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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 391-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE Constitutional Affairs committee
Civil Legal Aid: adequacy of provision
Tuesday 9 March 2004 ROGER SMITH, RICHARD MILLER and NONY ARDILL Evidence heard in Public Questions 68 - 132
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 9 March 2004 Members present: Mr A J Beith, in the Chair Peter Bottomley Mrs Ann Cryer Andrew Rosindell Mr Clive Soley Keith Vaz Dr Alan Whitehead ________________ Witnesses: Roger Smith, Director JUSTICE, Richard Miller, Director Legal Aid Practitioners Group, Nony Ardill, Policy Director, Legal Action Group.
Chairman: Ms Ardill, Mr Miller, Mr Smith, welcome, it is very good of you to come and give us the benefit of your advice and experience this morning. We have some interests to declare, I think, before we start. Keith Vaz: I am a non‑practising barrister and my wife has a legal aid contract. Q68 Chairman: That is about it this morning. I wonder if I could start by opening up the issue. When Clare Dodgson from the Legal Services Commission came before us she did not quite like the phrase "advice deserts" and referred instead to areas of unmet legal need. Do you think there is any distinction between these two concepts? Mr Miller: I think the phrase "advice deserts" has been used quite a lot over the past few months without people readily understanding exactly what it means. It has been taken as a general comment on there being a lack of availability of legal services. I think what we have seen is that there are towns cross the country where there is no longer a legal aid lawyer available, there are problems where the firms have either run out of physical capacity to take on new clients or have run out of contract capacity and there are areas where there are particular fields of law in which it is difficult to obtain advice. We have heard mentioned quite frequently the idea that there are no Legal Aid lawyers in Kent. Q69 Chairman: And housing lawyers in Northumberland? Mr Miller: Or housing lawyers in Northumberland, yes. Ms Ardill: If I could perhaps add to that point. I think it is very important to be clear what is meant by "advice", because, of course, within the Community Legal Service advice operates at a number of different levels. There is the specialist level, but there is also the general help level and, underneath that, there is information. If there is a pattern of provision for general help that does not mean necessarily that there is provision for specialist help, and it is very important to be clear, in terms of if one is to use the phrase "advice deserts", precisely what sort of advice is being referred to. Q70 Chairman: The LSC has said that in the current round 90%t of contracting firms have bid and those who have not have been more than made up for. Does that indicate there are actually still plenty of solicitors prepared to do legal aid work of all kinds? That was the picture they were offering to us. Mr Miller: I think it is very difficult to know what the number of bids does actually mean, because we have not been provided with any information as to who is making these bids. Certainly my assessment of the situation would be that a lot of the bids are accounted for, either by firms that currently do the work under their tolerances and want to get a specific contract or that are simply bidding, in the hope of having something left to do after April, with a view to recruiting staff if they get the contract, or, alternatively, where you have departments in existing firms who want to break away and set up their own organisation. Any bids that come within those categories would actually represent a re-organisation of existing supply rather than new supply coming in, and I think it would be very important to try to find out just how much of the new bids are just this re-organisation rather than new bidders coming in from outside. Q71 Chairman: Have you any way of knowing whether this is a really significant factor, or is it just, as it were, an anecdotal challenge to figures which otherwise present a clear picture? Mr Miller: At this stage we have no information from the Commission as to the nature of the bids that they have received; so we just have no way of knowing. Ms Ardill: Another important factor, I think, if contracts are awarded, is what size they are, the number of new matter starts that are involved - because, of course, a provider with a large contract can take more cases, has greater capacity. Q72 Chairman: You mention the tolerance system, which to my mind is quite important in rural areas, because without the tolerance system enabling solicitors to provide advice beyond a specialist area that might mean there is no‑one in a rural market town, for example, who can provide legal advice for the sort of applicant who lives there and finds it very difficult to travel a long distance? Ms Ardill: I think there are some quality concerns about tolerance work precisely because firms are providing that work without the benefit of a specialist supervisor, but, given that there are inevitably shortfalls in rural and market town provision, the tolerance system has been very valuable in plugging those gaps, and I think it would certainly be the case that if any of those firms were to withdraw from legal aid, and it is said that some do not actually need the legal aid work to survive, that would leave quite serious access gaps, not only in the area of law in which they specialise, but in the subsidiary areas in which they conduct tolerance work. The quality concerns remain, but if firms were to make better use of second‑tier support services, which the Commission has been piloting and plans to roll out nationally in April, we understand, there is a possibility that tolerance work could be of a more acceptable standard, or a more reliable standard, one should say. Q73 Chairman: Does the loss of family law contracts have an adverse effect on the availability of skills in social welfare law generally? Ms Ardill: Our understanding is that a large proportion of firms that provide social welfare tolerance work in rural areas have got a specialist contract for family law, so in a sense they are the backbone of the Community Legal Service