Examination of Witnesses (Questions 140
- 159)
TUESDAY 23 MARCH 2004
PETER WILLIAMSON,
EVLYNNE GILVARRY,
LUCY SCOTT-MONCRIEFF,
DAVID EMMERSON
AND GODFREY
FREEMAN
Q140 Mr Clappison: Could you throw
any light generally on how difficult it is for firms to obtain
matter starts once they have exhausted their supply?
Ms Scott-Moncrieff: I probably
cannot throw very much light on that actually. Some of the work
we do is criminal and there matter starts do not apply. In the
civil field, because we specialise in mental health, there does
not seem to be a problem with matter starts because it is demand
led and they know that they have to provide enough matter starts
for all the people who want tribunals.
Q141 Mr Clappison: Would you say
that firms are being more selective about cases they take on because
of the restrictions placed on them by the matter starts?
Ms Scott-Moncrieff: Yes; definitely,
definitely, which is not necessarily a bad thing. Another example
is perhaps not just to do with matter starts, but we used to do
a lot of work on complaints for clients of ours who were detained
in hospitals. There are now advocacy services and it is obviously
not appropriate for us to do it if the advocacy services can do
it. In that way, we have reduced the number of minor matters which
we undertook, not because of matter starts, but because of the
nature of the work. Certainly, if I had a restricted number of
matter starts and before we got the new matter starts, the extra
300 last year, I was saying to people, leave the little stuff
alone, we cannot take on the little stuff, we just have to make
sure that we use our matter starts very carefully.
Mr Emmerson: It has to be recognised
that taking on a trainee solicitor is quite a commitment for an
organisation, not just in terms of the salary, but also in terms
of the supervision and training you have to give, the course fees
you have to pay for. Therefore, in such an uncertain time as it
is for legal aid practitioners, it is not the type of investment
you are likely to do.
Q142 Mrs Cryer: Does the fact that
the number of solicitors' offices with legal aid contracts is
going down necessarily mean that the number of solicitors offering
these services is falling, or could it be that larger firms are
taking over provision of legally aided services? If it is the
latter, how will this affect geographical provision?
Mr Emmerson: It is true that there
is a move towards larger firms because economies of scale dictate
that. There is a well-known firm in Wales which covers a very,
very large area indeed, if they want to do so, with outreach services.
There is general concern about how the migration to larger firms
is going to affect rural areas in England.
Mr Williamson: It seems to me
that it is a big risk to access to solicitors, because they are
going to be concentrated in particular areas and there are going
to be areas where there is not the supply. One can well understand
the reasons why the larger suppliers can be attractive to the
LSC.
Q143 Chairman: For the rural area
does that not mean that if the market town solicitor no longer
does legal aid work, then you become dependent on either travelling
to an urban centre or at best having a large urban firm of solicitors
doing maybe a day a week or a day a fortnight of consultation
or less?
Mr Williamson: We say that is
very bad or very wrong. For all people who are disadvantaged but
particularly for people with small children and the like, the
distances people could have to travel could very seriously damage
or endanger access to justice.
Mr Emmerson: Particularly in family
cases you need two independent firms to represent mother and father.
Mr Williamson: I have heard it
said that there are areas now where there is only one firm doing
family work in quite a large area and that causes considerable
problems.
Ms Gilvarry: We should like to
look at alternative ways of delivering services which would in
some instances bridge the gap where smaller firms in market towns
leave the system for one reason or another, but I do think the
Legal Services Commission also has to be particularly careful
about one particular issue and that is that minority ethnic solicitors
tend to be concentrated in the smaller firms. Solicitors with
disabilities tend to offer their services through the smaller
firms. They very frequently provide services to their own communities
or people with disabilities and the risk that they would disappear
from the supply side is a real risk and one which needs to be
looked at very, very carefully.
Q144 Chairman: Is it a realistic
assumption, given that market town solicitors may be losing out
in other directions of work as well, especially as businesses
become larger and make use of commercial solicitors in urban centres,
that in the end they are likely to have to stay in legal aid work
in order to earn their bread and butter and pay the office rent?
Ms Gilvarry: That is interesting.
They may in the medium term, but actually when you look at the
supplier base overall and when we know what we know about the
interest of young people in pursuing a career in legal aid, what
we are looking at is an ageing cohort of legal aid suppliers.
What the current suppliers do in the medium term is one thing
and they may decide to concentrate exclusively on legal aid, but
that does not get around the problem that there are not enough
people coming into the system to be able to sustain that system
into the future.
Q145 Mrs Cryer: Could it be possible
for these larger firms to run outreach programmes in order to
compensate for reduced geographical provision, perhaps in smaller
villages, in town halls, church halls or whatever?
