Criminal BVT pilots abandoned

It looks like the final nail in the coffin of best value tendering (BVT) has now been hammered in - for now at least. The government has announced that it is abandoning plans for the pilots. The tendering process had been due to start in the New Year for Avon and Somerset, and Greater Manchester. This climb down will come as a considerable relief to the practitioners in these areas.

It seems to LAG that the government was swayed by the argument that it was unfair to expect firms to tender for the work when the consultations on Crown Court and Very High Cost Cases fees were still pending. Firms need to know what fees they can expect across the board in criminal work before they tender for police station work.

The government and the Legal Services Commission (LSC) say that they are going to work up alternative plans. The legal aid minister Lord Bach told LAG this afternoon that he expects 'by March next year to have some outline improved proposals'. Any implementation will be down to the next government. Both the LSC and government still seem convinced that some form of competitive tendering can provide the magic bullet to control legal aid costs. We at LAG remain sceptical.

Criminal fee cuts announced

Cuts in fees for criminal legal aid have been announced by the government. Details of the cuts were given by legal aid minister Lord Bach in a written ministerial statement to parliament at 12 noon today. The cuts follow the proposals outlined in the August 2009 paper, Legal aid: funding reforms. The main proposals are:

- Fees for police station work will be cut back in the areas the government describes as 'the most expensive and over-subscribed'. LAG understands that this could hit up to 160 areas.
- One fixed fee will be paid for committal hearings.
- The fee for file reviews in criminal cases will end.

An announcement on the reduction in experts' fees, which had also been proposed, will be made in January. The government will also launch a second consultation on reducing Crown Court fees. The government estimates that £23m will be made in savings from the cuts announced today over the next year.

LAG knows that these cuts will hit some hard-pressed firms, especially in London, where the cost of undertaking police station cover can be higher due to delays and the diverse range of clients who need advice. In some respects, though, this could be seen as the least worst option if the cash saved can be used to prop up the civil legal aid budget which is creaking under the strain of increased demand caused by the recession.

LAG is being told by legal aid lawyers that the Legal Services Commission has run out of money for civil cases. For £23m, 115,000 more clients in debt or 132,000 more clients with housing problems could be seen. LAG will be seeking assurances that this money will not disappear back into the Treasury's coffers, but will be used to help people cope with the effects of the recession.

Don't back down Bach!

In a meeting yesterday, the legal aid minister Lord Bach told leaders from groups representing legal aid lawyers that there would be no new cash for civil legal aid. This is despite growing evidence of the increasing numbers of people who need help with civil law problems.

LAG is hearing from practitioners that they are being refused permission to start new cases once they have reached the limit set by the Legal Services Commission. According to the Ministry of Justice (MoJ) there have been 20,000 more cases between April and August 2009 than in the same period last year. With four or five months being the likely wait for permission to take on new cases, the fear is that many clients needing help with problems caused by the recession will be cut off from getting legal advice.

Lord Bach told the meeting that the Treasury would 'laugh' if he approached it for more cash to fund the extra work needed. While LAG appreciates the difficult financial position the government is in, we do not believe that the MoJ should cower away from making its case for more money. It is an unfortunate, but wholly predictable, effect of the recession that the demand for civil legal aid has increased.

Civil legal aid should be seen as part of the welfare state's safety net to help people in these difficult times. Like other state benefits the government should meet the cost of these extra cases as as essential part of its response to helping people through the recession. The relatively paltry sum in government terms of £10 million could buy an extra 30,000 or more cases and bring justice to victims of this bank-inspired recession.

Bar moves with the times

Historic reforms on the regulation of barristers were approved by the Bar Standards Board (BSB) last week. In response to mounting pressure the BSB (see previous blog 'Bar behind the times') has agreed that barristers should be allowed to establish partnerships with solicitors and with other barristers. The rule change ends 800 years of tradition.

Barristers were in danger of losing out to solicitors as without the change they would not have been permitted to join the new legal disciplinary practices (LDPs). LDPs allow legal and other professionals to form partnerships and permit 25 per cent ownership by non-lawyers. In LAG’s view it makes sense that barristers can now bring their advocacy expertise to such partnerships as this will enhance the service to clients and hopefully reduce costs.

LAG believes that some chambers might move to form LDPs or other legal entities to enable them to compete for blocks of work from the Legal Services Commission and other organisations. The rule changes also alter the role of self-employed barristers as they will now be able to take witness statements, correspond with clients and provide advice in police stations (although this would rule them out of representing the client in court).

There will inevitably be some blurring of the distinction between solicitors and barristers with these rule changes. They could be a major stepping stone on the road to a unified legal profession. The Bar will only survive by maintaining its reputation for providing independent specialist advocacy services.

LSC clamps down on claims

In October 2009, the National Audit Office published a critical report on the Legal Services Commission's (LSC's) overpayment of solicitors and other legal aid providers. According to the report, £24.7 million was overclaimed in 2008/09. The auditors found that providers had failed to give sufficient evidence on the case file to support the level of claim or demonstrate that the client was eligible for legal aid.

Immigration cases were highlighted in the report. The auditors reported that there were a number of incidents in which practitioners charged the higher asylum case rate when the lower immigration one should have been claimed. The largest amount of overpayments, £10.5 million, was in immigration and family cases.

Speaking at the first meeting of the All Party Parliamentary Group on Legal Aid on 3 November, the LSC's chief executive Carolyn Regan blamed problems with the LSC's manual system of case file administration for the overpayments. She said that it is due to be replaced with a computerised system. She also pointed out that the figure for the overpayments was only 1.2 per cent of the total fund.

In a move which LAG believes is related to the National Audit Office report, the LSC has announced a clamp down on legal aid providers opening case files for 'recurring clients'. It is asking 100 legal aid providers to look at ten per cent of their cases in which a client has had more than one file opened in the last six months. It is threatening to recoup any money it believes has been wrongly claimed for such cases.

In LAG's view, many of the problems which the LSC has experienced with overclaiming can be resolved with a computerised system. Similarly, claims for the same client, but with different problems, can be tracked more effectively with such a system. Let us hope that the LSC gets the computer system right this time - its record so far has not been good. The LSC Online system failed in November 2007 and had to be suspended, meaning that providers had wasted many hours completing electronic returns.

But we would argue that verifying clients' income will continue to cause problems regardless of any improvements to the administration of the system. The reality is that dealing with clients who often have chaotic lives inevitably leads to difficulties in getting them to produce the relevant pieces of paper to prove their entitlement to legal aid.

As regards multiple cases, while there might be some overclaiming, the vast majority of such claims are justified as everyone involved in legal aid policy agrees that many civil legal aid clients face clusters of problems. We would argue that claims for the same clients in multiple areas of law are a sign that legal aid providers are giving the joined-up service which clients need.

Contract rounds get green light

As expected the announcement of the civil family fee scheme yesterday (see below) has triggered the announcement of the delayed timetable for the civil bid rounds. The immigration bid round is intended to start at the end of November and the bid round for other civil work is planned for the week beginning 8 February 2010. The new civil contract will commence on 1 October 2010.

The Legal Services Commission has also made an announcement on the criminal contracts. The tender for the best value tendering police station and magistrates' courts pilots in Avon and Somerset and Greater Manchester is now scheduled to start in the week beginning 4 January 2010 and the auction stage will go ahead in March 2010. The new criminal contract will commence in July 2010.

LAG believes it is good that legal aid providers have got some certainty now about the bid rounds, but if the Bar takes action to delay the implementation of the family fees this could lead to a further postponement of the civil contracts. With a general election certain next spring the temptation might be to try and seek a delay, hoping that it can renegotiate with a new government. Criminal legal aid firms also need to know the results of the consultation on fee cuts, which is due to end on 12 November, before they can make any decisions on bidding for police station work (see 'Criminal delay' blog below).

Family fees announced

The Legal Services Commission (LSC) has today announced the fees for family cases. These had been subject to intense negotiations with representatives from legal aid providers. If publication of the fees had been delayed the whole bid round process for civil legal aid might have been put in jeopardy. But the fees could still be subject to a legal challenge.

Family cases take up over half of all expenditure on civil legal aid. It would have been difficult for firms to bid for contracts in the other areas of civil law without knowing the fees for family work. Hourly rates for advocacy will be abolished under the scheme and a system of standard fees will be introduced.