in rural and market town areas. Mr Smith: Indeed, the pattern.... You were asking about the significance of the change. I think it is undoubtedly true that practitioners have cried wolf too often about pulling out of the system, but, when the Access to Justice Act came in and the contracting system came in, you had a massive cut in the number of firms providing legal aid, which is not necessarily bad ‑ I would have thought overall it was probably good ‑ and now what you have is the settling down of the system; but, as you look at it now, in fact family law, in terms of cases, the family law cases have kept up and we are back to a system which in some ways is very much like it was 30 years ago: Civil Legal Aid is dominated by family law, which is its backbone. Q74 Chairman: Is the growth in the Criminal Defence Service budget having an adverse effect on Community Legal Service funding? Ms Ardill: I think the problem is that the Criminal Defence budget is not one that can be easily capped, because, of course, we have obligations to criminal defendants and the Human Rights Act and if the defence budget is growing organically, often because of pressures from changes in the Criminal Justice System which are outside the control of the Legal Services Commission, then I guess the Commission has no alternative but to seek to make savings elsewhere. It seems very important that across Government as a whole there is acknowledgment of the pressures placed on the legal aid budget from policy changes in other Government departments. Mr Smith: The problem is that the Access to Justice Act allowed the capping of the legal aid budget overall, effectively, and civil is being squeezed. Crime is the court but it is not necessarily the fault of the crime, and you can see that stance. There is this massive pull out of legal aid, a diversion into advice and an overall squeeze on the budget. I think it is these conflicting pressures that allow the Legal Services Commission to come to you and say that the world has never been rosier, and you will no doubt get a trail of demoralised practitioners in every sector who will say that it could be significantly better. Chairman: Perhaps I should qualify the ascription to such an optimistic view. That is sometimes the view ministers appear to give in the despatch box about the state of things and the number of applicants! Q75 Mrs Cryer: Do any of you have any evidence that the system of matter starts impacts detrimentally on access to justice? Mr Miller: I would say, yes. The key example, I think, is the survey that was undertaken by the Law Society Gazette in conjunction with ourselves and the Criminal Law Solicitors Association, but this showed that a substantial proportion of firms over the course of the past year have had to turn clients away because they have run out of contract capacity. It was as early as last summer that I was starting to get reports from firms that they had run out of matter starts and would normally be given additional matter starts. So that meant that even though they had contracts in the field of law and could do work under a legal aid certificate they were not able to take on new clients at the initial level. Ms Ardill: If I might add to that. A further concern is that if private practice firms are going to behave in an economically rational way, which, of course, they can be expected to do, they are perhaps likely to choose cases for each matter start that are likely to be substantial in nature, that are likely to run longer: because in that way they can maximise the income from each matter start. I am not suggesting for a minute that they are wrong in choosing more complex cases, because they will be the clients who have the greatest legal aid, but the economic rationality of their decisions on choosing cases cannot be ignored. I think that is another flaw in the matter start system. Mr Smith: I would add that the matter start mechanism is the rationing mechanism which was introduced ‑ that is what chokes off demand. So in terms of evidence, there is certainly high anecdotal evidence of firms running out of matter start; and if you talk to almost any practitioner they will say their receptionists are passing people around. So you get the hand of bureaucracy, a sort of Stalinist controlled economy model, directing people around and choking off demand, and that is inherent in this rationing system. Mr Miller: I think it is also interesting to see the way that different firms have responded to the challenge of the matter start limit. At the beginning of the current contract year the Commission said that firms should work on the basis that there would be no more matter starts available, that this was an annual allocation. Firms therefore had a choice as to how they adjusted to this. They could, for example, choose take on a set number of new clients each month, they could perhaps decide to take on only the more complex matters or specialise within a particular sub‑category of the field of law, for example, doing only matters relating to children in family law, or something like that. In fact, the way that most firms have operated, although they may have introduced some additional criteria, on the whole the response has been to carry on taking on clients as and when they turn up with the need; and the result of that is that firms do run out of matter starts. Rather than rationing them over the course of the year and turning away more clients during the whole of the year, it means there is a huge number of clients being turned away in the later stages of the year. Ms Ardill: Another concern, I think, is that some firms have been completely wrong‑footed by decisions being taken by the Commission's regional office to take away matter starts from them in the middle of the contract year, which means it is very difficult for them to plan. Q76 Peter Bottomley: Is that done on competence, or is it done on budgets? Ms Ardill: On reallocation of resources. Q77 Peter Bottomley: Budgets? Ms Ardill: If there are only a fixed number of matter starts and the Commission's perception is that those matter starts are needed more in another category of law or another area, then the removal of matter starts from one firm to give them to another is‑‑‑ Q78 Peter Bottomley: So it is not only a calendar lottery, it is