Legal Aid Reform - Justice Committee Contents


Examination of Witnesses (Questions 1-19)

LORD BACH, PATRICK BOURKE AND MARK TAYLOR

10 DECEMBER 2008

  Chairman: We move to the issue of legal aid reform and I will ask Mrs James to open the questioning.

  Q1 Mrs James: It is a question that we are all interested in. How are you monitoring the impact of the criminal legal aid reform? In other words, how is it going?

  Lord Bach: As you know, I am new to this portfolio, although I spent the best part of my former life as a legal aid practitioner and as a criminal legal aid barrister in the Midlands. It has been a fascinating few weeks, discovering where we are with legal aid, some 9 or 10 years after I finished practising. I do not think that it is going badly at all. There has been a marked improvement at least in the working relationship between the Legal Services Commission and practitioners. That is not to say that everything is perfect; there are disagreements, of course. I think that is in the nature of the beast. However, I think that there is an acceptance on both sides now that this issue must be resolved. The reason why I think that things have got better is because the agreement was reached with the Law Society, following the resolution of the unified contract issue, which the Committee will know about. As far as the Bar Council is concerned there has been agreement to develop a scheme to replace the Very High Cost Cases Panels. Those are both quite successful outcomes, therefore, which have helped the scene. Of course, the Legal Services Commission meets regularly with Not-for-Profit providers, the part of the provider community that I am particularly interested in, to get their views on reform. LSC have done their best to assist with the implementation of what have been not easy legal aid changes for the Not-for-Profit sector, let me say, through the development of some transitional arrangements. I myself meet regularly with Not-for-Profit providers, with the Law Centres Federation, I have met with Advice UK and have also visited, in the Not-for-Profit field, both the new Community Legal Aid Centre in Leicester and also a very respected Law Centre in Hammersmith—which has been going for 30 years next year. So, overall, not bad.

  Q2  Mrs James: How are you monitoring? What mechanisms are you using? We are particularly interested in how you have evaluated the impact of the reform across different regions. We have had evidence to the Committee of concerns about particular spots across the country on which this would have a detrimental effect and the different areas of law, and the types of communities that would be accessing this aid. How are you monitoring that and the impact of these changes?

  Lord Bach: I will ask Mr Taylor in a moment to add to the few comments I am going to make. The LSC now has 110 relationship managers, as they are called. Their role is to act as the sole point of contact on funded work with their particular provider. That system seems to work pretty well, because the provider hopefully can come to the relationship manager and say, "Look, this is right. This is wrong" and likewise the LSC, through the relationship manager, can talk to the provider. These relationship managers are quite powerful people. They decide, for example, whether a local bid round is necessary because there is some potential problem in supply—not that we have found much of that at the present time, I have to say. That is one way in which we are monitoring legal aid reform at the regional level. The Legal Services Commission is also represented pretty well on local groups; so that it engages with local issues. For example, it is represented on all 42 Criminal Justice Boards and on 35 of the 39 local Family Justice committees. In Wales, if I may use Wales as an example, as I understand it the LSC works closely with the Welsh Assembly government and also other key stakeholders. May I ask Mr Taylor if there is anything he wants to add to that?

  Mark Taylor: What I would add is, first of all on the criminal side, the LSC has had absolutely no problem in ensuring supply for the magistrates' courts scheme or for police station representation. The duty rotas are all well supplied. There are one or two spots in the country where the LSC has found it a little more challenging to source specific supply on specific issues. Family is one of the areas where they have had some problems in one or two places. They have an active programme to spot those areas, to invite bids for a new supply. So, by and large, I think that it is a reasonable picture.

  Q3  Mrs James: You have mentioned the reverse side of the coin and what problems you have come across; but have you any indicators of what providers have ceased to provide services over the last year, let us say, what geographical areas in particular have suffered from losses, and what are the areas of the law facing those reductions?

  Mark Taylor: The first thing to say on that is that, over the past decade or more, there has been a steady consolidation of the number of providers doing legal aid work, both on the criminal side and in civil work.

  Q4  Chairman: What do you mean by "consolidation"? Fewer of them?

  Mark Taylor: Fewer providers, but those providers that are left are doing more work. In particular, a larger number of people who originally were doing very small amounts of work have withdrawn; so that people left are the ones who do have the real expertise in doing legal aid work. That is one important point, therefore.

