Thursday, 16 December 2010

Cuts debate in House of Commons

At a well attended adjournment debate in the House of Commons last Tuesday (14 December) Karen Buck MP expressed her fears about the impact of the government’s proposed legal aid cuts: 'People with disabilities are likely to be disproportionately affected. For example, 63 per cent of legally aided clients in the sphere of welfare benefits assistance are disabled.'

Buck, who is the Labour MP for Westminster North and the former chairperson of the All Party Parliamentary Group on Legal Aid, initiated the debate. Adjournment debates give MPs the opportunity to discuss important issues outside the normal business of parliament. In the debate Buck argued that the National Association of Citizens Advice Bureaux is worried that if legal aid for social welfare law goes, alternative sources of advice are not available for most clients.

Dr Julian Lewis, the Conservative MP for New Forest East, told his fellow MPs that his local Citizens Advice Bureau was afraid that cutbacks would lead to two part-time staff losing their jobs: 'It (the bureau) is wondering where its most vulnerable clients will go if that service is cut back in parallel with cutbacks in legal aid.' Buck welcomed his remarks and also quoted from case studies supplied to her by the Legal Aid Practitioners Group, including that of a father fearful that he will lose contact with his daughter as his former partner intends to move to New Zealand. 'Even in cases in which domestic violence is not an issue, without legal aid there are real dangers that individuals, particularly those who have difficulty in being sufficiently articulate or confident to navigate the courts system, will lose access to children,' said Buck.

Flintshire Citizens Advice Bureau is in danger of losing £170,000 which pays for the equivalent of five posts, according to Mark Tami, the Labour MP for Alyn and Deeside. He said the bureau 'deals with some of the most vulnerable people in our society, who are often the same people who end up coming to see Members of Parliament. It is a worry that cuts will devastate the area'. Stephen Lloyd, the Liberal Democrat MP for Eastbourne, believes advice charities in his constituency could lose funding of around £230,000-£250,000 per year which he said they use 'to support more than 1,500 of the town's most vulnerable residents with complex debt, benefit and housing problems'. He also fears that cuts in legal aid will reduce the number of solicitors firms in his constituency from the current nine to only two, meaning some of his constituents could face a 'round trip in excess of 50 miles' to get help.

Labour’s shadow justice minister Andy Slaughter spoke in the debate. He said that according to the government's own impact assessment of the proposed cuts, they would mean a 92 per cent cut in legal aid funding for the voluntary sector. Slaughter also said that the government is 'living in cloud cuckoo land' if it believes that people would be able to prepare their own appeals against decisions to turn them down for benefits: 'Some 40 per cent of cases going to incapacity benefit appeals are successful with no representation and 67 per cent are successful with representation.' He paid tribute to the former legal aid minister Lord Bach, arguing that while in office he had defended social welfare law in the legal aid system and that if Labour had remained in government it would have continued to protect it.

The Solicitor-General, Edward Garnier, replied to those at the debate for the government as the minister responsible for legal aid, Jonathan Djanogly, was unavailable to do so. Garnier acknowledged that 'in all our constituencies we find areas where there is a huge need for legal representation'. He stressed that while a constituency like his (Harborough) appears prosperous there is still a need for social welfare law advice and that there is the opportunity to express views about the proposals in what 'is a deliberately lengthy consultation process'. Garnier argued that 'to be in government is to have to make decisions and choices. The main factor that we have to address at the moment is the economic difficulties that the national budget faces'.

LAG is urging anyone concerned about the cuts in legal aid to join the Justice for All campaign (see previous blog). Please also write to your MPs and join the lobby of parliament planned for 12 January.

Picture- Justice for All Christmas card sent to MPs.

Friday, 10 December 2010

The end of the line for CLAS

One of the casualties of the government’s proposals on legal aid published last month will be the policy of establishing jointly funded advice services with local government. The last government, in conjunction with the Legal Services Commission (LSC), had aimed to establish dozens of such services, but since April 2007 only nine have got off the ground. Now called community legal advice services (CLAS), the recently opened one in Manchester has caused huge controversy as the two Law Centres in the city lost out to a bid led by the local Citizens Advice Bureau. As reported in previous blogs these Law Centres are now under threat of closure.

LAG has always been sceptical about the benefits of the CLAS policy in areas such as Manchester, which already had well established not-for-profit sector services and solicitors firms. The policy always looked like a case of change for change's sake with little to gain for the public. With the publication of the green paper on legal aid, the CLAS initiative now resembles the rearrangement of the deck chairs on the civil legal aid Titanic.

