Evidence submitted by the Legal Action
Group (LAR 77)
1. EXECUTIVE
SUMMARY
1.1 The Carter review objectives were to
ensure access to justice, deliver greater value for money and
a sustainable supplier base. In brief, the aims were given as,
"securing value for money without compromising quality and
access to legal advice."[20]
Legal Action Group (LAG) recognises the difficulties facing the
Carter team and notes that the reforms aim to meet the objectives
by proposing a phased approach to a radical restructuring of the
market. The eventual aim is to procure services based on:
1.2 In summary, LAG submits that:
— the need for some change and reform
is accepted but the current difficulties do not result from systemic
failure;
— the market-based approach is a high-risk
strategy; it is not clear that the market will respond in the
manner assumed;
— the financial objectives are unclear.
LAG is not clear that any savings in the criminal legal aid budget
will definitely be transferred to spending on civil legal aid
services;
— the development of Community Legal
Advice Centres (CLACs) and Community Legal Advice Networks (CLANs)
should be piloted and their usefulness evaluated prior to further
commitments for roll-out;
— the current proposals are likely
to restrict choice and reduce access to justice;
— with increasing pressure to drive
down costs, the quality of services will suffer;
— worryingly, the proposals are likely
to have a disproportionate impact on providers from black and
minority ethnic (BME) backgrounds and BME communities;
— it is perverse that the economic
incentive is for providers to act for relatively articulate and
educated clients, with cases capable of early resolution, rather
than those with more complex needs. This will have a negative
impact on many people who are already disadvantaged;
— the role of the Legal Services Commission
(LSC) within the system, and how it intends to implement a model
of best value, is unclear. This leads to incoherence in the implementation
strategy;
— the current proposals will further
damage access to justice for all with potentially dire consequences
for the reputation of the justice system.
1.3 However, should the market-based approach
be pursued then LAG recommends that:
— a more realistic timetable for reform
is adopted—one that allows sufficient time between phases
for further research, impact assessments and revisions;
— meaningful engagement mechanisms
for all stakeholders should be developed;
— attention should be given to garnering
the views of service users;
— the opportunity presented by the
Comprehensive Spending Review 2007 (CSR07) should be used to introduce
a cross-cutting approach for the co-ordination of all publicly
funded advice and legal services.
2. INTRODUCTION
2.1 LAG is a national charity committed
to improving access to justice, particularly for the vulnerable
and socially excluded. LAG does not represent any particular interest
group: our primary concern is with quality and access to justice
for the users and potential users of legal services. We comment
and campaign extensively on social welfare and criminal law issues,
on the administration of justice and on the delivery of publicly
funded legal services. It follows that we have no direct financial
interest in the reforms. Our concern is with the risks associated
with the proposals: how these may affect the provider base and,
therefore, the availability of legal advice; and the quality of
the advice provided.
2.2 For ease of reference, and unless otherwise
stated, we have adopted the terms "criminal services"
to mean the publicly funded legal services provided by the LSC
and "non-criminal services" to mean all those services
funded by the LSC's Community Legal Service (civil, family, immigration
and asylum, mental health).
3. THE NEED
TO MODERNISE
3.1 LAG accepts the need for some reform
but is concerned that the review's starting point was built on
the assumption that increases in costs result from "systemic
weaknesses in the way legal aid services are procured and therefore
inefficiencies in the way those services are delivered".[21]
This may be a factor, but it is not the only one. There is a need
to address the:
— inadequacy of current budget provision;
— restrictions on eligibility to legal
aid;
— need for publicly funded services
to breach the gap between current provision and unmet need, including
advice deserts;
— failure of the legal aid scheme to
keep pace with client needs and external drivers such as an expanding
list of criminal offences.
3.2 It is not clear whether the proposals
intend to redistribute existing monies or effectively reduce funds
across both criminal and civil headings. In some places it seems
that the objective is simply to make savings of about 5% on the
total budget[22]
but it is also suggested that the objective is to rebalance expenditure
within the existing budget and that delivering efficiency savings
under the criminal heading will allow reinvestment for non-criminal
matters.[23]
3.3 We believe that the cross-cutting approach
of the CSR07 could provide a platform for a frank debate about
the relative priority given to access to justice issues. The CSR07
process could be used as an opportunity to co-ordinate advice
and legal services funding streams across all levels and departments
of government.