Barristers stand to lose out on the fees as while the government claims that the overall budget for family cases will stay the same the amounts paid to barristers will go down. The intention, the government says, is to pay the same to solicitors and barristers for the work. LAG understands that there is much disagreement over the data on which the new fees are based and that the Bar had wanted further time for analysis of this.

Fees for private law family work (mainly divorce and custody matters) have been subject to bitter wrangling behind the scenes and some practitioners are questioning the viability of the proposed fees. The government will wait with bated breath to see if the Bar will move to bring a judicial review to challenge the scheme and risk derailing the civil contract bid rounds.

Reports from the audit trail … Number 5

By Jon Robins

I have visited the North Liverpool Community Justice Centre twice this year, as part of LAG’s Access to Justice Audit. You can see a film as part of the Guardian’s 'Justice gap' series.

The court is a radical experiment in the criminal justice system. It was launched in 2005 at huge cost - £5.2 million - and that was just to open the doors. The initiative takes its inspiration from a court on the other side of the Atlantic, the Red Hook Community Justice Center in Brooklyn.

There is now a proliferation of so-called ‘community justice centres’ but North Liverpool is the only court centre built on the Brooklyn model. The American court has been credited with contributing to the regeneration of a part of Brooklyn that Life magazine once labelled as one of America’s most ‘crack-infested’ areas.

In 2002, the then Lord Chief Justice, Lord Woolf, visited Red Hook and was suitably impressed. A trip by the then Home Secretary, David Blunkett, followed and he returned a convert. Sadly, it seems that one of the boldest examples of judicial thinking has been quietly buried. Tucked away in the recent green paper, Engaging communities in criminal justice, published earlier this year, policy-makers ruled out future centres ‘in light of the costs involved’.

North Liverpool Community Justice Centre, based in a former secondary school on Boundary Street in Kirkdale, is close to the heart of the community that it seeks to serve. It is a bright, shiny, hi-tech court complex – a million miles away from the Victorian gloom of Salford Magistrates’ Court (which houses the Salford Community Justice Initiative). There are 60 court staff in North Liverpool including all the main support services (probation officers, Citizens Advice, drug treatment officers etc) on site. Offenders’ cases are dealt with without delay and their other needs, from addiction treatments to housing benefit claims, can be dealt with promptly.

One judge – Mr Justice David Fletcher – presides over all cases enabling consistency of sentencing and help with the rehabilitation of offenders who are called back before the court under special sentencing review powers contained in the Criminal Justice Act 2003. His court sits as magistrates’ court, youth court, Crown Court and county court.

Frances Crook, director of the Howard League for Penal Reform, has been to both Liverpool and New York. A sceptic at first, she is now a convert. Crook calls the approach ‘completely radical’. ‘We’ve tried whipping, branding, executing, transporting, prison and now we have orange flak jackets. We have to see these things in a more holistic way and try and solve the problem, that is the best way to protect victims.’

According to the government, North Liverpool ‘continues to be an extremely valuable and successful test-bed for the community justice approach as a whole, but we do not believe that the costs involved in building new centres can be justified at present’.

There are some 2,500 such courts now in the US. Many cost/benefit analyses have been done. One report into eight specialist drug courts in California reckoned that there were cost savings of $3.50 for every dollar invested. That estimate just relates to savings to the criminal justice system – and not wider costs of avoided property damage, hospital bills, and lost wages. Red Hook now has the safest police precinct in Brooklyn.

Welcome proposed separation of civil and criminal legal aid budgets

The government has announced a review of legal aid delivery to be conducted by Sir Ian Magee. The review will look at separating the criminal and civil legal aid budgets. This is something LAG has consistently argued for in order to stop the government raiding the civil legal aid fund to pay for increases in criminal legal aid. We therefore very much welcome this review.

Unless the funds are separated, government policy on legal aid will continue to be dictated by the invidious choice of either paying for representation to ensure people are not wrongly imprisoned or to get help with housing, family and other civil law problems. The review will also look at providing effective management of the funds and ensuring ministerial accountability for the policy direction of legal aid. LAG argues that it is important to prioritise the independence of decision-making on cases and that the separation of the funds should be more than just a paper exercise easily unpicked when the Treasury calls for cuts.

We have to point out, though, that the Access to Justice Act 1999, which has been on the statute book for ten years, envisaged the eventual separation of the funds by government. This really is a case of better late than never. Sir Ian has to report in January and we believe it could be possible, if he recommends separation, to implement the change this side of the general election.

Nottingham rethinking advice?

Last week people from the advice world travelled to Nottingham to be taken on a journey through systems thinking (to paraphrase the blurb), the new model of planning advice services which AdviceUK, the national organisation representing independent advice centres, is pushing. While it sounds like the jargon of management speak, the Nottingham experience seems to demonstrate that the approach is worth looking at, though in Nottingham it is limited in the areas of law it covers and does not include private sector solicitors.

Nottingham City Council currently spends £3m on advice services. These are spread across an in-house welfare rights team, which specialises in benefits and debt, and the voluntary sector. A Law Centre®, a Citizens Advice Bureau, a Housing Advice Centre and an independent advice centre have signed up with the council for this experiment in advice services planning. Four hundred and eighty four interviews with clients were observed by researchers. What they found was that 280 interviews dealt with a life event such as a client losing his/her job and needing advice on benefits. The big revelation was that 204 interviews were to do with a failure in the system - in other words government agencies getting it wrong.

An example of a systems failure given by the council is the procedure over benefit appeal tribunals. Once a client appeals, a TAS1 form is sent to him/her which s/he has to respond to within 14 days. Many do not. This results in advisers having to apply to reinstate the appeal. AdviceUK argues that by adopting a systems thinking approach such waste can be reduced by joint working and the spare capacity which is freed up can then be used to improve services.

The researchers found that 15 per cent of clients presented with multiple problems. They also found evidence of the need to triage cases. For example, straightforward enquiries, which would only take a few minutes to deal with, were having to join the same waiting list of a few weeks for interviews as those clients with more complex cases.

A few alarm bells did ring when LAG interviewed advice workers at the Town Hall event. There seemed to be very little referral to solicitors, apart from some cases going to the Law Centre. Even in disrepair cases, advisers seemed to believe that expert reports and experience of litigation were not generally necessary. Another problem was the lack of understanding regarding the potential for conflicts of interest with council-run advice services.

What the Nottingham experience does show is that systems thinking can be used to improve advice services by identifying waste caused by systemic failures and act as a way to galvanise services to work more effectively together. The overriding impression of the Nottingham experience is that the advice sector had a unity of purpose to serve people more efficiently. This is perhaps the systems thinking project's most useful achievement.

Risk and release

Daniel Sonnex, who had been released on parole licence after a conviction for a violent robbery, killed two French students last year after torturing them to obtain their pin numbers. The case illustrated the tragic consequences of failures in the system to monitor and assess an offender when s/he has been released. How, though, does the criminal justice system assess the risk of prisoners convicted of serious crimes reoffending if released? This was the question the lawyers, psychiatrists and psychologists grappled with at last week's Association of Prison Lawyers conference.

All agreed that the psychological testing methods developed for identifying whether a prisoner is likely to reoffend if released could never be guaranteed. What the psychiatrists and psychologists did seem reasonably confident about was their success in identifying risk factors that made reoffending more likely in certain groups of prisoners. For sex offenders these included the number of previous sexual convictions, age and whether they had never had an intimate relationship. Actuarial calculations can be made from such factors and these can be extrapolated to a group, but they cannot be used directly to predict an individual's behaviour.

Polygraph or lie detectors are being trialled to assess the truth of an offender’s assertions regarding his/her rehabilitation, but opinion on the reliability of these seemed mixed among the experts at the conference. Psychological tests remain the main tool for assessing individual prisoners’ rehabilitation. Factors such as personality, attitudes and emotional control are assessed. The tests need to be applied correctly and are dependent on well-trained and qualified people to do this.

