Family Legal Aid Reform - Justice Committee Contents


4  Substance: implications of the proposals

Introduction

33. The Legal Services Commission is proposing two schemes of fixed fees for legal services: the Private Family Law Representation Scheme; and the Family Advocacy Scheme. The representation scheme builds on the standard fee scheme introduced in October 2007 which the Commission asserts has shown early signs of success in controlling the cost of legal aid, encouraging less litigation and rewarding settlement. The proposals would bring the remainder of the private family law budget within a standard fee system. The advocacy scheme would cover public and private family advocacy for both self-employed and in-house advocates including those private law cases previously undertaken, under the existing Family Graduated Fee Scheme, by self-employed barristers. Standard fees are claimed to be based on cost neutrality overall. The main principles underpinning the reforms appear to be: "swings and roundabouts", whereby likely lower payments for more complex cases will be balanced by higher payments for less complex cases; paying for "outcomes achieved rather than time spent"; and moving to "equality of reward" or "harmonisation", where work is paid for at the same rate no matter who undertakes it .[49]

Swings and roundabouts: complex and simple cases

34. The Family Law Bar Association set out the issue as follows:

"The main concern about the LSC's advocacy proposals is that they grossly over-reward simple cases and under-reward the more complex cases. The fees are flat and there is no variation to reflect the complexity (or relative simplicity) of a case (other than an uplift if the case is in the High Court). For example, an advocate could attend the local county court and conduct three 5-minute directions hearings in private law cases and be paid nearly £600. Yet if there was a 5 day fact finding hearing (where the court determines disputed evidence regarding allegations of physical / emotional / sexual abuse of a child) before deciding what orders should be made in the interests of the child, the advocate will be paid £198 (or less than £40 per day)."[50]

35. The principle of swings and roundabouts is based on a vision of the legal services market in which providers, whether individuals or firms, undertake work both on 'swings' and on 'roundabouts' so as to take advantage, or at least cover costs, via what the Family Justice Council calculate to be the remuneration of simple hearings at twice their previous level at the expense, within a fixed budget, of more complex hearings. The Family Justice Council described this pattern as "difficult" for the Ministry of Justice and Legal Services Commission "to justify as a proper distribution of public funds."[51]

36. The Association of Lawyers for Children told us:

"In practice, the more complex case is undertaken by the more experienced advocate. That is the embodiment of common sense and proportionality, but it is also reflective of a sensible career structure that is manifestly in the public interest. Less experienced advocates cut their teeth on less complex work and mostly aspire to undertake more complex work."[52]

Under these conditions, the Association and the family Bar argued that the more experienced practitioners—the ones required by the courts to help keep complex and intractable cases on track—are unlikely to be undertaking the mix of cases, the swings as well as the roundabouts, needed to maintain their income under the Legal Services Commission's proposals.[53] Indeed, we recognise that it would be a tremendous waste of skills and resources—and not in the interests of justice—were they to do so (whether barristers or solicitor advocates). In addition, conflict of interest considerations militate against too much consolidation as separate representation and advocacy is needed for each party in each case.

37. Evidence from past and current presidents of the Family Division, and others, indicates that the result of channelling more resources towards simple, as opposed to complex, cases will be the exodus of experienced practitioners of all types from publicly-funded work leading to much less effective case preparation and management and therefore inefficiency and higher costs for the court system; not to mention the risks of miscarriages of justice.[54] The loss of experienced and committed advocates will undermine the Public Law Outline,[55] as well as reducing the number of senior practitioners suitable to become candidates for the family judiciary. The Association of Lawyers for Children was blunt: "If the [Legal Services Commission] has its way the [Public Law Outline] will fail. No ifs or buts … if the brief had been to design a scheme calculated to destroy the [Public Law Outline], the Legal Services Commission could not have done a better job."[56] Overall, Baroness Butler-Sloss, former President of the Family Division told us: "not only is there a real danger of inadequate access to justice which may create miscarriages of justice, but there is a double tragedy for children whose families have failed them. They are caught up in the justice system which is failing them further."[57]

38. The Association of Lawyers for Children suggested that the Legal Services Commission may be expecting the employment of in-house advocates by solicitors to fill any gap created by the withdrawal of self-employed barristers from publicly-funded family law work. However, the Commission failed to provide evidence that such advocates exist in the required numbers, or with the necessary skills and experience, to do so. The Commission did not convince us that it had the strategy, the resources or the determination to plug this predicted gap. The Association of Lawyers for Children asked: "who are these [solicitor] advocates? How many are there? What level of work do they undertake? Do they appear for all parties and in all courts? What is their experience? What is their quality?"[58] The Law Society, and other representatives of family solicitors, recognised that the complexity of cases needed to be recognised in any new family advocacy scheme better than it was in the existing proposals.[59]

