Legal Aid Reform - Justice Committee Contents


Memorandum submitted by the Ministry of Justice

THE IMPLEMENTATION OF THE LEGAL AID REFORM PROGRAMME

  The Government welcomes this opportunity to reaffirm its goal of reforming legal aid, and to update the Committee on achievements since the Government's response to the Constitutional Affairs Select Committee report Implementation of the Carter Review of Legal Aid in June 2007. The structure of this memorandum is as follows, reflecting the specific queries raised by the Committee:

  Part One: Overview of Legal Aid Reform

    —  Sustainability—Ensuring help gets to those in need

  Part Two: Work to date

  Part Three: Ensuring Quality

  Part Four: Monitoring the Impact of Phase 1 Fixed Fees

    —  Phase 1 Civil Fixed Fee Schemes Review

    —  Early Legal Services Commission analysis

  Part Five: Best Value Tendering for criminal work

  Part Six: Very High Cost Cases

  Part Seven: Impact on BME providers

  Part Eight: Impact of Fixed Fees on Third Sector/Not for Profit Organisations

    —  Monitoring the impact of Community Legal Advice Centres/Networks

  Part Nine: Coverage of Legal Aid Services and so-called `Advice Deserts'

    —  Criminal Legal Aid

    —  Civil Legal Aid

    —  Public Legal Education

    —  Other activity to monitor impacts and address any issues around access to legal aid

  Part Ten: Continuing Legal Aid Reform

  Annex A—Summary of Key Legal Aid Reform Publications

  Annex B—What Has Been Achieved—Legal Aid Reform: Phase One

  Annex C—Key Continuing Work Streams—Legal Aid Reform

PART ONE: OVERVIEW OF LEGAL AID REFORM

  1.  Legal aid is one of the fundamental elements underpinning the justice system, and an important way of helping poorer members of the community. It enables access to justice for those who cannot afford to pay for legal advice and representation. The Government aim is to get the best value for money from the provision of services, so that as many people as possible can be helped within the resources available.

  2.  In Legal Aid Reform: The Way Ahead, published in November 2006 and Implementing legal aid reform, the Government response to the Constitutional Affairs Select Committee published in June 2007, the Government set out aims of the legal aid reform strategy. In summary these aims are:

    —  re-focusing spending on legal aid—To help more people get the support they need;

    —  ensuring fairness—To help the most vulnerable people in society; and

    —  Achieving maximum value for money—to get the most out of a fixed budget for legal aid whilst maintaining or improving quality.

  3.  The legal aid strategy forms part of the Ministry of Justice (MoJ) strategic objectives to deliver fair and simple routes to civil and family justice, and to ensure a more effective, transparent and responsive criminal justice system for victims and the public. The key aims of these objectives are to:

    —  increase the efficiency and effectiveness of the civil, administrative and family justice systems;

    —  provide early advice and support to enable disputes to be resolved out of court or tribunal wherever possible;

    —  deliver an accessible justice system that provides support where it is needed;

    —  increase the efficiency and effectiveness of the criminal justice system;

    —  increase the transparency of the criminal justice system so that it inspires confidence in local communities; and

    —  deliver a more responsive criminal justice system that has the needs of victims and witnesses at its heart.

  4.  The reforms set out in The Way Ahead were the result of an in-depth examination of how the legal aid system was working, and how it should work in the future. Other key publications in the development of the reform programme are summarised at Annex A (Summary of Key Legal Aid Reform Publications).

Sustainability—Ensuring help gets to those that in need

  5.  Legal aid provides around 2.7 million acts of assistance to people with legal problems each year, equating to around two million people. The Government aims to ensure the legal aid system is flexible enough to cope with changing circumstances, for example, as a result of the current economic turbulence. Ensuring people have access to advice on issues such as debt and housing is crucial to helping them find the best way through their difficulties, and to reducing as much as possible the financial and personal impact.

  6.  Of the 2.7 million acts of assistance, criminal legal aid accounts for around 1.6 million and civil and family legal aid for 1.1 million. The number of acts of civil and family (excluding asylum) assistance has risen by 20% from 805,000 in 2003-04 to over a one million in 2007-08.

  7.  Legal aid has been one of the fastest growing areas of public sector spending over the last 25 years, growing at an annual average rate of 5.7%. More is spent per head on legal aid in England and Wales than in any other country. Spending has increased from £536 million in 1982 (in today's prices) to around £2 billion today.

