last updated 14.5.13
for the latest updates see the national Law Society's 'What Price Justice' campaign webpage at www.lawsociety.org.uk/defendinglegalaid
To find your local Legal Services Commission office visit the page listing them on www.legalservices.gov.uk/aboutus/contactus/our_local_offices.asp
Law professionals seeking or offering Legal Aid advice or wishing to join discussions about it could visit iLegal at www.legalaidandme.proboards.com.
Most recent item: 14.5.13 from a Law Gazette e-digest item by Catherine Baksi
The legal profession has united in its opposition to the government’s proposals for fee cuts and reforms which lawyers say will ‘sabotage’ the criminal justice system.
The Law Society and Bar Council today issued a statement on the four key planks of changes set out in a consultation paper which they jointly oppose:
- The proposal to abolish freedom of choice of representation is an unacceptable inroad into the basic rights of those facing criminal charges;
- The imposition of price-competitive tendering with the price cap will make it uneconomic for firms to provide quality services, leading to a wholesale exodus from the market;
- Fixed contract sizes will make it impossible for smaller firms to remain in the market and provide no incentive for firms to compete on quality; and
- The flattening of fee rates so that a solicitor is paid as much for a guilty plea as for a potentially complex case where a client is not guilty will introduce perverse incentives and a danger of miscarriages of justice.
The declaration follows a meeting last month of representatives from the Legal Aid Practitioners Group, Criminal Law Solicitors' Association, Criminal Bar Association, Solicitors Association of Higher Court Advocates, the Big Firms Group, London Criminal Courts Solicitors Association and the Society of Asian Lawyers, as well as the Bar Council and Law Society. Law Society chief executive Desmond Hudson said: ‘There was an unprecedented level of agreement between all who attended on our opposition to these four key aspects of the government proposals and our concern that they will sabotage the criminal justice system of which this country is rightly proud.’ He said the groups will be working together over the coming weeks and months to co-ordinate campaigning work to protect the ‘already hard-pressed’ system.
Bar chairman Maura McGowan QC said: ‘The Bar fears that these proposals, if implemented, will reduce even further the right of the less well-off to quality legal representation, whether in civil or criminal matters. That right is a basic tenet of a democratic society and should not be further eroded.’
The Law Society has commissioned research on the financial state of criminal firms and the likely impact of the proposed fee cuts. The survey ends on 17 May.
The Bar Council has called on the Ministry of Justice to reconsider its ‘discriminatory’ legal aid cuts that it warns will ‘irreversibly undermine access to justice’, create a two-tier service, and ‘damage the reputation of the justice system worldwide’.
The paper warns that:
Removing a suspect’s ability to choose their lawyer will mean that quality disappears. ‘Instead of having equal access to justice regardless of means, we will have a two-tier system: one for those who can afford high-quality representation and one for those who can’t.’
Price Competitive Tendering will inhibit competition and make suppliers into ‘processors’ of justice and incentivise them to do the ‘minimum work at the lowest acceptable standard’.
Reducing the number of suppliers from 1,600 to a maximum of 400 will create advice deserts, making it harder for millions to get appropriate advice, especially in rural areas.
Meanwhile, any savings will be outweighed by the costs of having inexperienced providers offering legal services at the lowest price, with a consequent increase in appeals and miscarriages of justice.
The paper says the cuts faced by legal aid lawyers have been the ‘harshest’ anywhere in public services, driving the best lawyers away from public service law, with the greatest impact on female and black and minority lawyers.
Further cuts to civil legal aid, the introduction of a residence test and limiting judicial review will ‘severely weaken the fundamental principle of equality before the law’, hitting the most vulnerable, particularly in housing and immigration cases, the Bar Council says.
The Bar Council has also started a petition against the changes with campaigning group 38 Degrees. Another petition, started by Exeter solicitor Rachel Bentley, is on the Number 10 website. If it receives 100,000 signatures, it may lead to a debate in House of Commons.
from a Law Society email item
Government legal aid proposals: economically unworkable, possibly unlawful
2 May 2013
Criminal lawyers who read 'Transforming Legal Aid' will be forgiven for feeling they’ve nothing left to lose. While the Law Society certainly has no illusions about the pressures on the Ministry of Justice to save money, the criminal legal aid proposals still came as a shock. The biggest shock was the scale of the cuts the ministry intends to extract, while expecting the lawyers to do even more work than at present.
It is hard to reconcile this pro-business government making a proposal so at variance with what businesses realistically need to operate.
With changes like this, the first reaction is often to say that it cannot be done. Then, as the shock wears off, practitioners start to think about how it might in fact be feasible. However, in this case the reverse applies.
As the shock of the 17.5 per cent cut wears off, practitioners realise that they are also expected to provide magistrates' court duty solicitor services for free, and travel and subsistence costs will no longer be paid separately. They will have to provide a member of staff to sit behind counsel again. They will have to commit to investing in the IT necessary to engage with the government’s digital strategy. They will have to pay for peer review.
The plan is that practitioners should be able to spread costs over a larger volume of work, and thereby generate economies of scale. But instead of serving their local town, small firms will have to provide services across an entire county. Capital investment will be essential, along with ongoing costs to manage it. Firms will also have to fund the significant increase in the amount of work in progress that will result. These extra costs mean that this looks like a non-starter for smaller firms.
Larger firms will fare little better. In each criminal justice area, the ministry proposes to award a fixed number of precisely equal contracts. Firms will not be able to grow through running a successful business, as in a proper market. Instead, they will be constrained by the allocation they get from government, and can do no more business and no less. The number and size of contracts in each area varies, and it is not easy to discern the basis on which these figures have been set. Contracts are likely to vary from around £7-800,000 in some areas to around £2m in others.
Many larger firms are already reaching or exceeding the limits set for their area, and would therefore be required to absorb the 17.5 per cent cut without getting the benefit of any increase in volume which is supposed to enable them to survive. In some cases they would have to downsize. Consequently, the inability to expand and increase volumes means this looks like a non-starter for larger firms.