A question submitted in writing from a prisoner asked why he was always seen by a trainee when he was undergoing a psychological assessment. All the participants on the panel the question was put to agreed that there is a shortage of fully qualified forensic psychologists who carry out the assessments in prisons. Opinion was divided, though, on whether the trainees who are widely used are competent to undertake the work. The representative from the Ministry of Justice argued that most trainees do have the experience and skills to do this work, with their trainee status being attributable to changes in qualification requirements. The independent experts were less convinced and one argued that many were not sufficiently skilled and that 'their supervision was sporadic'.

A sceptical lawyer in the audience questioned if the methods used to assess prisoners’ likelihood of reoffending were too subjective. Another lawyer argued that one client had had two results in a test - one finding a medium risk and one finding a high risk. In reply the psychologists said that as long as the tests were applied correctly they were reliable and that the tests and clinical assessments still allowed room for professional judgments. Other than never releasing any prisoner convicted of a serious crime there seems little alternative to the current system, but the system needs to be properly resourced to optimise the chances of reaching the correct decisions, as the consequences of not doing so can be tragic.

See LAG's new book: Prisoners: law and practice by Simon Creighton and Hamish Arnott.

Employment law

LAG published the eighth edition of Employment law: an adviser's handbook by Tamara Lewis last week. The book is a comprehensive guide to employment law and it deals with recent changes in the law such as the definition of an employee, developing case-law on equal pay and the repeal of the short-lived statutory dispute resolution procedures introduced by the current government.

Over the years, organisations from both sides of industry have usually reacted to legislative changes in employment law introduced by governments with either condemnation or praise depending on how they perceive the changes will impact on their interests. Especially in the early days of the current government, Tony Blair’s 'third way' philosophy purported to break away from the old certainties of the class-based politics which employment law reflected.

The Employment Act 2002 was the vehicle supposed to bring about a New Labour nirvana in the world of employment relations, free from class and other vested interests. The Act tried to appease the interests of employers continually peeved at the ever-spiralling number of Employment Tribunal (ET) claims by introducing statutory minimum disputes and disciplinary procedures that had to be followed in the workplace. The aim of the procedures was to reduce ET claims and, most importantly, keep employees in work by resolving disputes while they were still in employment. The procedures became mired in legal controversy though as employers focused on getting the procedure right rather than on their original aim of resolving disputes.

ET numbers are again rising due to the impact of the recession. The most disturbing statistic for ET claims has remained constant over the years, less than one in 20 applicants who are dismissed return to their job. The repealed procedures were flawed, but early advice and representation for employees remains the most effective way of avoiding injustice and keeping people in employment. Tamara Lewis’s book will continue to play an important part in equipping advisers to do this.

Criminal delay

On 11 September, the Legal Services Commission (LSC) announced that it will defer the start of tenders for the new criminal contract for at least two months. Included in this is the best value tendering process for the two pilot areas in Greater Manchester and Avon and Somerset. Good move we say. However, the Ministry of Justice (MoJ) announced its consultation on the proposed cuts for criminal work on 20 August. Why then did it take the LSC three weeks to decide to delay the bidding process?

Surely it had worked out that you cannot invite firms to bid for work if they don’t know how much they will be paid? Perhaps not. It seems more likely that LAG, the Law Society and others pointing out to the LSC the unfairness of what it was proposing, combined with mutterings about a possible judicial review, made it change its mind. Any strategy the MoJ and LSC had for criminal legal aid appears to be in tatters.

The MoJ’s paper on the proposed cuts is inadequate. It fails to state how much it is seeking to save or outline in detail the Crown Prosecution Service fees it is arguing that defence counsel should have parity with. The government also wants to shave five per cent off the budget for very high cost criminal cases (VHCC), but the options to do this have not been announced yet. They will only be outlined in a further consultation paper. A cross-subsidy operates between Crown Court work, VHCCs and the less profitable police station and magistrates' court work. Surely it should be obvious to the LSC that without all the proposed prices on the table firms cannot make any decisions about their future bids?

No time to pull your punches!

Citizens Advice published a report in July, No time to retire – legal aid at 60, which warns that more people are being denied access to civil legal aid despite a huge increase in demand fuelled by the recession. It argues that fewer people are getting civil legal aid due to barriers such as patchy geographical provision, long waiting times and complex qualifying criteria.

Two surveys carried out by Citizens Advice Bureaux (CAB) in 2008 and 2009 discovered that CAB across England and Wales regularly find it almost impossible to locate a Community Legal Service (CLS) lawyer for court and tribunal proceedings, or a legal aid lawyer to deal with specialist issues. Seventy-six per cent of CAB had problems finding a CLS lawyer to deal with urgent employment cases, while 75 per cent could not find a CLS lawyer to deal with urgent housing matters, and 68 per cent said they had problems finding a CLS lawyer to take on urgent family cases.

These are damning statistics and they confirm what LAG, legal aid providers and other commentators are saying about the availability of legal aid, but the report has received little coverage in the media. This is a great shame because it also challenges the commonly-held view in government circles that voters are not concerned about legal aid. Independent research commissioned by Citizens Advice for the report showed great public support for legal aid. Two thousand people were questioned in March this year - 92 per cent thought it was either very important (68 per cent) or quite important (24 per cent) for people on low incomes to get legal aid for problems such as debt, benefits, family law, housing and employment. LAG would argue that a similar opinion poll needs to be conducted on criminal legal aid to gauge public support for legal aid and its importance in ensuring a fair trial for people accused of a crime.

Hopefully, the support for civil legal aid reflected in the survey results and the concerns expressed in the report will be given greater prominence in the run-up to the general election. A higher profile for legal aid in the election campaign is needed to head-off any belief that legal aid is a 'soft option' for cuts and, most importantly, to convince the public that their money is being wisely spent on providing access to justice.

Criminal legal aid to be slashed

LAG has been aware for some time that a crisis is looming next year with the legal aid budget. While off the record officials were telling us that the budget was looking distinctly dodgy, they were being tight-lipped about the possible options for cuts. One thing was clear though, some had been too optimistic about the savings they could make from putting police station work out to tender. When it became clear that savings from best value tendering (BVT) would be negligible, especially in the first year, a plan 'B' was needed. The consultation paper published today (Legal aid: funding reforms, 20 August 2009) is it. What the Ministry of Justice is proposing is:

- an up to 23 per cent cut in advocacy fees in the Crown Court;
- a flat fee for all police station work ending the different fee structure in different areas;
- an end to the duplication of fees for committals before trial; and
- a cut in the costs of expert reports.

In a significant move the government has recognised the importance of maintaining the social welfare law budget. As we all know in these hard economic times many people are facing problems with housing, debt, employment and benefits. Timely advice can make a big difference to their lives and it is commendable that the government has recognised this.

LAG believes that some savings can be made in Crown Court fees. An elite group of barristers earn enormous sums from legal aid. A balance has to be struck, though, between reducing costs and retaining good quality advocates in the system as equality before the law comes at a price.

Expert fees have been scandalously high in some instances. The move to set rates is well overdue, but will again have to be managed carefully because of the risk of losing quality from the system.

As regards police station work instead of relying on competition the government has now gone back to controlling costs by fixing the price for such work. Solicitors in London could be especially hard hit. Our concern is that gaps in cover could emerge if the price set is not sustainable. It is an open secret that many firms stay in police station work because they want to pick up the well paid Crown and higher court work. Cutting the pay for such work could lead to many deciding to abandon criminal work altogether.

Reports from the audit trail ... Number 4

In May 2009, as part of the Access to Justice Audit, LAG hosted an event nicknamed the ‘divorce law summit’. It was a roundtable discussion involving a dozen people - half were ‘ordinary people’ and half were divorce ‘professionals’, including representatives from the family lawyers group Resolution, a barrister, a mediator and even a self-styled ‘passion coach’.

The session was chaired by Suzy Miller, the founder of the Starting Over Show, who organised Britain’s first divorce fair at a Brighton hotel earlier in the year. The event (which aimed to ‘help people bounce back from relationship break ups and life crises’) made Radio 4’s Thought for the Day and every newspaper in the UK (as well as the Timaru Herald in New Zealand and the Lebanon Daily News).

The idea for the LAG seminar was, with over 140,000 UK couples divorcing each year, to talk to people about a legal process that all too often leaves ex-spouses aggrieved, unhappy and considerably poorer.