Large cuts in the scope of legal aid are planned to be introduced in October 2012. As a result, LAG understands that the government intends to pull the plug on those CLAS which have already been established. LAG believes those such as Leicester and Gateshead which have contracts due to run out before October 2012 should at least have their contracts extended to ensure they are in line with the rest of the country if the planned cuts in scope go ahead. Other CLAS, such as Manchester, which have contracts due to end after October 2012 present a different problem.

The government might choose to give notice to those CLAS with contracts set to end after the scope changes. This would lead to much bitterness among the local councils which entered the contracts with the LSC and government in good faith. The alternative would be to let the contracts run to their end date, which in the case of Manchester would be a full year after the planned withdrawal of legal aid for benefits, employment and other areas of civil law. Not much help to the Law Centres forced to close, but at least the residents of Manchester could console themselves with the thought, for a short while at least, that they would be receiving legal aid services which no-one else in the country was entitled to!

Image: South Manchester Law Centre

Wednesday, 1 December 2010

Justice for All

In a speech today (3 December), Steve Hynes, LAG's director, spoke to the National Association of Welfare Rights Advisers (NAWRA) of the 'crisis engulfing the civil legal advice world'. He believes that the proposed cuts to legal aid for housing, debt, welfare benefits, immigration and employment law cases will hit not for profit (NFP) agencies and their clients hard. NAWRA has many advisers in its membership who are employed in local government and the NFP sector. LAG believes that they need to tell ministers that local government cannot be expected to pick up the pieces if the government chooses to walk away from funding social welfare law advice and urges them to encourage the organisations they represent to respond to the government's consultation on legal aid.

LAG has joined with other organisations, including the trade union Unite, Citizens Advice and the Legal Aid Practitioners Group, to form the Justice for All campaign. The campaign will be officially launched in January. The Justice for All website is already up and running and LAG is encouraging organisations to sign up to support the campaign.

Read the full speech to NAWRA on LAG's website.

Monday, 22 November 2010

Civil law to suffer bulk of proposed legal aid cuts

The green paper on legal aid published last week outlines proposals on reductions in fees and in the scope of legal aid in order to make savings of around £350m. The bulk of the cuts, £279m, will fall on civil legal aid.

A telephone advice line is proposed to replace much of the service people currently get from civil legal aid providers. LAG supports the use of telephone services as they can be useful in dealing with many problems and in signposting people to face-to-face advice if they need it. Such services, though, cannot replace legal aid as the results of our recent opinion poll survey indicate that the poorest people are also least likely to use telephone and internet services. These people are therefore the most reliant on local face-to-face legal advice services.

If these proposed cuts are implemented, just under 550,000 less people will receive help with civil legal problems. The civil legal aid system helped just over 1 million people last year and so this cut represents a 50 per cent cut in civil legal aid services to the public. The Ministry of Justice (MoJ) is aiming to implement these cuts from October 2012. LAG understands that the proposed changes to legal aid will be included in legislation and that the first reading of an Act of Parliament to put this in place has been scheduled for spring 2011.

The cuts include taking out of the scope of the legal aid scheme welfare benefits, debt, employment, education and clinical negligence cases. It is proposed that housing law cases are cut back to include only homelessness and disrepair (non-damages). Divorce and private law children cases will be cut from scope saving £178m and the total saving from cutting non-family civil legal aid is around £100m. Around £900 million per year is currently spent on civil legal aid and so this represents just under a third of the budget.

The cuts fall disproportionately on the services which help people with the everyday problems of life such as debt and housing. Sixty-eight per cent of the civil legal help scheme which gives initial help and advice on legal problems is to be cut. Such deep cuts have not been proposed for any other public services.

The bulk of the cuts in non-family civil legal help will fall on the not for profit (NFP) sector. We estimate that out of a total cut of £64m in legal help, over £50m will be cut from local NFP providers such as Citizens Advice Bureaux and Law Centres. These organisations are already experiencing deep cuts from other branches of government. For example, £46m is due to be cut from the Financial Inclusion Fund next March and individual local councils, which fund 50-70 per cent of the costs of running these organisations in total, are also cutting back. For example, Hammersmith and Fulham London Borough Council recently cut £180,000 from its grant to the Law Centre in the borough.

In addition to the cuts in scope, the government intends to introduce a ten per cent reduction in fees in both criminal and civil cases. It has also announced its intention to introduce a competitive process for the allocation of legal aid work. A further consultation paper on introducing this for criminal work will be published next year. According to the green paper, a pilot of a competitive bid round for criminal legal aid work could commence in April 2012 and the government’s intention is to introduce a similar process for civil contracts sometime after 2013.

The MoJ has published a set of impact assessments on the proposals for legal aid. The paper on the impact of the scope changes shows that there would be a reduction in legal help cases of 502,000. The equalities impact assessment acknowledges the difficulties in breaking down the available data into gender, race and disability categories.