3.4 The over-emphasis on the ability of
the market to restructure in a fashion that ensures access to
justice is a high-risk strategy. Without absolute clarity about
available funds, roles within the system and regulatory measures
there are potentially damaging consequences for the reputation
of the justice system. Failures elsewhere in market-based reform
highlight only too well the dangers of relying on predicative
restructuring.
3.5 A key agent in the implementation process
is the LSC as the purchaser/commissioning body. We believe that
there is role confusion within the LSC. That the LSC wants to
act in the best interests of service users is not in question;
but the legitimacy for it to determine what is in their best interests
is disputed.
4. THE TIMETABLE
4.1 Leaving aside questions of whether the
market-based approach outlined will improve access to justice,
the timetable is too ambitious. The strategy entails radical change
and there will be serious consequences of getting implementation
wrong. It allows no room for manoeuvre and is out of sync with
other developments. We suggest that each phase of the proposals
should be evaluated in turn and amendments made in the light of
experience and further consultation.
4.2 Specifically, we recommend that:
— any change to payment methods should
be deferred to coincide with the preferred supplier scheme;
— research should assess the impact
of each phase of change prior to the next phase;
— the timetable should build in sufficient
opportunities for providers and users to discuss impact analysis;
— the initial CLACs should be fully
assessed prior to further roll-out;
— the timetable should be sufficiently
flexible to cater for the outcome of any cross-cutting reviews
emerging from the CSR07.
5. BENEFITS FOR
DEFENDANTS AND
ADVANTAGES/DISADVANTAGES
5.1 LAG fails to see how the proposals will
lead to benefits for defendants. Fewer suppliers of criminal legal
aid and larger geographical contracts may translate into clients
having to wait longer to see a solicitor. We are concerned that
the reality of "advice deserts" for non-criminal matters
could now also apply in the criminal field.
5.2 We wish to register concern that Lord
Carter's proposed changes to the General Criminal Contract and
associated boundary changes will effectively allow the LSC to
restrict choice of a defence solicitor. Given that clients in
need of criminal defence services may be facing a loss of liberty,
LAG fundamentally opposes the LSC having this right.
5.3 The proposed fee structures, unified
contracts and competitive tendering are all likely to be disadvantageous.
We are concerned that they could increase rather than diminish
advice deserts; reduce the quality of service that can be provided;
and lead to the most vulnerable and needy clients being left without
representation.
6. IMPACT ON
DIFFERENT COMMUNITIES
6.1 LAG is concerned that the vision of
fewer, larger, providers and the "efficiencies" associated
with fixed fees is likely to impact disproportionately on those
residing in rural areas, those from BME communities, people with
mental health issues and disabled people. The strategy to reduce
the number of providers could easily mean that the provision of
face-to-face services in rural locations will be increasingly
rare.
6.2 We suggest that it is a fundamental
error to categorise "BME" as a homogeneous group and
agree with findings which suggest that adopting a one-size-fits-all
approach to BME communities won't work.[24]
Even within the review's restricted framework, the available evidence
suggests that the proposed move to fewer, larger, providers for
criminal work would disproportionately impact on BME controlled
firms.[25]
There is no reason to presume that the analysis would be different
for non-criminal legal aid. Other research indicates a link between
the majority ethnicity of firms providing legal aid and that of
their clients. This tendency extends beyond binary considerations
of ethnicity (white British vs. BME) to individual ethnic categories.[26]
It is already recognised that the proposed reforms are likely
to impact disproportionately on those from non-white British backgrounds.
We do not believe that the approach taken is proportionate or
justified.
