8 The relationship between the LSC
and suppliers
230. A central theme in Lord Carter's report is the
need for improvement of the relationship between the various legal
aid stakeholders, which Lord Carter was surprised to find was
"often adversarial and sometimes hostile".[272]
He noted that "an atmosphere of mistrust and suspicion has
been allowed to build up between suppliers and the government,
and implementation of the reforms would be significantly helped
if stakeholder relations were strengthened".[273]
Radical and lasting reform to the legal aid system can only be
made to work by suppliers and the LSC working together. This is
of particular importance in a period of transition as the current
one, in which, as Andrew Otterburn said in his study on the expected
impact of the Carter proposals, confidence building between the
LSC and suppliers was essential and could best be achieved on
the part of the Government by being flexible.[274]
231. Some of the harshest criticism the reform plans
attracted was aimed at the speed with which the Government is
driving the agenda for reform of Legal Aid and the difficulty
to engage in the reform process on account of its speed and complexity.
Reform has followed reform and providers told us that they found
it almost impossible to keep up with the constant changes in the
legal aid system over the last years.[275]
232. When we asked Carolyn Regan, Chief Executive
of the LSC, about the pace of legal aid reforms, she recognised
that:
"It is a lot of change, but having said, that
there has been quite a lot of change for the last few years in
terms of some of the things that we have already mentioned and
the introduction of tailored fixed fee schemes for certain parts
of legal aid, so I think it is a continuation of this. It is undoubtedly
an acceleration of the pace but, as I said, with discussions and
consultation along the way about elements of the total package."[276]
233. Yet, to many of those involved in legal aid
work, the fact that the LSC is consulting on its various fee scheme
proposals and other elements of the reform comes only as slight
consolation. Richard Miller voiced his concern about the flurry
of different new plans, consultations and re-consultations by
the LSC in an LAPG press release on 4 March 2007:
"Today I have downloaded nineteen pdf files
from the Legal Services Commission website, including annexes
and regulatory impact assessments. This is on top of consultations
published earlier this month on police station boundaries and
the very high cost criminal case panel, not to mention the negotiations
on the new unified contract. I am paid full time to keep on top
of the LSC's initiatives, and I can barely cope with this blizzard
of publications. How on earth can any practitioner who is trying
to conduct a substantial caseload to a high standard be expected
to do so? The sheer volume, speed and extent of the changes is
liable to destroy the legal aid system even if the substance doesn't."[277]
When we asked the LSC about the number of most recent,
current and imminent consultations in connection with the Carter
reforms, we were told that there were 11 consultations on the
present criminal legal aid reform proposals, seven on civil legal
aid and one cross-cutting consultation.[278]
This speed and the almost overwhelming amount of detail in the
LSC's various proposals have clearly hampered providers in their
efforts to understand the new system. Any business planning has
been near to impossible.
234. The introduction of the new Unified Contract
for legal aid providers on 1 April 2007 brought the already difficult
situation to a head: while suppliers and their representative
organisations, led by the Law Society, criticised what they described
as a one-sided, inequitable contract and announced plans to challenge
it by way of judicial review in the Administrative Court,[279]
the LSC insisted on the fairness of the provisions and their prospective
application by it. Suppliers threatened mass refusal to sign the
contract, the LSC retorted by informing them that failure to sign
the contract by 2 April 2007 would mean that suppliers without
a new contract would not be allowed to start new legal aid cases.[280]
Contracts signed after the 2 April would not be received by the
LSC. Following this stand-off, Bindman & Partners, in an open
letter to the LSC, wrote that "…the relationship between
the [Legal Services] Commission and those it needs to deliver
legal services to the public (and in turn to secure access to
justice) has never been worse".[281]
235. Another, even more critical example of the lack
of trust between the Government and suppliers was the failure
by the DCA/LSC to publish the crucial study by Andrew Otterburn
on the impact of Lord Carter's initial reform proposals, which
the LSC had commissioned and received in November 2006.[282]
This study, as can be seen throughout our report, was critical
of the short transitional period between the introduction of the
fee schemes and the roll-out of competitive tendering and of the
lack of adequate evidence to come to a reliable assessment of
the risks associated with the Lord Carter's fixed fee proposals.
It warned that changes to the timetable of the reforms should
be made. While Lord Carter and the DCA had published a previous
study by Andrew Otterburn of June 2006 on the criminal
legal aid supplier base, this equally pertinent research remained
unpublished. It was only on the initiative of suppliers' representative
groups that we were alerted to the study's existence. It was eventually
published in late February 2007 after we raised this issue with
the Lord Chancellor.
236. While we accept the apology by the Lord Chancellor
for what looked like an attempt by his Department and the LSC
to suppress an important piece of research relating to the speed
of the current reforms, we remain profoundly troubled by the handling
of the Otterburn issue on the part of the LSC. [283]
Its suggests an inability on the part of the LSC to address fairly
and openly a critical aspect of the reforms: the ability of the
supplier-base to survive the reform proposals.
237. There has
been a catastrophic deterioration in the relationship between
suppliers, their representative organisations, and the LSC. Unless
the relationship improves, we do not see how implementation of
these reforms can be successful. We urge all involved in legal
aid reform to re-engage in a more constructive dialogue.
272 Lord Carter's Review of Legal Aid Procurement,
Legal Aid: A market-based approach to reform, p iii Back
273
Ibid., p 7 Back
274
Otterburn Legal Consulting, The impact on the supplier base
of reductions in criminal fees from April 2007, November 2006,
p 2 Back
275
E.g. Q 85 [Des Hudson]; Ev 99 [Everett & Co] Back
276
Q 75 Back
277
LAPG, Press Release, 4 March 2007, www.lapg.co.uk; Q 95 (Des Hudson) Back
278
Ev 301 Back
279
Law Society, Statement on timetable for judicial review,
27 March 2007, www.lawsociety.org.uk Back
280
Information on the LSC web site, 30 March 2007, www.legalservices.gov.uk Back
281
Letter to Mike Jeacock, LSC, 30 March 2007, www.bindmans.com Back
282
Otterburn Legal Consulting, The impact on the supplier base
of reductions in criminal fees from April 2007, November 2006 Back
283
Q 319 Back
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