Legal Aid revealing the grim reality

Roger Smith OBE spells out what the consultation means for practitioners

The legal aid cuts advanced by the consultation paper Proposals for the Reform of Legal Aid in England and Wales are so deep that they will force major change to the very structure of both branches of the legal profession.


They are justified by little more than the assertion of overwhelming necessity in the face of financial crisis. Such other reasoning as is offered has all the signs of, at least figuratively, having been written on the back of a fag packet. The cuts will impact disproportionately on women, ethnic minorities and those with a disability. The most satisfying reaction is a cry of rage: but we also need hard-headedly to work out what they will mean for legal aid practitioners.


A massive reduction in spending

Legal aid has three financial levers of control: scope, remuneration and eligibility – all are being pulled (see table). Cuts to scope are intended to save somewhere around £250 million a year. Remuneration to legal aid practitioners will be cut by about £150 million with around £95 million coming off criminal fees and some £41 million of civil experts will take a haircut of £8 million. All these proposals are in present day figures and no increase will be payable for inflation over the next four years. The real effect will, therefore, be considerably greater over time. Those remaining eligible will pay between £4-11 million in additional contributions. Overall, the intention is cut the budget by over 20 per cent, removing over £400 million from current expenditure of around £2 billion. That is a reduction in spending to 1992-93 levels.


Cuts to scope for civil legal aid

Cuts to scope are largely focused on civil cases. On the up side, civil legal aid will be retained in judicial review, homelessness and for a range of other cases, largely where it is effectively required by the European Convention on Human Rights (the consultation paper has been carefully human rights proofed, something with which Labour did not always bother). On the down side, the largest casualty will be private family cases for ancillary relief where there is no element of domestic violence or forced marriage. Clients, overwhelmingly women, who currently get legal aid for ancillary relief will be directed to mandatory mediation and that’s it. This will prove popular for uncooperative richer partners, overwhelmingly men, who will simply wait out the inconvenience and continue their intransigence. Out too goes clinical negligence.


The future: competitive tendering

Remuneration cuts will be targeted at crime, though civil will not escape. In the longer term, the Government wants to adopt the competitive tendering model advocated by the Labour Government. This will create a pattern of provision which, in the US, would be called a contracted public defender scheme. It is essentially the scheme that operates, for example, in Oregon where agreements are made with a small number of organisations to provide criminal representation for all those entitled. The Bar’s own ProcureCos might get a look in on these contracts – as might newly constructed alternative business structures. Presumably, subcontracting will be rife for specialist types of case (such as, say, serious fraud) or specialist services (such as advocacy). Chambers wishing to maintain a criminal presence will need to be in there with contacts where they guarantee advocacy at fixed prices.


Legal aid fees

In the meantime, fees per case will be slashed. There will be a single fixed fee of £565 for a guilty plea in an “either way case” where the defendant opted for Crown Court trial. The committal fee will be abolished. The lower standard rate in the magistrates’ court for cracked cases and guilty pleas gets a compensating 25 per cent rise.

It is the same in the Crown Court: the guilty fee goes up by a quarter but is payable where the case cracks, regardless of when. There are a few get outs: for example, the standard fee can be raised if there are more than 10,000 pages of prosecution evidence or other indications of a complex case. There are a variety of other cuts, including the alignment of fees for a murder with those for rape. An independent assessor will be appointed for Very High Cost Cases – suggesting that the rules will remain fiendishly complicated.

In civil and family, the cuts are, at least, more comprehensible. There is decimation: everything gets cut by ten per cent.


No new sources of income

Before the General Election, the Conservative Party spokesperson on legal aid, Henry Bellingham MP, argued that new sources of income might expand the legal aid fund. Predictably, the consultation paper is having none of it. On the contrary, it speculates that solicitors might care to pass over the remaining income that they earn on client account to reduce the budget. There is also a nasty little recommendation for a “supplementary legal aid scheme” which turns out to be a compulsory levy on damages received by a legally aided client.


The justification

These cuts are different from any others suggested since 1949 when the scheme was first established. They are promoted to save money because of fiscal demands elsewhere. This is not a row about legal aid, it’s about Government finances.

In his introduction to the consultation paper, Ken Clarke half-heartedly suggests that his proposals are justified because legal aid has expanded to cases that “should not require legal expertise to resolve” and that sometimes the courts “are not well placed to provide the best solutions”. But his heart is not really in it.


