Thursday, 11 December 2008

Justice Committee Probes Legal Aid Changes

Lord Bach was called before the House of Commons Justice Committee yesterday (10th December) to give his assessment of the impact of the legal aid changes.

Bach a former criminal legal aid barrister painted a relatively bright picture telling the committee that, “Working relationships between the LSC and practitioners have improved due to the agreement with the Law Society and the recent agreement with the Bar on the Very High Cost Cases panel.” In response to questions from MPs worried about the availability of legal aid he said, “We have not found much problems with supply. The LSC has good links at a local level as it is represented on all 42 Criminal Justice Boards and the 39 Family Justice Boards.” The minister did acknowledge that “the changes have not been easy for the Not for Profit sector” saying they were having difficulties with the switch to fixed fees. Julie Morgan MP also raised concerns about the impact of the CLACs and CLANs on the NfP sector whom she feared were being “squeezed out of the tenders” he said that he would “take back her concerns.”

Committee Chair Alan Beith MP raised the issue of family law cases and the fear that the increase in court fees was discouraging local authorities from bringing care cases. Bach replied, “This is a serious concern which I am giving a lot of thought to at the moment because of the tragic cases of the last few weeks. The government has given £40 million to Local Authorities to compensate them for the increase in fees. This will continue…We can find no evidence that Local Authorities are not taking cases. In recent weeks the number of public law cases has been going up.” LAG along with other commentators believes the numbers of public law family cases are likely to rise to at least 90% of the level before the fee increase and the introduction of the Public Law Outline. Undoubtedly, the pressure is on local authorities to intervene in more cases due the recent tragic cases such as that of baby P.

Overall is Lord Bach’s relatively upbeat assessment of the impact of the legal aid changes justified? What practitioners tell LAG is that the changes have led to cuts in income and some are feeling the pressure. With the recession though it is likely there will no shortage of firms bidding for any new matter starts being offered by the LSC. Especially with legal help work what seems to be happening is that firms and the NfP agencies are being forced to adjust what they do for clients to fit the fees offered. The fear is that clients are getting a worse service.

Wednesday, 29 October 2008

Family Affair

Do you remember legal aid? The question isn’t meant to be facetious. No doubt, there’s a small but committed section of the NLJ readership resolutely dedicated to publicly-funded law (and a rather larger section that used to be). New figures published in last month’s Legal Action indicate that, whilst legal aid might still be an income stream for practitioners, it is increasingly an irrelevance as far as many of their clients are concerned.

Our current legal aid system was, as readers well know, conceived as part of the welfare state in 1949 at a time when free access to justice was viewed as no less a fundamental right than free education or healthcare. The legal aid scheme then covered eight out of ten people and cover remained at two thirds into the mid-1980s.

New Labour came into power in 1997 promising a new Community Legal Service and eligibility levels were down to 52%. The government currently spends £2 billion of taxpayers’ money a year on publicly-funded legal advice – barely enough to keep the NHS going for a couple of weeks – however ministers insist that such a level of commitment is ‘non-sustainable’. Now we learn from the Ministry of Justice that less than one in three of clients are eligible - just 29% of the population.

That sobering statistic puts the legal aid reform programme into context, not least the current dispute over the family bar scheme. The Legal Services Commission is currently working on its proposals for the graduated fee scheme ‘harmonising’ (or scrapping) the difference in rates between ‘self employed family advocates’ and ‘solicitor-owned businesses but often employing barristers as well’. The LSC appears to be bending over backwards not to antagonise the Bar (perhaps, mindful of the VHCCs fiasco), but the Law Society has no such qualms. The Family Law Bar Association (FLBA) purports to advocate ‘equal pay for equal work’ but is concerned that the LSC proposals do not ‘appreciate the distinction between simple and complex hearings’.

‘Shameless self-interest’ reckons Chancery Lane which argues convincingly for parity between the two sides of the profession. ‘We agree that any new scheme should reflect differing degrees of complexity of hearings, but the suggestion that solicitors only perform more simple advocacy whilst barristers only perform more complex work is untenable,’ says Law Society president Paul Marsh.

If the proposals are implemented, the LSC reckons they will save ‘as much £56m over the three years’. This is bad news for the QC who sends a crate of champagne to the family lawyer every time he receives an instruction for a complex child law. The solicitor assures LAG that he is prepared to make his own sacrifices in the name of equality.