A green paper on Lord Justice Jackson’s recommendations on reform of the rules for funding civil litigation was published at the same time as the green paper on legal aid. Success fees and after the event insurance costs would no longer be recoverable from the losers. To compensate claimants, a ten per cent uplift in damages awards is proposed. LAG’s annual lecture next week is to be given by Lord Justice Jackson (see our website for full details).

The green papers are available to downoad at the MoJ website. Responses to the consultations have to be returned to the MoJ by noon on 14 February 2011. LAG is urging everyone with an interest in legal aid and access to justice to submit a response to the consultations.

Thursday, 11 November 2010

Legal aid green paper expected today

According to a story in the Times this morning, and other media sources, the green paper on the future of legal aid will be announced today (15 November) by the Ministry of Justice (MoJ). Included in the paper will be plans to cut at least £350m from the budget. It is believed that the paper will detail suggested cuts in police station advice, but with the bulk of the cuts falling on civil work. It would appear family legal aid for work related to divorce is in the government's sights, along with representation in immigration cases and medical negligence claims. It is not clear if any cut will fall on social welfare law (SWL), though this had been suggested as likely by some sources close to the government over the summer.

Social welfare law: what is fair?

At LAG's conference last Friday (12 November), we released the findings from a nationwide opinion poll on the public’s views on legal advice services with an emphasis on the most common types of SWL problem (ie, problems to do with housing, benefits, money/debt and employment law).

It is heartening that at the core of the research findings is a sense of fair play. The British public overwhelmingly believe that even if they are unlikely to use the services themselves, their fellow citizens should have access to state-funded legal advice when things go wrong in their lives. We accept that cuts in legal aid should not be reduced to a popularity contest between different areas of law as we recognise that some types of legal aid work might not enjoy popular public support, but are essential to guarantee civil liberties and to maintain the rule of law. We do believe, though, that the results of the survey send a loud and clear message to the government that publicly funded SWL services matter to the public and therefore such services should not be seen as an easy option for cuts.

These are the key findings from the research:

1. Around two-fifths of the people experiencing a SWL problem went to a legal advice centre such as a Citizens Advice Bureau and around one-fifth went to a solicitor.

2. The lowest social group (DE) were the most reliant on local advice centres for help with these problems and they were the least likely to use internet and telephone services or to be able to travel far to access advice.

3. A large majority of people, while they might not use advice centres, viewed them as the appropriate place to go for advice on these types of problems.

4. People from the lowest social group were twice as likely as other groups to experience problems with money such as debts and benefits. Problems with employment and housing were the most evenly distributed across all social groups.

Respondents were asked two questions regarding their opinions on what should be a priority for government funding for legal advice. The key findings were as follows:

1. Roughly eight out of ten people (84 per cent) believed that advice on civil law should be either free to everyone or to those on below average earnings. Only one in ten believe that such services should be available only to people on benefits.

2. Support for legal services paid for by the state is very consistent across social classes.

3. Respondents believed that the top priorities for funding legal advice were child protection (70 per cent) and housing (67 per cent). Employment (53 per cent) was the third priority. Benefits and debt advice were seen as the next priorities (36 per cent each) and divorce and relationship breakdown was the lowest priority (17 per cent).

4. There was a remarkable degree of unanimity between social classes about what the priorities should be for advice.

5. While state funding for divorce-related work has least public support, LAG concluded that if there was domestic violence involved, such cases might have enjoyed higher levels of support.

A full copy of the report Social welfare law: what is fair? is available from our website. LAG intends to follow up the research and hopes to publish further reports on the public’s views on civil law legal services as well as developing a set of policy proposals based on the research.

Image: Legal Action Group

Wednesday, 10 November 2010

Law Centre fights back against the LSC

South Manchester Law Centre was claiming victory this week in the first round of its legal battle against the Legal Services Commission (LSC) to stay open.

The Law Centre, which is under threat of closure after having cash withdrawn from it by the LSC and Manchester City Council, brought a judicial review claim against the LSC to challenge its decision to withdraw the bulk of the Law Centre’s funding for immigration work. The judge in the case, after a day of legal argument on Monday, ruled that two key elements in the tendering process under which the LSC awarded the contracts for the work could be illegal and that the case should proceed to a full hearing. The Law Centre expects the case to be heard early next month.

Paul Morris from the Law Centre told LAG, 'The ruling throws into doubt the LSC’s entire national immigration and asylum legal aid contract. The judge said that he believed the winner takes all approach to the contracts in Manchester was irrational.'