The Ministry of Justice envisages giving firms just three months from being notified that their bid was successful to the date of commencement of the new service. This is patently unrealistic from a business perspective: restructuring of the market will take far longer to achieve, with firms having to deal with financing, mergers and redundancies.
The government's proposal to remove a client’s choice of solicitor is central to its ability to deliver its fixed number of exactly equal contracts. Throughout the last eight years of discussions about proposals for price competitive tendering, the ministry has always accepted that client choice is one of the few effective mechanisms the government has to drive quality of service.
Almost as disturbing is the fact that firms that seek to provide anything above a minimum threshold of quality will be at a financial disadvantage in any tender round compared with those offering only the bare minimum. Firms won’t just be encouraged to offer threshold quality only, they will be economically unable to do anything else.
There is, however, a bigger problem with the proposal to remove client choice. Clause 27(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 says, “An individual who qualifies under this Part for representation for the purposes of criminal proceedings by virtue of a determination under section 16 may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).”
The explanatory note to the bill explains what such regulations may do: “the regulations may limit the choice to a specified group of providers or may limit the number of legal representatives who can act for any individual at any one time. They may also restrict the right of the individual to appoint a new legal representative in place of one previously chosen.”
Jonathan Djanogly, while under-secretary of state for justice, also gave an unequivocal assurance when questioned about possible restrictions on client choice. During the committee stage of the bill, he said, “In criminal cases, people will be able to select their own representative, subject to regulations in clause 26, which may limit choice in the ways referred to in subsection (6)… Our intention is that in criminal cases, as at the moment, an individual must select a provider with whom the Lord Chancellor has entered into a contract or other arrangements.”
It may well be that the primary statute does not permit the government to remove the client’s right of choice without exception. This is backed up by the explanatory note and the express words of the then minister. Yet that is what will happen under the government’s proposed scheme.
The proposal is economically unworkable and possibly unlawful, and it is difficult to see any straightforward changes the government could make to overcome the difficulties. The whole model needs to be completely rethought. But the government has no time to rethink it.
Notwithstanding all the issues set out above, the Treasury is demanding that the Ministry of Justice makes massive cuts within a very short period of time. Even if the ministry scrapped competitive tendering, we still face the prospect, as an alternative, of an unprecedented administrative cut in the rates.
The Law Society issued its own consultation paper on 5 April to get practitioners’ views on what could realistically be done to give them the best chance of surviving such cuts. It is debatable whether enough firms will remain viable for the government to continue to deliver the service it is obliged to provide.
We hope to secure an outcome that will enable practitioners who wish to continue providing criminal defence services to do so, even if not in the same sort of business model they are currently in. Do make sure you respond to the consultation.
On the information currently available to us, we believe that this proposal takes the government past the point of no return. No amount of tinkering with the system of procurement will solve that fundamental difficulty.
from a Law Society Gazette email digest item by John Hyde
Tendering plans for criminal legal aid: Law Society statement
We have now had a chance to consider in-depth the competitive tendering proposals the government published last Tuesday. The scale of the cuts proposed is shocking, and in our view the proposal wholly fails to achieve the government's stated aim of a restructuring of the market so that the winning bidders would be able to absorb cuts of the magnitude proposed in the timescale provided.
Our key concerns are:
For smaller firms: the requirement to cover a whole criminal justice area means an increase in infrastructure and management costs. On top of a 17.5 per cent cut this would almost guarantee bankruptcy.
For larger firms: the artificial cap on the share of the market that they can be awarded means there is unlikely to be sufficient volume to enable them to absorb the cuts.
Timeframe: Firms would only be given three months from notification that they have a contract to undertake the restructuring and expansion required. Given that the successful firms will have to implement significant IT and infrastructure changes and, very likely, seek regulatory approval for changes to their structure, this is clearly not remotely achievable. Firms will be unlikely to be willing to make significant investment before the contract has been awarded.
Client choice: The scheme proposes abolition of a client's freedom of choice of solicitor, which we understood to be guaranteed by LASPO. Client choice does not just benefit the client, it provides competition and an incentive to keep standards high.
Simply on the timeframe, these proposals are unworkable, and the clear reaction of the firms that we have spoken to is that the proposals will lead not to a restructuring, but to a collapse of the criminal defence system.
The Law Society's action
It is essential to remember that:
The Treasury is requiring the Ministry of Justice (MoJ) to make significant savings. We should be in no doubt of the reality of this and the question is not whether, but how those savings will be made.
There is major political will at the highest level to achieve the savings and to implement some form of tendering. This is of a different to order to that which we have seen on earlier occasions where this has been proposed. We have seen with LASPO that the MoJ is willing to push through cuts in both fees and scope that the profession considered untenable.
The MoJ has said it will listen to proposals which will achieve the savings in a different way.
The Society agrees that, as these proposals stand, they will not work for the profession. We believe that our stance must be to:
- provide evidence to government which shows that they will not work
- establish whether there are any changes to the proposals which would make them workable for the profession or whether there are alternatives – for example, would a simple across-the-board cut in fees enable the profession to restructure itself, and would it be less unpalatable than what is currently proposed?, and
- look at ways in which we can support those members of the profession who wish to continue to undertake criminal work, should we be unsuccessful in moving the government.
To this end, the Law Society:
- has issued a consultation paper to the profession seeking views on the issues set out here
- will be setting up a series of roadshows to inform the profession and hear its views in the course of late April and May
- will be providing advice to the profession on responding to the consultation and lobbying MPs, and
- is instructing experts to look at the proposals and provide the best evidence that we can to show government that its proposals are unworkable and, where possible, to identify how they must be changed.
The Society does not rule out more serious action later on but, at this stage, we believe that it is in the interests of our members and of the criminal justice system to engage with the proposals and provide evidence and reasoned alternatives to government.