also a subject lottery from the point of view of the potential client? Mr Miller: Potentially, yes. To take one example, one firm contacted me. They had had someone away on maternity leave for a period of time and therefore had not taken on as many matters as they expected to. The Commission reduced their number of matter starts, recouped the matter starts which had not been used, which for that firm gave them a new baseline, which was the permanent baseline for that firm's contract business position, and reallocated those matter starts, and the regional director would then be free to allocate those matter starts either to the same field of law with another firm or to a different field of law. Q79 Mrs Cryer: So you are all critical of the use of matter starts. Have you thought about another way of controlling costs other than matter starts? Is there another way round this? Mr Smith: There are two, I think, at least; and I will give my colleagues a bit of time to think what their response is. Matter starts are clearly a way of controlling costs, and it is very effective. It means the hand of bureaucracy can manipulate with some care. It can release 20,000 in November if it has the money, and so on. There are two other ways. Historically, the way it was done was more open, and I preferred it that way, but it was not done sophisticatedly enough, and you juggle scope, eligibility and the other variables in an open set of regulations, and you, as the Government department, estimate demand and manipulate it in relation to those variables throughout your control. It was never done‑‑‑. The DCA, as it now is ‑ never as the LCD in those days ‑ had the sophistication to do it well enough, so it was always out in its estimates, and I can understand the Treasury's concern at that, but what you had then was a system of rights-based entitlement in which a person could say, "I have a reasonable case. I am within the eligibility limit. I am entitled", and there is a great strength to that, which we have lost, and personally, if we lived in an ideal world, I would go back to that but with a more sophisticated department. The other way is instead of buying cases you could buy bodies ‑ and this is the GP contract. There is a potential problem with that. You are dealing here with private practice. Of course, the mix of private and public is very topical and fashionable, but it is fraught with problems, and private practice is unavoidably a mechanism for maximising economic profits. The problem about buying bodies in private practice is that the economic incentive will be to maximise the profit from that rather than the service. So I have a bit of a problem about GP style contracts within the context of private practice. Where I do think they have proved to work very well in this country, and in others, is if you buy bodies within the "not for profit" sector where you have a countervailing culture which keeps the body orientated to maximum productivity. Q80 Mrs Cryer: What I want you to look at is controlling the costs but, at the same time, ensuring better access to justice. So if you could look at those goals? Ms Ardill: I think that one option that is, I gather, under discussion is the idea of introducing more fixed fees for civil areas of law. They are already in place for certain aspects of criminal law. I think the idea is that, provided these fixed fees were very specific to particular categories of case, they would deliver a great saving in administration because there would be no need to conduct detailed exercises calculating the value of the work that was done and they would also deliver a predictable budget, but there are problems in ensuring that the quality of work is maintained. It is very important not to pay the fixed fee and not enquire further into the quality, but there also could be some perverse incentives to lawyers to split cases. Where previously they might have done a case as one unit, under a fixed fee system there may be an incentive for them to split the case into two interrelated units in order to increase their income. There is also a possible incentive for lawyers to cut out the longer cases in favour of the short ones. In a sense, it is the reverse of the economic incentives that prevail for new matter starts, and it might be that this system would work against the idea of firms working holistically with their clients. They would very much work in terms of the one unit, possibly the minimum amount of work that would be acceptable. Mr Miller: My view is that there would be no one single answer to this and that there will need to be a range of different solutions found to a range of different problems. For example, I take the personal view that the undefended divorce could easily be dealt with on a fixed fee, and I understand that many firms do that on their private work as it is. So there are certain elements of the work that would lend themselves very much to a fixed fee or to a standard fee sort of system. Another possibility which would also, I think, go some way to addressing the problem of rural supply would be for the LSC to employ a solicitor and then place them within an existing organisation. This would, in effect, then enable them to deliver a salaried service without having the problem of the capital start up costs that would be inherent in a full salaried service. So those are a couple of the ideas. Also, using the "non profit model" for buying a set number of hours or a set number of fee earners rather than a set number of cases, I think, would help to get around this problem that we are seeing at the moment that firms are having to turn clients away as soon as they reach a set and totally arbitrary number. Q81 Mrs Cryer: Do you think there is any possibility of legal aid being delivered by non‑solicitor agencies, and what role do you see for government agencies in providing advice, such as Job Centre Plus and New Deal for Lone Parents: because they are always giving forms about that. Do you think that they have a role to play in legal aid? Mr Smith: You are asking a range of questions. First of all, in relation to non‑profit agencies, of course non‑profit agencies are being used in the Citizens Advice Bureau and various of the advice agencies are being funded. I have no problem with non‑profit agencies; I do have a slight