The Legal Action Group speaks for the clients and not for the providers. We have no interest in dumbing down a service as essential as this but we expect a transparent and rational basis on which lawyers are paid especially when pressures on the fund are as acute as they are now.

The inequality between the pay schemes is not easy to justify however what is more difficult is the absence of a clear rationale between the two schemes. The LSC offers LAG two fully-costed (and heavily caveat-ed) examples of how the pay schemes might typically operate. In an interim hearing in a public law case, the barrister cost £446 and the solicitor £228; and the final hearing in private law child case the costs were £692 and £508 respectively. Perhaps the most sensible observation from this exercise is the arbitrary way that these figures appear to be arrived. It is neither sensible nor clear and, frankly, neither is the discrepancy between Bar and solicitors. Message to Bar: perhaps don’t put that champagne on ice.

(A version of this article appears in the New Law Journal October 24th)

Jon Robins is director of campaigns and communications with LAG

Monday, 29 September 2008

Courts Budget "Black Hole"?

Black holes in space are a proven scientific fact but black holes in public sector budgets are often a matter of dispute. So it would seem with the alleged £90 million ‘black hole’ in the courts budget.

This controversy started with a letter from Lord Justice Leveson which was leaked to the Conservatives. In the letter he outlines the ‘difficult’ financial situation the courts are in, as they have to find £90 million in cuts over the next three years. Henry Bellingham, the shadow justice secretary, made much media hay over the contents of the letter linking it to the continuing controversy over the family fee income. The Justice Minister, Lord Hunt countered and insisted that there was no ‘black hole’ and that the planned ‘efficiency savings’ would have no impact on the people who use the courts service

District Judge Crichton, who set up the pioneering drugs and alcohol court earlier this year, told LAG last week that in the period since September last year applications are down by ‘between 25% and 30%’. ‘I’d love to think there were fewer children at risk but, of course, I am not confident that’s the picture,’ he said. The Judiciary has been outspoken about the enormous hike in fees - up from £150 to over £4000 if a case goes to a full hearing. This is a key part of the government’s plan to make the courts self financing and fits into the Ministry of Justices overall financial strategy. LAG believes that a significant factor in the drop in cases has been the introduction of the Public Law Outline (PLO) which has led to more cases being resolved prior to proceedings being issued. Next month the new proceedings and increase in fees would have been running for six months an opportune time for the Government review whether these changes have led to an improvement or a reduction in the legal protection of vulnerable children.

Important though it is, the debate on the changes to fees and the PLO are side issues in the controversy over the court service budget. Court fee income can fluctuate due to changes in the law and in the economy. LAG notes that in the last quarter creditor’s petitions increased by 18% and housing repossession orders by 24% on the same quarters as last year. It would distasteful in the extreme to herald such figures as a ‘business triumph’ representing as they do the human misery caused by economic woes which risk-taking bankers are largely to blame for. This is perhaps the nub of the judiciary’s objections to the courts service being run like a stand alone business focused on the bottom line.

The administration of justice should be independent of market forces. Court administration should be as efficient as any business, but access to justice should not be determined by the market. The problem is that the MoJ’s difficulties with its overall budget are forcing the service down this route.

By 2010-11 the MoJ has to make £1 billion in savings. This includes £140m from the court service (£60m more than Judge Leveson claims) and £45m from the tribunals, as well as £180m from that other area of great concern to LAG – the rapidly shrinking legal aid fund. This is in part to pay for other priority spending such as the Titan Prisons (another target of judicial criticism) and to meet the department’s overall target set by the Treasury in the Comprehensive Spending Review. With inflation running at 5%, well above the 2% target set by the government, it is likely that the MoJ will have to find further ‘efficiency savings’. The biggest item of expenditure will be the funding of pay increases for staff if they exceed the 2.4% public sector pay policy.

Undoubtedly then a black hole exists, but in the MoJ’s corner of the universe they prefer to call it ‘efficiency savings’ while the rest of us use a more old-fashioned term - budget cuts. Some savings can no doubt be made by more effective management and LAG would support this, but to make the level of cuts necessary to balance the books there will inevitably be reductions in service, such as fewer clerks to administer courts, less judicial time and the maximising of fee income, all at the expense of access to justice for the public.

Steve Hynes is the director of Legal Action Group.