The case will turn on the criteria adopted by the LSC to select between the different organisations applying for contracts. The LSC adopted criteria which, according to Morris, were unfair: 'The successful bidder scored a crucial single point more than the other providers just for putting in an application for level three accreditation. This accreditation has no practical value as it is of no help to clients.'

The LSC brought up a QC from London to present its case while the Law Centre had to rely on barristers from Manchester chambers Kenworthy's, working for no fee, to present its case. The Law Centre has had other support in its campaign to stay open. Actress Julie Hesmondhalgh, who plays Hayley Cropper in Coronation Street, turned out to join a demonstration outside the court to support the Law Centre. They were joined by supporters of Greater Manchester Immigration Aid Unit, which is facing similar cuts after losing out in the tender bid round.

'We are delighted with this result especially given the LSC, at public expense, sent one of the country’s leading QCs from London to argue its case. For a small community-based organisation such as ours to win in the High Court is a substantial achievement,' said Morris.

All of the immigration law providers who lost out in the tender round will be following what happens in Manchester closely. Like the Law Centre, many are not convinced that the level three criterion adds anything to client services and argue it penalises smaller organisations, which provide good quality services, but which do not have the resources to invest in acquiring the accreditation.

Image: South Manchester Law Centre

Thursday, 28 October 2010

LSC: no appeal on family contracts

The Legal Services Commission (LSC) has confirmed yesterday that it will not be appealing against the judgment made on the Law Society’s judicial review of the family law tender process. The LSC had 14 days from 14 October 2010, when the transcript of the judicial review was published, to decide whether or not to pursue an appeal.

The LSC had extended the current family contracts until 14 December, pending a decision on whether or not to appeal the High Court’s judgment. The judgment quashed the result of the tender round for family and family with housing matters, after finding that the process was illegal (see 1st Oct blog Civil Contracts-what now?). LAG understands that the LSC is now in negotiations with practitioner groups to thrash out a way forward in managing the family legal aid contracts. It says that it is keen to encourage dialogue with the practitioner groups in order to minimise disruption of services to clients. It is likely that it will be forced to extend the current contracts and has the option of doing this until April 2012. The LSC also wants to push through already planned changes in family fees to ensure that the same fees are paid to both barristers and solicitors.

LAG welcomes the LSC’s decision not to appeal against the judgment in the Law Society’s judicial review. An appeal would have led to fresh uncertainty. We believe the LSC is not ruling out a further bid round in family to allocate matter starts. Much still remains unresolved. The way is now open for firms which were successful in the bid round to bring claims for damages. The most pressing problem is that the government is going to consult on planned changes to scope, which is likely to include areas of family law such as divorce and ancillary relief, in the next few weeks. It would seem pointless to run a tender round for contracts which might not be viable in a year or two when these expected changes are introduced.

Non-family legal aid contracts and family mediation contracts will start on 15 November. These contracts had been delayed for a month due to the Law Society’s judicial review. The LSC had initially argued in the judicial review that the non-family contracts were interlinked with the family contracts, but had not pursued this line of argument further at the full hearing. LAG understands that at least four judicial review hearings relating to these contracts are pending, but we believe these could be settled before hearing in circumstances similar to the successful challenge brought by the Community Law Partnership, which withdrew its case after the LSC reversed its decision not to offer it a contract.

Wednesday, 20 October 2010

Cuts on top of cuts for the Ministry of Justice

Well the much anticipated and dreaded comprehensive spending review (CSR) announcement was made today. As is usual with budget announcements, cuts in the big ticket, high-profile items, such as defence and welfare benefits, had been well trailed in advance. For smaller departments like the Ministry of Justice (MoJ) details were scant. What we can confirm is that the following is planned:

  • Overall the MoJ has to find cuts of 23 per cent in the four-year CSR period, which commences on 1 April next year.
  • Consultation on closing 157 under-utilised courts (previously announced).
  • A 33 per cent cut in administrative costs.
  • A reduction of the MoJ's London estate from 18 to four buildings.
  • A 50 per cent reduction in capital expenditure, including 1,500 new for old prison places to go.
  • A 25 per cent cut in the cost of the Crown Prosecution Service.

The MoJ will be expected to reduce its expenditure from £9.2 billion in the current year to £7.3 billion by April 2015. While other departments could have some efficiency savings left in the cupboard, LAG believes the MoJ may struggle to find any, as it has had to make cuts of 10 per cent in the last three years, including around £350 million to be made before March 2011.

The legal aid budget has been static for four years, which is a cut in real terms. Fixed fees, the reintroduction of means testing in criminal cases and fee cuts in criminal legal aid have all contributed to controlling the budget despite increased demand, caused by the recession and other factors, such as the rise in child protection cases. It is clear from what is said in the CSR paper that the government will be consulting on a radical reshaping of the legal aid system with big cuts likely in the type of cases legal aid will pay for. Increased competition is also promised and it is suggested that further cuts in remuneration are in the pipeline.