When LAG invited Resolution there were some (understandable) concerns that lawyers would become the scapegoats for people’s wider dissatisfaction with the system. As an icebreaker, Suzy asked: ‘Is there ever such a thing as a "healthy divorce"’? It was interesting that participants’ first response wasn’t to engage in a bout of lawyer-bashing.

‘I think there’s such a thing as “a healthy divorce” but I don’t think it has anything to do with the law. It is all down to the people and their attitude towards it,’ began Lesley, a writer who has been ‘divorced twice and married three times … the last time we never got round to it’. Next up was Andrew. ‘I waited until I was 42 years old before I got married for the first time and then after I’d been in a relationship for eight years,’ he recounted. ‘We made it through a grand total of 18 months.’ He agreed there was ‘such a thing as a healthy divorce - probably achievable in direct proportion to the health of one’s relationship with oneself and one’s partner’. Fiona thought it was ‘down to emotional intelligence. But, frankly, that tends to drop down the list of priorities.’ During her divorce she found that the father of her three children (all under 12 years old) had been previously married. ‘That was a surprise,’ she added with understatement.

Next Suzy asked: ‘Does the legal framework increase acrimony?’ 'Yes', replied one of the lawyers, Nicholas Longford, chair of Resolution. ‘One of the problems is having a fault-based system.’ He offered a solicitor’s perspective on the uncomfortable experience of having to explain to clients that anyone who did not want to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of his/her husband or wife. This ‘blame culture’ infects the process from the start, he argued.

Andrew described the deadening impact of the legal process on the relationship with his ex. He is a former social worker in child protection and has spent ‘decades instructing lawyers and barristers’. ‘It was an extreme shock to be on the receiving end, like wrestling a cloud,’ he said. ‘I went down the path of least resistance, waited two years and acquiesced for the most part.’

There was agreement over the damaging absence of reliable information in the public domain to help ex-couples navigate divorce. It was argued that this information vacuum meant couples came to rely on lawyers as ‘gatekeepers’ to the process. ‘A lot of people go to their high street lawyer thinking they’re going to take care of everything – not realising that the lawyer should only be looking out for the legal side,’ said Jane Robey, chief executive of National Family Mediation. She reckoned that ‘some 80 per cent of the divorcing population’ go straight to a lawyer, often latching on to them ‘as a white knight’, despite legal aid having been available for mediation for ten years. ‘In mediation you can deal with all the emotions as well as the practicalities,’ she said. ‘It should be mediation first with a lawyer coming along later to look after the respective interests of individuals.’

Suzy also asked if there was a two-tier system with a superior level of service available for those private-paying, well-heeled clients and a lesser service for the legally-aided, full-time mums. David Emmerson of Resolution pointed out the contrast between the City divorce lawyer charging £400 an hour and the legal aid firm making £50 an hour.

Nicholas Longford insisted that his firm tried to give legally-aided clients the same level of service (‘they get more work done than paid for under the scheme’). ‘There’s a difficulty in that the government and the Legal Services Commission espouse a one-tier system verbally,’ he said. But the way that they ‘handle it, pay the lawyers and try to convince firms that the lowest level staff should be doing the work’ creates ‘a two-tier service’.

Criminal BVT U-turn

In the face of overwhelming opposition from LAG and others, including practitioners, the government has announced today that it will not be going ahead with its plans to roll out criminal best value tendering (BVT). LAG believes it would have been a disaster if it had stuck to its original plan of introducing BVT for work in police stations and magistrates’ courts across the country by January 2011. Instead, it has decided to evaluate the two pilots in Greater Manchester and Avon & Somerset due to commence in July next year before making a final decision. At the earliest any roll out would begin in 2013.

The Legal Services Commission (LSC) has also decided that practitioners will be able to undertake own-client work outside the police station areas they are contracted for. A tolerance of ten per cent of their total work will be introduced to cover this. This represents an important concession as practitioners had argued that not to allow own-client work outside the police station areas they are contracted for would hit practices hard and lead to an inefficient service. The LSC has also announced its intention to be more flexible on the number of providers it will contract with in an area.

Apart from the two pilot areas of Greater Manchester and Avon & Somerset, practitioners will be asked to apply for new contracts in July next year. The LSC will be using an online system for providers to apply for the new contracts. Practitioners in the pilot areas will be asked to bid using an online bidding process. The fear is that practitioners will put in suicide bids to secure the work and this could lead to the collapse of some firms.

In LAG’s view, the government's mistake was in believing that BVT was a magic bullet that could be introduced relatively painlessly to cut costs. LAG believes that the government pushed hard for the quick introduction of BVT, but had to cave in when it realised that it could result in the meltdown of the supplier base. LAG recognises that there are few alternatives to controlling costs in legal aid work apart from price-setting through fixed and graduated fees or price competition. The government and LSC need to set fair, sustainable prices for legal aid work; the alternative of cutting back what legal aid will pay for is unacceptable as it chokes off access to justice for the public.

Criminal BVT despair

On 15 July, the All Party Parliamentary Group on Legal Aid heard evidence from legal aid practitioners near despair at the government’s plans for best value tendering (BVT) for police station and magistrates' court work. The committee, which is chaired by London MP Karen Buck, plans to push for an adjournment debate in the autumn, but this will probably be too late for Greater Manchester and Avon and Somerset which have been selected as pilot areas due to start in April next year.

Tony Edwards (TV Edwards LLP, London) won the outstanding achievement award at the Legal Aid Lawyer of the Year awards in December 2008 in recognition of his distinguished career in criminal legal aid. He also sat on the Legal Services Commission board for seven years and drove the quality agenda on criminal legal aid. His criticism of the potential impact of BVT on quality is therefore particularly compelling. In his view BVT as it is proposed is 'all about price competition and this will drive down quality'. Edwards pointed out that in his firm he has a supervisors to junior staff ratio of 2:1 whereas the proposal under BVT would allow up to 1:4. 'To compete on these terms my firm would have to change this by a factor of eight.' He went on to describe how most practitioners build their businesses on own client work which in itself is a method of quality control as clients return to or recommend a solicitor only if s/he does a good job. As the BVT proposals are currently drafted clients would be only able to choose a solicitor in the police station area in which they are arrested.

Another heavyweight of the criminal practitioner’s world, Rodney Warren, also gave evidence. Warren talked about 'the different world' of undertaking criminal legal aid work in the early 1980s before the introduction of the Police and Criminal Evidence Act (PACE) 1984. He fears that for firms to compete in a BVT system they will have to cut corners leading to miscarriages of justice. Edwards said: ' … it troubles me the amount of police officers younger than I and the even younger Ministry of Justice civil servants who try to argue that times have changed from the pre-PACE days'. He went on to tell the group about a recent experience when he attended a police station. 'A detective sergeant was attempting to bully a 16 year old into confessing to a robbery he was not guilty of. This had to be challenged and I doubt if it was not for my age and experience the sergeant would have backed down.'

Some informed opinion believes that the general roll-out of BVT will not happen as it straddles the general election and any incoming government will want to take stock before proceeding. Edwards believes a market mechanism might control the price of the work but what is proposed could 'destroy the very best firms'. A re-evaluation of BVT then would seem to be the best way forward.

Bar behind the times?

On 2 July 2009, the Law Society Gazette reported with a slightly triumphant note that solicitors had gained the 'upper hand' over barristers as 61 solicitors firms had established legal disciplinary practices (LDPs). In contrast members of the Bar were unable to take advantage of the new arrangements as their regulator, the Bar Standards Board, had yet to finalise rules on allowing barristers to enter into partnerships. With multi-disciplinary practices - in which lawyers do not have to be in the majority - due to go live in 2011 it would seem the Bar might be left behind in the new world of legal services ushered in by the Legal Services Act 2007.

At the heart of the Bar's dilemma is its tradition of self-employment which it argues preserves independence and helps prevent conflicts of interest. Some believe that moving to allow barristers to join the new legal entities with solicitors and others would undermine this. But large numbers of barristers work as in-house lawyers and the tradition of self-employment was established in times when there were far fewer lawyers and therefore greater dangers of conflicts of interest. The legal services world is now also a multinational one, with most other jurisdictions not following the model of self-employed advocates.

