Family Legal Aid Reform - Justice Committee Contents

Examination of Witnesses (Questions 26-39)


16 JUNE 2009

  Q26 Chairman: Welcome. You were all here during the earlier session so you have heard the evidence and we will probe you in more detail about it but what is your initial reaction to the strength of feeling and the unanimous view that there must be a better way of doing this?

  Carolyn Regan: We agree with some of what was being said in terms of trying to reach a solution within the resources we have available. That is why we are working with the FLBA and others to try and address some of the key issues. It was quite difficult to hear but one of the key issues was about complexity of cases and that is a piece of work which is going on. The second point is of course the issue of fairness and equality of pay, recognising that 63% of advocacy in these family cases is undertaken by solicitors. That is another issue we are trying to address.

  Q27  Dr Whitehead: You have heard the concerns that have been expressed about the data and the basis on which the data that is available is being used and indeed the emergence of data during and after the period of consultation. Are you confident that the data on which you are relying is sufficiently robust and accurate to give you the underpinning for your proposals that one might think it should?

  Carolyn Regan: The feedback I had from the meeting this morning was that this was described as the best source of data available in terms of its cleanliness, if I can put it like that, at the state it is in now. Obviously, as has been mentioned before, we are using the advice and oversight of Professor Paul Fenn as well as the existing statisticians to continue those discussions which have been numerous. As at this morning, I was told this was the best source of data available.

  Sara Kovach-Clark: We consulted on the data as well as the structure. We shared data as part of our consultation process. During that the Bar has been extremely helpful in raising issues and helping us to resolve those issues. As issues have come up we have resolved them. There is one remaining issue that we have still yet to resolve but I am confident that we can resolve that issue certainly by the end of next week. So far nothing has been raised that has shown a material difference to the proposals that we consulted on. I think we will have an excellent set of data by the end of this consultation period.

  Q28  Dr Whitehead: Forgive me but is it not more normal practice to have data which informs the beginning of a consultation rather than data that emerges during a consultation and is refined after the end of it?

  Sara Kovach-Clark: Data has not emerged in that sense. Issues with the data have emerged which we have resolved and shown that the data that we consulted on and the data that we formed our consultation proposals on was fit for purpose, is still fit for purpose and I am confident will continue to be fit for purpose.

  Q29  Dr Whitehead: The Ernst and Young research which commenced after the end of the consultation and has been suggested as not being, strictly speaking, relevant to the consultation appears to be central to it, does it not?

  Sara Kovach-Clark: I would not say it was central to the consultation. It is an additional piece of information, a piece of economic analysis that will help inform us as to the final impact of our final proposals. We have always been clear that we would show stakeholders a copy of the report and allow them some time to comment on it. I am very grateful to the Bar for the work that Dr Price has done with Ernst and Young. That has been very helpful and we ourselves have I think, through Ernst and Young, been helpful to the Bar who have instructed their own economic consultants to look at some of the issues that Ernst and Young are looking agriculture. When we awarded the tender to Ernst and Young, we shared the terms of reference and what Ernst and Young were looking at with all of our stakeholders as soon as we were allowed to do so under the terms of procurement law so we could be as open and transparent as possible, so I think we have been fair and open there. We will be allowing people time to comment on the proposals and the Bar have instructed Oxera, a firm of economic consultants with whom Ernst and Young have cooperated in terms of the work that they are doing.

  Q30  Dr Whitehead: Why was it commissioned when it was commissioned then? Should it not have been commissioned somewhat earlier? What is the cost of the commissioning in any event?

  Sara Kovach-Clark: I understand that the cost of commissioning is about £63,000, not £100,000. We always intended to instruct economic consultants once the proposal had gone out. It was an issue of resources for us as the LSC and it was always an additional piece of information. We never saw it as fundamental to what we were consulting on.

  Carolyn Regan: It is additional, economic analysis. It is not fundamental to the shape of the proposals we consulted on.

  Q31  Chairman: Why is it worth spending £63,000 on it?

  Carolyn Regan: Because it is ongoing, additional, economic analysis which we would do anyway. That is part of what we continue to commission as we look at the impact of the ongoing changes.

  Hugh Barrett: One of the key things we are going to get out of the economic research is an assessment of the risk of a drop of supply. We are also going to look at the possible increase in supply because one of the implications of our proposals is that the rates we are paying solicitors will rise as a result of this. It is important to recognise that currently 63% of advocacy in family courts is done by solicitors, not by self-employed barristers.