Monday, 7 July 2008

Supermarket sweep

Where does publicly-funded law fit into the new world of ‘Tesco law’? The expectation is that big business will storm the aisles like a deranged contestant on Supermarket Sweep throwing all the money-making stuff – personal injury, conveyancing etc – into its trolley and leaving non-remunerative, publicly funded law to gather dust on the shelf.
The likes of the Co-Op, the AA, after-the-event insurer DAS and most recently the consumer group Which? have all announced an intention to take advantage of the Legal Services Act. Alternative business structures (ABSs), which will enable firms to be partly owned by non-lawyers, are expected to arrive around 2011. The worst fear of legal aid lawyers is that this relaxation will prompt a bout of asset-stripping on the High Street.
In the July issue of Legal Action, we ask big business what are its intentions (if any) for social welfare law. Would, for example, the Co-Op move into legal aid? ‘It depends on demand and it also depends on how the membership might view it,’ replies Eddie Ryan, managing director of the Co-operative Legal Services. Ryan reckons it isn’t a huge stretch of the imagination for them to do so but draws the line at ‘certain actions that are socially unacceptable’ (such as representing drink-driving Co-Op members).
It is easy to see the provision of ‘access to justice’ fitting into the retail giant’s ‘ethical’ corporate agenda. They are already talking the talk. Ryan describes the Co-Op’s relationship with its members as ‘wrapping our arms about people who need our help’. The Co-Op has already set up its own legal services in anticipation of the liberalisation. The rhetoric at the moment outstrips reality but the potential is huge. It is already available to four million members, plus 1.5 million policy holders who have legal expenses insurance (LEI) attached to motor and household insurance.
Which? recently announced the expansion of its legal service in anticipation of the new regime. Subscribers pay £51 a year and last year it provided up to 60,000 pieces of advice last year. Which? (like the Co-Op) defines its service in access to justice terms. ‘Lots of the cases that we do would probably fall under the radar of a typical high-street law firm,’ says Which?’s head of legal Gordon Wilson says. ‘People don’t know where else to go, they aren’t sure what their rights are and how to exercise them.’
The Legal Services Act will re-energise the legal expenses industry. ABSs mean that insurers will be able to streamline their business model by dispensing with cumbersome law firm panels. Coverage is already huge and the insurer DAS reckons that there are 10 UK million policy holders. For Kathryn Mortimer, its head of legal services, the relationship between LEI and publicly-funded advice is clear. ‘It is an alternative to legal aid,’ she says. Insurers are hoping for a more sympathetic environment for their businesses - in particular, a lifting of the restriction of the right of policy holders to choose their own lawyers. ‘The government needs to watch very carefully that they don’t alienate the LEI market because we’re picking up the tab for clinical negligence, personal injury, contract and property disputes which the Legal Services Commission doesn’t cover.’
As Which?, a long-time advocate for LEI, noted in 2001 one of its deficiencies of legal insurance products was that cover was heavily prescribed and policy-holders if they knew they had LEI at all (many were oblivious) didn’t know what exactly is covered. The pressure is on to develop wide-ranging services to offer members total legal protection. The ‘demand and appetite from members is for full-service’, Which?’s Gordon Wilson acknowledges. So will it take advantage of the forthcoming liberalisation and set up or take over a firm which covers everything including legal aid? ‘I would not want to answer that at the moment,’ he replies.
Not everyone is waiting for the arrival of ABSs. Sheffield-based A4E, through its partnership with the legal aid firm Howells, has scored a notable hat-trick: winning tenders for Community Legal Advice, the Leicester CLAC (community legal advice centre) and is now preferred bidder in Hull CLAC.
The provision of high quality legal advice for those who can’t afford to pay privately is critical. When it comes to tenders, one hopes that the lure of new private sector interest shouldn’t take precedence over the committed but beleaguered network of private practice firms and advisers. LAG recently learnt A4E will pull out a year early from a contract to provide training schemes for offenders in eight prisons in Kent. According to the Universities and Colleges Union, A4e has announced it is unable to run the Offenders’ Learning and Skills Services for the third year because it stands to make a loss of £892,000. If A4E wins the Hull CLAC tender, it looks as though that will be at the expense of the 70 year old citizen’s advice bureau which will be forced to close. Let’s hope the powers-that-be in Hull are confident that A4E is in it for the long-term.
A version of this article was in the New Law Journal, June 27

Friday, 30 May 2008

In a fix

Jon Robins, LAG’s director of campaigns, on the impact of fixed fees on mental health work. The cracks are already beginning to show...