The MoJ has to deliver a business plan in the next month which is supposed to map out how it is going to deliver the budget cuts over the next four years. Even if it manages to produce this, there will be a real struggle to deliver the cuts as they are likely to be dependent on legislation on sentencing being approved by parliament within the next two years and changes in legal aid, which might also require legislation.

Image: Legal Action Group

Wednesday, 13 October 2010

Decision made on non-family contracts

A decision has at last been made by the Legal Services Commission (LSC) on the non-family law contracts. It has just announced that all non-family legal aid contracts and family mediation contracts will start on 15 November. The start of the contracts had been delayed by a month due to the Law Society's judicial review.

The LSC had argued that these contracts were linked with the family contracts as the intention behind the civil bid round was to provide 'joined up' services across both family and social welfare law (housing, benefits, debt, employment and community care law). Providers could bid for standalone contracts in employment and community care law, but in many areas they had been expected to bid either in a consortium, or as a single supplier, for housing, benefits and debt work, together with family work.

Family law providers could also bid for family and housing contracts but these contracts, along with the other family law contracts, have been quashed by the High Court, after it ruled that the tendering process to award the contracts was illegal. The oral judgment was given in the case on 30 September, but the transcript of the decision has yet to be released. The LSC is waiting for the transcript, as it has indicated that it may wish to consider an appeal against the High Court's decision. It has 14 days from the issue of the written judgment to lodge an appeal.

The LSC's chief executive, Carolyn Downs, said: 'Our overwhelming priority is to give providers and, above all, legal aid clients, certainty that access to justice will be maintained. We also want to continue to encourage dialogue with representative bodies to minimise any disruption.'

LAG welcomes the LSC's decision. It would have made no sense to continue the uncertainty over the non-family contracts. However, we do not believe that it was sensible only to extend the family contracts to 15 December 2010. Whether the LSC chooses to appeal or not, another extension of these contracts seems inevitable.

Thursday, 7 October 2010

Legal aid green paper 'imminent' says minister

Clever poker players look for 'tells' in their opponents’ body language to discern what hand they have got. Members of a packed fringe meeting at the Conservative party conference on Tuesday, addressed by legal aid minister Jonathan Djanogly, were all looking for the 'tells' about his plans for the legal aid system. The minister, though, was keeping his cards close to his chest, but he did reiterate some familiar themes, which might give some indication of government thinking. He also told the meeting, which had been organised by the think tank Policy Exchange, that a green paper on legal aid was 'imminent'.

The nub of Djanogly's speech was that spending on legal aid has doubled in real terms in the past 20 years and as his department has to find significant cuts, legal aid will be a target. The minister said that there would be a green paper on legal aid in the next few weeks and reiterated the point he has now made on a number of occasions that the government wants to look at the legal aid system in its totality rather than going down the road of a 'salami-slicing review'. The starting point, he argued, was 'what we need to do to reform the system so that vulnerable people have access to justice'. Ominously, for the legal aid lawyers in the audience, Djanogly talked about what he sees as anomalies in the system such as the higher fees paid for murder trials and that fraud trial fees are paid on the 'value of the case rather than its complexity'.

Some points Djanogly made could have been lifted directly from the previous government’s pronouncements on legal aid. He trotted out comparisons with other countries' spending on legal aid, £3 per head of population in France and £5 in Germany as against £38 in England and Wales. As politicians are prone to do, he was selective in his facts. He did not mention the Ministry of Justice's own research published last year which found that while spending in England and Wales is the highest in Europe, once the total costs of the criminal and civil justice systems are taken into account in the continental inquisitorial systems the figures on spending are similar to the UK.

Another significant point he made, which could have been lifted from a speech given by one of his Labour predecessors in government, was that 'too many cases go to trial in the Crown Court'. When pressed on this point by a member of the audience who argued about the importance of being able to elect to go to a jury trial, Djanogly replied that he was 'thinking hard about the issue as 80 per cent of thief trials in the Crown Court are for less than £200'. He argued that 'other levers such as how legal aid is handed out' can be used to persuade those accused of a crime to elect for trial in an appropriate court.

LAG hopes, perhaps optimistically, that the green paper will acknowledge that much of the cost drivers for legal aid which have led to the increase in expenditure which Djanogly referred to in his speech are outside the control of the legal aid system. Also, expenditure on legal aid has remained static over the past four years. This has been due mainly to the reintroduction of the means test for criminal legal aid and cuts in fees introduced by the last government. While Djanogly could give no indication of the amount which will have to be cut from legal aid, he said that the Ministry of Justice had to find 25 per cent in savings and as the ministry’s total budget is £9.5 billion, of which legal aid makes up £2.2 billion, 'you get some idea of the level' of cuts needed.