  8.  Looking at the figures since 1997, legal aid spending in cash terms increased from £1.5 billion in 1997-98 to its current level of around £2 billion by 2003-04. The amount spent on criminal legal aid increased by 39% in real terms from 1997-98 to 2003-04 whereas the amount spent on civil and family legal aid (excluding asylum) fell by 19%. Of the £2 billion criminal legal aid accounts for around £1.2 billion and civil and family legal aid over £800 million.

  9.  Total annual expenditure has remained broadly level since 2003-04. This has been achieved through a combination of measures including:

    —  the progressive extension of fixed and graduated fees schemes so that they now cover the majority of legal aid; and

    —  the introduction of means testing in magistrates' courts, so that those who can pay for their defence do so.

  Without such reforms the taxpayer would have been burdened with funding an additional £250 million higher spend in 2007-08, and an increased spend of around £600 million more in total between 2004-05 and 2007-08.

PART TWO: WORK TO DATE

  10.  A summary of what has been achieved since 2007 is set out at Annex B (Legal Aid Reform: Phase One).

PART THREE: ENSURING QUALITY

  11.  The Government is committed to ensuring clients have access to quality legal advice. It was announced in The Way Ahead that all legal aid providers wishing to undertake legal aid work should pass a strict quality threshold. The objective is to place quality assurance at the heart of the provision of legal aid procurement benefits. This is aimed at:

    —  clients, to reassure them they are getting a guaranteed quality of advice;

    —  the wider public, so they can be confident that the system is delivering justice and their taxes are delivering value for money; and

    —  the justice system, to hold account advocates for properly progressing a case and ensure they have the appropriate level of competence.

  12.  The Legal Services Commission (LSC) has developed a system of Solicitor Peer Review to assess and compare the quality of legal aid advice. The process is managed by a research and operations team based at the Institute of Advanced Legal Studies. The results of these reviews are used to help legal aid providers maintain and improve the quality of the advice they give.

  13.  It is widely accepted that Peer Review is the most effective and preferred means by which the quality of legal advice and assistance by solicitors can be assessed on behalf of the client. The LSC rolled out Peer Review for solicitor firms involved in Very High Cost Cases between September 2006 and March 2007. It started rolling out Peer Review nationally to all criminal, family and civil firms in April 2007. Firms wishing to take part in the best value tendering process will initially be required to demonstrate that they have been certified as a Peer Review Level of 3 "Competent", 2 "Competent Plus" or 1 "Excellent".

  14.  In addition to the Peer Review process, the Specialist Quality Mark (SQM) is the standard by which all legal aid solicitors must adhere to when supplying legal aid services. The Quality Mark is a set of standards and requirements devised by the LSC to assure the quality of service given by legal aid providers. All firms must pass the SQM before a permanent contract to provide publicly funded legal services is awarded. The LSC is currently reviewing the SQM application and assessment process.

  15.  A Quality Working Group was also established as part of the legal agreement reached between The Law Society, MoJ and LSC following the Unified Contract Judicial Review. The Quality Working Group's purpose is to examine the range of quality assurance mechanisms in place and to make recommendations on any possible improvements.

  16.  A scheme to quality assure advocacy (QAA) services for publicly-funded criminal defence advocates in the Crown Court is to be designed, and then piloted in early 2009 for a period of six to nine months. Following an open and fair competition, Cardiff Law School has been contracted to help devise and run the pilot scheme. It is envisaged that the scheme will cover four areas in England and Wales, those areas having been chosen for their mix of potential participants. The pilot scheme will reflect the broadest possible spread of advocates across the country—male and female, white and BME, self-employed and employed—to make it valid and measurable. Progress will be regularly reviewed by a Reference Group made up of a wide group of representatives from across the Criminal Justice System, including the professional bodies and the senior judiciary, who have been supportive of piloting a QAA scheme. A full public consultation process will be run before any decisions are made on wider implementation of any QAA scheme.

PART FOUR: MONITORING THE IMPACT OF PHASE 1 FIXED FEES

  17.  In December 2007, following the introduction of phase 1 of the civil and criminal legal aid fixed fee schemes, the LSC compiled a cumulative impact assessment to estimate the impact on providers of both civil and criminal legal aid fixed fees. This was important as many firms do a range of a civil and criminal work, and many firms also do both civil and criminal legal aid work.

  18.  However, whilst the cumulative impact assessment is a useful tool, it is only an estimate based on applying past behaviour to the new fee schemes. It looked at claims made under the old hourly rates system, and then assessed the impact of the new fees on this pattern of work. What it could not do at the time, given the short time frame in which to gather data, is fully anticipate changes in provider behaviour (e.g. improved efficiency) that the new fees would encourage.