Is publicly-funded mental health law heading for a collective breakdown? This is an issue we look at in the forthcoming June issue of Legal Action. That seems to be the view of leading practitioners convinced that, ironically, it is in the area of legal representation for the most vulnerable that Lord Carter’s radical reforms are going to have the most catastrophic impact.

The cracks apparently are already beginning to show. Last month, 11 solicitors’ firms around Bristol wrote to the Legal Services Commission anticipating an ‘impending crisis’ as a direct result of the introduction of fixed fees in January. Disturbingly, the firms reported the ‘first signs of patients being left unrepresented’ as remaining firms were ‘heavily overloaded’. A patient detained under the Mental Health Act, Section 2, was not able to find a lawyer despite 15 telephone calls being made and the hearing had to be delayed to find a lawyer. A tribunal for a patient detained in a regional secure unit was adjourned, again, because there were no lawyers. ‘We would be the first to grieve over the necessity of turning away needy and vulnerable clients,’ they said. ‘This will become the routine unless drastic action is taken to stem the tide of those leaving the work and fund it in such a way that firms are able to recruit replacements.’

Richard Charlton, of the Mental Health Lawyers Association, has predicted that the new regime will ‘rapidly accelerate the departure of experienced practitioners from the field to the point where there will be a complete collapse of representation in some, if not large, parts of the country’. The Legal Services Commission (LSC) dismisses such views predicting, instead, that three-quarters of the 300-odd firms left doing mental health work will be better off. It also dismisses fears of a legal aid ‘exodus’ pointing to a massively oversubscribed bid round that the LSC ran at the end of last year.

But it’s a big risk on the part of Government. Once specialist firms and acknowledged experts leave the field, it's difficult (if not impossible) to replace them. As part of the Law Society deal, the newly formed Civil Consultative Group will review the provision of mental health advice. ‘We are talking about people’s liberty,’ Patrick Reeve, head of civil strategy at the LSC, told LAG. ‘In other areas of work like debt or welfare benefits where we have a fixed budget, it is a question of how we split that budget. In mental health it’s about making sure that everybody that needs access to justice has access.’ Reeve also said that if any changes are to be made they would be made under the new contract in 2010. ‘We have no intention of brushing it under the carpet,’ he adds. Let’s hope not.

Tuesday, 20 May 2008

Watch out for footloose predators

David Harker, chief executive of Citizens Advice, responds to last week’s posting by Crispin Passmore, director of the Community Legal Service

Whilst I admire the passion with which Crispin pursues a strategy of improving access to advice by means of a winner takes all bidding exercise, I think it’s misconceived and, combined with the impact of the new LSC contract, may wreak havoc across the advice sector in England and Wales. The possible closure of Hull CAB, with its 70-year history of serving its community, and the financial instability of some law centres following the introduction of the fixed fee regime, may be the start of the destruction of much valuable social infrastructure.

Frustration with the failures of Community Legal Service Partnerships, combined with an unquestioning belief in the power of contestable markets, has led to an error of judgement. Wishing to see ‘three, four five or more top quality bids’ in each area, favours footloose predators with the resources to bid and to take the occasional loss without damage not evolving cash strapped community agencies for whom failure may spell disaster.

The solutions which Crispin and the LSC have adopted may be wrong but the underlying analysis is correct. What he describes as ‘fragmented services presenting an un-navigable advice maze to clients faced with domestic violence, illegal eviction and poverty’ does need to change. That’s recognised by Citizens Advice and our bureaux across the country. To make his point, he exaggerates the degree of fragmentation in Hull, where the CAB had developed new specialist quality marked services in employment and immigration, to fill the gap left by the withdrawal of solicitors from LSC contracts.

Across the country here is an immense amount of fantastic work being done by some amazingly committed and dedicated people, many of them volunteers. The question is how to build on that to achieve improved access for more people. The answer is not to do what may well happen in Hull and to destroy existing institutions in pursuit of an unproven contention that new providers to the area can do it better.

That’s why there’s been such a fierce reaction by local people, community leaders and the media to the announcement that the partnership between a private sector company, A4E, and a regional firm of solicitors Howells is the preferred bidder. It’s not that the CAB is a bad loser but it’s the genuine reaction of a community that fears it might lose a valued and trusted service.