Ms Gilvarry: That is entirely
feasible in some instances. There are some interesting outreach
programmes being run by the Legal Services Commission now as part
of their initiative budget. It cannot be the answer right across
the system. It is one of the issues we would wish to explore and
it has significant possibilities. As an answer across the board,
we do not know.
Q146 Mrs Cryer: But it is being looked
at.
Mr Emmerson: One of the needs
there is that you are going to have to give capital provision
to those firms and organisations to make the planning to do the
outreach services and that is not currently available.
Mr Freeman: It is worth exploring,
but from the family point of view it is difficult to see how it
might work somewhere which is probably quite public, if you are
looking at the village hall or something like that. If you say
one afternoon a week you are having a surgery for family law,
I can just imagine that people are not going to be that keen on
being seen there.
Q147 Mrs Cryer: I am an expert on
this because I have advice surgeries in all sorts of peculiar
places and I always have to make sure that even if it is a cloakroom
it is somewhere people can . . . I am sure there could be provision
and it is up to you to tell me.
Mr Freeman: Probably it needs
capital to make sure that the problem is highlighted.
Q148 Mrs Cryer: Security and privacy,
yes.
Mr Freeman: Privacy and confidentiality.
Ms Scott-Moncrieff: Somebody said
something about a surgery. I think that it would be a very good
idea to look at the possibility of using the existing GP's surgeries
for that work. They are all over the place, people are quite happy
to go there, they are all internet accessible. I do not know why
it is not done. We have a link-up with our local GP surgery. They
run an advice centre. It is only 100 yards down the road, it is
not a big deal, but they run an advice service for their patients.
They have social workers and educational advisers and childcare
advisers and so on. We provide some legal input. They can phone
us up and say someone has this problem or that problem; we will
go over to the surgery. It is easier if they have kids because
there is a room for the kids anyway and they can be messing about
annoying everybody. There it is; you have a whole country full
of accessible places.
Q149 Mrs Cryer: Yes and these surgeries
are not always used all day.
Ms Scott-Moncrieff: No, when the
doctor is out doing his rounds you could easily get someone in
then.
Q150 Mrs Cryer: A good idea; thank
you. The Legal Services Commission has indicated that in the current
contract round 90% of the firms are bidding and they are making
up the shortfall from new bids. How would you account for this
phenomenon?
Mr Emmerson: The shortfall or
the fact that 90% are bidding?
Mrs Cryer: That 90% of the firms are
bidding and they are making up the shortfall from new bids.
Chairman: That is what they tell us.
Q151 Mrs Cryer: Yes, that is what
we have been told.
Mr Freeman: I saw that evidence
from Clare Dodgson and she has not been to Merseyside. We certainly
have falling numbers of legal aid practitioners there. I heard
last week of yet another firm which has given up doing family
legal aid. I have known of one new supplier in the last three
years.
Mr Williamson: I was at a local
Law Society function only last Friday and I was approached by
two firms who told me that they were giving up come the spring.
Ms Scott-Moncrieff: It depends
what choices you have. My practice is a legal aid practice and
we are going to get as much as we possibly can because that is
all we know, we are not fit for anything else. It is the young
ones coming up. They are not going to want to go in. That is what
you have to be worried about: whether people are going to be attracted
to going into this kind of work, not whether the people who are
already in it are going to stay in it. If we were doing family
work we could stop doing legal aid family work and start doing
private family work, but when you are doing prisons and mental
health and public law and so on it is all legal aid anyway and
you are stuck with it. I am not complaining because I enjoy it,
but that is the reality. People do not have choices.
Q152 Chairman: That is what they
are saying. Ministers are clearly being briefed to answer questions
from Members in the House by reference even to their own particular
constituencies to say several firms have dropped out but the new
bids are taking up virtually all the slack. You contention is
that that is not so generally.
Mr Emmerson: You cannot just look
at the number of contracts; you have to look at the capacity within
those contracts. Solicitors' practices are rather like oil tankers:
it takes them quite a long time to turn around. If there is a
shift away into private work, it is going to happen gradually
over a period of time. There will be repeat applications for contracts
but the issue is the capacity within those organisations and how
experienced the people are who are actually doing the work.
Ms Scott-Moncrieff: I was looking
the other day at our list of practitioners and we have one person
in their twenties and two people in their thirties and everybody
else in their forties and fifties. People are not coming through.
Mr Williamson: In the first eight
months of this financial year compared with the same period last
year matter starts fell by 10%.