Pressure for changes to the Bar’s code of conduct have been external, but are increasingly coming from within the Bar itself. Some members of the Bar might argue that not allowing them to join the new legal entities is restraint of trade and could take legal action against their own professional body. Economic necessity might force them to do so. Outside the higher echelons of the Bar, newly qualified and junior members are facing harsh economic times. The twin pressures of market forces and legal aid reform could be very damaging to the Bar.

Increasingly the Bar will be competing with solicitor-advocates and other in-house advocates. The Bar, especially at junior levels, is much more dependent on income from legal aid than solicitors. While it might be able to delay changes to legal aid such as the differences in pay rates for family work, the trend will continue to be that more advocacy work is undertaken in-house and, aside from very specialised work, is subject to greater competition on price both in the public and private sectors.

LAG believes that there is a need in our legal system for a specialist advocacy branch of the legal profession, but fears that without reform the Bar is in danger of diminishing to a rump of highly specialised niche practitioners. If this is to be prevented the rules need to be reformed to accommodate employed barristers or those who wish to join partnerships and other commercial vehicles.

In the longer term a fused profession of lawyers needs to be established with flexible entry and routes to qualification. This would increase diversity and the pool of talent from which to select the future of the profession. The role for the Bar would continue to be to train a unified specialist advocacy branch of the profession, rather like surgeons in the medical profession. For this to happen though there needs to be unity among the branches of the legal profession about this vision for the future; talk of gaining the 'upper hand' over another branch of the profession will not help.

LSC a bit more civil?

On 30 June 2009, the Legal Services Commission (LSC) announced its plans for civil law contracts. In contrast to criminal legal aid which is facing best value tendering (BVT) for police station and magistrates' court work, the plans for the next round of civil contracts due to start in April 2010 are less controversial. Crucial details though are missing from the consultation paper (Civil bid rounds for 2010 contracts: A consultation response) making the announcement and some firms and not-for-profit (NFP) organisations are still likely to lose out. Also, the threat of BVT for civil work still looms.

Civil bid rounds for 2010 contracts deals with the vexed question of providing services in all five areas of social welfare law. In a welcome move the LSC has backed off from insisting that it contracts only with single legal entities, but will allow solicitors and NFP agencies to form consortia with linked contracts to bid for work. Stand-alone contracts in housing will not be allowed and this will hit some specialist firms and NFPs. They can link, though, with another organisation undertaking welfare benefits and debt work. Housing firms also have the option of providing family work as well so that they can contract with the LSC.

The LSC is splitting the country into 134 procurement areas which will be designated as 'A' and 'B' areas. LAG understands that 'A' areas will tend to be relatively well-served, urban areas in which the LSC will expect contracting organisations to have integrated services. In a move that will cause problems for some firms, those undertaking family work in 'A' areas will have to provide both public law children and other family law services to qualify for a contract.

The LSC was also vague on how it would select between organisations if there were too many bids for a bundle of matter starts. Organisations’ financial status and capacity to undertake the work if they are granted the case starts seem certain to figure. Vacant case-worker posts at the time of bidding are likely to be frowned upon. Fuller details of the selection criteria will be given in September when the details of the bids are published.

Another unresolved issue is whether or not the LSC will seek to pilot BVT for civil work in the near future. It has left itself the option of announcing two or three pilot areas this September. Suppliers in these areas would only get a short-term contract prior to the process of allocating legal help work being open to BVT. The LSC seems cool on piloting civil BVT - perhaps it has too much on its plate with criminal BVT? LAG believes that the decision to go ahead or not rests ultimately with the government.

No win, no fee to end?

Much of the legal press picked up on the Conservative Shadow Justice Secretary Dominic Grieve’s comment at LAG’s ‘Legal aid at 60: bridging the justice gap’ conference earlier this month that if elected next May the Conservative party would decide to roll out best value tendering for police station and magistrates’ court work or ‘abandon it completely’. Less well reported were his comments on no-win, no-fee arrangements (NWNFA).

Grieve admitted that the Conservatives had first permitted such arrangements, but said that Labour’s Access to Justice Act 1999, which replaced personal injury in legal aid with no win, no fee ‘seriously went off the rails’. In a response to a question from solicitor Simon Foster about what the Conservatives would do about NWNFA if elected, Grieve said, ‘If I could see a way of removing no-win, no-fee agreements and introducing a contingency fund I would do it. I believe no win, no fee is a flawed system which has a gentle corrupting influence on the legal profession’.

In the last ten years there has been a large growth in personal injury cases funded in this way and to an extent they have succeeded in allowing many people who otherwise could not afford it to pursue their claims; but at a cost. Unregulated claims assessors were siphoning up to 20 per cent of a client’s compensation and there has been much complaint about shoddy work. The courts eventually ruled on the issue of the amounts the claims companies could charge and claims management regulation came into force in April 2007.

While it would seem then that the problems with claims companies have been largely resolved, the point remains that lawyers have a stake in the outcome of cases, leaving many clients without representation as their cases have merit but are either too complex or too risky to take on. Clients also might be advised to take settlements as lawyers do not want to risk losing in court. Grieve’s solution is a contingent legal aid fund (CLAF) and this is supported by the Bar Council and Citizens Advice, among others. Such a fund would be paid for by charging application fees and taking a percentage from the winnings in successful cases.

LAG has warned that such a system could not co-exist with NWNFA, as lawyers would cream off the better cases leaving those with less chance of success for the CLAF. It would seem Grieve believes this as well. The question is if he takes the reins of power next year at the Ministry of Justice does he have the determination to drive through the abolition of the current arrangements and replace them with a CLAF?

Proper evaluation of BVT 'vital' says Tory shadow

An All Party Parliamentary Group on Legal Aid was launched at a meeting in the House of Commons last Tuesday (2nd June). A packed meeting was chaired by Karen Buck MP who will also chair the group which aims 'to promote parliamentary and public understanding of the importance of the role of publicly-funded legal services as a pillar of the welfare state and in reducing inequalities in society'.

Legal aid minister Lord Bach spoke at the meeting. Welcoming the establishment of the group, he said it would 'promote understanding of legal aid within parliament' but he warned that 'the legal aid system has got to be sustainable and help as many people as possible. This involves tough choices if we are to keep legal aid within budget'. This comment seemed to be aimed more at his shadow minister, Henry Bellingham MP who was sitting by him, than at the audience which was composed mainly of legal aid lawyers angry at government cut backs. Bach also reiterated his message about 'rebalancing money towards social welfare law as the legal aid system should be there for the people at the bottom of the pile. I don’t think it is practical to ask to double the budget'.

Roy Morgan, chairperson of the Legal Aid Practitioners Group (LAPG), argued that the move to reduce face to face advice in police stations would lead to miscarriages of justice. Morgan echoed the concerns of many in the room about best value tendering (BVT) for police station and magistrates' court work when he said: 'Why is this reform necessary now? Why not, as promised, have a pilot followed by an evaluation? Instead of just evaluating the tender process?' Interestingly, Morgan seemed conciliatory in tone towards Lord Bach, saying he believed he was listening to practitioners' concerns but the Legal Services Commission (LSC) was not.

Bellingham had said in his speech: 'It is vital that BVT has a proper evaluation.' Clearly then, the pressure is on the government from all sides to think again on BVT or at least carry out a proper evaluation before rolling it out. LAG’s conference next Thursday (11th June) will give an opportunity to question Lord Bach again and to hear from Shadow Justice Secretary Dominic Grieve about the Conservative party’s plans for legal aid (see:LAG's website for more information on the conference).

There were many good contributions from the floor at the meeting from practitioners including Kat Craig from Young Legal Aid Lawyers (YLAL) who complained about there being 'so little to show for answering every consultation from the LSC'. In her view 'the current system does not allow for quality work'. Many speakers also paid tribute to the work of LAPG and YLAL in establishing the group.

LAG believes the group will act as an important conduit for informing MPs about developments in the legal aid world. LAPG and YLAL deserve much praise for getting the initiative off the ground as does Karen Buck MP, who is a great campaigner on access to justice issues in parliament. We’d warn, though, that the group will lose any influence if it is perceived to be dominated by practitioners and their worries about the impact of legal aid changes on their incomes, instead of focusing on the concerns of clients.