problem about advice ‑ not about advice being given by non‑lawyers, but I put it more positively. In my experience the best mechanism to deliver advice is an organisation which has a mix of lawyers and non‑lawyers; and it does not have to be a solicitor's private practice. My best example of that would be the CPAG, where I worked for many years, which was exactly that, a mixture of specialist non‑lawyers and specialist lawyers; and that seems to be the optimum. In terms of the current pattern of provision, I know the LSC is very proud, or the Government is very proud of using the "not for profit" sector, and I think rightly ‑ that has been a good initiative. I think, myself, that, when things settle down, we will find that the best form of delivery has lawyers and non‑lawyers, because lawyers do have some hard skills which, in a scheme which was once called legal aid, are actually valuable and the combination of the two is valuable. So "not for profit" agencies, yes, I would have a preference for them having lawyers in the package. As for government agencies, I think that it is commendable to have Job Centre Plus and other agencies attuned to giving advice. If I remember the Beverage Report, I think actually Beverage had advice ‑ he wanted advice desks in. God knows what they would have been called: benefit offices and labour exchanges, I expect they were probably called. So it is not a new idea, giving advice, it goes back probably past Beverage and, yes, it is a good idea and government agencies should be attuned to it. Of course we are spending enormous amounts of money on welfare benefits advice, which is actually correcting the faults of the Department; so it is kind of an odd circular thing. Let's pump advice resources into agencies that are making the mistakes which are chasing the work. You might think you could save quite a lot of money if the primary agencies did their primary task with sufficient skill to get it right, the answer right more often. Should they be orientated to giving advice? Yes. Should they be oriented to deal with the holistic problems of their clientele? Yes. Is this going to be a major change? No. Are there problems about it? Yes, because you are within the government bureaucracy. It is a subsidiary purpose; it is not independent; it is going to be government orientated. Mr Miller: I was going make one brief point on this. If you look at the costs drivers, you will find that most of the drivers there are caused by the nature of advice giving services and not by the nature of the person giving the advice; so I think the additional costs of having a lawyer rather than a lay adviser are not as significant as may be thought. Ms Ardill: Could I pick up on the point of independence? We do have quite serious concerns about the notion of government agencies delivering advice, as opposed to information, because we do think this creates conflicts of interest. In a sense the adviser is serving two masters. The client's interests are not the same as the interests of the employer. The adviser may be under pressure to meet particular departmental targets which do not necessarily reflect the client's best interests. There are also some concerns about the quality of advice. The recent report by the Parliamentary Ombudsman noted a significant number of complaints about the DWP's Job Centre Plus employees; and a proportion of, I think a significant number of, complaints against Job Centre Plus involved either incorrect or misleading advice about welfare benefits entitlement. I think that illustrates the problem. Q82 Mr Soley: Are you not being a little too precious about this? I get complaints about lawyers too who give wrong advice, and I have to say that, since things like New Deal for Lone Parents has come in, I find that when I send a person down there, particularly if they are lacking social skills in a number of fields, then it is an extremely useful experience for them because it brings everything together: they can actually discuss what childcare is available to them as well as what their job options are. The idea of the Department just being an information giving body, rather than one that can advise them on a package, seems to me unnecessarily protective of lawyers' skills, and lawyers, at the same time, give me some grounds for complaint from time to time. Ms Ardill: I think advice on issues such as employment, seeking work, childcare, is perfectly acceptable, because it is not in conflict with the interests of the advice providing body. Q83 Mr Soley: It is more than that, is it not? It is about economic assistance. In terms of childcare, for example, they actually give you a package of measures which will also give you money in order to buy in childcare rather than go out to work. If you ask me to send that person to two separate agencies, the chances are they will not get the money? Ms Ardill: Obviously we accept that point. There is an advantage in delivering advice holistically on a range of social and legal needs, and we would certainly subscribe to that view. I think what would be very worrying for us is the existence of Government sponsored advice that had such a powerful effect on the advice landscape that independent providers simply withered on the vine. I think that would be a matter of very great concern to us. Mr Smith: I think it is also question of degree. "New Deal" is a good example, and there are other examples too where, in a way, I see it as the Government doing its job properly. In giving holistic advice it must be absolutely right, giving a package a real advantage, and I think that is probably something which has been much improved; but I am sure you would share my concern if the person suddenly said, "I am having a bit of a problem with my landlord. Should I withhold my rent or not?" I would be a little nervous about that kind of advice being given. It would not necessarily be wrong, but I would be nervous about that level of advice being given, and you do not mean that. Q84 Mr Soley: But it would be unlikely, would it not? Mr Smith: But it is a question of the demarcation line. Should government departments give a holistic package of advice to someone who comes to them and wants to juggle the fact that they have children, insufficient income and might want to work? Should they give as wide