Family Legal Aid Reform - Justice Committee Contents

Examination of Witnesses (Questions 40-59)


16 JUNE 2009

  Q40  Mr Tyrie: Do you not think it might be a good idea to get it in the public domain as soon as possible?

  Sara Kovach-Clark: I think we would like to do that very much but it is obviously important that ministers get our advice first.

  Q41  Mr Tyrie: That takes a day or two. When do you think you can publish this?

  Sara Kovach-Clark: The final response to our consultation will be published on 14 August.

  Q42  Mr Tyrie: I do find it astonishing that you are relying on a bit of anecdotal evidence from some solicitors in order to come to these conclusions on policy and that, as you put it, you are relying on what solicitors choose to tell you. Why do you not commission a small piece of survey evidence based on a representative sample?

  Sara Kovach-Clark: That is what we attempted to do with the Ernst and Young survey and we asked solicitors to respond to that survey; but, as you have heard, they chose not to do that.

  Q43  Mr Tyrie: Then you have to send people round and ask solicitors if they will sit down with a surveyor.

  Sara Kovach-Clark: As I have said before, just because evidence is anecdotal it does not mean that we do not hear it all the time from solicitors. We talk to them a lot; they have responded in writing to various consultations saying the same things and, as I said earlier, they say the same things in meetings; so I think we are reasonably confident that solicitors do their own advocacy for different reasons. But the fundamental point is that when they do their own advocacy they should be paid the same amount as barristers for the same work.

  Q44  Mr Tyrie: Did I hear you earlier say, Mr Barrett, that you had done an assessment of the risk of a drop in supply?

  Hugh Barrett: No, I said that that was part of the work that Ernst and Young were doing for us.

  Q45  Chairman: That will be produced when?

  Hugh Barrett: At the end of this month.

  Carolyn Regan: The end of June.

  Q46  Mr Tyrie: Do you think that it would pose fundamental problems if there were a sharp drop in supply?

  Hugh Barrett: If there were a significant drop in supply yes, it would case a significant problem.

  Q47  Mr Tyrie: In which case why is this research described as not fundamental to the structure of the fee scheme?

  Hugh Barrett: It is fundamental to the decision whether we proceed with the fee scheme.

  Q48  Chairman: That is a pretty significant point.

  Hugh Barrett: Yes.

  Q49  Mr Tyrie: I have to say that as I listen to this I can sense all confidence from everyone who is dealing with every aspect of this proposal draining away and I really do wonder whether it might not be a better idea if you delay implementation of all this until you have collected the data properly, understood it a little better and won the confidence of some of the people who are involved in actually having to implement these proposals. Would you be prepared to discuss that with your political masters?

  Carolyn Regan: We know that we have an issue with increasing costs per case not matched by the increase in volumes. We also know that we have an issue with equality of payments to different groups of people doing similar work; and we also know that we have to work within a fixed budget. Obviously some of the issues that you have mentioned are under discussion and we are trying to come up with a scheme which picks up some of the previous points around complexity and preparation and I am sure that you will have seen the letter sent today from the Law Society, which actually supports an approach to equalise, for example, advocacy rates paid. I know it is very late but we are trying to balance those different interests and of course the points that have come out today are in our submissions to the Ministry of Justice on an ongoing basis.

  Q50  Mr Tyrie: So, the short answer to me could have been no, we are not considering a pause in the implementation.

  Carolyn Regan: We are taking all of this into the mix and trying to come up with something which resolves these outstanding issues. The two current ones are not that the principle of paying the same rates for equal pay are in disagreement; the disagreement is how you do that within a fixed budget, recognising some of the things that we do know as factual about the increase in cost per cases and not matched by the increase in volumes. We also know that graduated fees are not a good way of controlling the budget and actually have seen an increase of 30% in family graduated fees over the last five years. So clearly we have issues about complexity and preparation and how do we balance those different interests and not impact on either the supply of people doing this work or the work of the courts, of which we are very mindful.