  19.  For criminal legal aid, the assessment showed that spending would be reduced by £15.5 million per annum. This represents an overall reduction of 1.3% against expenditure on the Criminal Defence Service (CDS) in 2006-07. The reduction in spending was targeted so that the greatest proportion of the savings has been taken from the main urban areas where there is over-supply and where there is greater scope for providers to improve their efficiency by altering their working practices to, for example, minimise the amount of time they spend travelling and waiting. This is also consistent with encouraging providers to ensure coverage in their own local areas.

  20.  For civil legal aid, all of the civil fee schemes were designed to be cost neutral against all providers' claims from the financial year 2005-06, with the exception of the Immigration and Asylum Fee scheme, which has been modelled to be cost neutral against forecasted spend for the financial year 2007-08. The assessment showed that in all regions, bar London, Cambridge and Manchester, a majority of providers in each region would see an increase in income. A majority of cases in all regions are conducted by providers whose income would have increased under the new schemes. Nationally, 56% of providers, collectively responsible for 75% of cases, would see increases in their income. Some urban areas have traditionally been more expensive, and London and Cambridge LSC regions may therefore see a decrease in funding in the order of 1%. In Manchester only a minority of providers are likely to see an increase in income under the new fees, but these do the majority of the work in that region.

Phase 1 Civil Fixed Fee Schemes Review

  21.  The review of phase 1 civil fixed fee schemes was established as part of the agreement with the Law Society following the Unified Contract Judicial Review in April 2008. Publication of the review findings is expected early in 2009. This will recommend appropriate amendments for consultation during 2009, to apply from 2010 to ensure the sustainability of client access to legal aid services.

  22.  The review is being taken forward in conjunction with the Civil Contracts Consultative Group (CCCG) also set up as part of the agreement with the Law Society. Membership of the group consists of:

    —  Legal Services Commission;

    —  Ministry of Justice;

    —  The Law Society;

    —  Advice Services Alliance;

    —  Legal Aid Practitioners' Group;

    —  Resolution;

    —  Association of Lawyers for Children;

    —  Mental Health Lawyers' Association;

    —  Immigration Law Practitioners' Association; and

    —  Housing Law Practitioners' Association.

Early Legal Services Commission analysis

  23.  Whilst it is still too early to predict the outcome of the review of phase 1 civil fixed fee schemes, the LSC has been analysing their own early data. This indicates:

    —  New Matter Starts (numbers of cases started by legal aid providers): Face-to-face matter starts have dropped by a small percentage, 3% overall on a comparable period from 2006-07, since the phase 1 fee schemes were introduced. Such a small change is not unexpected due to changes in the definition of new matter starts in some categories (such as Mental Health and Family).

    —  Client diversity: There have been no significant changes to client diversity post phase 1 fees.

    —  Provider diversity: Data from the review so far shows no adverse impact on BME, women or disabled providers, or change in the composition in supply. The LSC is currently looking at the impact on rural, urban and small legal firms.

    —  Cost Neutrality and fee levels: From the data gathered so far, it is still too early to tell if the phase 1 fee schemes are cost neutral. Although at this stage of the analysis, the fixed fees generally exceed profit costs claimed (i.e. what would have been paid on hourly rates). However, the LSC expects to see the difference between providers' actual costs and fixed fee paid reducing as bills start to come in for the longer, more complex cases.

    —  Exceptional cases: It is not expected that the review will have sufficient time to reflect a full cycle of exceptional cases. This is due to the length of such cases, their complexity, and the time lag of provider submissions. The average exceptional case length is 14.8 months (excluding the longer childcare cases). A communication has been circulated to providers to encourage the claiming of exceptional cases.

    —  Family scheme structure:

    —  The new scheme structure was introduced to incentivise earlier settlement. The proportion of private law family cases concluding without the need to issue proceedings has increased by 2% (comparing April 2007 to September 2007 and October 2007 to March 2008);

    —  As fixed fees were introduced for solicitor advocacy preparation, there was a concern this would increase the unnecessary instruction of counsel in childcare cases. However, the number of cases using counsel has not increased as a result of the introduction of fixed fees;

    —  In childcare cases to assist families to negotiate with local authorities, funding for pre-proceedings advice has been introduced, and 18% of the cases using this help have led to the best resolution being achieved for the children and families without the need for legal proceedings;

    —  The data to end-September 2008 shows that the grant of legal representation to children in childcare proceedings is declining. This would seem to be attributable to the introduction of two key reforms to the childcare proceedings system: revised statutory guidance to local authorities issuing childcare proceedings, and a new judicial case management tool, the Public Law Outline (PLO). The Review of the Child Care Proceedings System in England and Wales, published in 2006, estimated that the combined impact of these reforms would be a reduction in the volume of childcare proceedings of 8—13%. The Government has commissioned an evaluation of the initial impact of these reforms, and this is expected to be published in April 2009.