Reports from the audit trail … Number 3

On a wet Friday night last month some 200 residents of Peacehaven, a few miles down the south coast from Brighton and Hove, met at the Meridian Centre. They were in the community hall to hear an update on a last-ditch legal attempt to block the development of a controversial £300 million waste treatment plant.

According to John Hodgson, who leads a protest group known collectively as PROUD (or Peacehaven Residents Opposed to Urban Development), the site is going to be ‘the size of 17 football pitches’. ‘It is an industrial process and we don’t want it,’ he says. The plan is for the treatment plant to be sited in his town and on the edge of the South Downs, recently designated a national park. Southern Water expects it to handle 95 million litres of waste generated by 250,000 people every day, most of whom live in Brighton. The plan also includes a proposal for an 11km tunnel, eight feet in diameter, running from Brighton to the new site and passing directly under Peacehaven homes. ‘There is a burning resentment that the city of Brighton and Hove is literally tipping its rubbish over its neighbour’s wall,’ says Hodgson.

You can see a video-film about their fight – inelegantly dubbed ‘the battle of Poohaven’ by the Brighton Argus – as part of the Guardian’s 'Justice gap' series which is based on LAG's Access to Justice Audit (see:www.guardian.co.uk/money/series/the-justice-gap). Unfortunately (at least as far as those residents of Peacehaven are concerned), their attempt to challenge the development after a five-year campaign failed shortly after the film was shot. The High Court last month refused to grant them permission to judicially review East Sussex County Council’s decision to allow Southern Water to develop the site. The residents’ legal fight was backed by legal aid (although they had to pay a £5,000 contribution) but it was the threat of legal costs that prevented them challenging that refusal. ‘Our lawyers advised us there was no more legal aid available - so if we’d lost we would face the costs,’ Hodgson said later. ‘And they could have been as much as £50,000. We couldn’t afford that.’

Whether you characterise the actions of Peacehaven residents as NIMBYism (as some Guardian bloggers have) or not, the role of public funding in allowing locals to challenge the seemingly unstoppable combined might of ministers and developers urgently needs to be examined. It is not an area of our cash-strapped legal aid system that has been looked at despite a widespread concern about the lack of local accountability in the planning system. If the planning system fails communities, they are led to believe that there are always the courts. It is not as simple as that.

Even if campaigners are supported by legal aid – and that is a big ‘if’ - legal costs are routinely deployed to silence them. The High Court judge Mr Justice Sullivan, in his 2008 report Ensuring access to environmental justice in England and Wales, found that only the ‘very rich or the very poor’ could afford to fight environmental schemes – no news to environmental law specialists and campaigning groups such as Friends of the Earth.

Away from the as yet unspoilt rolling hills of the South Downs to the banks of the Mersey … the next stop on the audit trail was the North Liverpool Community Justice Centre situated in a housing estate in Vauxhall.

Do you remember those misty-eyed plans of New Labour to create ‘community justice’ courts in which judges engage directly with offenders, taking charge of their rehabilitation? The Liverpool project was based on the Red Hook Community Justice Center in New York and opened with some fanfare over four years ago. It cost £5.2 million to establish the pilot justice centre plus £1.8 million a year running costs.

On the day of my visit, Judge Fletcher explains how his court deals with the offending behaviour of his clientele, ranging from the 47-year-old chronic alcoholic ‘in his 32nd year of offending’, arrested for shoplifting £2 worth of ham, to the 15-year-old who has been before his court 30 times for anti-social behaviour offences. ‘The idea is based upon the judge being much more proactive and having a much greater say in a way that sentences are carried out as opposed to the judge just being the sentencer, just applying the law,’ he explains.

Crucial to the Community Justice Centre model was a single judge monitoring the progress of offenders, with onsite agencies so that offenders can be referred immediately to professionals who can deal with their addictions and housing problems – as well as involving the local community, seeking its views on particular problems and on appropriate punishment. The court has been a test bed for new approaches such as the Criminal Justice Act 2003 s178 which has given Judge Fletcher power to review community orders.

Judge Fletcher has been outspoken in support of what he calls ‘therapeutic jurisprudence’, talking about the value of the judge as ‘social worker’. ‘It is about trying to satisfy the public demand for a just result but at the same time doing that in a way which is actually responding to what the public really wants,’ he says. ‘That is not for the offender to be locked up for the rest of his life but it is that the man stops offending.’

Unfortunately, plans for future justice centres appear to have been quietly dropped. Apparently, they are a luxury we cannot afford. Tucked away in the recent green paper Engaging communities in criminal justice, ministers have ruled out future centres ‘in light of the costs involved’. The paper talks of other models, based on existing magistrates' courts, involving multi-agency working and ‘virtual problem-solving teams’. Whether ‘community justice’ will mean anything more than disaffected youths being forced to clear up blighted parks in high visibility with ‘community payback’ stamped on their backs, remains to be seen.

Criminal commotion

Criminal legal aid solicitors met in London last week to discuss the impending introduction of best value tendering (BVT) by the Legal Services Commission (LSC). In her opening speech, Joy Merriam, chair of the Criminal Law Solicitors Association, painted a grim picture warning that up to 80 per cent of firms might face closure.

Merriam talked about her own experience of closing her firm saying, 'It felt like a divorce'. With redundancy payments, run off insurance and other costs, she said the bill for winding up her practice came to £100,000. She feared that due to tighter LSC rules on payments many firms would be without cash to close properly. She pledged they would, 'Fight the introduction of best value tendering and we have the heart and belly to take on that fight'.

Legal aid minister Lord Bach addressed the conference after Merriam. Bach’s speech started with some pleasantries linked to the 60th anniversary of legal aid, but he moved on to say that, 'No other field of government expenditure has grown as much as legal aid. We have to face the fact total expenditure is not going up. Don’t believe any promises from the opposition'. This drew the first of many heckles from the hostile audience, 'We don’t believe them and we don’t believe you'. Bach argued that they had to identify the priorities for expenditure on legal aid and said, '… in a recession I want to protect social welfare law expenditure'.

The conference also heard speeches from LSC chair, Sir Bill Callaghan, defending BVT and Des Hudson, chief executive of the Law Society, who was critical of the proposals. Hudson believed the government and LSC had reneged on a promise made by the former chair of the LSC, Sir Michael Bichard, to evaluate the BVT pilots fully prior to any general roll out. In a question and answer session Callaghan answered this point. Citing the recession he said, 'Times have changed since Sir Michael made his comments'.

While a few months ago the public position among all practitioners was hostile to BVT, off the record some would say they were relaxed about the proposals believing their firm would win. Since the publication of the document setting out the LSC’s proposals for implementing the scheme the view of practitioners in public and private has shifted decisively against BVT. Many cannot get to grips with the complex bidding process proposed. There is also bitter resentment that the Bar got a deal on very high cost cases by using a boycott, while in contrast many solicitors now face a Hobson’s choice of risking a 'suicide bid' to keep police station and magistrates' court work or pull out at a time when the recession is making it difficult to switch into other areas of law.

LAG fears a chaotic scramble to make bids followed by recriminations and litigation, which will impact on services leading to miscarriages of justice. A pause to properly evaluate the pilot schemes before rushing to implement BVT across the country would seem to be the only sensible option.

Tesco Law for social welfare law?

The Legal Services Board is keen to press ahead with plans to licence the first alternative business structures (ABSs) by 2011. ABSs will allow lawyers and other professionals to work together (in perfect harmony no doubt) in providing legal and other services. The legal profession gets worried about the prospect of the 'Tesco Law' scenario, big firms using their branding and marketing clout to monopolise personal injury and other work. The Co-op has already dipped its toe in the legal services market as it provides will writing and other services to its membership.

The reality of modern life is that people are more likely to be made aware of the need to write a will, for example, by picking up information at their supermarket or increasingly their supermarket website, than they are by calling into their high street solicitor's office. Provided conflicts of interest are regulated against and the quality and independence of advice is not compromised, access to legal services should be improved by the ABS model. Also, the experience of opening the conveyancing market showed that increased competition in legal services does drive down prices, which is always one of the main barriers to access to justice.