6.3 Clients with more complex problems are
more expensive to deal with. It is difficult to achieve justice
for those with additional needs within a fixed fee regime. Put
simply, it takes longer to deal with people with access issues
that require adjustments to a standardised approach, for example,
dealing with additional communication needs. Thus, it is possible
to predict negative consequences for people who may be the most
vulnerable in our society. It is a perverse state of affairs that
the economic incentive is for providers to act for relatively
articulate and educated clients, with cases capable of early resolution,
rather than those with more complex needs.
6.4 There is a need to ensure that there
really is sufficient flexibility in the procurement system to
cater for particular communities. The rigid approach outlined
by the LSC for the implementation of reform does not augur well.
We suggest that further impact assessments should be arranged
in tandem with meaningful consultation with affected communities.
6.5 The Carter review recommends that improved
stakeholder engagement should be arranged.[27]
This is essential for the success or otherwise of the proposals.
Adopting an inclusive approach, involving local service providers
and user groups, as well as relevant government departments, will
bring benefit to the system. Developing structures for stakeholder
engagement will improve the reform process and help monitor the
impact of change on different communities. Unfortunately, proposals
for meaningful engagement with stakeholders are absent from the
Department for Constitutional Affairs (DCA)/LSC consultation paper.
This is an essential element of modernising the system and we
suggest that more thought be given to this aspect of the reforms.
7. IMPACT ON
LEGAL AID
PROVIDERS?
7.1 LAG is not an advice service provider.
Our concern is with the effect of change on the ability to access
quality advice and representation. The drive for fewer, larger,
providers in both criminal and civil spheres affects both legal
aid practices and (non-criminal legal aid only) the not for profit
(NFP) sector.
7.2 Initial indications are that many service
providers will cease to provide legal aid services. Surveys by
the Law Society suggest that current providers expect further
reductions in an already tough financial climate.[28]
Although these surveys could be viewed with some scepticism it
is notable that their key message, that the current proposals
are likely to damage an already precarious level of provision,
is backed by further extensive and detailed research by consultants.[29]
7.3 The proposals aim to reduce the number
of providers but the vital element missing is an indication of
how the market will respond. Will firms merge to form larger,
more efficient organisations? Will cartels dominate the market?
Will there be new entrants to the market? Will all of this happen
at the right time and in the right place? The approach outlined
allows only one opportunity to restructure provision. This is
a major gamble and should be viewed accordingly.
7.4 The plans for CLACs and CLANs seem to
assume that a number of existing providers can radically alter
existing structures and operations within a short-timescale. It
is not known how the proposals will impact on existing Law Centres®
which receive funding from other major stakeholders including
local government. In these circumstances, careful piloting makes
sense: it is vital that sufficient time is given to appraise the
outcomes of the first phase of CLACs before further roll-out.
8. IMPACT ON
FIRMS OF
DIFFERING SIZE,
STRUCTURE AND
PRACTITIONER MIX
8.1 Research available to the Carter team
suggested that smaller firms undertaking publicly funded criminal
work provide good value for money but that their sustainability
in the long term is doubtful.[30]
Nevertheless, the research also indicated that even large firms
struggle to run their crime departments at a profit, despite having
low-cost business models. Even these larger firms may not be able
to provide a sustainable model without "[a] changed regime
for fees or the adoption of an even lower cost base model".[31]
It is therefore far from certain that the solution of moving to
fewer, larger, providers is either desirable or sustainable. It
is also evidenced that that 92% of NFPs would lose income under
the proposals unless they increase "productivity" (in
terms of number of cases taken on).[32]
8.2 Thus, for all providers the message
is clear: lower the cost base for cases and/or increase productivity.
This will impact on both the quality of service provided and access
issues for those in most need. To suggest otherwise is folly.
The notion that fewer, larger, providers will deliver an efficient,
sustainable, and quality service is only a prediction, and a risky
one at that. Additionally, the future development of cartels should
not be under-estimated.
8.3 We are concerned that the review has
not considered the practical difficulties for providers which
are "mixed practices" (part private and part publicly
funded legal aid or a mix of criminal and civil legal aid work).