  Q51  Mr Tyrie: So the real driver is long-term public expenditure threats?

  Carolyn Regan: I do not think it is only that. It is, as I have said, trying to recognise that we have an inherently unfair system at the moment and trying to reward the people doing the work and indeed encourage the future generation. But clearly public expenditure is one of my concerns within a fixed budget.

  Chairman: I am tempted to wonder if we locked you in a room with the previous witnesses and went away and came back a day or so later you might have actually come up with a satisfactory answer.

  Q52  Mr Tyrie: The alternative might be that there would be rather fewer of you left than there are now!

  Carolyn Regan: We are in constant discussion and we have mentioned a meeting this morning both about the data and trying to address some of these issues, and also having a scheme which has some long-term future; so I do not think we need to be locked in a room to continue those discussions. I believe—and Sara is much closer to it—that we are making some progress and there is some agreement, but clearly we need to come up with something which is advice. As was said, it is not us publishing our response, it is a ministerial response and the scheduled date is 14 August.

  Q53  Chairman: If you go to the ministers and say, "We think we have cracked the problem between us within the budgetary constraint you have set" they are not going to turn round and say, "No, go away again," are they?

  Carolyn Regan: No, no, absolutely not; I would hope not.

  Q54  Julie Morgan: You do not have to stick to August 14 do you, surely?

  Carolyn Regan: We do not have to but we are re-letting all the civil contracts next year, April 2010, so obviously we have a window to link it in with that.

  Q55  Julie Morgan: It just seems very important, would you agree, that if you could settle it between you that you did put off the date?

  Carolyn Regan: Yes.

  Hugh Barrett: But we have conflicting pressures on us. We have one half of the profession wanting it implemented quickly—equalising pay—and we have pressure from other parts of the profession saying that they would like it delayed.

  Chairman: Some of that is outside the main legal term, is it not? We are talking about August now and I know family cases have to continue then, but it is a window of opportunity there.

  Q56  Julie Morgan: We are told that this would disproportionately affect women and black and minority ethnic people. I know you have a Provider Diversity Reference Group and have you had discussions with them about the impacts of these proposals and what do they say?

  Carolyn Regan: We have discussed with them and we have also discussed more recently with the Bar's Equality and Diversity Committee and we have also commissioned some focus group work additionally to get some views of people working in this field. Do you want to talk about the discussion with the Equality and Diversity Committee?

  Sara Kovach-Clark: Yes. We had a very constructive discussion last week. We are agreed that the only way to mitigate the impact on women, black and minority ethnic barristers is to look at introducing more measures for complexity scheme and that is what we are looking at in conjunction with our stakeholders. We are also agreed that the reason why so many black and minority ethnic barristers and women barristers are affected more by these proposals is because of the allocation of work in the chambers—they traditionally get more of this type of work when their white male colleagues get less of it. So that is a factor that the Legal Services Commission has no control over but we are working with the Equality and Diversity Committee to obtain the best possible evidence that we can to inform the impact assessment of our final proposals.

  Q57  Julie Morgan: So you accept that the proposals will disproportionately affect that group?

  Sara Kovach-Clark: They will and we will do our best to mitigate those, but there are matters without our control and the allocation of work in chambers is not within the control of the Legal Services Commission.

  Q58  Julie Morgan: It just seems a matter of concern that you are going to proceed along this line if it is going to have this effect.

  Sara Kovach-Clark: We have an obligation to mitigate as far as we possibly can and that is what we are looking to do.

  Q59  Alun Michael: Can I ask you about one specific thing and that is the exclusion from scope of the guardianship services of guardianship services and independent social work. Could you tell us what discussions you have had on those aspects and on that exclusion?

  Sara Kovach-Clark: We have had a number of discussions with CAFCASS because they and we both agree that this is work that should be more properly funded through CAFCASS rather than the Legal Services Commission. However, we recognise that if we were to take independent social work out of scope that would have an effect on CAFCASS resources and so we are in discussions with them at the moment as to how to deal with that.

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