What LAG fears though is that ABSs will just become another way of delivering legal services in the profitable areas of law which lend themselves well to a commoditised bulk processing - conveyencing (at least pre-credit crunch) and personal injury being the obvious examples. Poor people, who need legal advice on benefits, housing and other social welfare matters, are not so profitable and providing services to them might not sit so easily with a company’s image. LAG also has a sneaking fear that such businesses might not be so keen on promoting employment and other rights if this would compromise their core business.

Nevertheless ABSs do present an opportunity. It would help access to justice immensely if supermarkets and other businesses with high public recognition could act as a conduit for accessing legal advice for people facing housing, debt and other common legal problems. Perhaps it is time for some creative thinking - in the future could we see a large legal aid firm or Citizens Advice Bureau forming an ABS with Asda to provide social welfare law services paid for by legal aid?

Reports from the audit trail … Number 2

Until January, Tracy and her husband Melvyn lived with their five kids at their family home near Derby. The home was repossessed that month on two weeks’ notice and the family offered emergency housing by the council to avoid them becoming homeless. Instead, friends stepped in. ‘At that time I was a wreck. I couldn’t cope with crowds and I didn’t want to go out. My safe haven had been taken away,’ Tracy recalls.

Tracy and Melvyn, together with their three youngest, stayed at a neighbours’ house. ‘We slept on the floor and the three boys shared a double bed with his son,’ she says. Her two eldest kids were accommodated elsewhere, one with Tracy’s sister and the other with a close friend.

I met Tracy at Derbyshire Housing Aid in March where adviser, Gavin Isham, had been sorting her family’s debt and housing problems over the last few months. ‘We came down here to get some advice and soon realised that we were going to lose the house,’ Tracy relates. ‘There was no way out of it. We’d struggled for two years on our own.’ The family’s financial problems began when her husband lost his job a couple of years ago. They were eventually forced out of their home after a lender who provided a consolidation loan of £30,000 pursued possession proceedings. Up until that point they hadn’t defaulted on their mortgage.

When Tracy comes into Derbyshire Housing Aid she has good news. The family has been given a four-bedroom council house. ‘Getting rehoused was a complete nightmare. If it hadn’t been for Gavin I don’t know what we would have done,’ she says. ‘You have to bid for your home – meanwhile my family were living all over the place.’ The lawyer also represented them in court.

Derbyshire Housing Aid is part of the Derby CLAC, or Community Legal Advice Centre. The new service, which won the tender in a straight competition with the Sheffield-based company A4e, has 38 paid staff and comprises Derby Citizens Advice and Law Centre, Derbyshire Housing Aid as well as two solicitors’ firms, the Smith Partnership and Moody & Woolley. Some 7,522 people have come to the CLAC in its first nine months and 82 per cent come from ‘priority groups’ – in other words, the unemployed, low income, black and minority ethnic groups, victims of violence etc ….

Derby CLAC is feeling the full impact of the so-called credit crunch. Under its contract with the Legal Services Commission, it is required to see clients needing specialist advice within two weeks. However, such is demand, the queue for debt work has stretched to four weeks. At Derbyshire Housing Aid, which runs the duty scheme at the local county court, four out of ten clients face possession orders. It reckons that in a three-month period ending in January, some 390 people were at risking of losing their homes. It is a 78 per cent increase on the previous year.
Chris Pass, Derby CLAC’s manager, reckons that this new-style CLAC has been well received. ‘People seem to like the fact that everything is in one place,’ he says. ‘We get a lot of people with multiple problems. If you have employment problems and you have been made redundant, then you are going to potentially have debt problems, housing problems etc. Hopefully by capturing things a bit earlier we can actually alleviate problems more quickly.’

It’s a sentiment echoed by Jude Simmons, head of community work at Community Links when I visit a couple of weeks later. Community Links is an innovative charity in Newham, East London, and in many ways is a proto-CLAC offering a wide range of advice services (although it doesn’t have employment or family contracts). ‘People don’t come to us and say that they have a letter from their creditors saying they owe them £8,000 - can we sort it out?,’ reckons Jude Simmons. ‘Often we cannot understand what they are talking about when they first come in. They don’t speak English, have mental health problems and nearly always lead really chaotic lives.’ Nearly always? ‘Yes, nearly always,’ she says.

In 2008 some 17,000 came to Community Links for help. As Simmons puts it, there is ‘a huge churn of people’ in an area where some 106 different languages are spoken. Newham is the ‘first port of call’ for many, Simmons says. ‘As soon as people make anything of themselves they move out further down the railway track to Barking and Dagenham and further away.’

How are these two very different services coping with fixed fees? Chris Pass reports that the jury is out. For example, he explains that in welfare rights, where the fixed fee is about £220 per case, the average case runs at about £180. But there are ongoing cases which are ‘basically running to about £400 … not that many but they pull the average to £220 or higher’.

In other words, there’s not much, if any, margin for comfort. Unsurprisingly, for Community Links, with its demanding clientele, the introduction of fixed fees creates a difficult business model. It is hard to make them work, explains Simmons, because ‘if we used to get paid £58 an hour and now we’re getting paid £200 a case, cases should be running at about three and a half hours. Often we haven’t really unravelled what clients want at that stage because they don’t even know what their problem is.’

But as Simmons says: ‘We have to make this work though because there are 40 people queuing outside every day. If we do not help them nobody else can.’ By the time I arrived at Community Links at 8.30am last month a long line of prospective clients was already there. Community Links reckons that eight out of ten people that wait outside are eligible for legal aid. However half won’t have the correct paper work and so have to queue again.

Last autumn students conducted a research project interviewing those waiting. The results were surprising. Apparently, people didn’t complain about the length of the wait, or having to suffer the cold outside or even the lack of privacy in giving personal details at a crowded reception. ‘They wanted magazines, toys for the children, and space for the buggies,’ reports Simmons. ‘People are in such need that they are prepared to wait all day.’

Poorer areas miss out on extra legal aid cash

LAG has published an analysis of the Legal Services Commission’s (LSC’s) distribution of an extra £10 million for help with civil law problems (see: www.lag.org.uk/Templates/Internal.asp?NodeID=92925). The figures show that many of the poorest areas in the country missed out on the cash for more cases that was supposed to counter the impact of the recession.

Liverpool, the east London boroughs of Hackney and Tower Hamlets, Manchester and Knowsley are the top five most deprived areas according to government statistics and none of them received money for extra matter starts, to use the jargon, for debt, welfare benefits and other social welfare law work. In contrast solicitors and not-for-profit agencies such as Citizens Advice Bureaux (CABx), in three out of the five most prosperous areas, West Berkshire, Surrey and Rutland were all invited to apply for the extra money. Out of the top 20 most deprived areas only three received more cash while 15 from the 20 most prosperous areas did. Overall the figures show 20 per cent of the most deprived areas got only 23 per cent of the cash, while 20 per cent of the least deprived areas got 73 per cent of the cash.

The £10 million was allocated to matter starts in both family and social welfare law in the last six months of last year by the LSC. The LSC argues that the explanation for the seemingly unfair distribution of the money is due to its ‘indicative spend formula’ which it says seeks to rectify the uneven pattern of spending across the country.

We do not know if the indicative spend formula is fair as it has not been piloted or independently verified. Even if it had been, these figures still illustrate the bizarre postcode lottery that operates in allocating legal aid funds. The recession is hitting these areas the hardest. This is illustrated by the unemployment figures which show that it is the poorest areas that are losing the most jobs. It would seem that they are also missing out on the extra legal aid needed to tackle the problems unemployment brings in its wake.

One of the main issues with legal aid services is that the pattern of provision was largely set over the last 30 years by firms choosing to set up practices, not surprisingly, where there was sufficient concentration of clients to make their businesses viable, which tended to mean urban areas. As far as not-for-profit provision goes, well-funded CABx, Law Centres® and other advice agencies tend to be sited in the same areas, those with large local authorities which have the cash to spend on advice services. When such services are available clients pursue their legal rights, but demand often outstrips supply, as the full waiting rooms of many advice agencies and solicitors illustrate.

Recent comments from the minister for legal aid, Lord Bach, indicate that the government now recognises that these services have been chronically under-funded over the years and do not cover every part of the country. The question LAG asks is does the government have the political will to establish a rational system of planning based on client needs and is it willing to find the necessary injection of cash to ensure that all of the country is covered by an adequate level of services?