The Society needs the following from the profession:
- responses to our consultation
- engagement with the proposals
- evidence to help us show the government its errors: please send to firstname.lastname@example.org
I hope that you will help us with this. We will keep you informed regularly through our e-newsletters and our website as to progress.
Law Society president Lucy Scott-Moncrieff
The government must postpone all further civil justice reforms until lawyers have had sufficient time to prepare for change, the Law Society said today. Society president Lucy Scott-Moncrieff welcomed justice secretary Chris Grayling’s decision to halt April’s expansion of the RTA Portal – confirmed over the Christmas break – as the ‘only sensible option’.
This followed lobbying by the Society and various claimant groups who argued that the electronic portal system would not be ready to cope with the expected increase in cases.
Scott-Moncrieff said, following the climbdown over the portal, it was now time to consider delaying the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act, also due for the start of April.
‘However much the Law Society and its members may dislike some of the changes being introduced by the LASPO Act, we recognise that parliament has spoken,’ she said. ‘Our concern now is that rushed and ill-judged implementation will damage public confidence in the justice system, which is in nobody’s interests.
‘It is a sign of good government to spend more time ensuring that changes are properly thought through so that everybody, including practitioners, has time to prepare properly.’
In a letter to the justice secretary in November, Scott-Moncrieff had advised that the profession and legal system needed time to assimilate changes if they are to be implemented smoothly. She pointed to the Woolf reforms in 1999 which were ready more than a year before they were implemented. In contrast, a consultation on fixed costs for personal injury work finished only today - and rules governing one-way cost-shifting have yet to be approved.
The government issued a statement in December saying that a new protocol for the RTA Portal was to be announced ‘in the new year’, but that has yet to materialise.
1.8.11 from Law Society Gazette online news
The UK’s largest not-for-profit social welfare law firm has blamed legal aid cuts and the 'burden' of the Legal Services Commission’s bureaucracy for its demise. Law For All, which advised 15,000 clients a year in three London boroughs, East Anglia and the Midlands, went into administration last week.
14.07.11 Extract from New Statesman online article by Linda Lee, President of The Law Society
Ken Clarke's Sentencing and Legal Aid Bill [...] is a devastating blow and has manifold implications for all parts of society. Among its victims are women suffering at the hands of abusive partners and numbers* of patients who each year undergo a bungled operation...
The Law Society has itself proposed alternative savings of £384m, 10 per cent more than the government. But our proposals would still guarantee access to justice for society's vulnerable...
*altered from 'millions' due to lack of corroborating statistics
22.06.11 Extract from article 'Justice Bill - Clause 12 is the one to watch' on Sound Off For Justice website'
A new clause (12) of the Justice Bill appears to introduce a merits test for advice for individuals in the police station. This puts access to justice into the hands of the police and the government.
Today if you are arrested you are automatically entitled to free advice from a solicitor which is paid for via the legal aid budget.
Under these proposals, the Director of Legal Aid Case Work, who is a civil servant designated by the Lord Chancellor, must determine "that the individual qualifies for such advice or assistance" in accordance with a new test set out in the act.
This will be 'means' and 'merits' tested. So in each individual case a determination will have to be made of the person's financial position and whether their case has sufficient advice.
How do you have time to do these tests within the timescales that the police operate? How will someone arrested prove their means to pay for their case when they don't know what it will entail?
The determination under this section indicates that the individual may only be afforded 'telephone' advice. Even in serious cases. It is incredible that given all of the recent cases of police miscarriages of justice, including the Ian Tomlinson case [and more recently revealed misconducts] that the government is happy to push ahead with this proposal.
21.06.11 Extract from email received from The Law Society
According to parliament's* Justice Select Committee report, these cuts will increase crime, weaken social cohesion and access to civil rights, and cost tax payers even more...The government has failed to consider our alternative savings of £384m, which would make a bigger contribution to cutting the deficit than Kenneth Clarke's proposals, without the need to remove legal aid from some of the most vulnerable people in society.
*Altered from 'the government's own' as this is incorrect; it is the Impact Assesment that is the government's not the Select Committee
21.06.11 Extract from article on Sound Off For Justice website
Today, the Prime Minister David Cameron said this about the government's green paper and proposals to cut legal aid support...:
'What's the point of publishing a green paper or white paper if you don't listen to what people say?'...
If only the Prime Minister, Ken Clarke, and the government would listen to groups such as Shelter, Netmums and the Women's Institute and all the people who want to save civil legal aid. Sound Off For Justice has offered a way to make his poplicy much better, by protecting civil legal aid at the same time as saving more money than the proposed custs, but the PM has not listened...
17.01.11 Extract from article in Law Society Gazette 09.12.10 p.3 by Catherine Baksi
The Legal Services Commision came under fire from MPs over senior executives' pay, after its recently published accounts showed that former chief executive Carolyn Regan was paid more that £306,00 in 2009/2010, while the current chief executive earns '%20 more than the prime minister.'
The commission's annual report showed that five members of the team were paid a total of £750,000 in the 2009/10 financial year.
[Former chief executive Carolyn Regan] was paid £23,000 as a performance bonus during the year.
17.01.11 Extract from article in Law Society Gazette 09.12.10 p.4 by Catherine Baksi
Legal aid minister Jonathan Djanogly has proposed that family solicitors should recieve £150 to provide legal help to clients who engage in mediation, to demonstrate the government's commitment to alternative dispute resolution.
11.11.10 Extract from article in Law Society Gazette p.1 by Catherine Baksi & Paul Rogerson
More than 8 out of 10 people think civil legal advice should be free for those below average earnings. GfK NOP's opinion poll showed 84percent felt advice on civil law problems like money, benefits, employment, and housing should be free either to everyone or else to those with lower than average earnings. Only 1 in 10 believed they should be available only to those on benefits.
Extract from Law Society Gazette 28.10.10 p.4 article by Catherine Baksi
A demographic time bomb threatens criminal Legal Aid as numbers of young defence lawyers has fallen significantly. Ri8chaqrd Miller, head of Legal Aid at The Law Society, said the shortfall was due to the loss of Legal Services Commission training grants, and uncertainty over the future of criminal legal services, among other things.