a range over that? Yes, that is them doing their job properly. In a way the problem about advice is that it ranges from information through to, "Well, if you want to do that I would take a writ out." It is such an enormous area that you can get caught up in it. I think you have to make gradations, you have to build gradations in it, and there is a level, and it will be a different level for different people in different areas, where actually I would not want to proceed any further without a lawyer's advice; and I am sure that would be true for you. All of us would have a line where, "If I am going any further, I actually want to hear from an expert." Q85 Mr Soley: I am sure that is right, because any MP who is caught in this traffic may need advice on it, in fact, but all I am saying to you is do not be to a precious about this dividing line. I accept there is a dividing line, there is a certain point at which I will give advice to you and say, "I think you need to see a lawyer", but at the other end of that scale, if we actually squeeze out some of these very good initiatives on advice, frankly, a lot of the people who are getting help at the moment will stop getting it. Mr Miller: I think in the past there has been a lot of legal aid money spent on things like welfare benefits checks, where, quite frankly, the proper course of action would have been to direct them to the Benefits Agency to get the advice; and I think there is a distinction to be made between that situation and the situation where someone has had their benefit stopped for reasons which they dispute. I certainly think that that dividing line could be more clearly drawn so that those issues that can appropriately be dealt with by the Benefits Agency should not be funded out of Legal Aid, but that must not be at the cost of those where there is a genuine dispute that needs independent advice getting that independent advice. Ms Ardill: It is probably necessary to have agencies like that operating under a very strict protocol which makes it clear at what point they should refer cases outside to an independent provider. I think at the very least that would be a necessary pre‑requisite. Mrs Cryer: It is a very fine line. I am not sure that you could have a precise cut‑off point. It would drift. I know, from sending my own constituents to these various agencies, they have been given excellent advice; and my advice usually to them at the end of the day is, "If you need a lawyer go and see one." I never push them into seeing a lawyer because it can mean a lot of money for either them or legal aid, but I think a lot of my constituents are getting good advice. I am not sure where you change from information to advice. I know it is slow. Anyhow, thank you. Q86 Keith Vaz: How do you believe newly qualified practitioners can be recruited into legal aid work? Mr Miller: This is one of the key issues facing the profession at the moment, and there are a number of issues that we face there. One of them is that because of the way that legal aid is paid, the rates of remuneration, the salaries that legal aid firms can offer are much lower than those that can generally be offered by the commercial firms and, to a growing extent, even by those more regional firms that are doing no legal aid work. There is also the problem of the burden of student debt: because graduates are looking for areas where they can repay student debt at the earliest possible opportunity and those opportunities simply are not available in the legal aid field. There has been a very good initiative by the Legal Services Commission in terms of a sponsorship package for those trainees who want to go into the legal aid field. That is something that, I think, needs to be built on. It has been a very positive development, but at the moment it only helps 100 students a year. There are a total of 5,000 training contracts offered each year. Half of those go to the City, the other half are going to various different firms around the country. So perhaps 1,000 are going into legal aid at the moment - probably 100 of them is not going very far. Q87 Keith Vaz: When you went into the profession you went into legal aid practice, did you? Mr Miller: Yes, I did. Q88 Keith Vaz: Do you find that people now going into legal aid work are different types of people to the ones who went in when you were there. Roger Smith has been a grandee for many years, holding important offices, so it does not necessarily apply to him, but when you went in then and looking at the recruits now - because you have recently been in practice, have you not? Mr Miller: Yes, up to four years ago. Q89 Keith Vaz: Are there lots of people applying for these posts in legal aid work. What is the ratio? Mr Miller: It is very much reduced numbers now. The big legal aid firms who take on trainees on a regular basis have said they are still able to fill those posts and still with reasonable quality candidates, but there are fewer of them than there used to be. Smaller firms find they get plenty of applications, but the quality of them, they say, has reduced quite significantly. Also, the other point I found is when I was a student I knew I did not want to go into commercial practice, I knew I wanted go into the legal aid side of the profession, and there was no information available about that element. We had the City firms coming in doing all their presentations, the law fairs were dominated by the commercial firms, and there was no information at all about the legal aid sector of the profession. What I found recently when going to law fairs and doing talks to students is that that has not changed at all. There is no improvement there. There is still no information getting to students that this is actually a valid career choice. Q90 Chairman: Could the Legal Services Commission not do some of that themselves? Mr Miller: I would hope they would. They have, jointly with us and the College of Law, produced a brochure setting out a lot of information about legal aid careers that has been sent out to most universities and colleges of law. I have my doubts at this stage as to how many students are being made aware of it. So there is a lot more that needs to be done to promote it, and I think there needs to be a lot more effort put into attending at students events and careers fairs