The two principle funders of local Citizens Advice Bureaux in England and Wales are local authorities, which last year provided £66 million (46%), and the Legal Services Commission which provided £30 million (20%). These are very different institutions with differing objectives. The LSC’s objectives are narrow, whilst those of local authorities are wider and embrace the concept of community well being. Pooling these two sources of funding and devising a tender specification which adequately captured both sets of objectives is a major challenge which hasn’t been done successfully. The result is that insufficient value is placed on the role of CAB and others in creating viable and cohesive communities, using volunteers (some of whom may have previously been clients) acting as a centre for the development of new national and local initiatives like financial education, credit unions, and using client evidence locally, regionally and nationally to change policies. Destroying these institutions impoverishes the lives of the communities they serve. I suspect that this dawning realisation is leading councillors in Hull to think again and causing many local authorities to think long and hard before joining the world of CLACs and CLANs. Perhaps it will also lead national government to reflect upon the contradiction between its policies for strengthening communities and the marketisation of legal aid.

Thursday, 8 May 2008

No apologies

Crispin Passmore head of the Community Legal Service at the LSC argues that joint tenders with local authorities are the future for social welfare law services.

In the last month new Community Legal Advice services [the new name for Community Legal Advice Centres or CLACs] opened in Leicester, Derby and Portsmouth. In each of these we have jointly commissioned with the local authority a comprehensive legal and advice service covering general help and advice, specialist advice and legal representation across five social welfare law categories and family. In each of them the local community will get more help and more joined up help. They will better focus services on local priorities and reach out to people who do not access the advice they should.

There is no doubt that this is a period of significant change for providers involved in delivering general advice and legal aid for social welfare law. Having delivered the best service they can for many years, their funders are now saying that they want a different service. I do not apologise for that. In recent years we have learnt more about how current legal and advice services too often fail to meet the needs of the communities that need them – fragmented services presenting an un-navigable advice maze to clients faced with domestic violence, illegal eviction and poverty. It would be a failure of public service delivery to not respond to those criticisms.

If we track back to 2004 the LSC was criticised for poor leadership to the Community Legal Service, for falling numbers of people being helped and for gaps in services – so called ‘advice deserts’. A clear direction has been identified after careful consideration of internationally renowned academic research. It was consulted upon in 2005 and has been reconsidered by Lord Carter. Our focus now needs to be on making change happen. We are beginning to see real evidence of positive change in terms of more people helped, better access and joined up services.

Yet, understandably, there is real discomfort that a CAB faces the loss of its contract to deliver debt and benefits advice in Hull as they have not been successful in the tender for a new Community Legal Advice service to open there. However, under previous arrangements clients needing representation under a legal aid certificate had to be referred elsewhere, as did those whose debt and benefits problems were combined with relationship breakdown, homelessness or discrimination at work.

It is disappointing that so many commentators wish to defend services that clients cannot access or that cannot provide the joined up service that clients need. Across Hull four firms or agencies have been delivering social welfare law advice. None have community care contracts, one does only housing and one does only employment. The people of Hull will now get a much improved service.

So what about the future? I do not want the tender process for future Community Legal Advice services to be about finding the one good provider – it is not about weeding out poor quality. I want three, four, five or more top quality bids for each Community Legal Advice service. I doubt they will ever be just each of the current local providers looking to expand to cover the full range of services. More likely is that bids will come from mergers or partnerships of local agencies, regional suppliers such as A4E/Howells, national providers such as Shelter or Citizens Advice and other local providers interested in providing social welfare law services only if they are on an economically viable scale. We are already seeing this pattern emerge with better and better bids in each tender exercise and interesting new relationships forming amongst providers. Good bids will inevitably not succeed where competition is strong – I hope that providers continue to respond to not winning one tender by innovating to deliver better services in their next bid. We know that recent bidders have already been doing this and those that resist change risk being left behind.

In the future competition will come from these regional and national and nearby local providers – all having expertise in delivering joined up services, understanding local needs and, importantly, all committed to delivering the services that Government and Local Government want to procure for their citizens.

Crispin Passmore, Community Legal Service

Tuesday, 29 April 2008

News Blog Changing

The news stories on the Cornwall CLAN and the Liverpool 8 Law Centre have moved to the Latest News section of our website.
The News Blog will now be used for comment and discussion on the latest news stories. So watch this space for lively comment and debate on access to justice issues!