Extract from a letter in 'Law Society Gazette' 28.10.10, from Debra Wilson of Anthony Gold
A lack of ring-fencing between criminal and civil legal aid bugets, a lack of understanding of the businesses who undertake publicly-funded work, and no interest in what experienced legal aid practitioners have been saying is wrong with the system, is at the heart of the mess over Legal Aid.
With firms closing and no investment in Legal Aid practitioners, it will be left to the less qualified and the less experienced to cope.
resumé by The Law Society of the High Court's judgement again the Legal Services Commission's family law Legal Aid tendering process, 6.10.10
The court found that the LSC had acted irrationally, unfairly and arbitrarily and the court declared the tender process unlawful, thus requiring that the LSC extend the existing contracts. It was stressed that the solicitors who had been excluded were doing difficult and demanding work for little or no reward, that they offered a quality service and that, if the LSC had told them in good time what was required, they could have complied with the provisions of the tender.
5.10.10 extract from press release by The Law Society 30.9.10
The High Court today declared that the Legal Services Commission's (LSC) family legal aid tender round was unlawful and severely hindered access to justice for vulnerable children and their parents.
The decision follows a three-day hearing of The Law Society's application for judicial review at the Divisional Court.
Law Society President Linda Lee said today's win is a victory for the thousands of families who would have been left without access to legal assistance when faced with state intervention in their family or the consequences of the breakdown of a relationship. She added:
'The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC's apparently haphazard attempts to reshape legal aid. We are extremely disappointed to have been left with no choice but to take legal action against the LSC, which refused to acknowledge the detrimental effect that this outcome would have on families.
'The LSC's actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2,400 to 1,300. That would have translated into thousands of people facing grave difficulty in obtaining justice –- ordinary people who are already facing extraordinary difficulties. Legal aid clients are some of the most vulnerable in society, and access to legal representation where required is their only hope of achieving justice.
'The Law Society has always maintained that this major restructuring of the legal aid market would cause immense uncertainly and instability for many of the poorest and most vulnerable. It is regrettable that the LSC didn't stop to consider the consequences of its actions, before pushing ahead and cutting vital services that clients need and that a civilised society expects to be provided.
'We hope that whatever steps the LSC now takes will see legal aid contracts properly distributed across England and Wales to ensure all families in need have access to justice.'
9.9.10 extracted from article by Linda Lee, President of The Law Society, in Law Society Gazette
[In taking] action against the Legal Services Commission over the recent outcome of the family legal aid tender round...The Law Society is acting in the interests of those thousands of families who will be denied access to justice.
As lawyers we are bonded by our shared sense of duty to uphold the rule of law, which is why I know that many legal professionals share our concerns.
Disruption to services has already started -- many law firms are beginning to close, and skilled and experienced staff are beginning to leave the sector....highly skilled and committed solicitors, and their staff, who have dedicated their working lives to this area of practice, despite low pay and uncertainty....
We remain dedicated to ensuring that no matter who you are, you have the same access to justice as the next person.
14.8.10 includes extracts from Guardian report
A survey by Resolution, the solicitors family law group, found that "90 percent of family lawyers believe the latest legal aid moves will damage access to justice and result in widespread redundancies across the profession." David Allison, Chair of Resolution, said “The number of family legal aid firms has been significantly cut with the LSC’s own figures showing a reduction in the number of firms across the country from 4,500 in 2000 to 1,300 in 2010.” “There are signs already of movement in the market, with mergers, acquisitions and movement of staff, but it remains to be seen whether the market can fully adjust quickly enough. Whilst we knew that competitive tendering was coming, delays in the award of contracts has left firms little time to open new offices, make people redundant or plan recruitments,” he added.
One respondent to the Resolution survey pointed out that “Some of those who failed are the preferred choice for the police Independent Domestic Violence Advocates who are involved in running the women’s refuge.” The survey also pointed to signs of emerging advice deserts in a number of areas. Members in Dorset, Cornwall, Bedfordshire and Lincolnshire in particular have expressed grave concerns that the number of legal aid providers will be insufficient to meet demand.
summary of information from The Law Society, Thursday 29 July 2010
Of 2,400 family law solicitors firms, only 1,300 have been allocated a contract by the Legal Service Commission to work on cases that get Legal Aid funding. Around 30 per cent of firms bidding for social welfare law categories have been unsuccessful, and will no longer be able to carry out Legal Aid work in this field. This is despite the fact that the Legal Services Commission, which allocates Legal Aid resources and which ran the tender, stated in January that: 'it is not our intention that the tender round should significantly reduce the provider base'.
The effect of such a massive reduction in the number of firms is that tens of thousands of clients are likely to be forced to find a new family solicitor, all at the same time when the new tender system comes into force in October. The Law Society believes that it is vital for the public interest that the Government should intervene to avoid the unplanned and serious consequences of this decision.
The full notice from The Law Society can be found at www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=429205
You can contact The Law Society's Legal Aid campaign at: email@example.com
You can help by highlighting the issue to your MP and urging them to contact the Legal Aid Minister.
Find your local MP
The public spending watchdog, The National Audit Office (NAO), has reported that one in six firms conducting publicly funded criminal defence work made no profit from it, while 14 percent made only one to five percent profit. Only half of the 369 firms surveyed expect to still be doing this work in five years' time.
Amyas Morse, who heads the NAO, said the Legal Services Commission (LSC) must make it a priority to ensure 'it is paying a fair price for legal aid services that both sustains a competitive supplier base and provides value for money.'
Richard Miller, legal aid manager for The Law Society, said 'This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system...This is a picture of a supplier base on the point of crumbling into insolvency.'
from a report in the Law Society Gazette 3.12.09
Meanwhile, Lord Bach has raised some hackles in the law professions by apparently supporting compulsory pro bono legal aid provision by lawyers -- that is, without charge (and so without income to the lawyers). A legal aid lawyer doing family law work, writing in the same issue of the Gazette, says "We do valuable work supporting many vulnerable families and children. It is nothing short of a disgrace that our society has reached the stage where it needs legal aid lawyers to work for free."