39. The Family Law Bar Association claimed that the Family Graduated Fee Scheme had in fact succeeded in its objectives to "control costs and … retain those who specialise in family advocacy" but that this achievement may be at risk under the new proposals.[60]Spending on the Family Graduated Fee Scheme[61]
LSC consultation paper MoJ revision letter, 26/5/09
2005£90.6 million £88.5 million
2006£94.1 million £90.4 million
2007£98.2 million £89.9 million[62]

40. The Family Law Bar Association offered survey information about the intentions of barristers to move away from publicly-funded family law work if the new proposals are brought in un-amended and of the difficulties solicitors are already experiencing in instructing counsel of appropriate skills and experience in more complex cases (to the perceived detriment of the case).[63]

41. As an example of the implications of the proposed scheme for the conduct of cases and access to justice, the Association of Lawyers for Children offered a case requiring determination of whether serious head injuries to an infant were accidental or not. This case involved 4 lever arch files of 1,200 pages of case papers, 29 hours of pre-trial preparation and four days in court (reduced from five to take advantage of early court availability thereby reducing the burden on the family). From issue to finding, 18 weeks elapsed and the judge explicitly congratulated the legal teams involved at length, highlighting the crucial importance of experienced advocates in achieving fast, effective and accurate results. Mrs Justice Hogg said: "…as a consequence an early decision was reached and the costs of litigation borne by the rate payers and reduced. It also had the happy consequence that the child … was returned to her parents".[64] Sixty-six hours were reported as expended on this case by the parents' advocate.
Remuneration for 66 hours work[65]
Standard private client rate £9,900.00
Existing legal aid scheme for self-employed barristers (FGFS) £4,875.25
New LSC scheme for family advocacy £1,909.00[66]

Outcomes not time

42. The Legal Services Commission's consultation paper stated that: "we believe that the services we purchase should be expressed in terms of outcomes achieved and not time spent. We want public money to be spent rewarding quality work carried out efficiently, promoting equality and transparency within the legal services market."[67] The incentive for efficiency built in to a system of fixed fees is clear; but there is an equally obvious risk of the avoidance of the more complex and difficult cases, which will be less remunerative, and/or of skimped preparation where such cases are taken at the proposed lower rates. The Commission's focus on outcomes is to be applauded, but there is little evidence that the outcomes that the Legal Services Commission is looking to procure have been defined in terms of quality as well as price. Taking the case study set out above, it is difficult to see how the outcomes achieved could have been purchased by the new scheme.

Equal pay for equal work

43. The Association of Lawyers for Children, which represents both barristers and solicitors, wrote that: "If the intention of the consultation paper was to drive a rift between solicitors and barristers, offering increased riches to the former and savage cuts to the latter, then it has failed."[68] Payment for advocacy is currently handled differently depending on whether the advocate is a solicitor or a barrister. Solicitors' advocacy is paid on an hourly basis. Until the advent of fixed fees, solicitors' preparation for advocacy (as opposed to case preparation) was also paid for on an hourly basis. Since the advent of fixed fees, the preparation element for solicitor advocates is deemed to be included in the fixed fee. This was described by witnesses as disadvantaging the very group that the Legal Services Commission was seeking to encourage, those solicitors who undertake a lot of their own advocacy in all types of cases.[69] Similarly, the Association pointed out that there was no recognition in the fee structure for the assured quality and experience of family law solicitors who have gained membership of the Children Panel and this is reducing that pool of accredited expertise. Caroline Little, co-chair of the Association of Lawyers for Children, told us: "there were 2,500 Children Panel members who have now reduced to below 1,800 … and there are very few young ones coming through … there is a reducing body of [specialist] children's solicitor advocates."[70]

44. Resolution, representing solicitors committed to non-adversarial solutions, wrote that, on most calculations, independent barristers are almost always paid more for the same piece of advocacy than a solicitor advocate would be because of the structure of the Family Graduated Fee Scheme as opposed to what would be paid on an hourly rate. Resolution wrote that barristers received a substantial increase to their fees in 2005, whereas solicitors have received no fee increase for 14 years. Resolution argued that the inequality between solicitor advocates' fees and barristers' fees is a glaring anomaly. In some cases a barrister can be paid as much as four times the amount paid to a solicitor for undertaking the same piece of advocacy.[71] The Legal Aid Practitioners Group, representing solicitors, said:

"We completely agree with the proposal from Resolution that fees for solicitors and barristers should be equal. It is not right that barristers are paid more for carrying out the same work. At present their overheads are likely to be considerably lower than solicitors' overheads so the proposal to harmonise does not equate to complete equality.

