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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