Tuesday, 15 April 2008

Civil Legal Aid Contract Deal

Legal aid lawyers and their paymasters announced a cessation in hostilities. A joint statement was published by the Law Society, the Legal Services Commission (LSC) and the Ministry of Justice (MOJ) on 2nd April announcing an agreement following ‘a series of open, constructive and pragmatic discussions’. Chancery Lane claims that its negotiations have secured the following ‘concessions’ to the reform programme:
  • delaying the introduction of community legal advice centres (CLACs) and community legal advice networks (CLANs) until April 2010. There are 15 in the pipeline with four yet to be announced;
  • a 2% increase on non-family fixed fees;
  • an increase on childcare pre-proceeding fixed fees from £347 to £405;
  • a 5% increase in fees for mental health and immigration tribunal work;
  • delaying the introduction of family litigators' graduated fees;
  • an amnesty on historic unrecouped payments on account over six years and where the amount outstanding is less than £20,000;
  • delaying the introduction of best value tendering in criminal legal aid by six months to a date ‘not before’ July 2009;
  • and no price competitive tendering for civil law family work before 2013.
‘It is good news that the impasse between the profession and government appears to have been surmounted but these ‘concessions’ are a mixed bag. We fear that the slight fee increases don’t go far enough to arrest the damage already done to mental health or child care providers,’ says Steve Hynes, director of the Legal Action Group. ‘We’re glad to see the government taking a pause for thought over the introduction of CLACs and CLANs although we question whether they are ‘concessions’ at all or a response to a lack of interest on the part of local authorities.’

The joint statement said that the agreement was ‘designed to provide a significant period of certainty and stability’ for providers to ‘enable them to adapt to the changes to the legal aid system that have already been introduced and to consider and plan for the future’.

There was a note of contrition on the part of the LSC and the MOJ over their stance on the legal challenges to the unified contract and its conflict with public procurement regulations. ‘They regret that the implications of those regulations were not recognised earlier and acknowledge that the Law Society was justified in commencing those proceedings,’ the statement said.

Chancery Lane will discontinue its judicial review proceedings launched against the LSC in February on the strength of the deal which it was claimed would ‘provide tangible benefits for legal aid practitioners’ and which would ‘establish procedures designed to ensure a closer and more constructive relationship between parties in the future’.

Bill Montague, managing partner of Dexter Montague & Partners, who jointly brought claims against the LSC with the Law Society last year, said that settlement marked ‘a watershed in the relationship between legal aid practitioners and the LSC’. Des Hudson, chief executive of the Law Society, said that the ‘more consultative approach embraced by the LSC’ would ‘hopefully allow us to work with them to address some of the most pressing issues’. ‘However, we still have serious concerns about the future of legal aid,' he added.

Read Jon Robbins' article This is Jacqui: she's here to save you from eviction in The Observer Sunday 13 April 2008.

Monday, 31 March 2008

A bitter pill…

Hundreds of British people who claim to have suffered harm from the withdrawn arthritis painkiller drug Vioxx have launched a campaign to challenge the manufacturer’s decision to only compensate US victims. The alleged Vioxx victims in the UK argue that they have been denied access to justice on both sides of the Atlantic because they were unable to bring a legal action in the UK where legal aid was not been available and in the US following the ruling of a New Jersey court to reject non-US claims.

In November last year the New Jersey based Merck announced plans to set aside $4.85 billion (£2.4 billion) for 44,000 US users of Vioxx. Although the painkiller was prescribed to 400,000 Britons at the time it was withdrawn in 2004 after studies showed an increased risk of heart attack and stroke to users. Independent research by the US Food and Drug Administration concluded that 27,785 heart attacks or deaths might have been caused by Vioxx between 1999 and 2004.

‘The government has a duty towards protecting the British public which has been harmed by a drug that was being marketed at large profit and licensed in this country and which has ended up harming several hundreds of thousands of people,’ comments Doctor Sarah-Jane Richards, senior associate at the South Wales firm Hugh James. Some 350 British claimants have formed a campaigning group and so far some 44 MPs have signed up to an early day motion backing their campaign. The campaign is calling for future legislation to prevent other non-UK companies treating UK residents in this way. ‘The case highlights an issue in law whereby people cannot get access to justice in this country,’ says Richards. ‘If you go to court and lose your case you are liable for the defence costs and, undoubtedly, an organisation like Merck would incur substantial multi-million pound costs to defend its product – that’s prohibitive of bringing cases like Vioxx to court in the UK.’

