Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by Young Legal Aid Lawyers (LAR 115)

1.  INTRODUCTION

  1.1  This is the written evidence of Young Legal Aid Lawyers ("YLAL") to the Joint Committee on the implementation of the Carter Review.

  1.2  YLAL are a group of lawyers committed to practising in areas of law that have traditionally been publicly funded. The group includes students and trainees, as well as recently qualified barristers and solicitors. YLAL members share a strong belief in good quality representation and advice to those who could not otherwise afford it. Without access to justice, there can be no justice at all. Without new generations of committed legal aid lawyers, there is no future for legal aid. This crucial aspect of the sustainability of legal aid has not been addressed by Lord Carter in his review, and for that reason the focus of these submissions will be our views on the impact of the proposals on the justice system broadly and, specifically, the impact that the reforms will have on new entrants to the profession. We have conducted a survey of our members in order to ensure that these submissions are evidenced based.

  1.3  YLAL are conscious that there are many aspects of the proposals that warrant detailed attention and we will refer to some of these details in support of our arguments. However, we have had sight of the evidence of the Legal Aid Practitioners Group ("LAPG") and fully endorse their views and therefore will not repeat their detailed arguments.

2.  THE STRUCTURE OF THESE SUBMISSIONS, OUR SURVEY AND EXECUTIVE SUMMARY

2.1  The Structure

  These submissions will explain the motives for young legal aid lawyers in committing to a career in legal aid and highlight our key concerns about the impact of the proposals on the justice system. We will set out why we believe that these proposals will reduce the incentive for young lawyers to undertake legal aid work and why particular groups of young lawyers will be especially disadvantaged under the new scheme. We will detail how some young lawyers will simply be prevented from undertaking legal aid work at all and how junior members of the profession that continue to undertake legal aid work will be particularly disadvantaged under the new scheme.

2.2  The Survey

  In order to evidence these submissions we undertook a survey of all our members. The data analysed is from the first 100 responses to the survey and a summary of our findings is produced at Appendix 1.

2.3  Executive Summary

  These submissions will show that there is widespread concern about Lord Carter's proposals amongst young legal aid lawyers, both in terms of the impact on the justice system and the sustainability of the profession. We are concerned that the proposals will reduce access to justice, affect the quality of advice and representation we will be able to deliver and restrict choice available to clients. We believe that this will have serious implications for the justice system as a whole and will deter young lawyers whose key motive for entering legal aid work is a desire to work towards a more just society. The financial structure of the new regime will have a serious effect on the training and pay of young lawyers, making it even harder for young lawyers to qualify and leading to a skills desert in the near future. Those lawyers that do manage to qualify within the new regime will be placed under undue pressure to provide a level of service below that required in the interests of justice, in order to maximise profits for their firms.

3.  THE MOTIVATIONS OF YOUNG LEGAL AID LAWYERS WHO COMMIT TO A CAREER IN LEGAL AID

  3.1  The overall motivation of young legal aid lawyers entering the profession is a belief in social justice. Financial gain is no longer a reason to enter this area of work. In our survey only 1% of respondents listed financial reward as a motivation for doing legal aid. The overwhelming majority (76%) of respondents listed working towards a more just society as a chief motivation for doing legal aid work. For intelligent young people the rates of pay in the city are incomparable: if it was money we were after we would not be in legal aid. Young legal aid lawyers aim to provide a public service to some of the least privileged and socially excluded members of society. It is a fascinating and rewarding area of work but that alone will not be enough to sustain the recruitment and retention of young lawyers in future. Other reasons given by our members for working in legal aid are to represent the vulnerable, to help regular people with regular problems, a strong sense of justice, helping people who are less able to help themselves, desire to have a direct and positive impact on people's lives and client contact.

  3.2  Young legal aid lawyers are primarily concerned with preserving a good quality justice system. We stress that we are not resistant to change, nor do we object to the existence of larger firms. We value efficiency provided that it does not compromise quality.