In the same issue of the Gazette, Phil Shiner, a human rights lawyer and head of Public Interest Lawyers, warns that the Ministry of Justice and the LSC propose removing all legal aid for non-residents in the UK. He points out that this would remove the ability of those who have allegedly suffered abuses in overseas wars from attempting to obtain redress in this country, so that "these most serious of alleged human rights abuses would remain uncovered."
The Law Society criticised the increasing paucity of cases being accepted by the Legal Services Commission (LSC) for family legal aid and social welfare work. A number of firms had said they were now facing having to turn needy clients away and running out of work.
from The Law Society President's Update for solicitors
The Law Society criticised the latest Government proposals to slash legal aid fees as devoid of economic rationale or analysis, following news that legal aid lawyers are paid less than sewage workers. Chief executive Desmond Hudson says, 'There is clearly no scope left for cutting fees' in what the Society describes as a 'thread-bare system'.
from a Law Society press release
The Ministry of Justice has announced today that a review into the delivery of legal aid would be undertaken by Sir Ian Magee. Commenting on the announcement Law Society president, Robert Heslett, said:
'We look forward to meeting Sir Ian and engaging with his work. There are significant problems with the current legal aid system, which needs an urgent review and we welcome the decision to take that forward.
'The review needs to be about the long term strategy for legal aid services. The system too often ignores the importance of a stable supplier base, which has reduced over years, as has access to justice.
'The Law Society is pursuing a review of access to justice which, in engaging with other stakeholders, will inform and assist the determination of the future of legal aid provision.
'Our review will be looking at many of these issues and we hope that our emerging ideas will be of assistance to Sir Ian'.
from a Law Society press release
Commenting on the crisis facing access to justice as the country today marks the 60th anniversary of legal aid, Richard Miller, Head of Legal Aid at the Law Society, said:
"The government is slowly strangling publicly funded access to justice and damaging many people's life chances as a result. We still have a legal aid system to be proud of, but it is getting worse, not better because it's living off the crumbs from the Government's table. We need to ask the fundamental question: What is legal aid for? The original definition was to ensure that nobody is unable to enforce or defend a right for want of the means to do so. That remains a good principle, which we need to put into practice. The future is not looking good: we are facing further cuts. The recession means more people qualify for legal aid and more people need services, in spite of that the Government is cutting funding. Yet the money spent on bank bailouts would run legal aid for several hundred years. The Law Society is working to develop a new approach to securing a sustainable future for publicly-funded access to justice."
"Within the next three months all firms doing any type of legal aid work will have to bid to be allowed to continue doing it. We don't know on what terms, or how the Government will decide who is allowed to carry on doing the work, but firms will be asked to work until 2013 on 2007/08 rates. Fixed fees at low levels mean that solicitors are often not paid enough to cover the cost of doing cases, so they are having to cut back on the service they provide to clients. Some lawyers can't operate on such meagre resources, so it is becoming more difficult for clients to get the service they need to make access to justice a reality."
"The Law Society is supporting law firms throughout this difficult process we reiterate our concern that these proposals will undermine a justice system already creaking at the seams."
'Legal Aid' is the financial support available to those who need to go to law but cannot afford the fees to do so. As more legislation brings more people to court, the cost of Legal Aid has risen. The Government has been trying to limit the rise for some years, and commissioned the Carter Review to find ways of reducing this spending. With the publication and implementation of 'Carter', the Government was set for a major assault on the provision of this support to needy members of the public who are called to court or who wish to have access to legal processes.
The law profession viewed this attack with alarm - many firms have been forced to give up Legal Aid work due to the cuts in funding which reduced their income from it to below their costs incurred in undertaking it, and lawyers fear that large parts of the population will lose the ability to go to law, or will have to face court actions without legal representation, if 'Carter' were to go ahead without mitigation of the most stringent proposals.
The Law Society (the national body to which all solicitors must subscribe) mounted a 'Save Legal Aid' public relations campaign, and also took to court The Law Commission (the Government body charged with administering Legal Aid) when it began to implement the toughest 'Carter' measures.
Other entries on this page are in date order with the most recent first
In June (2009) the national Law Society raised objections to the Legal Services Commission's intention to roll out Best Value Tendering in which an online Dutch auction for tenders in provision of Legal Aid services equates 'best value' with 'cheapest'.
The national Law Society pointed out that "access to justice is at risk as the Government ploughs on with its reckless approach to the scheme."
The first full press release can be read here: http://www.lawsocietymedia.org.uk/site.php?s=1&content=35&press_release_id=1118&mt=34
In an interview with The Times, the Law Society warned that the Government decision to award legal aid contracts to the lowest bidders could lead to about 800 legal aid firms failing to secure a contract and face going out of business. Law Society chief executive Des Hudson said: 'What is being proposed is potentially very dangerous from the point of view of clients, our criminal justice system and the taxpayer.'
An independent report echoed many of The Law Society's concerns about the BVT proposals. Expert economists LECG concludes that the proposals could have a profound effect on the provision of criminal defence services. The report can be read at: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=420628
The Conservative Party said that a Conservative government would suspend the national rollout of best value tendering for criminal legal aid services.
A member of The Law Society's criminal law committee wrote in the Law Society Gazette this week: "The LSC ought to consider what will happen if a few large firms win the BVT contracts. They will ... have to bid 'blind' in respect of the number of clients in custody and extra expenses occasional by the relocation of police stations and courts....
The Government has already recognised that this work... is not economically viable... Does it not make more sense to allow the present contract holders, which are firms of various sizes, to continue providing legal aid services on the present basis rather than risk the total collapse of the service?"
The same issue of the Gazette notes that "More people are being denied access to civil legal aid despite a huge increase in demand fuelled by the recession, a report published by Citizens Advice has warned."