PART FIVE: BEST VALUE TENDERING (BVT) FOR CRIMINAL WORK

  24.  In December 2007 the LSC published the consultation document on the principle and initial detail of best value tendering for legal aid work in police stations and magistrates' courts: Best Value Tendering for Criminal Defence Services. The LSC published a response in July 2008. As part of this initial consultation the LSC held almost 50 provider events around England and Wales which were attended by almost 1,000 practitioners.

  25.  The MoJ and the LSC are working with independent economic consultants, NERA, looking at how any system of competition could best be introduced into the criminal legal services market. The impact of any system will need to be subject to a full assessment. Any system of competition would be piloted before a final view was taken on national implementation.

PART SIX: VERY HIGH COST CASES (VHCCS)

  26.  Criminal VHCCs (cases estimated to last more than 40 days at trial) have been managed under contract by the LSC since 2001. These arrangements were introduced in response to the rapidly growing expenditure being incurred in long and complex cases.

  27.  Lord Carter argued that better value for money could be obtained for this work by giving defence teams some probability of increased or more consistent volume in return for some reduction in hourly rates. To do so involved limiting access for the VHCC panel to defence teams who can show a track record of experience in working on VHCCs and meet appropriate quality standards.

  28.  The LSC launched the first panel for VHCCs in March 2008. However, the Government was disappointed that such a significant number of advocates failed to sign the contracts they tendered for and were subsequently offered. Only 225 of the 2,300 Advocates offered contracts signed, including around 130 Barristers (of which three were QCs).

  29.  In order to secure sufficient counsel to act for defendants in VHCCs, the maximum rates payable to both advocates and solicitors in those cases were adjusted. This adjustment has been made on a cost-neutral basis. The proposed increases of the top rates from £145 to £152.50 per hour for both litigators and advocates will be funded through a reduction in spend on cases where two advocates are assigned. These new rates were authorised by the Criminal Defence Service (Funding) (Amendment No 2) Order 2008 to reflect the new rates for non-panel advocacy from 13 November 2008. Non-panel advocates may be instructed, with the agreement of the LSC, if there is not a suitably qualified member of the panel available to take the case.

  30.  The MoJ, LSC, Law Society and Bar have been engaged in positive discussions to develop a scheme to replace the first panel, possibly involving some form of graduated fees arrangement. The target date for implementation is July 2009. All parties continue to work toward this.

PART SEVEN: IMPACT ON BME PROVIDERS

  31.  There is no evidence to suggest that BME majority owned firms would be less able to compete effectively for work than white majority owned firms, or that BME clients will be adversely affected in the quality of service they receive. This is monitored on an ongoing basis and there is no indication that the changes have had a negative impact on BME owned or managed firms, or on smaller firms.

  32.  The LSC's latest BVT (Best Value Tendering) proposals would allow for firms of all sizes, including small and BME owned providers, to be able to compete effectively within the tender model that is being developed in consultation with providers. Any final BVT proposals will need to allow for a range of business models to succeed, although it is clear that this success will be defined by a combination of efficiency (and value for money for the taxpayer) and quality of service as defined by Peer Review and other measures. The Government is committed to ensuring that the legal services procured reflect the communities that they serve as widely as possible. The Government does not accept that the concept of BVT is inherently discriminatory, or that it will necessarily have a disproportionate adverse impact on BME firms, lawyers or clients. Any second consultation on a fully worked up scheme for BVT would be accompanied by a full Equalities Impact Assessment.

PART EIGHT: IMPACT OF FIXED FEES ON THIRD SECTOR/NOT FOR PROFIT ORGANISATIONS

  33.  The LSC introduced fixed fees in October 2007 for the Not for Profit (NfP) sector, bringing payment arrangements in line with that for solicitors. Under the system, cases are paid at a fixed rate at the close of a case rather than at hourly rates and at the start of a case. This ensures that cases are dealt with efficiently and that a larger number of people can be helped within the limited legal aid budget. Where cases are assessed as exceptionally costly, the LSC will continue to pay for these at hourly rates, meaning that providers are not discouraged from undertaking complex cases.