  Q32  Dr Whitehead: If it is described as the cherry on the cake but there was not apparently a cake in the first place as far as data was concerned, is that not a rather odd way to go around organising data, whether it is central or peripheral, for a consultation process?

  Carolyn Regan: There was a set of proposals which is what we consulted on. They were about addressing this issue of fairness and the fact that we are paying solicitor advocates and independent advocates different rates at the moment. As Mr Barrett said, 63% of that work is done by solicitors. We have also looked at cleaning up the data on an ongoing basis in discussion with the family Bar and others.

  Q33  Dr Whitehead: You have specifically written to the family Bar stating a little while ago that the in-house employment of advocates by solicitors is a statement made on the basis of anecdotal evidence. You do not keep a written record of anecdotal conversations that you have had, but these are things that come up time and again. Do you know the number of in-house advocates or are the anecdotes the basis on which some of the planning has been done?

  Sara Kovach-Clark: The consultation has not just been done on the basis of anecdotes. We have had several pieces of evidence that have come through in responses to other consultations as to why solicitors instruct counsel to do advocacy. That is the anecdotal evidence that I think you are referring to in that letter. I do not have a copy in front of me. While it may not be hard facts and data, solicitors have said to us on numerous occasions, both in response to formal consultations and in public consultation events face to face, that there is a variety of reasons why they instruct counsel and they are not all about complexity. Often, it is about convenience as well.

  Q34  Chairman: You told us that the employment of in-house advocates by solicitors is a statement made on the basis of anecdotal evidence. You have not carried out any specific research into this area. What do we know and how do we know it about the number of in-house advocates employed?

  Sara Kovach-Clark: All we can know is what solicitors choose to tell us. We have tried to obtain that information from solicitors. They have not told us that. We do not have specific figures on in-house advocates because you do not have to necessarily be a trained solicitor advocate with higher rights of audience to be able to do advocacy. Lots of solicitors do it as an ordinary part of their work.

  Q35  Dr Whitehead: Could I turn to the statement that you made about swings and roundabouts in terms of the fee payments and so on for practitioners? Is that not counter-intuitive in a system where practitioners graduate from simple to complex cases as their career progresses? Certainly, if we are saying that that looks counter-intuitive does that not imply that advocates can actually be paid less as they become more senior?

  Sara Kovach-Clark: In the proposals that we are looking at in conjunction with our stakeholders, the Law Society, the Bar and other solicitor representative bodies we are looking at being able to reflect complexity more effectively in the final proposals. So those barristers who just do complex work should find themselves more appropriately remunerated, I would suggest.

  Q36  Dr Whitehead: If you do want to encourage solicitor advocates—and state they should be paid the same as barristers—why then was that group penalised in the 2007 reforms by the failure to separate out payments for preparations for hearings, as opposed to the more general preparation that all solicitors do?

  Sara Kovach-Clark: The 2007 fee scheme was based on the historical cost of cases and so preparation would have been recorded as part of the solicitors' profit costs and so those preparation costs were included in the 2007 scheme. However, one of the things that we have been looking at with our solicitor stakeholders is a way of appropriately remunerating those solicitors who do their own advocacy and do preparation for that advocacy, and I am confident that the new scheme will reflect that appropriately.

  Q37  Dr Whitehead: When you say you have been looking at it, is that material that is in the consultation or post consultation or is it in train?

  Sara Kovach-Clark: We had a separate consultation on the phase one fee scheme review. We did a report that looked at the operation of the phase one fee scheme where these first 2007 schemes were looked at again. In that group we suggested that as the historical costs of preparation of advocacy were included in the existing scheme one way of appropriately remunerating those who do their own advocacy was to take a proportion out of the representation budget and put it into the advocacy budget and that is what we are looking at doing at the moment.

  Q38  Mr Tyrie: Have you made any estimate of the long-term effect of these changes on other areas of public spending?

  Sara Kovach-Clark: With respect to independent social work, yes, we have. We have been talking to the Department for Children, Schools and Families and with CAFCASS as well and we are very clear about it would not be appropriate for us to make any changes where we have not considered the effect on them as well, and we will continue to talk with them on that.

  Q39  Mr Tyrie: Is that in the public domain?

  Sara Kovach-Clark: Not at the moment because we are working together to provide joint advice to our ministers and so it is important that we get that advice to ministers first and that they have an opportunity to consider it.

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