Family Legal Aid Reform - Justice Committee Contents

1  Introduction

1. The Legal Services Commission published a consultation document, Family Legal Aid funding from 2010: a consultation, in December 2008. The Commission proposed new arrangements for funding representation, advocacy and expertise in relation to public and private family law.[1] The proposals are part of a broader strategy for legal aid reform outlined in July 2006 in Lord Carter's report, Legal aid—a market-based approach to reform.[2]

2. Lord Carter's strategy was, in essence, a staged move from the then mixed economy of fixed and graduated fees, uplifts and other add-ons and hourly rates for different areas of the law to a market-based system of competitive tendering for block contracts. The interim step was envisaged to be fixed fees for different types of cases. Lord Carter's work was described to our predecessor committee as, in itself, a stage in a long-term shift from pure piecework to block contracts; from paying for time, to paying for outcomes.[3]

3. Our predecessor committee reported on the implementation of Lord Carter's strategy in 2007. That committee supported the fundamental aims of the reforms, recognising the necessity to control legal aid expenditure, but, overall, our predecessors concluded that: "the Government has introduced these plans too quickly, in too rigid a way and with insufficient evidence". The report found that:

  • unsustainable increases in legal aid expenditure were limited to Crown Court defence work and public law children cases;
  • plans for a transitional phase of fixed fees were complex, rigid, based on inadequate data, likely to impose unsustainable cuts in solicitors' income and should not proceed;
  • there had been inadequate research into the effects of competitive tendering;
  • competition on price for legal aid contracts raised questions about the continuing quality of advice and the peer review quality assurance scheme was unproven;
  • there were doubts over the practicality and effectiveness of the Government's plan to involve fewer but larger firms in the legal aid system;
  • the impact on black and minority ethnic legal aid suppliers and their clients would be disproportionate and might constitute a breach of race equality legislation; and
  • there had been a clear breakdown in relations between the LSC and suppliers and trust had to be rebuilt before any reforms could be implemented successfully.[4]

4. The Legal Services Commission's stated objectives for its family legal aid reforms are: the control of rising costs to ensure sustainable provision of services; recognition of increasing provision of advocacy by solicitors and reform of the legal services market proposed by the Legal Services Act 2007; the preparation of solicitors for best value tendering via simplification and standardisation of the payment system for family law representation and advocacy.[5] These plans are manifestly part of the groundwork for the Government's preferred model for the legal services market heralded in the over-arching regulatory system, and the potential for alternative business structures, provided for by the Legal Services Act 2007.[6]

5. In essence, the Legal Services Commission is proposing two new funding schemes, one for representation in private family law, and another for advocacy in both private family law and care proceedings. Both schemes are based on fixed fees for different types of cases. The Commission also proposes to stop funding solicitors for acting as independent guardians and to stop funding for independent social work in cases where the Children and Family Court Advisory and Support Service (CAFCASS) does not provide a guardian under Rule 9.5.[7] In addition, the Commission proposes to cap fees for independent social work to the same level as that paid by CAFCASS.[8] The deadline for responses to the consultation was originally 18 March 2009 then extended to 3 April 2009 in response to concerns about the underlying data.[9] The planned date for the Legal Services Commission's response to the consultation with final proposals was originally August 2009 but, as this report was being prepared, Lord Bach's office informed us: "This was a joint MoJ/LSC consultation and we intend to announce the consultation response by Written Ministerial Statement. We would be criticised if we made such an announcement during the recess, therefore our aim is to make our response before Parliament rises on 21 July.[10]

6. The Legal Services Commission's proposals, the evidence on which they are based, the proposed timetable for implementation, and other aspects of the consultation process, have given rise to a storm of protest from the judiciary, barristers and solicitors, guardians, independent social workers, as well as the Ministry of Justice's own advisory body on the family justice system, the Family Justice Council. Serious questions have been raised about the substance, implications and likely impacts of the Commission's proposed system, the adequacy of its evidence base and the extent to which the Commission has engaged with all of its stakeholders in a meaningful and timely manner. [11]

7. In response to representations on this matter, we held an informal meeting in March 2009 with representatives of family law practitioners. We wrote to Lord Bach about the issues raised. The plans of the Legal Services Commission in relation to guardians and independent social work also give rise to issues of joined-up government and cross-departmental co-ordination and, therefore, we wrote to Beverley Hughes MP, Minister for Children within the Department for Children, Schools and Families. The replies we received on these issues from Ministers did not satisfy us that these matters were receiving adequate attention[12] and we found time for a formal evidence session on 16 June 2009 which included the Legal Services Commission. What we heard, and subsequent further written evidence we received, gave rise to such serious concerns about the future of family legal aid provision that we felt obliged to report to the House as soon as possible.

8. We continue to support of the fundamental aims of legal aid reform, recognising the need to control that expenditure. However, neither the Commission nor the Department have provided evidence that the approach being taken will achieve the desired outcomes and we are not convinced by their contentions. In particular, we are disturbed by the Commission's grudging approach to sharing information. There seems to be little doubt that the concerns expressed by our witnesses, lawyers and non-lawyers alike, are motivated by a genuine concern for the welfare and best interests of children and families. Set against these fears, there have been strong assertions by the Legal Services Commission on the need for change but little objective evidence defining an effective way forward. The late commissioning of research, which should have been undertaken before formulating proposals, suggests an attempt to find support for conclusions already reached, rather than a genuinely evidence-based approach to reform.

1   Op. cit., hereafter, the 'LSC consultation paper' Back

2   Op. cit, hereafter, 'Lord Carter's report' Back

3   Constitutional Affairs Committee, Third Report of Session 2006-07, Implementation of the Carter review of legal aid, HC 223, para 53 Back

4   Ibid., summary and paras 38, 129, 134-5, 160, 174, 183, 187, 203-4, 222-3, 229 and 237 Back

5   LSC consultation paper, paragraphs 2.06-9 Back

6   Ibid., paragraphs 2.4 and 2.11-12 Back

7   Rule 9.5 of the Family Proceedings Rules 1991, as amended, allows a judge to order a child to be made a party to family law proceedings with separate representation-i.e. distinct from that of either parent-in order for the child's 'voice' to be heard and/or to enable the child's welfare, or best interests, to be more effectively determined and pursued. Back

8   LSC consultation paper, paragraphs 2.14-32  Back

9   Ev 35 Back

10   E-mail from the Ministry of Justice to the Committee, 7 July 2009 Back

11   See, for example, Ev 13ff, Ev 34ff, Ev 55ff and appendix. Back

12   Ev 32ff, Ev 69ff and Ev 78 Back

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