to get this information across. Mr Smith: There is also an issue of image. What is your image of a legal aid lawyer? Is it a sophisticated manager of matter starts who manages to keep the business ticking along, or is it a sort of Erin Brockenridge, or a champion of rights? If, which is denied, I am a grandee, before I was I was hooked into working in a law centre because you got families who had being evicted and you got into police stations, past coppers who did not want to let you in, and you got people out. You did things. You changed things. That is the power. Q91 Keith Vaz: But this is not LA Law, is it? Mr Smith: No, LA Law was commercial law. This is not LA Law. This is public defender type law of the kind you did in your law centre in Leicester, and there is a romance and an energy to it and a capacity to change‑‑‑ Q92 Keith Vaz: Sure? Mr Smith: ‑‑‑which it seems to me... The thing about image is important, I think, because there is a fun about doing legal aid work which was... I trained in the City. I would not go back for even what they would have paid me if I had stayed. There is a fun and an excitement. You are dealing with real people, real problems, which as MPs you will have some sense of, and that is the image which has to be pushed. Secondly, there is a money issue, because the profession clearly within professional legal aid is badly paid, and it has always been so and so it will always be so. I think there are a number of things that follow from that: (1) you have to look at remuneration levels so that they do at least appear reasonable to people; but (2) you have to indulge in joined-up government even when you might not like it, because what is going to happen is that kids are going to come out of university with debts of £10,000, £20,000. They are bound, within the law, to have debts above average because they are going to have to do post‑degree qualification, so there are bound to be young people saddled with the extraordinary over average, greater than average, debt and they are going to be drawn into the commercial world; and one thing that I think the Government has to do, if it is to move to American style funding of universities, i.e. by those going to them, is it has to follow through what happens in the States and you have to have debt forgiveness for certain types of.... If you work for the public sector then you must have debt forgiveness. Q93 Keith Vaz: Very important points. I do not think we can sell debt forgiveness for solicitors. People would not understand that. Mr Smith: But for the Community Legal Services and the criminal equivalent you might be able to because these are clearly demarcating public service occupations. Q94 Keith Vaz: You made a very important point and brought back all the fond memories of myself on the Belgrave Road staying there late into the night, being able to sue the council almost every day over some issue? Mr Soley: I can see a TV series coming out of this! Q95 Keith Vaz: How do we bring this romance back? We even got to the stage where we were sharing our salaries, something which, you know, is unthinkable these days - the same wage for the person doing the typing and the same wage for the solicitor - in those heady days of the 1980s; but the Chairman makes the point: whose responsibility is it? It is more than just brochures, is it not? Is it not ILPA and LAGG and the Law Society and the Legal Services Commission working together to bring in a whole lot of new bright people into the area of legal aid work? Is it not the NHS, in effect, for legal services? Should we not be investing much more in recruiting more people? We have got more solicitors coming up, more solicitors than we have ever had in the past. Goodness knows what the extra 49.5% are doing. As you know, practices have gone up by that amount in 10 years. Where are they all? Are they all working for Shell or Clifford Chance? How are we going to get them back onto High Street, into the law centres, into the CABs doing this kind of work? The Chairman asks whose responsibility this is? Surely you should take some of this responsibility? Ms Ardill: Can I make a point? I think one very important factor here is the sense of demoralisation among legal aid solicitors, partly because they have a very strong sense of lack of appreciation by society and, indeed, by the Government. In fact there is some very revealing research that was carried out by Williams & Gory Ellie(?) for the Law Society, published, I think, last year, and it is very revealing on small firms, many of which do legal aid, and it found that 42% of vacancies advertised for small firms were unfilled two to six months later and have no prospects of being filled. So the recruitment problems are very strongly demonstrated by that research. They also interviewed young solicitors about their perception of legal aid work, and what young solicitors were saying was that they perceived that legal aid was bureaucratic, demeaning and frustrating. They also perceived that it was characterised by long hours, poor money and a lack of appreciation by society and there was a particularly poor defence of criminal ‑ sorry, a poor perception of criminal defence work. Obviously, organisations like ourselves that are engaged in this debate have a responsibility to talk up the importance of legal aid, but I would say there is also importance right across government to recognise the social value of this work. Q96 Keith Vaz: Finally, we cannot leave it to the Law Society, obviously, because Roger is too polite to tell you why, I having work at the Law Society. They are all on voice mail. So we need to make sure that somehow the Legal Aid Commission and yourselves push this whole idea of working in this sector, because, if there is less money going into this work and the bright applicants do not come here, the quality of work is going to go down, is it not? Someone has got to take a grip on this? Ms Ardill: Yes, LAPG has started to develop this idea. We are calling it the collegiate system. The idea of this is that students would move from their graduation into this collegiate system, but we follow a similar model of training to the current model in the health service, so that the student would be placed in various different organisations for a placement and do some academic