Friday, 31 July 2009

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’.

Monday, 20 July 2009

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.

Friday, 17 July 2009

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.

Monday, 13 July 2009

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.

Wednesday, 1 July 2009

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.