However Richards argues: ‘In an age where we have global markets it’s correct and proper for the pharmaceutical industry to compensate people wherever they live, wherever they have been harmed and whatever their nationalities.’ She reports that there was ‘outrage’ from the UK claimants who discovered that they lost their appeal in the US and were excluded from the American litigation in the same month that Merck offered compensation package to US nationals.

The Legal Services Commission pulled the plug on the UK litigation towards the end of 2005 complaining that the claimant firms Leigh Day & Co and Irwin Mitchell had not been forthcoming in providing an estimate of the costs of going to trial. This was disputed by those two firms at that time. ‘We weren’t prepared to write the solicitors a blank cheque,’ said David Keegan, director of the commission's special investigations unit at the time. The LSC has introduced tight controls to prevent the perceived haemorrhaging of public money on such multiparty actions. By direction of the Lord Chancellor, there now is only £3 million of public funds available for such litigation in any year and funding is also subject to an affordability review.

The claimant lawyers argue that the Vioxx litigation exposes a major funding gap in the system. The availability of conditional fee agreements to plug the hole left by legal aid is a non-starter, they argue, because the after-the-event insurance industry is either not prepared to back such complicated and potentially costly actions or, if it is, the premiums are prohibitively expensive.

Jon Robins.

Monday, 17 March 2008

Call to think again about new funding rules

You and Yours on BBC Radio 4 hosted a discussion today on Law Centre Closures.

Call to think again about new funding rules
Will access to justice for some of the country's most vulnerable people be under threat as not-for-profit law centres have their funding changed?

Steve Hynes, Director of the Legal Action Group and Chair of the Access to Justice Alliance
Crispin Passmore, Director of the Community Legal Service at the Legal Services Commission

Listen to podcast here.

Tuesday, 11 March 2008

Law Centres in Crisis

LAG has learnt that Gateshead Law Centre called in the receivers last Friday (7th March) after getting into financial difficulties. Gateshead joins Stockport Law Centre which closed its doors in November last year due to problems meeting the targets under the Legal Services Commission’s new fixed fee contracts.

Gateshead Law Centre was part of the first Community Legal Advice Centre (CLAC) the Legal Services flagship policy for civil legal services which has had difficulties getting off the ground. LAG understands that the continuation of the CLAC is in doubt, and decisions have yet to be made on whether the contract for the CLAC will be tendered again.

A survey published today by the Law Centres Federation indicates that twenty out of the 58 remaining Law Centres are having difficulties meeting the new targets. There are eight centres claiming to be under risk of closing. Among these is the largest law centre, South West London Law Centres which has a turnover approaching £2m and has offices in Battersea, Kingston and Wandsworth.

The centre’s Director Michael Ashe fears they will be forced to close leaving clients no-where to go. ‘The work we do is not glamorous, but it is vital,” he says. “There are desperate people queuing outside our doors for hours each night in the depths of winter to see volunteer advisers because their low-wage jobs mean they are not eligible for legal aid….We stay at work in the evenings and come in at weekends because we cannot balance the books any other way, and because there is always another vulnerable person denied their rights who we cannot let down. Like doctors, nurses and teachers, we just want to be allowed to do our job, and do it well.”

“LAG would urge the Government and LSC to look again at the fixed fee regime, as clearly the fees are too low to sustain many services” says Steve Hynes, Director of LAG. A report on the plight of Law Centres will be published in next months Legal Action.

Monday, 3 March 2008

Thumbs down for BVT plan

Criminal defence lawyers have given a resounding vote of no confidence to government plans for the proposed ‘best value tendering’ regime under which they would be expected to bid for work. An online survey of 361 legal aid lawyers found that almost two thirds (67%) of solicitors described themselves as ‘strongly against’ the proposals. The LSC is currently consulting on the BVT scheme and that consultation closed this week (March 3rd).

The survey ‘not only highlights that there is a lack of support for BVT across the profession’ but it also ‘reveals some of the fears solicitors have about the LSC's current proposals’, reckons Richard Miller, the Law Society’s legal aid manager. He goes on to say that ‘the fact that 85% said they would not bid for the contracts again when they come up for renewal if they failed first time around starkly demonstrates one of the major problems with the proposals’. ‘We have still seen no answer to the question how there can be adequate competition in any second round of bidding,’ he adds.