4.  KEY CONCERNS ABOUT THE IMPACT OF THE PROPOSALS ON THE JUSTICE SYSTEM

  4.1  YLAL are concerned by a number of themes that run through the Carter review. Many of these concerns have been addressed in detail in our responses to the Fairer Deal, the Preferred Supplier Scheme, Price Competitive Tendering, the CLS Strategy consultation and our submissions on the Legal Services Bill (see Annexes 4-8). In order to avoid repetition, we have chosen to briefly address some of our key concerns about Lord Carter's review here.

4.2  Fixed fees

  YLAL believe that the notion of fixed fees is inherently flawed. 100% of respondents in our survey felt that fixed fees would not promote a better quality of justice and 86% felt that they would not promote efficiency. As the proposals stand, the suggested rates of pay are punitively low. This is likely to result in firms being forced to cherry pick simple cases or provide a reduced quality of services. If, as the principle behind fixed fees suggests, there are firms who are spending more time on cases than is genuinely required, surely it is equally arguable that these will be replaced by firms who will now not risk taking on cases that are too complex, cherry pick cases that will be very straightforward or develop strategies such as case splitting to artificially create short cases. One survey respondent felt that "people will focus on easy areas of law to earn enough to survive". 93% of our survey respondents felt that the introduction of fixed fees would place them under pressure to provide a quality of service below the standard that the interests of justice require. Further, 92% of respondents to our survey felt the escape threshold of four times the work is far too high. Lord Carter persistently claims that one size does not fit all; but his proposals appear to provide very limited room for individualised consideration of cases. The principle of fixed fees across the board, calculated on the basis of seriously questionable data, is likely to have a devastating impact on the quality of legal services that all clients receive and is likely to penalise the most vulnerable clients most. One respondent to our survey summarised the likely position well: "The foremost consideration for every lawyer will be when does the money run out as opposed to what is in the best interests of the client".

4.3  Irreversible loss of good quality providers

  Lord Carter estimates that his reforms will result in the loss of approximately 400 firms. However, research conducted by the Law Society puts the loss at 800 firms. This may result in the loss of good quality legal providers—a loss which seems an absurd outcome for an initiative that claims to ensure "clients have access to good quality legal advice and representation" and a "sustainable" supplier base. The need to continuously bid for work will lead to constant uncertainty, as well as the need to continuously maximise profits.

4.4  Broader implications

  At the same time, the spending restrictions envisaged for providers will not apply to those representing the State and this raises serious questions about equality of arms. There are also concerns about the efficiency drive on suppliers that will not be matched by other agencies in the justice system. Although Lord Carter acknowledges the inefficiencies caused by other agencies in the system, there are no firm plans to effectively address this. Whereas providers are facing wholesale changes to the structure of their organisations that have major implications for the nature of provision and the justice system as a whole, the only concrete proposal regarding other agencies is an annual stakeholder meeting with the Lord Chancellor. Information sharing and impact tests are welcome but there will be no specific financial incentive for greater efficiency, which is the key principle being applied to providers. It is unacceptable for the DCA to wash their hands of this issue: the well-established principle of the "undivided state" warns that one arm of the state should not wash its hands of mischief emanating from other arms of the state. We firmly believe that the polluter should pay: 99% of our respondents thought that concrete arrangements should be made to reduce waste in the system elsewhere simultaneously to the implementation of any change to legal aid.

4.5  Too much, too soon without proper consultation

  The proposed timetable is utterly unrealistic and will result in the quick and irreversible loss of quality services. We are further concerned about the administrative costs of the proposed changes, which do not appear to have been fully worked out. Finally, we are deeply concerned about the way in which the "consultation" process has been conducted. Even the hours spent on these submissions may be further time wasted: Lord Carter is reported in the Law Society Gazette as saying that he has no problem with the Committee investigating but thinks that firms should "press ahead". We believe that this attitude is symptomatic of the way that the entire inquiry's iterative process has been conducted whereby "consultation" is in effect "information"—and that is provided an interested party can get an audience. We enclose at Appendix 2 our correspondence with Lord Carter on this subject. One respondent to the survey commented that the Carter review team "...should have carried out a consultation of legal aid practitioners before making recommendations rather than afterwards!"

