problem with the current
system is that the people carrying out the audits are not qualified
lawyers, they are usually graduates with a limited amount of training
within the field and with a bit of guidance on how to interpret
the Commission's rules, and the effect has been over recent years
that numerous firms that should not be getting bad audit results
are getting bad audit results. Among the ones that have recently
gone public on this are a firm called Jackson and Canter in Liverpool,
who are one of the best known and best respected firms there.
Q112 Chairman: Can you say that name
again?
Mr Miller: Jackson and Canter.
There is also a firm called Scott Moncrieff Harbour and Sinclair,
which is one of the firms that is undertaking a pilot with the
Legal Services Commission on on-line auditing, and there is another
firm called Oliver Fisher in London, one of the leading housing
practitioners. All these firms were placed in Category 3 in the
audits. Scott Moncrieff Harbour and Sinclair took 18 months to
appeal the audit result and it was reduced from a claim that they
were over claiming by more than 50% to an assessment that they
were within 5%. So when you see results that bad, not just being
decided in the first place but also slipping through any internal
auditing processes that the Commission has to check the quality
of the audits and being defended on an appeal over 18 months,
it is cases like that that have brought the system into disrepute
within the profession. The alternative that I see is that it should
be a combination of the Commission gets a lot of data from firms
on the monthly reports that firms have to send in. They are easily
able to see if anything is changing significantly that might trigger
a need to investigate further. I would suggest that a review of
that sort of data combined with as regular peer views as they
can do, and I do not know how regular that would be, but that
combination would give the Commission proper checks. The peer
view also goes to the quality of the work done rather than just
looking at how it ties in with the guidance that the Commission
has put out, so it would give a much better picture as to whether
the tax payer was getting value for money for the work being done
by the firm. A combination of peer review plus proper reviews
of the management data that the Commission already has would be,
to my mind, a much better way of dealing with these things than
the contract compliance.
Q113 Andrew Rosindell: Do you support
the view that peer review would be less intrusive and less time
consuming for solicitors?
Ms Ardill: I think it would be—if
peer review is conducted on the files alone, the files need not
be reviewed in the solicitor's office, and so it can be less intrusive.
I think there is a strong body of opinion that peer review is
in the longer term no more expensive than the present quality
assurance audit, because although it requires an input of professional
level time, the overall savings to the Commission and the savings
in bureaucracy in particular, would counter-balance the expense
of conducting peer review, which need not be more than once a
year, and in some firms where the quality of work is fairly well
established it may be less frequent.
Q114 Andrew Rosindell: Why would
it be less intrusive?
Ms Ardill: It would be less intrusive
in the sense that the quality assurance system at present through
the specialist quality mark requires a great deal of auditing,
because there are a huge number of boxes to tick and providers
are having to set up systems which, in some cases, although they
indicate a level of organisational efficiency, do not necessarily
deliver or guarantee quality of advice to the clients. So intrusiveness
is not the only factor to take into account; there is also the
question of whether quality assurance is robust enough to actually
guarantee the standards that one would wish to see in publicly
funded legal services.
Mr Miller: I think another factor
there is that given the current system with unqualified auditors
auditing files firms often feel they have to put a lot more detail
into their records to ensure that an auditor will understand the
issues. A solicitor who is used to doing the work would understand
much briefer notes, much more concise notes, so if peer review
was the general system it would in fact reduce the bureaucracy
that firms undergo in their record keeping
Mr Smith: Overall I think you
would have to say it was a miracle that Richard was able to accept,
as he did at the beginning, that auditing is no problem, you would
have been hard pressed to find a practitioner to say that ten
years ago. That is an enormous achievement, I think it is a personal
achievement of Steve Orchard who was the Chief Executive of the
Legal Aid Board. As time goes on we can withdraw from some of
the crudity of the initial measures. I recognise the names of
two of the firms that Richard mentioned and it is shocking that
there was any issue about the quality of Jackson & Canter
and Scott-Moncrieff, they just bring an auditing system into disrepute
and no lawyer who knows the world is going to have much time for
a system where they come up as anomalies. I think the question
of intrusiveness is an interesting one, in some ways I would have
thought that peer review is more intrusive because you are going
to be more on your guard. What it is is it is less bureaucratic
and it is more accepted by the profession because they are going
to get a professional—who is quite likely to be Scott &
McGreath in the mental health field—whose judgment they
will trust who is judging them on their files. I think that is
much more acceptable. We must be going that way now because we
have got rid of a lot of the small providers.