Meanwhile, a back page item in the same issue notes that "Two tuneful solicitors...plan to [turn to busking to make a living] this autumn... to prove you can make more money busking than you can as a legal aid lawyer."
Criminal-law solicitors have long expressed the view that the Legal Services Commission's planned introduction of 'Best Value Tendering' (BVT) for Legal Aid work in criminal cases will result in a great reduction not only of criminal-law practitioners but also in the availability of Legal Aid for such cases and for solicitor attendance at police stations and similar work.
The Law Society's Legal Aid Manager, Richard Miller, has said 'Those requiring access to justice will lose out in the long run under BVT.' Meanwhile, the Independent Defence Lawyers Group said there was no economic case for BVT. Spending on police station and magistrates courts work had fallen by 42.7 million pounds in the year from 2006-07, while in the same period the cost of the Crown Prosecution Service rose by 40.5 million pounds. The implication was that introducing BVT in the hope of reducing costs was targeting the wrong area of the criminal justice process.
The shadow Legal Aid minister, Henry Bellingham, has urged the Government to half the trial of BVT (which is not to be properly assessed before full roll-out of the scheme) until after the next General Election.
Following reports of proposed cutbacks by the MoJ, The Law Society has voiced fears over the future of the Courts Service. In a letter to Justice Secretary Jack Straw, the Law Society President also warned that further cuts to legal aid expenditure would seriously affect access to justice. He said:
'The courts and legal aid system have been at crisis point for some time and this could tip both into the abyss. There is no scope for further cuts without cutting into vital public services. The Government needs to rethink its strategy and reinvest in these vital public services rather than running them into the ground. We must all be united in defending the justice system.'
"Making legal aid work and keeping up with the changes is very stressful. Everything the Legal Services Commission is doing is destroying big firms, which [are] actually the right model for client-case handling. Everything they do means that people will want to be a one-man show because that is the cheapest way of running. In policy terms it is ludicrous and they're destroying quality."
(solicitor Anthony Edwards)
A 2007 survey by The Law Society on earnings and work of solicitors in private practice showed that those working with legally aided clients earned £39,900 p.a. on average, as against £56,000 p.a. average for those who work only on privately paying clients. By the time of the survey only about eight percent of solicitors surveyed spent all their fee-earning time on Leagl Aid work.
The Law Society has dropped its legal action against the Legal Services Commission after Government concessions in the funding of civil Legal Aid. The Commission agreed to work together with The Law Society instead of against it, when bringing in changes to the system of administering Legal Aid.
Legal Aid for those facing criminal trials, however, continues to be at risk. A new contract imposed on lawyers by the Commission is resulting in a 'significant number' of firms turning away from providing this service, while The Law Society's President stated that the number of new Legal Aid lawyers was 'dangerously low'.
The Director of the Criminal Law Solicitors Assocation said that many of those rejecting the new Criminal Legal Aid contract were well-established large firms, 'which we thought would never leave the marketplace.' Commenting on the trend, the Chairman of The Law Society's Criminal Law Committee said that firms were looking for an exit route from that area of legal practice, 'particularly those that practise in rural areas where they have been [doing criminal law Legal Aid work] as a service to the community.'
(quotations above taken from The Law Society Gazette)
The following letter was sent, by the Cambridgeshire & District Law Society's Parliamentary Liaison Officer for Huntingdon, to the Huntingdon MP, as part of the information on the detrimental effects of Government changes in Legal Aid arrangements being passed on to MPs in the effort to get the changes softened or reversed.
Jonathan Djanogly, MP (Conservative)
House of Commons
1 February 2008
Dear Mr Djanogly
I refer to our meeting at your constituency office towards the end of last year when we discussed the ongoing plight of Legal Aid in Cambridgeshire.
I have undertaken a survey of Solicitors’ Practices in Huntingdon, St Ives and St Neots to establish what the picture is in terms of Practices which undertook Legal Aid in the past, those that are still Legal Aid providers and whether those remaining Practices intend to offer Legal Aid in the next five years.
I attach a copy of my findings which are in tabular form.
The number of Legal Aid Practices in all three towns has reduced from 18 more than five years ago (albeit one practice stopped in the mid 1980s) to only 5 now plus 1 Criminal Law Practice. Those Practices that are still Legal Aid providers were unable to say whether or not they will remain so in the near future and some are at the very least investigating exit strategies for leaving Legal Aid altogether.
Time and again over the last twelve months since my firm decided not to sign the “Unified Contract” (which came into force in April 2007) I come across cases where I have been unable to direct clients that cannot afford to pay privately to Practices in the local area because either those Practices that are left are overwhelmed with Legal Aid clients or they cannot act for the client due to a conflict of interest (i.e. their spouse or partner has instructed the firm already). This results in the most vulnerable members of our community being unable to obtain access to justice when they need it the most.
For example, I have a client where we are acting for her in ongoing proceedings relating to her dispute with the father of her first child. Recently her relationship with her current partner broke down, to the point that social services are threatening to apply for a Care Order for her children if she does not instruct a solicitor to apply for an Injunction. We cannot obtain Legal Aid to represent her as it will be a new set of proceedings (we are authorised to complete all remainder work only) and because her partner had previously sought advice from the two remaining Legal Aid Practices in Huntingdon I could not refer her to them to assist. She does not drive and is in receipt of benefits. As a consequence she is running the risk of the Local Authority applying for a Care Order for her children simply because she cannot afford to pay privately and she cannot afford the cost of travelling to Cambridge or Peterborough.
I also attach copies of press releases and exchanges of correspondence between the Law Society and the Legal Services Commission following the Court of Appeal’s ruling on the 27th November 2007 that the Commission’s power to unilaterally make amendments to the Unified Contract was unlawful. Relations between the Legal Services Commission and the Legal Profession are at an all time low – for example the Commission sending a fax to the Society on the 21st December 2007 confirming its intention to terminate the contact; hours before firms closed down for the Christmas break!