We are greatly concerned about any delay in implementing the proposals. While in an ideal world we would like to see more money being paid by the government to run legal aid services we are realistic that at a time of recession all we can press for is for efficiencies to be tackled and for our members to be paid at a reasonable rate."[72]

45. The principle that solicitors and barristers should be paid the same for the same work is accepted by all the representative bodies of both barristers and solicitors who submitted evidence. The solicitors' associations generally see the current proposals, and the move from the Family Graduated Fee Scheme to the Family Advocate Scheme, as providing the first opportunity to achieve implementation of an equal payment scheme for solicitor advocates and barristers, and they do not want this to be delayed.[73]

Availability of supply and discrimination

46. The survey of family Bar work recently commissioned by the Family Law Bar Association highlighted that, in the event of cuts, then anticipated to be around 13 per cent., over 80 per cent. of the family Bar planned to change their practices and "move away from" publicly-funded family work.[74] The cuts now proposed are much higher than when the survey was carried out and the Association predicts that the exodus from this work is therefore likely to accelerate. Baroness Butler-Sloss, herself a former family law advocate, confessed that: "…nowadays, when students come to me and say 'You are a family judge, should I go into family law?' I advise them not to."[75] We note her opinion that: "They will not get a good enough income and they will get a great deal of aggro in doing it."[76] In addition we received evidence from many witnesses of significant concerns about the disproportionate effect of the planned reforms on female practitioners and those of black and minority ethnic origin, many of whom choose to make a commitment to specialise in legal aid work and, particularly, family law.[77]

47. Sir Mark Potter, current President of the Family Division, recently set out the concerns of the judiciary on this issue:

"The judiciary have been invited to comment on the various consultation papers issued by the LSC. I have urged in response the clear view of the judiciary that representations by the professions as to the effect of the proposals and the willingness of solicitors and barristers to undertake the work if they are implemented should be taken seriously. I have warned the LSC that the family judiciary is in no doubt that:

Individual solicitors and solicitors firms of quality and experience are already abandoning publicly funded family work, and the rate of this process will increase if the proposals are carried into effect.

Many members of the Bar have already either cut down on or abandoned publicly funded work in favour of privately paying work, and this too is likely to increase.

Members of the Bar who can command privately paying work tend to be the more experienced, and their loss to this area of work will reduce a valuable pool of expertise.

The less experienced and competent the representative, whether barrister or solicitor, the less efficiently is the case managed.

Lack of representation will lead to more and more litigants appearing in person with the effects I have described.

Loss of experienced and committed advocates will undermine the Public Law Outline, which as I have emphasised is dependent on the cooperation and expertise of the dedicated specialist lawyers who will operate it."[78]

Sir Mark concluded these remarks with a statement that he: "felt bound to observe that there is a discouraging lack of realism in the apparent determination of the LSC to disregard these warnings."[79]

48. As this report was being considered, the controversial Ernst and Young study was made available. A preliminary reading of its conclusions suggests that it predicts low price-elasticity amongst family barristers, challenging forecasts of an exodus of advocates from this area of the law. The Family Law Bar Association's provisional reaction appears to be that the study:

  • fails to distinguish between short and longer term responses to changing fees;
  • fails to recognise that no dataset in existence permits the identification of supply elasticity without observation of how practitioners respond, other things being equal, to changes in remuneration over time; and
  • fails to take into account the diversity of advocacy work and that simple 'excess of supply' may not enable matches between case complexity, on the one hand, and the skills and experience of advocate, on the other (this was said to chime with a view attributed to the Commission that, "any advocate can conduct any case").[80]

We note that the Family Law Bar Association has commissioned a study of the Commission's Ernst and Young study.