The Bar’s response

In these difficult circumstances, the Bar’s leadership seems to be doing relatively well. The 2010 Bar Chairman, Nick Green QC, passed the Today test: he got on and he got across the Bar’s concerns – more than his solicitor equivalent did. But, right now, the Bar could sign up Moses and Ministers would not listen. Lawyers’ voices just will not float over the cacophony of rioting students – soon, no doubt, to be followed by sacked librarians and even redundant police officers.


Areas of injustice

There may be areas where the Government is vulnerable and can be persuaded to bend. These are more likely to be in relation to eligibility for clients than remuneration for lawyers. The Government’s own estimate is that 27 per cent of those affected by the cuts will be from ethnic minorities and 57 per cent women – a percentage that looks low given the impact of the proposals on family cases. Those with disabilities will also be disproportionately hit by cuts to areas like clinic negligence and education where disabled children, such as fighting cerebral palsy birth injuries and rows over statements of additional educational need, will be cut out of entitlement. Other areas of injustice will be apparent. For example, it is hard to justify the removal of legal aid for claimants in cases before the Upper Tribunal when their opponents are often Government agencies armed with representation and appeal is only with permission and on a point of law. No wonder the Government’s impact assessment admits sheepishly that “case outcomes may be less fair than beforehand”.


The new gatekeeper to legal aid

The paper destroys the coherent national system of legal advice on any topic of English law, introduced by a Tory Government with the “green form” in the early 1970s. It is replacing it with a hideously complicated list of entitlements and restrictions. What is more, the paper proposes that a call centre play gatekeeper to the whole civil legal aid system. This is rare good news: the call centre is going to find itself a pretty regular defendant of judicial review (an eligible subject) as it makes naff judgements in incoherent phone calls where unqualified but cheap staff make major howlers.


Trouble ahead

There is undoubtedly trouble ahead for us all – clients, solicitors and counsel. We need the clients to be centre stage. It is outrageous that half a million people on benefit incomes – or just above – will lose entitlement to legal aid because of the excesses of bankers with staggering incomes and, it may be, the incompetence of those managing Government finances. We need to get that public message across – as much to deter any further round of cuts as to hope of winning much this time. We also need to smooth as much as we can the transition to this new model of contracted public defender provision. But many of you have seen that as the evident direction of travel since Lord Carter’s report in 2006. 

 

Roger Smith OBE is the Director of JUSTICE.

 

Impact on the Bar

The impact on the profession comes in part from the squeeze on remuneration. This will reduce numbers. Much more, of course, practitioners will be affected by the introduction of a contracted public defender scheme. Assume that eventually there are five providers funded to provide direct services to suspects and defendants in each of the 42 criminal justice areas. That would mean that there would only be around 200 contracted public defender organisations. There would admittedly be one large benefit that would save money: a whole raft of bureaucracy could be dumped and a swathe cut through tiresome record-keeping. This might make them more attractive to barristers for whom it becomes vital that subcontracting is allowed: both from Bar ProcureCos to litigators and from solicitors to chambers. A few counsel may survive as lone wolves but most survivors will huddle in groups, collectively guaranteeing to provide advocacy for contractors’ clients. Life will be considerably less congenial than it has been and the sight of the privately funded Bar carrying on as now will be infuriating. However, places inside the contracts will be hard fought for. Income and work will be guaranteed. They might provide a more secure way, albeit for a smaller number, in which young advocates get experience. Such arrangements might actually assist in the longer term survival of the Bar as an institution. The right level of advocacy fee is vital: no doubt your representatives are onto that.


Civil: what’s in and what’s out

The winners

Asylum but not applications for asylum support
Claims against public authorities where they concern abuse of position of power and/or significant breach of human rights; and/or negligent acts or omissions falling very far below the required standard of care
Claims arising from allegations of abuse and sexual assault
Community care
Debt where client’s home at risk
Domestic violence and family mediation in private law family cases
Housing possession cases, counterclaims for disrepair in possession cases; homelessness appeals; serious housing disrepair; county court ASBOs
Immigration detention
International child abduction and international family maintenance
Mental health
Public law
Public law children and separately represented children in private law cases
Enforcement of EU judgments
A number of miscellaneous cases including advice for inquests but generally not representation

 

The losers

Major exclusions will include:

Ancillary relief where no domestic violence
Clinical negligence
Consumer and general contract
Legal help for criminal injuries compensation
Debt where home not at risk
Education
Employment
Housing matters not included above
Immigration where no detention
Private law family and children cases where no domestic violence
Welfare benefits
Appeals to the Upper Tribunal from the General Regulatory Chamber of the First Tier Tribunal

 

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