  34.  The LSC consulted NfP representative bodies prior to the introduction of fixed fees and agreed transitional arrangements for all NfP providers. Between April and October 2007, the LSC changed the payment system for NfPs by moving from quarterly payments in advance to monthly payments in advance to help NfP providers to prepare for the new fee schemes. Other transitional arrangements were introduced to give a staggered approach and gradually align reconciliation processes with that for solicitors. As part of this, the LSC introduced a transitional buffer up to 31 March 2010, allowing agencies to be overpaid by up to three times their average claim value (based on a 12 month average) at 31 March 2008; falling to two times at 31 March 2009.

  35.  Many agencies have adopted successful structural, performance and management approaches that have enabled them to make the successful transition to fixed fees. However, others have been less successful. Even with the buffer arrangements, the change to the remuneration process has had an impact on some providers' cash flow and caused them operating difficulties.

  36.  The Ministry of Justice values the contribution of the third sector in delivering legal advice and will work with NfP organisations to help with their transition to the reform programme. Regular ministerial meetings are held with NfP providers and representative bodies, such as the Law Centres Federation, to discuss reform issues and their impact. Ministers also closely monitor the position of NfP organisations that are experiencing difficulties.

  37.  The LSC has been working closely with agencies affected by the move to fixed fees to understand their situation and to try to develop manageable approaches to their situation. The LSC has also allowed NfPs greater flexibility in reconciling payments and claims over the life of their contract and will continue looking at this. These arrangements should enable most agencies to manage the transition and will assist those providers who are experiencing short-term cashflow problems.

  38.  The LSC, however, is not the only funder of advice providers. Some NfP organisations receive funding from a variety of other sources, such as local authorities, the Big Lottery Fund and other grant-making bodies. Changes to these funding streams for their own reasons have contributed to the problems experienced by a number of providers.

  39.  The evidence around the funding of the advice sector and root cause of some providers' financial difficulties is patchy. In the coming period, the Government will be bringing together the available evidence on NfP funding arrangements at the local level and considering issues around the sustainability of advice services with providers, other government departments and local authorities.

Monitoring the impact of Community Legal Advice Centres/Networks

  40.  The Legal Services Research Centre (LSRC), the independent research division of the LSC, is conducting a study of Community Legal Advice Centres (CLACs) and Community Legal Advice Networks (CLANs). Representative groups such as the Law Society and the Advice Services Alliance are on the steering group. The study will look at the impact of new initiatives on service users and at delivery and implementation issues. A report is due in December 2009.

PART NINE: COVERAGE OF LEGAL AID SERVICES AND SO-CALLED "ADVICE DESERTS"

Criminal Legal Aid

  41.  The LSC continues to provide complete coverage of England and Wales for the duty solicitor schemes in police stations and the magistrates' courts. The number of acts of assistance has remained around 2.5m since 2004-05. Included in this are:

    —  70,000 occasions when funded duty solicitors and CDS Direct service gave legal advice to people being held at police stations, and

    —  560,000 people who received representation for magistrates' court appearances each year.

  42.  It is expected that more people will be helped as the reforms continue to drive further efficiencies throughout the legal aid system.

Civil Legal Aid

  43.  There continues to be approximately 2,700 providers (solicitors and Not for Profit organisations) offering family legal aid in England and Wales.

  44.  The LSC introduced new national fixed fees for social welfare advice in October 2007. The new scheme will mean that different providers will be paid the same for the same work regardless of where they are in the country.

  45.  Social welfare legal advice is a critical tool to help combat social exclusion. Currently less than 1% of contracted providers hold contracts with the LSC to deliver advice in all five social welfare law categories: community care, debt, housing, welfare benefits and employment. To better structure advice provision to address access problems, the LSC is looking to integrate provision of all five categories of social welfare law.

  46.  Local Community Legal Advice Centres and Networks are primary sources of providing legal information. The MoJ and LSC have been, and will continue to, develop partnership arrangements with those, such as local authorities, with an interest in advice provision. By being tailored to the requirements of local areas they are better placed to help tackle the common causes of local problems, and meet the needs and priorities of local communities.