In a few weeks we will no longer be looking for clues or 'tells' about the government’s intentions. The comprehensive spending review announcement on 20 October will tell us how much the government intends to spend on legal aid and the green paper will indicate what sort of system it envisages for the future.

Image: Legal Action Group

Friday, 1 October 2010

Civil contracts - what now?

Yesterday the Legal Services Commission (LSC) lost the judicial review which the Law Society had brought against it over the result of the family tender. It is important to note that the court only quashed the family contracts, ie, family, family and housing, children only and child abduction. The LSC now has to extend the existing family contracts and decide if it wishes to re-tender the contracts. It will make an announcement on 6 October about what it intends to do.
The judgment turned on the selection criteria for family contracts. Practitioners were not informed until the tender documentation was published in February this year that they would score more points if they held membership of both the child protection and domestic violence panels. Membership of these panels proved crucial in deciding whether to award firms contracts. In his oral judgment yesterday, Lord Justice Moses said that the LSC could '… provide no rational basis for denying a case-worker the opportunity to apply to both panels'. In his view the effect of the late notice of the criteria was to 'unfairly and arbitrarily reduce the number of family law suppliers'.

Linda Lee, Law Society president, deserves praise for the leadership she has offered on this issue. She and senior officials at the Law Society were under considerable pressure due to the differing opinions on whether the outcome of the tender round should be challenged. In LAG’s view they called it right, by fighting the case on access to justice grounds. While the judgment of the High Court centred on the unfairness of the tender process and not access to justice, reinstating many practitioners, especially the child protection specialists, to the legal aid system can only benefit many vulnerable families and children.

Hovering over the proceedings was the spectre of the comprehensive spending review. Indeed Lord Justice Moses referred to this in an aside, observing that 'there might be no legal aid next month', while the parties were debating what order the court should make. In LAG’s view what the LSC and the government (which now calls all the shots on legal aid policy) should do is extend the family contracts for two years. Within a year they should make a decision on what they want after these two years and tell practitioners so that they have time to adapt. What has to be learnt from this debacle is to give fair notice of processes and selection criteria when designing tenders.

At least ten other judicial reviews are pending around the civil bid round and so it will be some time before there can be absolute certainty on the way forward. However, LAG does not believe anything can be gained from delaying the rest of the non-family civil contracts. Legal aid providers need the security of having new contracts for at least two, if not the full three, years and the public need the certainty of knowing that legal services are going to be there for them in the difficult times ahead.

Monday, 20 September 2010

Manchester Law Centres face closure

Two Manchester-based Law Centres are at risk of closing their doors to clients for good from next month as they have lost out in a tender to run legal advice services in the city.

Manchester City Council and the Legal Services Commission (LSC) decided to reconfigure the cash they currently spend on legal advice services into a competitive tender for a Community Legal Advice Service (CLAS). The tender was won by the city-wide Citizens Advice Bureau service, in partnership with private law firms and an independent advice centre. The council and the LSC argue that the new service, which will operate from six venues in the city, will provide better 'joined-up' services to Manchester residents. They now intend to withdraw funding from next month from South Manchester and Wythenshawe Law Centres. This is more than likely to force them to close.

Based in Longsight, a deprived, ethnically diverse part of the city, South Manchester Law Centre has been established for 36 years. Paul Morris, an immigration case worker at the Law Centre, told LAG that he and its 14 other staff got their redundancy notices last week. Morris fears that the Law Centre's clients will be 'driven to sharks and charlatans' if the Law Centre is forced to close. The Law Centre has launched a campaign to try and persuade the council and the LSC to continue supporting it. 'We are not going down without a fight', says Morris.

Gillian Hodges, senior solicitor at Wythenshawe Law Centre, told LAG that while the Law Centre has not issued redundancy notices to its seven staff yet, it is at 'serious risk of closing'. The Law Centre has been running for 26 years in Wythenshawe, which is one of the largest council estates in the country. The Law Centre understands that it scored higher than the successful bidders on quality, but the chairperson of the Law Centre's management committee, Bernard Caine, says the 'council and the LSC have chosen lower cost over quality and it is local residents, including our own families and friends, that will suffer'.

The Manchester CLAS along with the Wakefield CLAS, which was also announced last week, are the latest additions to the half dozen such services now up and running. The previous government and the LSC were keen to establish new CLAS, but mainly due to local councils’ fears about the continued existence of existing advice providers the idea has received little support. One of the first CLAS led to the closure of Leicester Law Centre and Gateshead Law Centre closed last year citing among other issues difficulties with operating the CLAS. Hull Citizens Advice Bureau, one of the oldest bureaux in the country, was also nearly forced to close when it failed to win a tender for a CLAS two years ago. It is now operating a much reduced service.