I do hope the above and enclosed documents assist in you raising this matter further with the Justice Department. The Legal Services Commission (and ultimately the Government) appears steadfast in refusing to listen to the concerns of the Legal Profession which, in my view, will inevitably lead to a legal system where the most vulnerable in our society will have no means of gaining access to justice.
Should you require any additional information then please do not hesitate to contact me.
Parliamentary Liaison Officer
Cambridgeshire & District Law Society
• Law Society Press Release: “Law Society wins legal aid appeal over contract” dated 29.11.07.
• Letter from LSC to Bircham Dyson Bell dated 21st December 2007 confirming its intention to terminate the Unified Contract.
• Law Society Press Release: “Termination of Unified Contract: Law Society Response” dated 4.1.08.
• Letter from Bircham Dyson Bell to LSC dated 14 January 2008.
• Letter from LSC to BDB dated 18 January 2008.
• Letter from BDB to LSC dated 24 January 2008.
Today's Law Society Gazette reports research indicating that about 20 percent of community law centres, which provide legal advice especially for people needing Legal Aid, are facing closure. Another 49 percent are in serious debt, and Gateshead Law Centre had to close after liquidators were brought in the previous week.
The chairman of the Law Centres Federation said that the Government's forcing through of "fixed fees and competitive tendering will destroy the contribution law centres have made for over 30 years."
Meanwhile the Liberal Democrats said if in power they would suspend the changes while researching their impact on vulnerable clients, calling the Government's Legal Aid reforms "botched...the Government has failed to protect one of the most important pillars of the Welfare State."
The Lord Chief Justice will hear an expedited appeal against the upheld challenge of The Law Society to the Legal Services Commission's intention to reform the provision of Legal Aid against the wishes of the law profession. The Law Society agrees that reform is needed, but is (with other organisations) strongly against many of the specific proposals made and the ways in which they are being pushed through. Along with many voluntary and other caring or legal defence bodies, The Law Society believes that were these proposals fully implemented there would be a highly deleterious effect on those who at present are wholly reliant on Legal Aid for the defence of their legal rights.
The Law Society's challenge to the LSC was upheld by Mr. Justice Beatson in the High Court on 27 July. It is this judgement that is being appealed by the LSC on 15-16 October.
A meeting for lawyers who deal with criminal cases has been organised by The Law Society for 23 October at Methodist Central Hall, London, to discuss the Legal Aid contract for such lawyers published by the LSC and which it is trying to impose on them. Lawyers at the meeting are expected to express the view that imposition of such a contract would result in far less Legal Aid being available to those who need it, and the provision to be altogether absent in some parts of the country.
Legal Services Commission forces new Legal Aid contracts on crime lawyers
In the last week of September 2007 the LSC decided unilaterally to scrap the existing contract with solicitors and make them apply for temporary contracts, despite the fact that contracts are supposed to be agreements between two sides. Solicitors were given until the end of October to apply for the six-month contracts which start in mid January, and would have to re-apply for newly revised contracts in July.
President of the Criminal Defence Solicitors' Union Roger Peach said the proposed reforms risked 'pushing the defence service towards disaster' and should be resisted. The temporary contract was due to be published by the LSC without being shown to solicitors beforehand.
Other reforms proposed by the LSC are held up pending their appeal against a High Court ruling in favour of a judicial review application by The Law Society.
Law associations cooperate to counter LSC proposals
The Law Society Gazette of 20.9.07 reported (front page) that the five leading criminal lawyers' associations had joined together in a single negotiating team, led by The Law Society, to counter the Government's intention of pushing through a new tendering process for 6-month contracts incorporating its 'reforms'. The five urged law firms to boycott the new tender, which the Legal Services Commission intends to bring in after terminating the present criminal legal aid contracts, and to carry out a week of industrial action starting with a national demonstration on 5th November.
The Criminal Law Solicitors Association, the London Criminal Courts Solicitors Association, the Association of Major Criminal Law Firms, the Criminal Defence Solicitors Union, and the Independent Defence Lawyers called on the LSC to halt the termination of present contracts and to negotiate. The AMCLF said it was clear that what the LSC proposed doing was 'totally unworkable for firms of any size or background,' and the CDSU added 'We are facing the collapse of the system' -- meaning that legal aid representation would not be available in the defence of those charged with criminal offences.
Friday July 27th 2007
Law Society Secures Court Win on Legal Aid
The Law Society's challenge of the Legal Services Commission [LSC] was upheld today when judgment was handed down by Mr. Justice Beatson in the High Court.
The judge said that the Legal Services Commission has breached Public Contracts Regulations 2006 and European Law in its reform of legal aid.
Most significantly the Judge said that changes to the contract should not be made if they would, "alter the economic balance of the contract to the disadvantage of those who have entered into the Unified Contract or to the disadvantage of some of them".
The judge also noted that any proposed changes should be restricted to those envisaged by the initial White Paper. It is not clear at this stage how this will affect the LSC's proposals on fees and the Judge has granted the law Society permission to appeal on the basis of public interest on this point. Dexter Montague were also successful in allied proceedings.
Law Society President Andrew Holroyd said, "This judgment underlines the shortcomings of the LSC's approach to the reforms of the legal aid system. The award of 75% of costs is a significant vindication of the actions we are taking. The Law Society is not opposed to reform of legal aid but rather to the way it has been introduced by the LSC. It is a shame that we have had to resort to the courts to address this. We hope that the LSC and Government will now work with us to secure a sustainable future for access to justice through an extensive supplier base of dedicated professionals."
The Law Society issued judicial review proceedings on April 20th in relation to the Legal Services Commission's right to unilaterally amend the Unified Contract in the interests of its members and those they represent who have been severely affected by the decisions and timing of their implementation.
