Evidence submitted by David Jockelson,
Miles & Partners (LAR 62b)
This enquiry is responding to an urgent need.
There is a crisis coming during the next one to two years. I am
keen to explain that from the perspective of the ordinary Legal
Aid practitioner.
But something is missing. The immediate crisis
of the next two years is only half of what we should be discussing.
The other half is the real future destination—the radical
changes anticipated within four years which are clearly contained
in the Carter Review but which I do not think are being fully
discussed.
First the immediate situation: on the present
proposals there will be quite a quick collapse of the current
legal aid system. We are already on the ragged edge. There will
be not just a slow decline but actual chaos for clients, children,
Local Authorities and courts. This has massive vote-losing potential—or
vote gaining? As MPs said in the debate on 11 January, the stream
of people into your surgeries with legal problems will become
a flood. There will be shocking injustices. This will be copy
for national and local media... "battered woman murdered
because unable to get injunction." "Children wrongly
removed because parents cannot be represented properly ..."
"... homeless families on the streets ..." etc.
In my area—Child Care—the original
proposals were seriously misconceived. The original proposals
were Fixed Fees of £4,000 to do a case. That was absurd.
But as Prof Judith Masson explained to you, the Legal Services
Commission was apparently unaware that calculating costs per certificate
would produce cases for example with five children that appeared
to be one fifth as expensive as they really are.
But Vera Baird said nobody was to blame for
this and described this as the proposals simply needing "fine
tuning". She also says "We are changing the figures,
you don't know what they are—so you can't really comment—you
are just scare-mongering." So no discussion is possible?
This committee is wasting its time? This style of the consultation
has demoralised practitioners and already caused great damage.
If they revise the figures, say £5k and
an escape limit £15k, that still means a loss of up to £10k
on many cases. This is impossible. These are the details. But
it demonstrates more importantly that the principal of Fixed Fees
is wrong in Care Cases. Any figure chosen as a Fixed Fee for care
work is a nonsense.
Think about a medical analogy. Fixed fee followed
by competitive tendering is fine but only for a discrete, identified
event—a hip operation or even a heart bypass. But a care
case is like someone coming to a hospital with simply "a
major heart problem". You don't know if they need a fairly
cheap course of drugs or minor or even major heart surgery. How
can you fix a price or get people to bid at that point? It's nonsense.
And to be fair Carter did not suggest this and Lord Falconer indicated
in his speech that he could see the problem here. But it has all
come back unchanged in principle.
The committee must say that Fixed Fees are not
practical for care cases. They are too important: they are the
removal of a child from his or her family by the State. They are
the most important cases in the legal system. They are more important
than murder cases. They are long, complex and different from each
other. And we are not the cost drivers. We simply respond and
reflect those: Drugs, social collapse, Local Authority chaos,
court delays, cost of experts, the more careful treatment of cases
and of the social work to get kids home safely. This is even more
necessary now with the problem of the lack of adopters.
Other areas of law—there could be fixed
fees but only where there are small, discrete, identifiable steps
eg in domestic violence injunctions and simple housing defence
work. But Firstly the figures proposed will close down firms all
over the country. I have rung solicitors in Cambridge, Berwick,
Rugby, Ealing... the message is the same and you know it. "Four
years ago there were several firms. Now there are only two...
or three... and they are small and they are thinking of closing."
Even large, well respected firms that the LSC approve of say the
same. Income will drop by 20-40% and it is barely practical now.
It is being subsidised by other departments. This cannot continue.
Second on some more complex types of cases, eg homelessness, it
is simply not appropriate, for the same reasons as I give in care
proceedings.
You have heard this many times. But the Government
does not hear or listen. Why do they seem to ignore the collapse
of solicitor based legal aid? Answer: Because, as Alan Beith suspects,
they do not in fact see the future as Legal Aid being provided
mainly by traditional solicitors' practices.
This is not a conspiracy theory. It is based
on ideas widely discussed in commercial law and IT; the world
of Lord Carter. But it is just not openly discussed within the
Legal Aid context. We seem oblivious.
Carter has a fervent belief in the market mechanism.