Paul Morris can see 'no good reason' why a service 'praised and appreciated by the community it serves' should be forced to close. No money will be saved by establishing the new service as the council and the LSC are putting the same amount of cash into it. To LAG, the policy of establishing CLAS seems to be an example of change for change's sake in the public sector. Particularly in areas in which long established services are forced to fold when a CLAS is established little demonstrable benefits are brought to clients. What is in danger of being lost in Manchester, if these Law Centres are forced to close, is experience and quality - two ingredients which are essential to providing legal services that get results for clients.

Image: South Manchester Law Centre

Wednesday, 8 September 2010

Social welfare law success

Birmingham-based social welfare law (SWL) firm, Community Law Partnership (CLP), has today heard that it has been granted a contract by the Legal Services Commission (LSC), after originally being turned down for one last month. The LSC has also confirmed that all civil contracts will now be extended to Sunday 14 November (see yesterday's blog). Providers will receive an additional twelfth of their new matter starts allocation to cover this.

CLP had appealed against the decision not to award a contract, but the LSC still refused to grant it one. CLP then brought judicial review proceedings against the LSC arguing that one of the selection criteria for the contracts was unfair. At an initial hearing the judge, Mr Justice Collins, said, 'I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational'. He hinted that at the full hearing, which was listed for 8 September, he would be likely to find against the LSC as he believed it was unfair to use a selection criterion linked to experience in appeals to the higher tribunal in benefits cases. CLP had argued that it did not need to take many of these cases as it generally wins its clients' cases at the lower tribunal.

LAG understands that some legal aid providers in Birmingham might have overbid for work and have now agreed to accept smaller contracts. This released cash to grant a contract to CLP. It would have been a travesty if CLP, with its excellent track record, had not continued to provide legal aid. This demonstrates that seemingly fair selection criteria can throw up some perverse results.

Tuesday, 7 September 2010

Uncertainty over civil legal aid contracts

Last Friday (3 September), the High Court decided that the start of the new family legal aid contracts should be delayed for a month in order for the Law Society's judicial review application to be heard. The delay will give the Legal Services Commission (LSC) time to collate evidence on the geographical areas covered by the new contracts, as a key part of the Law Society's case against the LSC is that the cut in the number of firms has left areas of the country not covered by family law solicitors. The full judicial review hearing is due to go ahead on 21 September.

LAG understands that the LSC has met with representatives from legal aid providers to discuss its interpretation of the High Court's decision on Friday. An important point yet to be clarified is whether the decision also means that contracts in social welfare law (SWL), also due to start on 14 October, should be delayed as well. The LSC had decided to run the SWL bid round with the family law one as it wanted better co-ordination of services at a local level. SWL, which consists of housing, benefits and debt work, fits well with the provision of family law services as clients often face a combination of these problems. Firms might be reluctant to go ahead with SWL contracts while there is still uncertainty over the family contracts.

It seems unlikely that the issue of SWL contracts and whether they should be delayed will be resolved before the hearing on 21 September. The Law Society appears to be taking the view that the High Court ordered a delay on all of the civil contracts including SWL, while LAG understands that the LSC believes the delay only applies to family contracts. Legal aid providers are therefore facing at least two weeks of uncertainty pending the judicial review hearing before this issue can be resolved.

At the hearing, the LSC will try to convince the judge that there is sufficient cover in each area of the country and that the bidding process was legal, but all options appear open to the court regarding its final decision, including declaring the process illegal. If this happens, the whole contract round for family law will have to be scrapped and a more open system adopted in which any firm that meets the quality threshold can undertake family law work. The middle way might be for the court to order a further delay while the appeals which many firms have lodged against decisions not to award contracts are decided. Things could look very different on the access to justice ground which the Law Society has raised in its judicial review application, if by early October a few hundred more firms have been awarded contracts on appeal.

Image: Legal Action Group

Thursday, 2 September 2010

No win, no fee - no solution for legal aid

In its report, Access to justice: balancing the risks, the Adam Smith Institute last week called for legal aid to be abolished for most civil compensation claims and no win, no fee agreements to be expanded to cover those cases currently funded by legal aid. The paper is deeply flawed as it seems to be mainly informed by biased opinions on the balance of risk in civil cases (the author believes that the system is loaded in favour of claimants) and little understanding of the civil legal aid system.