  Q5  Mr Heath: Coming from rural Somerset, can I suggest to you that consolidation actually means that a few companies in the bigger cities are doing the work and that the smaller practices out in the sticks are not able to continue doing it? This means that you very often have monopoly suppliers of legal aid to some of our magistrates' courts in the smaller towns. I want to know what the department is doing to monitor that situation and to ensure that there is a proper provision in rural areas, because that is one of the key issues.

  Lord Bach: It is one of my concerns too, let me be frank. Because, while things cannot stay always as they are and there have always been occasions when law firms have started up and closed down, or changed to do different types of work—and that is true not just about the last five years; it is true about all time—I want there to be a good cross-section of providers in town and in country. I enquire—I think probably to my officials' annoyance, because I go on about it so much—as to why this company is stopping doing family legal aid; why is that company taking up family legal aid; what does that tell you about quality; what does it tell you about the system? I have to say that I am pretty well persuaded that, for example, when contracts are being tendered there are new companies, new firms, that are applying for legal aid contracts and who get legal aid contracts. There is no reason to believe that they are of less quality than some firms that have decided not to tender for that particular contract. I think that it is quite a complicated issue, therefore. What concerns me particularly—and, as I say, I have gone on ad nauseam about it—is when really outstanding firms with long tradition in a particular field of law decide that they cannot carry on with that publicly funded law. There may be good commercial reasons in terms of the firm itself why that is so; it may not be just a simple question. However, it is a very good question, if I may say so, and one that is absolutely top of my priorities.

  Q6  Mr Heath: My experience is that, in a lot of these small companies, somebody doing either criminal or family legal aid work is being cross-subsidised constantly by partners who are doing the profitable stuff; and therefore there has to be an incentive for them to continue to do that, beyond just the public interest.

  Lord Bach: That is true and, at a time when obviously conveyancing is becoming much more problematic for solicitors' firms that have relied on it—not as much as maybe 20 years ago, but as much as they have for the last 10 years—that is an issue. However, I am afraid that it cannot be the responsibility of the Legal Services Commission somehow to make up the difference. The solicitors' firms, which after all are private companies, therefore make the decision that they are going into this field and they are not going into that. We may regret it, we may question why that is happening, but in the end it is a decision for them.

  Q7  Chairman: You are a buyer of a service on behalf of the community. You cannot simply say, "Tough luck. People don't want to sell that product any more". You have to say, "How can we ensure that there is someone from whom we can buy this service?"—and not just one person, who leaves no choice and no competition.

  Lord Bach: I agree with that and we have to go a bit further. We have to make sure that there is quality in the provider too. It is no good getting the provider if there is not the quality there. That, I think, is central to what the LSC is trying to do. That is why they from time to time hold these new bids—which are always oversubscribed.

  Mark Taylor: Yes, it is certainly true to say that, on the civil side, the recent bid round for various sorts of work has been oversubscribed. On the criminal side, to take your point, Mr Heath, about police station duty schemes, magistrates' courts duty schemes, the LSC is keen to ensure in constructing those schemes locally that they do have enough providers, not least so that, in cases where there is more than one defendant, there is no conflict of interest between the solicitors representing those defendants. The LSC takes all that very seriously, therefore, and that would be one of their considerations—about whether they have enough supplies in a particular area for a particular court or a particular police station.

  Q8  Julie Morgan: There are two areas I want to ask you about. First, about the general development of the CLACs and CLANs and, secondly, about some of the proposed administrative arrangements for Wales. I am pleased to hear that you are very interested in the Not-for-Profit sector and that you hold meetings with the Not-for-Profit sector. It sounds as if you are quite a champion of them.

  Lord Bach: I would not go that far. It is very dangerous for me to say that!

  Q9  Julie Morgan: I have a great deal of concern about how the Not-for-Profit sector is being affected generally by the development of the CLACs and CLANs. Perhaps I could use the example of my own area, where there is a CLAN proposed for Cardiff, Bridgend and the Vale of Glamorgan. I have been approached by a number of small voluntary organisations, saying that they are squeezed out of the process and that they have no chance to take part in the tendering process because they are not sufficiently big or strong to bid themselves; and if solicitors or other, bigger organisations are bidding, they are not part of that bid. They really feel, and I feel, that a lot of expertise that has been in the area for many years is at risk of being lost. These are organisations that reach to the most deprived people in the community and that have track records. I want to know what your views are on how this process is being dealt with.

