Further evidence submitted by Criminal
Law Solicitors' Association (LAR 172a)
1. INTRODUCTION
1.1 The Criminal Law Solicitors' Association
submits this additional evidence to assist the work of the Constitutional
Affairs Committee and is limited to comment upon the consultation
paper issued by the Legal Services Commission called "Police
Station Reforms: Boundaries, Fixed Fees and New Working Arrangements".
1.2 The proposals are said to follow the
recommendations made by Lord Carter in his Review of Legal Aid
Procurement and the Government's decisions as published in their
document "Legal Aid Reform: The Way Ahead".
2. THE OVERVIEW
2.1 At Paragraph 1.3 the paper claims that
the aim is to "ensure the long-term sustainability of the
legal aid provider base". There is no evidence as to how
this will be achieved either from research or from previous pilots.
The Law Society has commissioned a report by economists LECG which,
we understand, has already been submitted in evidence. That report
does not seem to support the LSC's optimistic introduction. The
CLSA believes that the proposals will have the opposite effect
and severely jeopardise the supplier base.
2.2 Paragraph 1.3 also makes reference to
the proposals giving "greater certainty about the volume
of work available in boundary areas". The proposals will
not have that effect since volume is outside the control of the
LSC, being a consequence of the activity of police and prosecutors
coupled with central policy decisions about disposal of low level
and some more serious cases outside of the court process.
2.3 The LSC are not in a position to guarantee
volume and are not proposing to guarantee payment for a minimum
amount of work. The consequence is that the entire financial risk
of this experiment remains with individual businesses. Currently
we are receiving reports that, as result of conditional cautioning
and fixed penalty notices, volume is falling sharply in some areas.
2.4 The market, driven by client choice
is already very competitive. It is not easy to see how any of
these proposals will enable firms to compete in the market more
effectively.
2.5 It is suggested that the changes will
"help to control expenditure in police station attendance".
Expenditure has been under control in this area for many years
with figures largely varying annually according to the rate of
arrests and detention. With the abolition of payment for waiting
time, any economies being made will be achieved at the expense
of a transfer of risk and cost of system inefficiencies to defence
solicitors. The CLSA has accepted that there may be room for efficiency
gains within the London area by reducing the number of firms who
travel to distant police stations and courts for individual cases.
2.6 In any event, the efficiencies should
first be achieved so that savings are real. These proposals are
to make savings in the hope that efficiencies may follow.
3. FIXED FEES
3.1 The CLSA believes that the move to fixed
fees in the manner proposed is a mistake for three principal reasons:
3.1.1 At the moment a complex structure of
firms, freelance representatives and agencies operate together
to ensure police station cover on a 24/7 basis. Individuals are
paid a proportion of the hourly fee. The change to fixed fees
will result in some trying to pay a share of the fee and others
moving to an overtime basis of payment. This confusion and mixture
of process may, in itself, cause uncertainty and threaten profitability
through unpredictability.
3.1.2 The CLSA asked Lord Carter how he would
propose to resolve this question. His report shows that he believes
the market will find a solution. He may be right but it will take
time. Our concern is about what happens whilst the market adjusts.
3.1.3 The environment in which police station
advice is provided is one of tension and delay. Already CLSA members
are reporting anecdotally, police officers passing comment that
things will be different when solicitors are on fixed fees. We
believe that system inefficiencies may actually increase as a
result.
3.1.4 The proposed regime, even with escapes
is too simplistic. The CLSA considers that a system of banding
of fees such as the system which has worked well in the magistrates'
court for many years, with waiting time being paid, should be
explored urgently.
4. FEE LEVELS
4.1 We await the sight of the latest Otterburn
Research when it is published in full. We do not consider that
the fee levels being offered, even if workable, are economically
viable.
4.2 The fees have been set using expenditure
for the year 2005-06 whereas firms' capacity is being assessed
based on the year 2006-007. For many firms this may mean that
fee levels do not represent current costs for a number of reasons
including, by way of example, changes to custody centre arrangements
which affect travel or waiting.
4.3 Lord Carter had only seven price bands
across the whole country. That low number of bands was to try
to mitigate the complexity of variable rates across so many boundary
areas. The schedule as now published demonstrates how administratively
burdensome this scheme will be and which will create unnecessary
tensions within the supplier base.
5. The concept of minimum contract size
within a restricted boundary area was to provide greater volume
for the remaining firms. That concept does not appear to be well
understood and the minimum contract sizes being proposed are much
more about administrative convenience for the LSC.
6. Equality and diversity issues do not
appear to have been central to the policy formation. We are aware
that others have submitted more detailed evidence about this and
the potential adverse impact upon both BME firms and more particularly,
clients.
7. Since publication of the consultation
paper, the LSC has published on its website the "drive times"
used to help delineate the boundary areas. Solicitors, almost
universally, have said that the times rarely accord to the reality.
8. The CLSA is also concerned that, for
a set of proposals having such localised impact and where that
impact on each and every scheme must be properly considered, the
two month consultation period is unrealistic and should be extended
to the three full months.
9. In summary the Criminal Law Solicitors'
Association believes these proposals will restrict competition
by confining the boundaries within which successful firms can
operate without increasing or guarantying volume and at the same
time strangling profitability.
March 2007
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