  Moreover, the DCA's plans for the future of legal services as set out in the Legal Services Bill have serious implications for the future of legal aid but have been erroneously omitted from consultation sought by the Carter review, although they clearly influence its entire ethos. However, we believe that the impact of all these reforms will be so immense for clients that they deserve full scrutiny. In particular, as the next generation of legal aid lawyers, who will be expected to conduct work within the new regime, we are deeply concerned by Lord Carter's proposals and believe that they will have a profound effect on the sustainability of the profession. It is to these specific matters that we now turn.

5.  THE PROPOSED REFORMS WILL REDUCE THE INCENTIVE FOR YOUNG LEGAL AID LAWYERS TO WORK IN THE FIELD

  5.1  Young legal aid lawyers are drawn to legal aid work precisely because they have a strong sense of social justice and in order to provide good quality advice and representation. But most of our members feel that the reforms will undermine the justice system, reducing quality, access and choice and thereby removing the key incentive for their commitment to legal aid. Further, if we are prevented from providing a good quality of service, many of us will feel that it is simply not worth the financial sacrifice. Without decent remuneration many young lawyers will simply be unable to work in this field. The survey results demonstrate the lack of appeal that the proposed reforms have for young lawyers. 95% of respondents felt that the Carter Review would have a negative impact on new entrants into the profession. 59% of respondents said that the proposed reform had caused them to consider an alternative career. Almost a third of respondents (32%) did not believe that they would be working in publicly funded work in five years time.

5.2  Undermining access to justice and quality

  Social justice is the dominant motivation for young legal aid lawyers to enter the profession. YLAL fear that a dramatic shift of focus towards any financial control which fails to protect the quality of services for clients undermines that end goal both in direct terms of outcomes for clients and in principle. Many members state that this will lead to them leaving legal aid.

  5.3  However, it is not only the financial constraints of the Carter reforms that YLAL members perceive as a threat to access to justice. Insofar as the proposals are aligned with the plans for the future regulation of legal services these also act as disincentives (we have addressed these problems in the CLS strategy response appended). Young lawyers are concerned that the principles that led them into legal aid work are being eroded. One survey respondent considered that the reforms would mean:

    "Less chance for continuity of contact with clients, many of whom will have difficult personal circumstances and so require perception and understanding in their dealings with lawyers"

  5.4  Young legal aid lawyers are motivated to work in legal aid by the factors set out at paragraph 3.1. Providing a quality service is something we take pride in and which is fundamental to the character of the job. Many young legal aid lawyers consider that Carter will detract from their ability to provide a quality service, leading to negative consequences for their clients and their careers. Our survey responses note that the fixed fee contract proposals will lead to a loss of quality. Comments on this aspect were frank: "If I can't do the job properly I don't want to do it at all".

  5.5  YLAL are concerned that fixed fees will diminish an adviser's ability to respond flexibly and sensitively to an individual's circumstances. This will subsequently undermine a client's confidence and have potentially adverse effects on the conduct of their case. A lack of recognition of the quality of service provided is an evident disincentive to young lawyers. One survey response noted the focus on spend as opposed to quality as a major disincentive for young lawyers:

    "I fear that a career in legal aid is being continuously and irreversibly downgraded from that of a high skilled, respected, and regarded profession to a more menial and administrative one."

  5.6  Another aspect of the quality issue is the fear that the proposals will push out specialist and niche practices. These are exactly the types of firms that carry out some of the most important work protecting individuals. A survey response read:

    "There has been worryingly little attention paid to specialist/niche firms in Carter which leads to the question of whether he appreciates what work is done by these firms... in many ways this oversight is one of the most worrying as the work of these firms is often at the cutting edge of developments in the legal world especially in relation to public interest and human rights cases."

  Typically respondents felt "firms will focus in common practice areas to ensure they are meeting targets and avoid specialisms". Those law firms that support niche practices will simply be unable to sustain that type of work under the new proposals. One respondent pointed out that specialist practice: "requires input of time that Carter will not allow in order to train staff and develop expertise... it would be uneconomical under Carter for any firm to do this".