Ms Gilvarry: And the Legal Services
Commission, although they are optimistic that some pockets of
unmet need will be patched in as a result of the new contract
round, they are still expressing concerns about housing and the
availability of housing law in some areas. As other evidence givers
have said, it is not the numbers game here. The fact is that people,
for a variety of reasons, are unable to get the advice they want
at the time they want it, even when they are eligible. That is
the problem and a variety of reasons lies behind that, like the
matter start system.
Q153 Peter Bottomley: May I go back
a moment? Do you think the Legal Services Commission have a responsibility
to make sure that there are at least two firms which can do family
law work under legal aid in any significant area?
Mr Emmerson: You have to deal
with the issue of independent advice. At present our professional
rules prevent us as a solicitors' practice acting for husband
and wife. It is different in the Bar in the sense that they are
self-employed people and a set of chambers can act for husband
and wife and safeguards are put in place. The professional rules
could be looked at to facilitate different solicitors within the
same organisation representing husband and wife. The way things
stand at the moment you definitely do need two independent family
practitioners within reasonable travelling distance.
Mr Freeman: I would go further
than that as well. You might think you need three and that is
because there is far more emphasis now on mediation. Obviously
once the two parties go to mediation, the mediator is then excluded
from acting for either of them. In fact you could be looking at
three rather than two.
Mr Williamson: I would be very
doubtful about the idea of the same firm acting for husband and
wife, particularly small firms anyway. There could be big regulatory
problems as far as we are concerned. It would be quite dangerous.
Mr Emmerson: And difficult turning
up in the waiting room at the same time.
Mr Williamson: Exactly.
Q154 Chairman: That is certainly
our experience as Members of Parliament.
Mr Williamson: I think it would
create big problems.
Q155 Mr Dawson: May I look at the
issue of recruitment? We have some alarming figures being quoted
here about only one in twelve of first-year trainees being likely
to pursue careers in legal aid. I suppose that is about 8.5% compared
with about 50% previously. Can you give us some more information
in terms of raw figures on that? Surely this is set against a
background of increasing recruitment in general to the legal profession,
is it not?
Mr Williamson: Our recent survey
indicated that 50% of trainees and 59% of law students said they
would like to work in legal aid if all things were equal. In reality
it is only about 7% of 1,522 trainee solicitors and 17% of 2,123
law students, that is before they take training contracts, who
were questioned, who could actually see their way to working in
legal aid.
Q156 Mr Dawson: What does the magic
phrase "if all things were equal" mean?
Mr Williamson: If they perceived
proper career prospects, a future, proper pay, promotion prospects,
working conditions, a future in legal aid work. They are things
which, when they come to think about it in more detail, to use
the vernacular, turn them on.
Ms Gilvarry: That is right. The
reassuring thing is that there is no shortage of interest in legal
aid work. It is seen as very worthwhile, excellent work to do.
There are things which can be done to address and tap into that
interest if we act urgently so to do.
Q157 Mr Dawson: Please tell me more.
What can we do?
Ms Gilvarry: There is a number
of ways in which it could be addressed. We are great supporters
of the Legal Services Commission sponsorship scheme, but it only
sponsors a small number of individuals. It needs to be expanded
radically. That is one possible way forward. Quite a lot of exciting
work is being done in colleges around the setting up of student
law centres, which gives students an opportunity, as part of their
training, to taste pro bono work and to serve clients.
Indeed one of those centres has a Legal Services Commission contract.
This is fantastic. One of the opportunities for the government
would be to work with these institutions, to fund them to be able
to set up these centres and it would have all kinds of advantages
in improving the service of lawyers generally to clients, because
they would get an early experience of that kind of work. Certainly
those are two ways. In addition, we as a regulator are looking
at the training framework so that the route to entry can be more
creative, so the concept of "earn and learn" is something
which is available to people who would wish to pursue a career
in legal aid. Those are three possible initiatives to take forward
but it does need to be addressed urgently.
Mr Williamson: One of the others
would be the possibility of lower rate student loans for legal
practice course students if they commit or agree to work in the
legal aid area for a minimum period. One of the things of course
which is worrying us considerably is the increased debt which
students are suffering and which is likely to be increased even
further when tuition fees come in so far as their first degrees
are concerned, which is going to exacerbate the problem. Certainly
low rate student loans is something which we think should be considered,
if you are prepared to commit in some way to legal aid practice.
Q158 Chairman: Could that be alternatively
in the form of waiving of interest or payment of interest at the
point they come into the practice?
Mr Williamson: Anything along
those lines which could be done and which might help would be
welcome. What you are saying is delaying the repayment or making
it cheap in the early years.
Q159 Chairman: Yes.
Mr Williamson: That would certainly
be attractive.
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