Chancery Lane points to ‘broader implications’ of BVT insofar as over half of the respondent firms (56%) undertake civil legal aid work and almost three-quarters (74%) of those firms reckon there would be ‘an adverse impact on their civil legal aid work if they were unsuccessful with their criminal bids’.

The Criminal Law Solicitors Association also published its response rejecting the proposed introduction of Best Value Tendering (BVT). It argues that the proposals ‘fail on every test that the LSC set themselves namely “to create a sustainable legal aid system, with quality, access and value for money at its heart”’. It says that the plan is ‘fundamentally flawed’.

A watchdog without teeth?

Criticism of the Independent Police Complaints Commission (IPCC) has been intensifying over the last week as the families of those alleging police misconduct, campaigners and community groups came out to back concerns raised by lawyers.

The credibility of the police watchdog set up in 2004 to replace the much criticised Police Complaints Authority was seriously undermined earlier in the month when more than 100 members of the Police Action Lawyers’ Group withdrew their support and two representative members, Tony Murphy and Raju Bhatt, resigned from its advisory board.

The forthcoming April issue of Legal Action reveals that this isn’t just a falling out between the IPCC and lawyers. Far from it, instead we talk to families, campaigners and commentators about their firsthand experiences dealing with what is widely regarded as a toothless watchdog. Tony Murphy, of London law firm Bhatt Murphy, rightly points out that proper investigation of complaints against the police has ‘long been held as essential to our democracy’. He says: ‘The leadership is failing to fulfil its responsibilities in relation to that vital task. Urgent action is needed if the IPCC is not to become another obstacle on the road to police accountability.’

The current row between the IPCC and its critics follows a letter sent to the body in January by Murphy and Bhatt in which the pair pointed out that they had participated in its advisory board representing the PALG because they felt it could be ‘an important means for the IPCC to take account of the interest of complainants and other stakeholders and that it could afford an important element of accountability’. However, they also acknowledge ‘significant scepticism and dissent’ amongst the group’s membership over the concern that they would be little more than window dressing. ‘Almost four years on, it is a source of deep disappointment to find that our involvement has reaped little benefit for the complainants represented by members. Indeed it has had a negative effect insofar as it has taken as a way from our clients the nil return,’ they wrote.

The IPCC chair Nick Hardwick denies the group is facing ‘a crisis of confidence’. He reckons its business as usual and the group continues to deal with PALG members ‘on a day-to-day basis without any problems’. ‘Sometimes we agree, sometimes we do not,’ he says.

However PALG members tell Legal Action that the views expressed by Murphy and Bhatt are shared throughout the group. ‘The IPCC should be playing an important constitutional role in holding the police to account when officers abuse their powers,’ says Jules Carey, head of the Police Action team at Tuckers. ‘The IPCC is failing dismally at this.’

Helen Shaw of INQUEST, which is on the IPCC advisory board, shares the ‘frustrations in trying to get the IPCC to listen to concerns from bereaved families over the quality of investigations and the way that the IPCC has approached families’. ‘Our experience has been until very recently that the IPCC has paid lip-service to what we’ve been saying,’ Shaw adds. The group has yet come to a decision as to whether it will resign from the board.

‘We feel that that IPCC hasn’t changed much from the days of the PCA,’ says Justin Waldron, cousin of Roger Sylvester who died after being restrained by six police officers who detained him under the Mental Health Act in 1999. The IPCC announced no officers were going to be disciplined in August 2007 despite an inquest verdict of unlawful killing in 2003. ‘We didn't think it was a thorough investigation to come to a decision that the officers shouldn't even be reprimanded,’ Waldron says. ‘It means the police are allowed to avoid scrutiny and accountability by the IPCC washing its hands of a case.’

The perception of the IPCC as ineffectual appears to be leading to a loss of confidence in the wider community as well। Stafford Scott, an independent adviser to the Metropolitan police Trident operation command unit (which investigates gun crime in the black community) and a chair of the black independent advisory group to the Metropolitan police borough command for Haringey, believes that the body has ‘no credibility’. ‘The confidence of complainants in the group provides a barometer to public confidence,’ he says. ‘We sue the police – that’s what we do now. We don’t go through the IPCC. We go through the civil courts.’