5.7  The pay will be too poor

  For many young lawyers a career in legal aid will not be realised simply because the pay is too poor. As one young lawyer put it: "I cannot afford to make ends meet". This concern is clearly shown in the survey results. Of the YLAL members who do not work in legal aid 58% did not do so because it was too poorly paid. 51% of respondents felt that insufficient funding in this area was the main threat to publicly funded work. The following comments reflect the financial pressures that young legal aid lawyers find themselves under:

    "It has made me (against every principle that made me start doing legal aid work) consider whether pragmatically I can justify carrying on this work when it could jeopardise my future earnings so significantly that it would be irresponsible to my family to continue."

    "...as much as I enjoy the work, if I am unable to pay off my debts when other so called "key workers" are getting student loans paid off for them and help with housing etc, it all becomes a little disillusioning."

    "...I'm not sure if I'll earn enough money to have a decent, basic standard of living which becomes more important the older I get. I'd get paid more being a tube driver."

    "I will not be able to afford to pay off my debts, let alone think about buying a house for many years to come. This is in contrast to my friends working in city firms who are earning over three times my salary."

    "Less pay and worse conditions."

    "I will not get a decent income commensurate to my educational worth."

    "No annual pay rise—I earn £21,000 and am a qualified solicitor! Had I become a teacher I'd be far better off."

6.  REDUCTION IN DIVERSITY

  6.1  YLAL are concerned that the current proposals may lead to a reduction in diversity among legal aid practitioners. This is an area that will have a particular impact on young lawyers in their recruitment, training and long term career prospects. In addition many of our members are concerned about the implications for their client base and see the Carter reforms restricting the service that they will be able to provide to vulnerable and socially excluded clients. In particular, the move towards larger firms was thought to have a negative impact on diversity by 92% of respondents to the YLAL survey. The following response to the YLAL survey reflects the comments of many members:

    "It will reduce client choice. Smaller firms are more likely to reflect the community they serve, and to have direct links with and understanding of their local community (generalising). Larger firms are less likely to have these direct links with their clients. This could lead to a less personalised service, and deter some clients (particularly some ethnic minority clients, for example) from seeking legal advice, reducing access to justice."

  6.2  YLAL members are not only concerned about minority groups but also poor and socially excluded clients. A typical example was the account of one young barrister who recently represented a client in relation to a Crown Court hearing. The young man in question could not afford to attend a conference with counsel in central London because he could not afford the £6 tube ticket. Thankfully his solicitor was based at a small local office and it was possible to re-arrange the meeting at that location close to where he lived in North London. Not only will the move towards fewer larger firms have a direct impact in terms of issues such as travel costs, but YLAL members also noted the less direct implications, observing:

    "Larger firms may not be able to provide the same personalised service to clients and clients may feel they are less approachable."

    "Less individual attention, less knowledge of community and families."

  6.3  One of the major consequences of the Carter reforms will be to reduce the number of small firms bidding for legal aid work. This will automatically have a disproportionate impact on black, minority and ethnic (BME) firms and their clients. Minority firms have a significant presence in the legal aid market, with over 40% of criminal defence firms in London being minority owned. Lord Carter's report does not accept that larger firms bidding for fixed fee work will disadvantage BME firms, barristers and their clients. YLAL cannot see how that disadvantage can be avoided under the current proposals. Lord Carter suggests that an LSC monitoring group will ensure that this is prevented and he has obtained Leading Counsel's opinion that his proposals are diversity compliant. YLAL do not believe that a single opinion from leading counsel is a sufficient justification for imposing reforms.

  6.4  YLAL's membership reflected many of the concerns raised by the Carter Diversity Group (CDG). The CDG is made up of "a broad cross section of black minority ethnic (BME) barristers and solicitors, including representatives from the Black Solicitors Network (`BSN'), the Society of Asian Lawyers (`SAL'), the Carter Group of BME barristers and solicitors, the South Eastern Circuit Minorities Committee (`SECMC') and members of the Bar Council's Race and Religion Committee. CDG is not a Bar Council or Law Society representative Group". YLAL would endorse the very important issues raised in that report. In particular the group notes that the CDG conclude:

    "The impact of Lord Carter's proposals is likely to also severely reduce the numbers of new entrants to the legal profession from BME backgrounds, and of BME practitioners available for promotion to judicial office."