49. The family Bar argues that the potential effect of the reforms on women barristers, and those of black and minority ethnic origin is likely to reverse the progress made to date to encourage diversity at the Bar and, consequently, within the judiciary. The Bar points out, for instance, that the first woman member of the Judicial Committee of the House of Lords, and the first woman President of the Family Division, were both family barristers. In addition, women judges drawn from the family Bar have made a significant contribution to the fact that the judiciary has become more diverse. Of the judges of the High Court's Family Division, 38 per cent. are women, a much higher proportion than in any other division. That continued contribution to judicial diversity is said to be at risk by the Commission's proposals.[81]

50. The Legal Services Commission accepted that their proposals would disproportionately affect women and black and ethnic minority advocates but put the responsibility on systems for, and traditional pattern of, allocating such work within chambers; an area over which the Commission had no control.[82] We found this view thoroughly unconvincing and the Commission appeared to have no evidence to support this contention. However, the Commission reported agreement with the Bar's Equality and Diversity Committee that the only way to mitigate the impact on women and black and ethnic minority barristers was to look at introducing more "measures for complexity" into the fee scheme.[83]

Conclusion

51. We agree with the President of the Family Division on the significance of the current situation. Sir Mark Potter recently said that: "It is no function of mine as Head of Family Justice, to participate in negotiations between government and the professions as to the terms of their remuneration. However, it emphatically is my concern as Head of Family Justice to bring forcibly to the attention of the government the threat to the efficient working of the system in terms of both efficiency and delay if the [Legal Services Commission] proceeds regardless of the warnings of the profession and, in particular if those specialising in children cases abandon or cherry pick publicly funded work. Quite apart from the strain upon family judges and the courts' administration by HM [Courts Service], there will be significant further delays in the court process caused by inexperienced advocates undertaking more complex work; longer and less focussed hearings; a higher incidence of litigants in person and a greater likelihood of appeals where cases become derailed because of inadequate representation at first instance."[84]

52. We recognise that a majority of family law advocacy is carried out by solicitors but that the more complex and serious cases tend to be conducted either by more experienced or specialist solicitor advocates or senior members of the family Bar. The vast majority of our evidence, from both solicitors and barristers, as well as the judiciary and the department's own advisory body on family law, is that the re-balancing of resources between complex and simple cases has gone too far and that the mantra of "swings and roundabouts" simply does not reflect the reality of how family law advocacy, in the most serious cases, is conducted. If the scheme is implemented as proposed there is a serious risk of an exodus of experienced practitioners from publicly-funded family law.

53. The overall fee reductions for family advocacy will fall disproportionately on female and black and minority ethnic practitioners who, for a variety of reasons, have tended to specialise in publicly-funded family law work. This is discriminatory. It also has serious implications for the development of a more diverse pool of experienced courtroom lawyers from which candidates for a more diverse judiciary can emerge.

54. We note an emerging consensus around a revision of the Legal Services Commission's proposals developed by the Association of Lawyers for Children. We urge the Commission to give these new proposals careful consideration.[85]



49   LSC consultation paper, paragraphs 6.7 and 6.43; and see Ev 59 and 71 Back

50   Ev 36, paragraph 8 Back

51   Ev 65, paragraph 106 Back

52   Ev 17, paragraph 30 Back

53   Ev 17 and see Q 15 Back

54   Q 1, Ev 54 and 62-7 and appendix to this report Back

55   The Public Law Outline is a case management system for care proceedings developed by the Family Division judiciary with a heavy emphasis on preparation to reduce the burden of court proceedings on the children in question. Back

56   Ev 21, paragraph 63 Back

57   Q 1 Back

58   Ev 22, paragraph 74 Back

59   Ev 76, 77 and 110 Back

60   Ev 35, paragraphs 3 and 11 Back

61   Ev 52 Back

62   In written and oral evidence, the FLBA indicated that this figure may be reduced by a further £3 million (c. 3 per cent.) due to double-counting by the LSC of queried payments in that year (Ev 52 and Q 8). Back

63   Ev 36-8 and QQ 1, 14, 16 and 17 Back

64   Ev 24 Back

65   Ev 25, paragraphs 93-6 Back

66   Ibid., and see paragraph 97 Back

67   Op. cit., paragraph 2.13 Back

68   Ev 17, paragraph 24 Back

69   Ev 19, paragraph 51 Back

70   Q 16 Back

71   Ev 110 Back

72   Ev 77 and see Ev 76, paragraph 10.6 Back

73   Ibid., and Ev 111 Back

74   Ev 38, paragraphs 23-4 and Q14 Back

75   Q 14 Back

76   Ibid. Back

77   Ev 36, paragraphs 13 and 14 Back

78   See appendix to this report Back

79   Ibid. Back

80   E-mail from the FLBA to the Committee on 7 July 2009 Back

81   Ev 36-7, paragraph 14 and see evidence from the Family Justice Council at Ev 64, paragraphs 98 and 99 Back

82   QQ 56-7 Back

83   Q 56 Back

84   Appendix to this report Back

85   Ev 26-31 Back


 
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