work, vocational learning, along the way as well, and this would, first of all, enable the student to have a salary from the time that they left university rather than just amounting further debt. Q97 Keith Vaz: Why do you not insist that as part of their traineeship people have to do six months in a legal aid practice? Ms Ardill: I think the trouble is‑‑‑ Q98 Keith Vaz: Like working as a Registrar in a hospital. You have to do six months of legal aid work and you get everyone there, the brightest and the best, participating in that work? Ms Ardill: The structure of the legal practice course at the moment is such that when you select your options you are very much driven by your career direction, and if all trainee solicitors were required to do social welfare or criminal defence work, they might well come into it without the necessary background in their legal practice course. They might well have opted for company law, acquisitions and mergers, banking‑‑- Q99 Keith Vaz: But the Law Society could make it compulsory, if this Committee recommends it? Ms Ardill: That might be an option. Mr Miller: I think one of the concerns about that is that it would take three months to train the person up to the stage where they are going to be useful, so it would be a question as to whether the overall balance would be worthwhile; but, offset against that, it may well interest people in a career in that field of law who would not otherwise have thought about it, so there could well be a trade off there. It is certainly something worth thinking about. Mr Smith: But not, as you know, Mr Vaz, a runner. 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 top earner 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 dishonest 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 has 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 in 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 organisation or 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 services. 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. Q120 Mr Soley: In many of those circumstances the person might have gone to a lawyer in the first instance. Ms Ardill: It has an important role. Mr Smith: I have gone to the States and looked at systems where you can do a divorce petition just by communicating with an interactive kiosk. I got terribly excited about that and I tried to follow developments, which are ahead in the States. The message from the States is rather comforting, that people can use the internet, it is a viable way of extending services, although it is probably only a particular part of the population that can use them and they tend to be the more educated and the wealthier. You can do things with them. The best use of the internet seems to be with human bodies alongside, there are mechanisms where you e‑mail in your request for advice on a standard form and then you get a personalised e‑mail back, that sort of blend with people is good. I think there is enormous potential. The moment when it becomes possible, when the technology all comes together and you can communicate by video through your television screen so that I can see you as my MP or Richard as my lawyer through the screen in my front room things become possible. That is a decade or more in the future. At the moment I appreciate the issue about advice by telephone is absolutely right. I think something like Just Ask is really interesting but its appeal is relatively limited. Q121 Mr Soley: Going back to the telephone, I found when I did face‑to‑face advice work one of the problems that you have in any advice centre is you can only draw from the limited radius round that centre and you can also draw from certain groups of people. The telephone advice has the advantage ‑ and I use that a lot now myself ‑ of being actually very quick, the person phones and even if you cannot speak to them straightaway you can ring them back and sort out a lot of the problems over the phone, whereas previously I would have said, "come and see me in a week or two weeks' time". Mr Smith: Historically when the Law Society controlled Legal Aid it refused to allow telephone advice because it would break up the practices of small geographical firms. I am sure there is masses which can be done. What should be done is what is being done, we should be experimenting with what works. It must be a job from hell to be a lawyer in one of these advice centres. What is the fun of being a lawyer? The fun of being a lawyer is frankly getting into court and doing something. Being on the end of a phone for eight hours a day must be an absolute murderous job. Q122 Mr Soley: He might as well become an MP! Mr Smith: I think it would be worse than being an MP because at least from time to time you get to speak in the chamber, and all of the drama of that. Q123 Mr Soley: We will be doing that on the phone soon! Could you see any company developing IT sufficiently to have a computer terminal there where people were able to come in and use that for a fee and have somebody available to give advice, if necessary, which fits part of what you were describing? Mr Smith: There are services like that available. Q124 Mr Soley: Are companies doing that now? Mr Miller: I know of one. There is a practitioner in Bristol who has set up what he calls the Law Shop, it is exactly that, it is to enable clients to assist themselves, he has a computer which is accessible to various relevant advice sites, he has his library made available to these people, he can obtain forms for them and he can sell them books on specific legal topics. He is thinking very much in those terms and he says that that now accounts for 15% of his practice income, he has obviously made a business case for it as well as it being a useful service for his clients. Mr Smith: You do get insurers who get nervous about these kind of things. There were breaks on that kind of development and there was a notion of unbundling, you could take a case to bits and give advice on bits of it. One of the things that has helped with that back in the States has been the reluctance of insurers to be secure that their liability is as unlimited as the unbundler. Q125 Chairman: The professional insurers of the solicitor? Mr Smith: Yes. Mr Miller: There is one other point I would like to make about telephone services. I