Q115 Mr Soley: Can you tell us a
little about how you think a national telephone service could
assist and if you want to add into that how an extension of internet
services like Money Claim On-line could add to the picture?
Ms Ardill: The Commission has
recently completed a telephone advice pilot which is now being
evaluated and they have found the pilot to be in many ways successful.
They have acknowledged that telephone advice is not suitable for
all clients or for all types of cases. I think there were a number
of instances when telephone advisers wanted to refer a client
to a face-to-face adviser but were unable to do so because of
a lack of capacity and they then had to struggle on with the client
through the telephone advice service, which was far from ideal.
There is also the question of whether a telephone advice service
can attract advisers and retain them. The skill-set required for
telephone advice is actually quite detailed, quite complex and
quite high level and if you bring in advisers who have been working
in face-to-face services, after they have been employed in telephone
advice for a year they are then going to lose their specialist
quality mark supervisor standard because they have to have representation
as part of their portfolio of work. There are issues of recruitment
that would come out of this. The more important point is whether
telephone advice is suitable for all clients and for all cases.
If telephone advice is being presented as an alternative to face-to-face
services then we would very much resist that. If it is being presented
to compliment those services we support it because it does deliver
access to people who would not otherwise be able to access services.
Another important point about the pilot is that the people who
used it are very much self-selected, there are those who are particularly
vulnerable, disadvantaged and not only cannot cope with telephone
calls but cannot cope with translating the contents of their carrier
bag full of documents relating to their multiple debt case down
the phone to a telephone adviser. It is very, very important that
face-to-face services exist for clients like these.
Q116 Mr Soley: Are you able to say
from what you know of it so far whether you could compartmentalise
it because if you think about it telephone advice could get you
through some of the initial hurdles but then, as you indicated,
you might need face-to-face discussions. Is it about the need
to have papers in front of you? Is it that sort of thing which
then reaches the next step?
Ms Ardill: It is about the need
to have papers in front of you, if you are going to deal with
a complex case as an adviser you have to know the background to
the case. It is more than that, it is clients who cannot explain
their own cases down the telephone and in a sense they need the
adviser in front of them to sift through that carrier bag of documents
because they are quite unable to do that process themselves.
Q117 Mr Soley: Some telephone services
could be quite good as long as you were able to say, "I now
think you need to be able to see a legally qualified person".
Ms Ardill: Indeed or "you
are not suitable for telephone advice in the first place",
bearing in mind there is also going to be a cohort of clients
who do not ring the telephone service however much it is advertised
because they cannot deal with their problems in that way.
Q118 Mr Soley: What about internet
services, Just Ask and Money Claim On-line?
Ms Ardill: Internet services are
establishing themselves as a means of delivering information and
they are very good for clients who are educated, computer literate
and who are motivated to seek information about their cases, so
for a certain group or groups of people who have internet access
and the computer skills to use this then they are well suited.
I would have doubts as to how far they can deliver advice. I would
also say there is a large group of clients for whom internet access
is not viable, like telephone advice they are a complimentary
service.
Q119 Mr Soley: It us not just advice
they deliver, in many cases Money Claim On-line is a quick and
easy way to get your money back.
Ms Ardill: That is access to the
Court Service, it is not exactly advice, it is a way of accessing
the civil justice system.
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