Their ability to restructure in line with the current timetable
is doubtful, which could lead to them deciding to drop legal aid
work with a resultant impact on services available to a given
community.
9. PROVISION
OF HIGH
QUALITY ADVICE
9.1 Moving to fixed fees and variations
thereof will negatively impact on the provision of high quality
advice and representation. The expectation of an increase in the
use of paralegals and less qualified staff will impact on quality.
The economic incentive will be for providers to deal with cases
as quickly as possible. In these circumstances, and with inadequate
case funding, it is difficult to see how quality can be maintained.
This is particularly disappointing as those involved in the sector
have engaged in a drive to set standards and improve the quality
of advice provided.
9.2 It is possible that within a tough financial
regime, peer reviewers will empathise with those who are trying
their best to provide a service with wholly inadequate funding.
Gradually, lower standards among the profession may become acceptable.
We are certainly opposed to proposals for different systems for
measuring quality between private practice legal aid solicitors
and NFP providers and believe that the LSC should keep a direct
responsibility for quality issues across both sectors of provision.
9.3 We are also concerned about the proposal
to measure quality on an organisation-wide basis rather than on
individual outlets, believing that this has far more to do with
administrative convenience for the preferred model of larger providers
than any real concern for quality.
9.4 LAG is not clear what model of "best
value" the LSC has in mind? If the principles are those used
elsewhere in the public sector (challenge, compare, consult, and
compete) rather than the simpler (but less concerned with quality
issues) approach of price competition, it is not clear how the
LSC will organise this in any meaningful way. What will it consider
to be legitimate comparisons of quality and how will stakeholders
be meaningfully consulted? Models of best value take time to refine
and LAG is not convinced that the LSC has demonstrated the willingness
to implement the necessary framework for this model.
9.5 In summary:
— If the proposed fixed fees are introduced
then quality will suffer.
— The LSC should not devolve itself
of responsibility for ensuring quality in the NFP sector.
— The quality proposals have been drafted
to make life easier for larger providers rather than to ensure
quality of advice at the service point.
— Further details on how the LSC will
facilitate a meaningful approach to "best value" are
required.
10. SUMMARY
10.1 In summary, LAG believes that the proposed
changes to legal aid procurement are likely to impact negatively
on access to quality services.
10.2 We recommend that a more realistic
timetable for reform is adopted—one that allows sufficient
time between phases for impact assessments and revisions. Meaningful
engagement mechanisms for all stakeholders should be developed,
with particular attention given to garnering the views and assessing
the needs of service users. Further research should be undertaken
to fully assess the impact of action on particular communities
and localities. The CSR07 should be used to investigate a cross-cutting
approach to co-ordinating all publicly funded advice and legal
services.
October 2006
20 Legal aid: a market-based approach to reform,
Lord Carter's Review of Legal Aid Procurement, July 2006,
p21, para 35. Back
21
Ibid, p3, para 6. Back
22
For example: ibid, p3, para 8. Back
23
Legal aid: a sustainable future, Department for Constitutional
Affairs and LSC consultation paper, July 2006, foreword by the
Lord Chancellor and ministerial team, p3, para. 1.2. Back
24
The Community Legal Service: access for all?, Consumers' Association,
2000, p33. Back
25
Draft impact assessment-criminal proposals: regulatory, equality,
rural, legal aid and competition, p10. Back
26
Diversity Report 2005, LSRC Research Paper No 13, Legal Services
Research Centre, (2005), LSC. Back
27
see note 1, recommendations 6.3 to 6.5, p 16. Back
28
Impact of pay structures on criminal legal aid work; and Impact
of pay structures on family legal aid work, the Law Society surveys,
31 and 21 August 2006 respectively. Back
29
Legal Aid Reforms Proposed by the Carter Report-Analysis and Commentary,
LECG Ltd, 25 September 2006. Back
30
Lord Carter's Review of Legal Aid Procurement, 2005 and 2006 Surveys
of Criminal Firms, June 2006, Otterburn Legal Consulting, p 31. Back
31
Ibid, p 34. Back
32
See note 1, p106-107, para 64-65. Back
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