  Lord Bach: First of all, can I say that I do accept that I am a champion of Not-for-Profit. I think that they do a fantastic job; some better than others, because there is a whole range of Not-for-Profit organisations: some tiny and some pretty large. I agree with you, Ms Morgan, they do fantastically important work, because they actually get to some people who do not otherwise get advice or representation on legal affairs. The most vulnerable people often use the Not-for-Profit sector, and so it needs protecting—but not protecting at all costs. It is very important that people actually get the advice they need. Sometimes that advice is someone going into an advice centre; there is one particular piece of law they need to know about; they are told it; they go away; they are satisfied. Others go in and they have a whole series of different legal problems, often around social welfare law. The danger is that one person, one organisation, will help them on that piece of law. They refer them on to someone else for another piece of law and then further on and, after a while, our experience is that people will not keep going on to referral agencies, one after the other. They give up. What we are trying to do, therefore, is to make sure that the advice that comes from the Not-for-Profit sector is joined-up advice: advice across a wide range of issues, if that is what is needed by the client. The bringing-in of fixed fees, which we think was the right thing to do as far as Not-for-Profit is concerned, and the emergence of CLACs and CLANs—which is at a very early stage—are important parts of trying to boost this sector, which now receives some £80 million a year. A few years ago it received about £24.4 million a year. It has been difficult, moving to fixed fees, for Law Centres for example. It has not been without its problems. That is why I said at the start that there are some transitional arrangements that are being made. However, having just last week visited Hammersmith Law Centre, with its great history, and then visited a brand-new Community Legal Aid Centre in my home city of Leicester, I was impressed by both—but impressed in different ways. It seemed to me that the Law Centre can deal very well with specialist matters such as employment and housing, and its history—particularly Hammersmith—of taking up cases that have in the end resulted in going to the European Court of Human Rights to be resolved, the way they see cases through, is admirable, and the work they do within the community is admirable—and that has been 30 years.

  Q10  Julie Morgan: I am sure that there are very good examples but I can only say what the Not-for-Profit sector are saying to me and to other members of the community. We know that a number of Law Centres have closed, and I see that the CAB briefing for this Committee asks for the suspension of the CLAC and CLAN process. That is what the Not-for-Profit sector are saying in a general sense, therefore. I would not have thought it beyond a possibility to build into the specifications that are given for the bids, for the CLANs in our example, the inclusion of that very specialised local knowledge, which should not be lost when this sort of development happens. I wondered whether that was something you felt you could look at with the LSC, to ensure that very good organisations that reach those people who are the most difficult to reach are not pushed out in the process and lost. Do you have any views on that?

  Lord Bach: Yes. The tendering process, of course, has not happened in Wales yet.

  Q11  Julie Morgan: No, it is in the process now; so it seems that now is the time to make sure that—

  Lord Bach: Yes, but it has happened elsewhere. As I understand it, the tendering process—which has resulted in different people winning these contracts—had been carried out properly and fairly in the five examples we have had so far. The fact that there have been different winners in each case is perhaps some evidence of that. Of course, I will take to the LSC the concerns that there are in Wales about this.

  Mark Taylor: May I add a technical point? The proposal in South Wales is for a network, which I think goes towards the approach that you are looking for, where the emphasis is on a range of providers coming together as consortia perhaps, and trying to get that joining up. I think that there is some space for further discussion around this.

  Q12  Julie Morgan: Yes, if there is space for further discussion that is very good, because a network should be able to include the small providers. They fear, or they are saying very categorically, that, even with a changed specification that is much improved, they are still going to be pushed out. I would therefore be very grateful if you could look at that.

  Lord Bach: I take that point. I hope the Committee knows that I have instigated a review, a study, into how this Not-for-Profit sector and the changes there have been to legal aid are working. It has been an internal review. It seems that the steering group, which will contain all the important players on this, will be involved. We announced this last week in a written ministerial statement and I think that it is important. I look forward, perhaps in the future, to coming back to the Committee and being able to talk about what that study finds.

  Q13  Julie Morgan: Perhaps I could ask you about these proposed administrative changes in the processing of the legal aid applications. The proposal is that they will be brought down to five offices from 11 throughout the UK and there will not be any office in Wales. Again, there is a great deal of concern about the fact that this is moving out of Wales. It means not only 40 jobs going, some of them in my constituency, but also that, with devolution and the changes in law in Wales, it seems very much against that spirit that there will not be any work actually done in Wales.