He made the statement here that rural advice deserts will be solved
by prices rising causing people suddenly to start legal aid work
again. That is not going to happen. At least not with solicitors
firms. That is the significant point.
LSC/Tesco: the staff we deal with may believe
they are working with us to build a better service etc But I think
and assume that the senior members are in on another very different
vision of the future which comes from the DCA and the Treasury
and crucially their consultants, such as KPMG and PricewaterhouseCoopers
and of course from Lord Carter.
And behind them, informing them and all modern
thinking about the future of law and the dramatically transforming
impact of IT and commoditisation are people like Prof Susskind
OBE. He is the main Government adviser on Law and IT. His book
The Future of the Law is now 10 years old and is the Road
Map of commoditisation. That, together with the Clementi reforms,
and Alternative Business Structures will mean Tesco Law. You have
got to be aware of this other world of law. It is the main area
of discussion in the commercial sector. To assist, I attach a
short profile from last April's Law Society Gazette of
Prof Susskind. Please note his ideas and his status with the Government.
Commoditisation mean the transformation caused
by breaking down traditionally complex tasks which were done in
small, expensive, low tech/high skill, labour intensive, craft
workshops (with mystery and restrictive practices) and moving
to simplified, mass-produced units, with more technology and less
human input. Make the product a commodity and then the magical
power of competition and the market mechanism drives down costs.
Who has clothes specially made for them by a tailor? Not many.
Most people buy them off the peg, standardised, mass-produced
in a factory—often in cheap labour countries.
Apply that to the law: Commoditisation means
getting away from out of date, low tech, hand-made solutions by
solicitors. Add the message of Clementi, the breaking of vested
interests and restrictive practices that protect the old ways.
Then you have the opening up the market to Tesco Law. Ie to Capita
who actually will run the process as they do for many Local Authorities.
Until recently Capita also ran Legal Services Direct. This is
a phone line service which the LSC are thrilled with. It provides
modern style Legal Aid and many more "acts of assistance"
for less money. Capita are also explicitly waiting to make a "cull
of High Street solicitors". Max Pell, their MD told us that
at the LAPG conference. He is very persuasive and I suspect he
is not shy in telling Government what he can offer in "Tesco
Legal Aid." Super Value—High tech, using paralegals,
call centres, outsourcing to cheaper countries etc.
This is not distant, visionary, theoretical
stuff. Look at the Law Society Gazette. Every week there
are articles about outsourcing legal work abroad, saving millions
of pounds (and losing thousands of jobs here). The decision-makers
at the DCA and LSC will be reading that and saying "if it's
good enough for Clifford Chance—it's good enough for legal
aid". That is what they believe is the real "direction
of travel" And that maybe is why they think they can tolerate
the possible collapse of the present solicitor based legal aid
system.
They probably believe that in four years' time
much of Legal Aid will be run by Capita or a similar firm. And
my colleagues and I will be working for them, in a high IT environment,
alongside many paralegals in this country and abroad. But is this
well thought out or a dangerous, half-baked fantasy? A fantasy
that is making the government casual or clumsy with the present
system?
Most of us agree that things do need to change
and many of us believe in the greater use of technology in law.
By using it fully, Legal Aid could be much more dynamic, reaching
out to many more people who need it. There are huge unmet legal
needs causing much unnecessary misery. There could possibly be
a promising future with someone (possibly like Capita) reaching
people, getting them in, having excellent systems and using solicitors
where they are really needed. That would need a lead in of five
to seven years.
But without a proper debate the dangers are
not discussed: Can this commoditised vision, the increased use
of call centres and paralegals really work with very needy, challenging
and dysfunctional clients? Can quality be maintained? Or will
quality be driven down and a dangerously cheap and nasty service
result?
If it were to go ahead, even with safeguards
and after proper debate, how is the transition to be managed to
avoid chaos and create a genuinely better service? In the urgent
short term—Can we keep the present system going and have
a civilised, honest choice? The Government's present course suggests
we are facing a disaster on the basis of a fantasy. The Committee
can act to see what is happening and head off this disaster.
October 2006
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