7.  YOUNG LEGAL AID LAWYERS WILL BE PREVENTED FROM PROGRESSING IN A CAREER IN LEGAL AID

  7.1  There is a real concern amongst our membership that, with the best will in the world, it will simply be impossible for young lawyers to progress in a career in legal aid. This is a problem that Lord Carter admitted first hand knowledge of as he explained to an audience at the Law Society that his own daughter had not been able to get a training contract in legal aid and had gone to work for the Home Office instead. But YLAL are anxious that bright and committed lawyers should not be excluded from representing the most vulnerable. YLAL calls for firm measures to be put in place to ensure that the profession does not suffer from a skills desert to complement the advice deserts. The Carter report is already having a negative effect on recruitment and we have enclosed at Annex 3 a letter from the Law Careers Advisor at the University of Oxford setting out his concerns to us. We have called for an impact assessment on the effects of the proposals on young lawyers and incentives for firms to offer training contracts.

  7.2  Concerns that young lawyers will simply be prevented from progressing in a career in legal aid stem from concerns that there will be a reduction in training opportunities, that the reforms will see an increase in the use of paralegals and that it will simply become too expensive for young lawyers to train and survive in legal aid.

7.3  The Skills desert: Reduction in training opportunities and an increase in use of paralegals

  Training young lawyers to become well-rounded practitioners competent to deal with a broad range of areas will not be a priority for firms under intense commercial pressure. The new commercial ethos will have a significant effect on training and jobs on qualification. It is already immensely difficult for young lawyers to secure training contracts and pupillages to undertake publicly funded work and many young lawyers are forced to leave the field or work for years as a paralegal. Firms subject to market competition may not have the stability to undertake the training of young lawyers for two years. It is likely that providers will seek to rely on the use of paralegals trained in specific areas to provide cheaper "bulk" services. Trainees, attracted to developing expertise in a broad range of areas, may well find this impossible within the new structure. This will further exacerbate the present lack of training contracts and accompanying dearth of qualified and experienced young legal aid lawyers. At present legal aid firms cannot afford to take on trainees but desperately need qualified solicitors. The proposals can only make this situation worse.

  7.4  42% of respondents to the survey felt that the Carter review had already affected them. Many were able to provide examples of firms rejecting training contract applications because of the proposals:

    "Many firms I contacted told me that they were not recruiting for the foreseeable future until they knew in the short term at least how they would be affected by the report—ie possible restructuring priorities, and no capacities to take on new staff."

    "I have been told by one firm that they are not recruiting trainees in 2007 in view of Carter. I have been told by another firm that they can make no guarantees that they will be recruiting trainees in 2008 in view of Carter."

    "Some local firms dependent on legal aid have informed me that they cannot give training contracts because they cannot afford to and further change in legal aid will mean that they will not be able to make training contract offers any time in the foreseeable future."

    "There is a fear that there will be a recruitment drive to employ inexperienced and unqualified staff to undertake case preparation."

    "A firm I currently work for (small criminal legal aid firm) is closing down mainly due to Carter implications. On interviews smaller firms are only offering paralegal positions rather than training contracts due to the uncertain implications of Carter."

    "My chambers collapsed while I was in the middle of pupillage training as a result of anticipation of Carter."

    "I have been told I will not be kept on in a post as a newly qualified criminal solicitor as a result of Carter."

  7.5  Despite our invitations to raise these issues with Lord Carter in person, the report simply does not deal with the need to ensure a next generation of well-trained lawyers. Instead Lord Carter appears to believe that such opportunities will flow from the new and profitable system. However, 95% of respondents to the survey felt that the impact on recruitment and intake of young lawyers should have been considered by the review. The Legal Services Commission has constantly responded to concerns about future generations of legal aid lawyers by referring to their 100 sponsored training contracts. However, 94% of our respondents felt that these sponsored training contracts were not sufficient to deal with the problem.

7.6  It will be prohibitively expensive to do legal aid work

  We have outlined at 5.3 the extent to which the poor pay acts as a disincentive to young lawyers who want to work in legal aid. However, the financial considerations are not just a disincentive but for some make it financially impossible to work in the field, as shown by the following response to our survey:

    "I have a young family to support. Since I went into the publicly funded sector 5½ years ago, hourly rates have not changed, fixed fees have come in and are now being restricted even further. I simply cannot afford to remain in the sector if this is the way things are going."