  47.  As client need is not uniform, advice is made accessible in as many formats as possible. For example, in addition to traditional face-to-face advice services, the LSC also offers advice and information over the telephone and online through the service Community Legal Advice (CLA), which provides free information and advice to everyone by phone (0845 345 4345), the Internet (www.communitylegaladvice.org.uk) and a range of legal leaflets. If callers are worried about the cost of calling the service, they can text "legalaid" and their name to 80010 or complete a webform on the CLA website and an operator will call them back. Pilots in delivering family advice through CLA and booking callers directly into face-to-face appointments are currently taking place.

  48.  In four years of operation (since July 2004) the legal aid telephone service has helped more than 950,000 people by:

    —  taking on legal cases for 300,000 people;

    —  referring another 400,000 to face-to-face legal aid providers; and

    —  giving over 250,000 people details of other helplines or information that enabled them to solve the problem.

  The website has also had more than 3.3 million visitors each year.

  49.  The LSC is currently undertaking a tender, which closed on 21 November, to increase the availability of advice for clients who prefer to access legal aid services over the telephone through the CLA service.

  50. Unprecedented numbers of acts of assistance for people with civil legal problems are being provided. Excluding asylum and immigration, there were nearly 800,000 civil and family acts of assistance provided in 2006-07, compared with 595,000 in 2004/05. This rises to a million acts of assistance delivered to the public in 2007-08 when civil cases that required representation are included.

Public Legal Education

  51.  Early intervention in many forms of dispute, actual and potential, can support positive prevention. The Government aims to help citizens by early intervention in disputes, making sure they get the extra support they need when it can make the most difference. This is taking on a greater importance given current economic circumstances when additional families and individuals may be drawn into risk of debt.

  52.  To make sure people can develop the confidence and skills needed to deal with disputes, the Government aims to improve access to justice in the community by providing people with an awareness and understanding of legal issues and of their rights. In practical terms this means helping people recognise when they may need support, what sort of advice is available, and how to go about getting it.

Other activity to monitor impacts and address any issues around access to legal aid

  53.  The LSC undertakes periodic bid rounds to increase provision in priority categories of law and where analysis indicates provision can be improved. In July 2008 the LSC ran a bid round to increase access to civil and family services (including the priority areas of childcare and domestic violence). This was for £10 million worth of contracts and equates to some 40,000 extra cases of face-to-face civil legal aid. Over 400 bids were received, including 90 from law firms or third sector agencies wanting to start civil legal aid work for the first time. 70 bids were also received from existing firms who wished to expand and setup new offices to provide legal aid services under fixed fees.

  54.  Prior to the introduction of the phase 1 fee schemes, many stakeholders argued that the reforms would lead to a reduced interest from providers in legal aid work. The experience in practice has been different. New and existing providers are showing an appetite for civil legal aid work, as is demonstrated by the large numbers of bids the LSC has been receiving in response to tenders for work since 2007.

  55.  Other areas of work have also attracted significant interest from providers. Bid rounds in summer 2008 for Immigration advice at police stations attracted 18 bids for 4 contracts. Bid rounds at the same time for advice provision in Immigration Removal Centres attracted 69 bids for work in 9 centres. The Government is also pleased by the high level of response to the 2008 bid round for Housing Possession Court Duty Schemes.

PART TEN: CONTINUING LEGAL AID REFORM

  56.  Key continuing work streams are set out at Annex C (Legal Aid Reform: Phase Two).

  57.  The reform programme is supported by LSC work such as the awarding of £3 million of training grants to 150 organisations. These help to train young legal aid solicitors. Each grant is worth up to £20,000. More than 220 solicitors and Not for Profit organisations across England and Wales applied for grants.

  58.  The MoJ will also keep working closely with other government departments to ensure that when they initiate policy changes that could affect the legal aid budget, proper impact assessments are undertaken

  59.  By achieving best value for money as many people as possible can be helped within the available resources. The reforms build on the successful introduction of fixed fees in the majority of both civil and crime work so far. Fixed and graduated fees encourage and reward efficiency by moving away from paying practitioners by the hour (where appropriate) towards paying for what they actually deliver. By giving practitioners a real stake in the wider justice system, legal aid will also contribute to, and benefit from, wider government reforms that encourage the speedy and effective resolution of cases. The Government will continue the legal aid reforms to develop a system that operates more efficiently, is sustainable, and provides fairness, equality and further improved access to justice over the coming years.

December 2008

Annex A

SUMMARY OF KEY LEGAL AID REFORM PUBLICATIONS

  This Annex summarises the key publications on legal aid reform since the conclusion of the Fundamental Legal Aid Review in 2005.

