YLAL Briefing Pack for Legal Aid Demo
NO ACCESS, NO JUSTICE
Briefing paper – 19th March 2007
The Government’s proposed changes to legal aid, based on Lord Carter’s review, will result in a significant reduction in the legal services available to vulnerable people, and will damage the quality of those that remain. Legal aid solicitors generally earn the same as teachers and senior nurses. But this is not about lawyers arguing that they should have higher incomes. It is about the Government setting rates that are so low that it will not be viable for independent private practices, or even some not for profit charitable organisations, to continue to provide these services.
The first tranche of the reforms will be implemented on 1st April 2007. This is despite repeated requests from practitioners and interest groups to reconsider the proposals and carry out a meaningful consultation. Thousands have painstakingly contributed to consultations and meetings in an effort to engage with government. Government has not listened and this matter has not even come before parliament.
At the very least, it is argued that Government should delay implementation until the Constitutional Affairs Committee has reported and its findings have been considered. The Committee was set up precisely to investigate the impact of the proposed changes which it appears will now be implemented regardless of its findings. This is yet another example of Government’s “cavalier” approach to justice. The Otterburn report, commissioned by Government to provide an independent assessment of the impact of the changes from the 1st April, was buried for some three months and only published after the Committee had finished receiving evidence.
Imminent Changes: April 2007
From the 1st April, those doing civil legal aid work will have to sign new contracts, the terms of which are a matter of grave concern. Amongst other things the contract may be unilaterally amended by the LSC on as little as 7 weeks’ notice, is terminable by the LSC without fault on 6 months’ notice without compensation and contains a number of provisions entitling the LSC to act with complete discretion, unlimited by any contractual requirement to act reasonably or proportionately. What sensible business person aiming to provide a sustainable service (such as Government claim the changes will facilitate) would sign such a one sided contract? Many providers are questioning whether they will be able to provide a quality sustainable service under the contract and seriously considering whether to sign it at all. If providers do not sign up by 1st April, we could be experiencing extensive advice deserts in the very near future in key areas of social welfare law, such as housing and debt advice.
In criminal legal aid work, changes to the terms of the current contracts will also be implemented this April. Changes include revised fees for magistrates court work, which will incorporate a substantially reduced amount to cover the cost of travel and waiting. This will have the effect of penalising firms for the cost of delays over which they have no control.
These imminent changes are only the thin end of the wedge: the proposals for legal aid provision based on the Carter review are to be rolled out over the next two years and will spell irreparable disaster for access to justice. The use of fixed fees is central to the changes: this means that providers will not be remunerated for the amount of work actually done, but instead will be paid a punitively low fixed fee that does not take into account the complexity of each individual case or the client’s needs.
Quality: research into fixed fees for criminal work in Scotland found that both prosecutors and defence lawyers identified that quality had dropped. The LSC’s analysis of responses to government consultation states: “Almost all respondents felt that the impact of [Lord Carter’s] proposals… would undermine [the drive for quality] as the quality of service would be directly linked with the financial impact on providers of the proposals. It was also felt that the proposals would lead to the employment of lower quality staff and the profession could become, ‘deskilled’. This would become increasingly true as experienced practitioners left the profession, whilst new graduates failed to enter.” The Government’s final proposals do not answer these concerns at all.
Sustainability: research[iii] has shown that the provision base of legal aid lawyers is very fragile and that many firms, including those with strong community ties, will have to stop doing legal aid work as a result of the changes. Further, there is a real problem in securing a future generation of committed and well trained legal aid lawyers.
Social welfare law: firms currently get a fixed fee calculated as the historic average cost of their own cases. The fees are based on hourly rates less than one third of those paid from public funds to solicitors’ firms acting for NHS Trusts. The new proposal will pay a single national fixed fee for advice work in each legal field. This fails to take into account the level of specialisation of the work that firms do, the complex needs of some client groups, such as the disabled or those with mental health issues, and local variations in what problems communities actually face. For example, some local authorities are good at dealing with housing repairs, while others are poor. Some are efficient at processing housing benefit claims, others are not. The effect of national fixed fees is likely to be that firms doing more complex work and work for client groups with particular needs will leave the system, as their costs are greater than the fees on offer; while the Government will end up overpaying for the more routine work done by organisations whose current costs are below the national fixed fee.
Crime: independent research carried out for Lord Carter’s review, found that there are “leading firms with national reputations, which, despite having established relatively low cost business models are unable to make crime pay.”
Despite this, the Government is implementing changes which will cut the fees paid to solicitors by £100 million for the same work. This is likely to make criminal defence work economically unviable for many firms, leaving some people accused of crime unable to get advice and representation.
Some people are already unable to get help. Independent research into the means test introduced in October 2006 has shown that a single parent on the minimum wage no longer qualifies for legal aid if charged with an offence in the Magistrates’ Court. Three quarters of all working households are no longer eligible for legal aid in the Magistrates’ Court.
Plans to change the police station scheme will result in lower quality representation and chaos. It was only a few years ago that stringent rules were imposed in respect of the qualifications of police station advisors in recognition that good representation, especially for those charged with the most serious offences, was in the public interest.
Family: the unanimous view of respondents to the consultation was that the Government’s proposals would lead to a cut in firms’ income of between 30% and 70%. This would have rendered family law firms across the country insolvent, wiping out advice for parents whose children face being taken into care. Although the Government has agreed to look again at the proposals, this is only on the basis that the same money is re-cut in a different way. The family legal aid system must be properly funded in order to protect vulnerable children.
Impact of the Introduction of Fixed Payments into Summary Criminal Legal Aid: Report of an Independent Study, Frank Stephen and Cyrus Tata, published 2006
New Policy Institute, “Means testing in the magistrates’ court: is this really what parliament intended?” 5 December 2006, http://www.npi.org.uk/Legal%20Aid%20061205.htm “[A] lone parent with one child (aged 10), who works full-time at the minimum wage of £5.35 an hour will not be eligible because of the boost to family income coming from tax credits.”