  Lord Bach: It is not a question of there being no work done in Wales. First of all, I am very aware of the issue and I have spoken to a number of people in the Welsh Assembly on this matter; indeed, a letter has gone to a colleague of yours, Mr Brennan, and other letters are going, dealing with this. The LSC have to make cuts; they have to make savings. There is no doubt about that, if the Ministry of Justice is going to come within its budget. I have to say that, and it will mean that there are some closures in terms of the work that is done. However, there will be a continuing LSC presence in Wales. The relationship manager that I have talked about will have a strong presence there, as will the Public Defender Service. As I understand it, most client contact in Wales is already by telephone, and it will continue to insist on Welsh language responsibilities. I know that this answer will not be entirely satisfactory to you. Although of course it will make some difference in Wales, to suggest that there will be no continuing presence from the Legal Services Commission is not right. There will be, and Wales will continue to be an important area for LSC activity.

  Q14  Julie Morgan: I am aware that there would be 15 jobs left and 40 will go. I wondered if you could possibly look at this again. Also, was there formal consultation with the Welsh Assembly?

  Lord Bach: I will certainly look at it again, but I must remind the Committee that the LSC is a non-governmental departmental body. Although of course I keep a very close watch—perhaps too close a watch some might say—on what it does and does not do, it is by its very nature entitled to make decisions around issues concerning resources—some resources.

  Q15  Alun Michael: I share Julie's concern about this and I would like to probe a little further. I perhaps ought to say that I am Vice-Chair of the All Party Group on Citizens Advice and I am Honorary President of Cardiff Citizens Advice Bureau. Neither of these are a personal interest but I have been involved in CAB issues for over 30 years, particularly in relationship to getting advice and information to the most vulnerable people in society. My worry is that this seems to be a rerun of discussions with previous ministers in meetings with the All Party Group, as well as hearings of a predecessor committee. The question I asked your ministerial colleague yesterday on this issue received a very positive response. That was about the value placed on the CAB in not just being able to give high-quality legal advice but being able to go behind that legal advice, therefore to be adding value by looking at the wider root causes. One always gets a sympathetic answer from a minister to a question like that, and yet the crude procurement model—even the crude procurement model developed slightly over the last year or so—appears not to take this into account. The department seems to miss the point and not place the same value that ministers and MPs do on the benefits of that integrated and joined-up service. Can you really assure us that that is fully understood and is embedded in the thinking of the department now, going forward?

  Lord Bach: Yes, I can. I am an ex-chairman of a small CAB, many years ago, and personally I have a great admiration for the work it does. Indeed, you will know that the Chancellor gave some £10 million to CAB so that they could work longer hours, in anticipation of there being more enquiries around debt. I think that shows to some extent how the Government does support the CAB movement. Indeed, the Justice Secretary and I are meeting with Mr Harker from the CAB tomorrow to discuss these issues. I have said that, but it is also important to realise that CABs often are best at dealing with individual problems quite shortly. People come in wanting debt advice and get advice. I know they do more than that. Of course, there are very many Citizens Advice Bureaux around the country. Some provide more services than others, by their nature.

  Q16  Alun Michael: With respect, the Citizens Advice Bureau service has geared itself up to be able to provide professional standards of legal advice where they have those contracts, as well as giving that sort of generic advice to which you have referred. It is the relationship between the two that creates the strengths of the service; and, if I may suggest, the CAB brand is as politically significant as the Post Office brand, in terms of recognition by the public, recognition by Members of Parliament, and the standards of a quality-assured service. My worry is that that is not adequately understood within the department, which is just looking at the legal advice. We understand the financial constraints. I am all in favour of pushing for the best quality of advice and also value for money. If that relationship is not understood, however, we end up with unintended consequences. Is this not a concern for you?

  Lord Bach: I accept exactly what you say. It is an extremely popular movement, and quite rightly so. Where I sit, I have to look at the Not-for-Profit sector; I have to look at where legal advice can best be given for the most vulnerable. We have to look for ways of doing it because we have not got through to the most vulnerable in all regards up till now. However, that does not take away from the fact that we understand—who would not understand?—how popular the CAB are, and how rightly popular they are.

  Q17  Alun Michael: Why was the issue, which was widely debated with your predecessor, of payments only in arrears re-opened?

  Lord Bach: I will ask Mr Taylor whether he knows about that. However, I wanted to make one other point about the CAB. The CAB have been successful in bidding for two of the five CLACs—Community Legal Aid Centres—that have so far been opened. I think that is also an important point to get on the record.

  Q18  Alun Michael: While Mr Taylor is waiting for his reply, can I ask whether you have discussed these issues with the Compact Commissioner?

  Lord Bach: No.

  Q19  Alun Michael: May I suggest that it would be sensible, given that the Government is a party to the compact between the Government and the voluntary sector, to do so?

  Lord Bach: Yes, indeed.


 
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