A Fairer Deal for Legal Aid—July 2005

    —  Followed the Fundamental Legal Aid Review carried out by the then Department for Constitutional Affairs in conjunction with the Prime Minister's Strategy Unit and the Treasury, in response to concerns around escalating costs without apparently commensurate improvements in delivery.

    —  Set out a long-term strategy for legal aid.

    —  Commissioned Lord Carter to conduct his review into legal aid procurement looking at two areas:

    —  to re-balance the legal aid budget to put it on a sustainable footing and ensure that the Government is procuring a quality, efficient and diverse service at the best price for the taxpayer; and

    —  to ensure that the proposals were in line with the aims of the wider Criminal Justice System.

Getting earlier, better advice to vulnerable people—March 2006

    —  Followed from a proposal in A Fairer Deal to develop Government strategy for helping vulnerable people to better resolve problems and disputes.

    —  The recommended strategy was that:

    —  advice is people focussed—dealing with the many problems individuals may face rather than each problem in isolation;

    —  advice is right first time—enabling access to the right advice; and

    —  we learn from our mistakes—using peoples advice requirements as an indication of where services are failing to deliver.

Review of the Child Care Proceedings System in England and Wales—May 2006

    —  Undertaken at the same time as the review by Lord Carter, this was done in partnership between the then Department for Education and Skills and the Department for Constitutional Affairs, and the Welsh Assembly Government.

    —  The Review recommended:

    —  ensuring families and children understand proceedings, and are engaged with the system;

    —  encouraging, where safe, exploration of alternatives to court proceedings;

    —  improving quality and consistency of applications to court;

    —  improving case management during proceedings; and

    —  encourage closer working between agencies.

Legal Aid: A Market-Based Approach to Reform—July 2006

    —  Lord Carter's findings and proposals to move to a system of best value tendering for the procurement of legal aid services, with extension of fixed and graduated fees as a interim step.

Legal Aid: a sustainable future—July 2006

    —  The Government response accepting Lord Carter's proposals in principle.

    —  Recommended that the proposals be achieved through a phased implementation.

    —  Introduced new procurement and remuneration structures in both civil and family and criminal legal aid.

    —  Set out the details of proposed standard fee schemes for legal aid work—subject to full consultation—as part of interim measures to prepare the legal services market for tendering.

Legal Aid Reform: The Way Ahead—November 2006

    —  The key publication setting out how the Government will deliver a new system of sustainable legal aid.

    —  Pulled together the Government response to the sustainable future consultation and to several more detailed consultations on specific aspects of legal aid.

    —  The key principals were set out as:

    —  good quality legal advice and representation;

    —  sustainable, effective and efficient supplier base;

    —  value for money for the taxpayer; and

    —  contribute to efficient operation of the Criminal Justice System.

Implementing legal aid reform—June 2007

    —  A response by the Government to the recommendations in the Constitutional Affairs Select Committee report (Implementation of the Carter Review of Legal Aid—June 2007), explaining the strategic background and the purpose of legal aid reform.

Annex B

WHAT HAS BEEN ACHIEVED—LEGAL AID REFORM: PHASE ONE

  The legal aid reform strategy has been taken forward whilst ensuring legal aid continues to support effective operation of the Criminal Justice System and meets the needs of a wide range of clients and practitioners. The first phase of legal aid reform work has now been implemented. This has included:

CRIMINAL LEGAL AID

April 2007

    —  Introduced standard fee scheme for magistrates' courts—Revised fees implemented in 16 urban areas.

    —  Crown Court—Introduced revised advocates graduated fee scheme.

January 2008

    —  Commenced new general criminal contract.

    —  Expanded the Defence Solicitor Call Centre to "own client" work.

    —  Phased expansion of the Defence Solicitor Call Centre and CDS Direct to those elements of "own client" work suitable for telephone advice.

    —  Crown Court—Implemented litigators graduated fee scheme.

    —  Police Stations—Introduce new fixed fees and revised "boundary areas".

April 2008

    —  Police Stations—Phase two of CDS Direct expansion rolled-out in all of England and Wales.

June 2008

    —  Implemented new General Criminal Contract for Police station, Magistrates court and Crown Court work (except VHCCs).

July 2008

    —  Publication of a "route map" setting out future direction of criminal legal aid reform programme.

    —  Published outcome of consultation on Best Value Tendering (BVT).

October 2008

    —  Recovery of Defence Costs Orders (RDCO) regulations amended to better target defendants and encourage more Orders to be made.

November 2008

    —  Agreement with the Bar Council and Law Society on the interim VHCC arrangements.