Back to the 80s

'Life on Mars' tells the story of Sam Tyler, a detective transported back in time to 1973. The imaginative TV series which has since been remade in the US portrays Tyler’s shock at the 'beat ‘em up, ask questions later' approach of 70s policing. Of course the series is fictional, but nonetheless there were serious flaws in policing methods in this period, especially in the questioning of suspects in police stations which led to many miscarriages of justice. The Guildford Four and Birmingham Six were perhaps the most notorious cases in which 'confessions' extracted in police stations by dubious means were used to convict innocent men. The government is now hinting that due to a looming budget crisis in the legal aid system it is going to water down the reforms that were brought in by the Conservatives in the mid-80s to prevent the abuse of police powers.

Last month, the government published its plans for tendering police station and magistrates' court work, a move much criticised by practitioners. By its own admission, the Legal Services Commission (LSC), which administers legal aid, says that the tendering of the services is 'not about saving money'. As well as begging the question, 'why bother then?', the fact that the tenders are unlikely to save any cash is deeply concerning for the future of civil liberties as the government looks set to resort to desperate measures to control the legal aid budget.

In a document outlining the move to tenders the LSC admitted that the Ministry of Justice (MoJ) needed to find £1 billion in cuts from its £10 billion budget and had been considering cut backs in police station work as a contribution to this. It appears that the proposal under serious consideration at the MoJ is to reduce legal advice in police stations to telephone advice for all but the most serious offences such as rape, murder or terrorism. Everyone else accused of a crime will have to pay if they want to see a solicitor.

It is argued by some that civil liberties can be adequately protected by recording on camera all interviews and all a suspect's movements in a police station. LAG believes they would not be protected as in our adversarial legal system the trial effectively starts in a police station and to ensure a fair trial independent representation is essential. What is in danger of happening is the right to legal advice in the police station being undermined as a panic move to save cash and this risks turning the civil liberties clock back to the mid-80s with no public debate.

Reports from the audit trail ... by Jon Robins

Welcome to the Access to Justice Audit. This is the first in a series of regular blogs reporting on LAG’s new project. You can read more about the audit at www.lag.org.uk/justiceaudit. The big idea is to talk to the 'users' of legal services - in other words, your clients or those people unlucky enough to fall through the cracks and have little or no access to legal advice. We want to talk to ordinary people about their experiences of the legal system.

Huge amounts of energy and passion have been spent in recent years arguing over the best ways to reform legal aid and secure access to justice. Perhaps, from a practitioner's point of view, that has been something of an exercise in futility. We shall not dwell on Jack Straw’s recent comments on how it might be 'wise to reconsider' pay expectations.

LAG takes the view that the client voice hasn’t been heard enough in the debate. This project seeks to provide a platform for ordinary people to have their say.

The Access to Justice Audit is also a year in the life of the civil justice system. As you probably won’t need reminding, 2009 is the 60th anniversary of legal aid. It is also the year when increasing numbers of casualties of our failing economy will need effective help as they lose jobs and homes. The courts are where the victims of the credit crunch meet the unsympathetic forces of officialdom.

Is our system of publicly-funded law up to the challenge?

That’s what we want to find out. Over the last few weeks LAG has hit the road. You can check out a film about my visit to Dover talking to homeowners facing repossession action and Citizens Advice Bureaux (CAB) advisers (www.guardian.co.uk/money/2009/mar/11/legal-aid-justice-gap). The Guardian has launched a series based on the audit which will feature films, podcasts and articles. The first film features an interview with Jacqui O’Carroll, legal services manager at Shepway CAB. The last time LAG spoke to Jacqui (May 2008 Legal Action 7) the credit crunch was taking its grip. She vividly described what was at stake on repossessions day at the local county court where she runs the advice desk (‘Homeowners arrive unsure of what’s going on, totally ill-informed, and prepared to lose their home because they think there’s no alternative …’).

At that point, the Legal Services Commission (LSC) funded 94 advice services out of a total of 230 county courts. LAG campaigned for proper access to advice in every court. We argued that it was absolutely critical that homeowners received proper independent advice when it appeared that many were unnecessarily losing their homes because of ignorance of their legal rights, and often when they were being misled by lenders. If legal aid should do anything, surely it should do that?

The LSC now tells us that there is a housing advice desk for every repossession hearing. According to the stats, some 150,000 homeowners faced repossession hearings last year. The LSC claims that in the last six months of 2008 22,658 homeowners were advised by such services in court before possession hearings. An impressive response (never let it be said that LAG doesn’t give credit where it’s due …).

The first stop on the audit trail last month was the National Debtline (NDL) call centre in Birmingham. For many it’s the frontline of the credit crunch. The service is outside of legal aid; funding is split between the government and the credit industry. Advisers reckon the average level of debt is about £30,000 spread over credit cards. It takes a lot to shock them. They took one call from an independent financial adviser owing £255,000 on credit cards with his wife. The NDL offers what it calls ‘assisted self-help’ to callers. Their relief as they realise there are ways of dealing with debt is a powerful reminder about the effectiveness of telephone advice.

But it only goes so far. How does the NDL go about meeting demand? Paul Mullins, the charity's chief executive, reports that currently about 1,600 people a day try to get through. ‘We are currently staffed to answer about 800,’ he reports.

What about demand for face-to-face services? A few days ago I was at Community Links, an innovative charity in Newham, East London, which runs a big advice service. By the time I arrived at 8.30am there was already a queue of 40 people waiting for help. It would have been fascinating to see Jack Straw explain to them that they shouldn’t ‘confuse’ access to justice with ‘physical proximity’ to advice services as he did at the London School of Economics the other week.

The next blog will feature a report on Community Links as well as the new Derby Community Legal Advice Centre.

If you want to take part in the Access to Justice Audit, please e-mail: jrobins@lag.org.uk.

Making advice 'sexy'?

Citizens Advice held its social policy law conference this month in London. The theme of the conference was 'Tackling poverty - taking action now', but one of the undercurrents in the conference was the controversy over Community Legal Advice Centres (CLACs)- the Legal Services Commission's tenders designed to tackle clusters of problems or to undermine the not-for-profit (NFP) sector depending on your point of view.

Guest speaker Lisa Harker, co-director of the Institute of Public Policy Research, asserted that '[Citizens Advice Bureaux (CABx)] were one stop shops before the government started thinking about one stop shops.' Perhaps she was trying to stir up some controversy as the founder and chairperson of A4e, Emma Harrison, was also a speaker.

A4e was established in 1986 by Harrison in Sheffield to provide employment training to the unemployed. The now internationally successful company recently won the tender to run the Hull CLAC at the expense of Hull CAB. Harrison deftly avoided any discussion of CLACs by saying that she did not want to be drawn into a discussion on running advice services as 'much smarter people than I work on that'. Her main message seemed to be that A4e wanted to make it 'a cool thing to seek advice, glamorous, even sexy'. She said: 'Too often people see advice as a last resort rather than a first port of call.'

In a bout of what may be described as CLAC shadow boxing, Teresa Perchard, director of public policy at Citizens Advice, put questions to Harrison on 'persuading local councils to fund advice'. Harrison parried these by criticising the sector: 'I saw an advice centre the other day at which the first four people waiting outside were let in and the rest were sent away. Wrong, wrong, wrong.' Harrison also castigated centres for 'not even having nice chairs for people to sit on', adding that, 'the new advice centre in Hull will be the new way for advice to be offered'.

While delegates seemed annoyed by Harrison's comments, debate rightly swung back to the issue of poverty and the difficulties CABx clients are facing. Harrison's main experience is in employment training and so maybe the NFP advice world is a bit of a culture shock to her, but as for A4e making advice 'glamorous' or even 'sexy', it is hardly something you could accuse employment training of being. Harrison's story of only four people being let into an advice centre does have a ring of familiarity - such rationing of advice services is usually forced on providers through lack of resources rather than any lack of commitment to serving clients though. What would A4e do if the money is insufficient to provide a decent service or any new chairs for that matter, when the Hull CLAC is up for tender again?

Too often NFP advice services have proved their commitment to their clients by struggling on in such circumstances, not very good from a business point of view, but then people tend to work in advice services because they are motivated by more than just making a profit.