  Training as a lawyer is an expensive business. 49% of our respondents had spent between £10,000-£20,000, 16% had spent between £20-£30,000 and 8% had spent over £30,000. 31% of our respondents owe between £10,000-£20,000, 22% owe between £20-£30,000 and 7% owe over £30,000 as a result of their education and training expenses. Such debts will be almost impossible to pay off on the very low starting salaries offered in legal aid and the possible abolition of the minimum training contract salary further reduces prospects of an financial certainty. The result will be that we loose bright and committed lawyers simply because they cannot afford to be legal aid lawyers.

8.  YOUNG LEGAL AID LAWYERS THAT DO CONTINUE TO PRACTICE MAY BE PARTICULARLY DISADVANTAGED

  8.1  YLAL have grave concerns over the negative effect that these proposals will have on those who do manage to enter or remain in the profession. It is a fact of commercial business structures that junior staff come under the greatest pressure when savings in time and costs need to be made. Despite some claims that larger firms will have more resources for training, 70% of respondents to the survey felt that the move towards larger firms would be likely to have a negative impact on training. With increased emphasis on volume of output and the need to regulate time spent on cases, trainees will face pressure to cut corners to overcome the inefficiencies corresponding with their lack of experience. This will go hand in hand with reduced time spent by supervisors training and guiding young lawyers. The result will be a pressure cooker in which both trainees' and supervisors' levels of advice and representation suffer, leading to reduced quality of service for clients.

  8.2  93% of YLALs have stated that they believe a fixed fee system will put pressure on them to provide a lower standard of advice. Already trainees are reporting warnings from supervisors over excess time spent attending on clients and that they will have less contact for assistance should these proposals go forward. One of the ways in which firms will deal with these problems is to allocate more lower-level tasks to trainees, focusing their skills in narrower areas and diminishing the quality and breadth of their training. This will lead to reduced opportunities for career development and the obvious risk that lawyers will not have sufficient skills to identify more complex problems and that such problems will not be resolved as expediently as possible. Young lawyers will have an insufficient range of legal expertise to deal with clusters of inter-related problems. Even where lawyers have a broader knowledge, there will be insufficient flexibility under a system of bulk bidding to deal with these problems. On the other hand there is an equal danger that trainees will be exposed to extremely complex casework and clients without the necessary experience and without the requisite supervision. Such a fraught decision making process is sure to undermine trainees' confidence and, in turn, that of their clients and will ultimately affect the quality of service.

9.  CONCLUSION

  9.1 YLAL are deeply concerned that the proposals in the Carter review will have disastrous and irreversible effects on the justice system, for clients and providers. YLAL welcome the Committee's inquiry into the impact of Lord Carter's proposals. These submissions have addressed the key areas of the Committee's terms of reference from the perspective of young lawyers. First, YLAL consider that the proposed changes will have a negative impact on the justice system. The view of young lawyers is that the proposals will undermine social justice, which is the very basis on which the legal aid system was founded. We submit that Lord Carter's proposals need to be revised and reconsidered with a mind to protecting access to justice and quality; in particular, more flexibility needs to be built in to the proposals to meet clients' needs in the interests of justice.

  9.2  Second, we are convinced that the proposals will have a disproportionate affect on certain types of providers, hindering diversity among practitioners and discriminating against clients from minority and underprivileged backgrounds.

  9.3  Finally YLAL members believe that the fixed fee proposals will have a negative impact on provision, reducing quality and leading to a loss of highly trained practitioners from the field of legal aid. As Lord Carter says, sustainability is key and without a future generation of committed legal aid lawyers sustainability is impossible.

  9.4  YLAL are disappointed that we were not consulted during the review but in lieu of that consultation, YLAL respectfully seek that the Committee considers our submissions in its recommendations. In particular, we call for an impact assessment of the effect of the proposals on the next generation of legal aid lawyers and for measures to be put in place to protect the intake and training of future legal aid lawyers.

  9.5  YLAL hope that the comments and evidence provided in these submissions will be of interest to the Committee and stress that we would be willing to give oral evidence to the Committee should that be of assistance.

October 2006





 
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