    —  Publication of consultation papers on Crown Court means testing and Central Funds reform.

CIVIL LEGAL AID

April 2007

    —  Implemented new civil legal aid contract covering both solicitors and Not for Profit organisations.

    —  Harmonisation of solicitor family remuneration between county and magistrates' courts.

October 2007

    —  Civil Advice—Introduction of new fixed fees for civil advice work.

    —   Immigration and Asylum—Introduced new immigration and asylum fee schemes covering most work.

    —  Family Mediation—Introduced single family mediation fee structure for solicitor and Not for Profit mediation services.

    —  Family Help (Private)—introduced new fixed fees for advice and negotiation in family private cases (eg child contact/residence, ancillary relief).

    —  Child Care—introduced new graduated fee scheme for child care or supervision proceedings covering most work other than advocacy.

    —  Start of pilot for telephone family legal advice.

January 2008

    —  Mental Health—Introduced fixed fee scheme for Mental Health covering most work

April 2008

    —  Agreement reached between MoJ, LSC and the Law Society in a dispute over some of the provisions of the civil legal aid contract.

    —  As agreed with the Law Society, establishment of:

    (i) the Civil Contracts Consultative Group, Representative Body consultative groups in civil categories of work, and Stakeholder consultative groups in civil categories of work;

    (ii) a joint LSC/Law Society Quality Working Group established to review and report on quality assurance systems for civil and criminal legal aid work;

    (iii) a review of the phase 1 civil fee schemes, to be overseen by the Civil Contracts Consultative Group, and to issue a consultation in January 2009 on any necessary changes to the fee schemes from 2010;

    (iv) a joint LSC/Law Society/National Audit Office review of the Contract Compliance Audit system for civil and criminal legal aid work; and

    (v) publication of a "route map" setting out future direction of civil legal aid reform programme.

June 2008

    —  Family Barrister Fees—Consultation published on changes to the family barrister fee scheme.

July 2008

    —  Increases agreed with the Law Society to civil fixed fees take effect.

October 2008

    —  Publication of a consultation on new civil legal aid contracts to apply from 2010.

    —  Family helpline pilot extended until it is replaced by a national service in 2009.

Annex C

KEY CONTINUING WORK STREAMS—LEGAL AID REFORM: PHASE TWO

Criminal Legal Aid

  Crown Court Means Testing: On 6 November the Ministry of Justice and LSC jointly issued a consultation on the reintroduction of means testing in the Crown Court. This supports the Government's commitment that those who can afford to pay for their defence do so, and follows from the introduction of means testing in all magistrates' courts in October 2006. The proposals include a pilot next summer in five Crown Court areas: Blackfriars, Preston, Swansea, Norwich and Bradford. The closing date is 29 January.

  Awards of costs from central funds in criminal cases: On 6 November the MoJ also issued a consultation on possible reforms to the system of payment of acquitted defendants' legal costs. This links in part to the proposals for Crown Court means testing (although the Central Funds budget sits separate to that for legal aid). To this end, the paper suggests two (not mutually exclusive) options: The first would mean that individuals who fail to apply for legal aid in Crown Court cases, and then instruct lawyers privately, would no longer be eligible for their legal costs from Central Funds if acquitted. The other option under consideration is to cap Central Funds payments in all cases for acquitted defendants, including companies, to the relevant legal aid rates. Again the closing date is 29 January.

  Develop Single Crown Court Graduated Fee: The LSC is considering options for this and is currently undertaking an economic analysis. It will consult fully at the appropriate point.

  Post implementation reviews: In 2009 reviews of the national implementation of police station fixed fees, and of the litigators graduated fee scheme will be undertaken.

Civil Legal Aid

  Civil contract consultation: On 31 October the LSC published its consultation on civil legal aid contracts for the period 2010 to 2013. The proposals specify the types of service, where they will be delivered, how tenders will be invited, changes to the scope of funding (including for experts), and amendments to standard terms. Improving client access to civil legal aid services and the quality of those services are key themes. The closing date is 23 January.

  Family graduated fees: A decision is to be taken shortly on proposals to control expenditure on the barristers' Family Graduated Fees Scheme. This follows the consultation that closed in September.

  Family fee harmonisation: The LSC announced in its civil route map that it will lead a consultation in the autumn on a new family advocacy fee scheme for solicitors and barristers. Originally planned for 2008, this has been deferred until 2010 as part of the agreement between the LSC, MoJ and the Law Society, following the Unified Contract dispute.





 
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