The result is that a Declaration has been made as follows; "A declaration that the rights of the LSC to amend the Unified Contract referred to in clause 13.1 of that contract (other than amendments permitted under clause 13.2) are incompatible with regulations 9(2), 9(4) and 9(7) of the Public Contracts Regulations 2006 in so far as they are applicable to technical specifications (as defined in regulation 9(1) of those Regulations)."
Text of letter from CDLS PLO for Huntingdon to the MP for Huntingdon
Mr J Djanogly
House of Commons
16 July 2007
Dear Mr Djanogly
Public Funding at Crisis Point
I am writing to you in my capacity as Parliamentary Liaison Officer for the Cambridgeshire and District Law Society.
You may recall that when we met at your surgery earlier this year we discussed the grave concerns the legal profession has in relation to the proposed changes to the Legal Aid System under Carter. I advised that as a result of the changes (which have been implemented in part under the Unified Contract) it was likely that my own firm would not sign the contract.
I attach a copy of a letter I sent to the Legal Services Commission confirming that we would not be signing the contract and setting out our reasons why. This decision was not taken lightly as I was conscious of the fact that by the firm not singing the contract a large section of the local community would no longer have access to justice. I also understand that Eaton & Few Solicitors have not signed the contract.
The result is that in Huntingdon there are only two practices offering public funding; two in St Neots and one in St Ives. We are having to turn clients away whom we would have been able to assist under the old contract but who cannot afford to pay privately. In such cases clients will inevitably have to bear the cost of looking for legal representation out of the area altogether if the other party has instructed the only remaining firm of solicitors in St Ives or the client cannot instruct any of the remaining firms that offer public funding due to a conflict of interest.
Family clients are often those who need legal assistance the most; such as victims of domestic violence. Whilst we still have strong ties with the women’s refuge centre in St Neots and offer free advice surgeries this is no substitute to being able to represent vulnerable women in proceedings which often have to be brought at short notice due to the urgent need for the client to be given injunctive relief by the Court.
I am deeply concerned at the Government’s proposals for reform of the Legal Aid system coupled with its chronic plans to under fund the system in England and Wales . Solicitors have had no increase in rates for the work for more than five years and it is very difficult to continue to absorb the effects of inflation. General inflation has risen by 43 % since 1993; RPI has been 43 % but legal aid rates have increased by less than 10 % in the same period. For those firms that have signed the contract, out of their remuneration they have to provide premises, pay staff and purchase ever more sophisticated IT equipment (especially as one of the requirements of the new contract ids that firms must have a case management system compatible with the Legal Services Commission’s own system). As a result I suspect that Leeds Day will be the first of many practices that will withdraw from Legal Aid altogether; especially when the fixed fee structure fazed in from October this year.
A False Economy
While the reforms are aimed at making savings, they are a false economy. A reduction in access to representation will inevitably mean social exclusion for some of the most vulnerable in our society who, without help, are more likely to have children removed from their care in dubious circumstances, suffer eviction from their homes and generally slip into dependency on the state. The costs to the public purse will far exceed any savings made today.
Several organisations are supporting the Law Society’s “What Price Justice?” campaign including the NSPCC, Shelter and Child Poverty Action Group. This shows the extent of concern within and outside the legal profession.
As an MP I am certain (if you haven’t already) see an increase in caseloads in your surgery where constituents no longer have access to justice.
Many firms are finding it difficult to sustain the service and yet the Government propose no increase in budget over the next three years and the reforms actually mean reductions in what they will receive from the Legal Aid system; cuts which they simply cannot bear.
All the time the strains on the budget increase due to more high cost terrorism trials and an increase of 75% in Child Care cases over the past ten years as well as many other social factors. If remuneration does not increase the so-called reforms will be the final nail in the coffin. This will lead to many of the most vulnerable in our society being denied access to justice.
This is also false economy for if social exclusion is not tackled through early intervention by access to the law, the down stream costs to the public purse will far exceed the savings made by the Government today.
Through the phased introduction of a package of reforms formed on the back of the Carter Review of Legal Aid Procurement, the proposals will overhaul our legal aid system by gradually shifting through interim fixed-fee arrangements for civil and criminal practitioners to a process of competitive price tendering (CPT).
By setting minimum contract sizes and CPT, the proposals will produce an inevitable result of substantially contracting the supply base of legal aid within Huntingdonshire, by favouring large - predominantly urban-based - volume providers, and challenging the viability of small and medium size firms.
An economic analysis of the reforms of the proposed reforms by LECG has found that between 600 and 1000 legal aid firms could be wiped out across England and Wales and forced to close.
Some may choose to move across to private work in order to remain a going concern, but many are likely to be forced out of business entirely. The Constitutional Affairs Select Committee recently highlighted its concern in a report published on 1 May 2007. In that report the Government was severely criticised for its failure to carry out proper analysis or risk assessment of the proposals. The reforms are aimed only at making savings but are a false economy because the down stream costs arising from the social exclusion effects to the public purse will far exceed the legal aid savings made by the Government today.
It is clear to me -( and this is backed up by evidence that I have referred to above and by the Government’s own expert Andrew Otterburn) - that the reforms cannot work without an increase in the legal aid budget.
Worryingly, Huntingdonshire is likely to be hit especially hard. Because of the rural nature of our area, constituents needing legal aid are far more reliant upon our local high street firms. However, it is precisely these smaller providers who will be disproportionately disadvantaged by the reforms.
I would be extremely grateful for any support you can give offer in pressing the Government to secure a sustainable legal aid system that will ensure fair access to quality legal advice for people across Huntingdonshire.
In particular I would ask that you:
Sign one of our three EDM's (537)
Support the proposal that there should be democratic scrutiny of legal aid rates
The number and range of organisations that have been involved in the Law Society’s What Price Justice? campaign has demonstrated the extent of concern both within and outside the legal profession about these proposals, and I feel it is now vitally important that the Government stops to take on board the views and recommendations of these bodies before the plans become embedded and irreparable damage is the destruction of the legal aid system. This is not primarily a problem for lawyers but is a disaster for their vulnerable clients who without help are more likely to c