agree they are an extremely valuable service and should be made available. I think one of the things which has been found is that they tend to generate additional demand for the higher level services because they encourage people who would not otherwise have gone to seek advice to phone up, to get advice and it becomes known they have a more complex problem that needs a higher level of service. I do not think it will necessarily reduce the demand for the higher level of service, in fact the reverse may well be the case. Q126 Chairman: Finally, there seems to be a difference of emphasis between two of the groups represented in front of us about the role of the salaried service, whether it is a means of filling gaps dealing with unmet need or whether it is a model for the system as a whole. The Legal Aid Action Group suggested every major town should have a local law centre or not‑for‑profit solicitor agency. Is that realistic? Is it not more realistic to think in terms of putting in salaried people to ensure that gaps were filled? Ms Ardill: One point I would like to make on salaried services is that we believe that it is very important for them to be run at arm's length from the government rather than being directly appointed, we are not completely happy with the Commission's salaried defender pilot. Q127 Chairman: Are they not at arm's length because the Commission itself is supposed to be? Ms Ardill: It is not quite arm's length enough for us I am afraid. Your other question about having salaried solicitors within existing agencies, our view is that that might work but we would not want to see a single solicitor working by themselves, we think it is important for there to be at least two because they would essentially become a sole practitioner working in a not‑for‑profit context and that would put them under enormous pressures and it would not be necessarily good for clients to have only one solicitor there, they could have complimentary skills and they could cover for each other in absences. Q128 Chairman: Is there really a fair comparison between a sole practitioner administering his own practice and operating by himself as a giver of advice and a not‑for‑profit organisation which the solicitor was not managing but within which he was operating alongside other people? Ms Ardill: There are some comparisons, it is important to recognise that a non‑solicitor, a not‑for‑profit agency would not be able to do Legal Aid certificate work and would not be able to provide representation in most courts. There are jobs which the solicitor alone would be able to carry out within such an organisation, being responsible for all Legal Aid certificates, being accountable to the Legal Services Commission for those certificates, representing clients in courts where only the solicitor had the right of audience is where the pressures and strains would happen, I think. Q129 Chairman: The problems we have experienced in the past with sole practitioners, apart from general quality issues, have often surrounded things like clients' money issues which would not arise with a solicitor giving legal advice within the context of a not‑for‑ profit organisation? Ms Ardill: If they were operating as a solicitor, even as an employed solicitor, they would still have a professional duty to properly run a client account. The problem you have mentioned with sole practitioners I am not suggesting that would happen in a not‑for‑profit agency but the responsibility would be the same. Q130 Peter Bottomley: I do not know if the Citizens' Advice Bureau Report came out early enough for each of you to see it, their Report said that nearly two‑thirds of their bureaus thought they were an advice dessert and that two‑thirds of the bureaus report difficulties of finding CLS solicitors who deal with immigration cases, and it was almost the same for family law cases, have we essentially got a crisis or have we got a manageable problem, do you think? Mr Miller: I think one of the key statistics is that this year the number of new matters started by solicitors is down by 16% on last year. At the moment we are forecasting there will be 100,000 less people helped this year than there were last year, so there is a severe contraction in the number of matters being started and the number of clients being helped. That I suspect is a key part of what the CAB Report is reflecting. Q131 Peter Bottomley: The previous year there was a 30% drop in matters started. Mr Miller: In terms of matters started it had been constant through the first three years of contracting, which I must admit was counter‑intuitive to what we expected but this year we are suddenly seeing a very sharp drop. Q132 Chairman: There were matters started not taken up, were there not? Mr Miller: That is right. It has been very difficult to identity what is going on, the picture is different in urban areas from in rural areas. I also think we are seeing a sort of tricky economic development here. As I was saying earlier, where you have a fee earner you want to fill their time and if you need more matter starts in order to fill their time you will push for those additional matter starts. The other thing we saw over the past year is firms turning away clients because they reached physical capacity. If the economics of the system were right the response to reaching physical capacity should be to take on a new adviser to deal with that demand you have out there and that you have contractual capacity to meet it, firms were not doing that, I think that is because although they can take on additional clients up to their existing capacity the funding does not give them what they need to be able to expand that capacity. Mr Smith: I put great weight on what the CAB are saying because they are providers and they can have a view about that, they are on the ground, they know what is going on. If they report that in areas you cannot find a dentist or a lawyer I would pay great heed to that. They are also providers and they have problems about staying in as providers. When they give evidence to you you have to look at that as well. I think they are giving you the worm's eye view. I think of all of the observers you may have it seems to me you can best trust them. Chairman: Thank you very much indeed, we are most grateful for your help this morning. |