Most of the civil legal aid budget, well over half, pays for family cases and a large proportion of these are related to child protection and custody disputes - impossible to fund through no win, no fee arrangements. Admittedly, the financial aspects of divorce cases could be funded in this way, but legal aid currently works as a state loan to fund such cases. The costs are covered by loans secured against property and include interest charges above the Bank of England base rate. A healthy £50 million a year currently comes back into the fund through this route.

Much of the rest of the civil litigation covered by the legal aid system includes areas of law such as housing and community care. Disputes with landlords or elderly people trying to secure help with care needs really do not lend themselves to no win, no fee arrangements. These are the sorts of cases which cannot be measured in terms of hard cash, but LAG would argue they are of a greater value as they involve the necessities of life such as keeping a family in a home. Is the Adam Smith Institute seriously suggesting that these people can reply on the 'free market' for legal redress?

This is a path which has been trodden before. Ten years ago, under the last government, a substantial part of the legal aid system was privatised. Encouraged by the Adam Smith Institute, the government abolished legal aid for most personal injury cases and replaced it with no win, no fee. This led to the scandal of parasitic claims management companies exploiting claimants by charging extortionate fees for what amounted to a referral service - so much for the free market. Fortunately, after the government was forced to intervene, regulation of these companies has now largely controlled the problem.

What remained in the legal aid system for personal injury work were medical negligence cases. These were left in because of the difficulties of funding these claims through no win, no fee - due to the costs of gathering medical evidence. LAG appreciates that this is an emotive issue as the main defendant in such cases is the NHS. Unfortunately, mistakes are made in the NHS, as they are in health systems across the world. However, taking such cases out of scope of legal aid would have a negligible impact on the overall budget (such cases take up less than one per cent of legal aid's £2 billion budget), but would have a profound effect on the few hundred people a year who rely on legal aid so that they can seek redress when things go wrong.

Friday, 20 August 2010

Law Society takes action on family contracts

The Law Society has today (20 August) announced that it has commenced judicial review proceedings against the Legal Services Commission (LSC) over its handling of the tender process for the family law contracts.

Both practitioners and the LSC were surprised by the outcome of the tender process which was announced last mouth. 1,100 firms failed to secure new contracts, leaving only 1,300 to cover the country. In contrast, in the criminal law bid round involving a similar number of firms, all except a small minority were successful in their applications for contracts which commenced last month.

LAG understands that the Law Society has been under pressure from firms which successfully bid for contracts not to challenge the tender process, but Law Society president Linda Lee argues that it has a public duty to act as it fears 'access to justice is in peril' due to the reduction in the number of firms. Lee, who took up her post only last month, said: 'In some areas of the country, vulnerable clients will now be forced to travel long distances to find a solicitor and in some areas, there will be too few firms to represent clients, causing conflicts of interest where several parties to a dispute need and are entitled to independent representation.'

LAG believes that the Law Society is right to put access to justice for the public above the interests of the large number of its members who have gained from the tender process. The essential fact remains that an overnight reduction in the number of outlets providing family legal aid services risks members of the public not being able to find a lawyer when they need one. We are particularly concerned about the availability of legal aid in domestic violence and child protection cases.

However, it is only once the results of the appeals are known (lodged by many unsuccessful bidders) that the true pattern of provision will be revealed. LAG also suggests that firms which have overbid could negotiate reduced contracts with the LSC. This move would allow more firms back into the system. We would argue that a delay in the commencement of the contracts would give more time for all concerned to gain a better understanding of the availability of legal aid locally. We are suggesting that the government and the LSC need to agree with practitioners (both winners and losers in the contract process) on a three-month hiatus for this to happen.

Image: Legal Action Group

Wednesday, 28 July 2010

'Carnage' as family solicitors lose legal aid contracts

LAG has just advised by the Legal Services Commission (LSC) that 1,300 out of 2,400 firms have been awarded contracts in family law. The new contracts are due to commence in October and firms were invited to tender for them by 21 April this year.

LAG has heard from areas in which the number of firms providing legal aid in family law from October will drop dramatically. For example, in Leeds, only ten firms will remain in the system, down from 35. In Stoke, six firms remain, with ten disappearing, leaving those six to cover a city with a population of just under a quarter of a million.

'From where I am sitting, it looks like carnage out there,' said Carol Storer, director of the Legal Aid Practitioners Group. She is advising those firms which have not secured a contract to appeal against the decision. If many firms follow this advice, it could be some weeks before it is known which firms will be providing legal aid under the new contracts.

To select between firms, the LSC scored them against criteria such as quality of work and having a permanent office in the area in which they want to provide services. One of the key criteria was employing experienced staff to supervise and undertake the work. For example, points were awarded for having a member of staff accredited by the Law Society's Children's Panel. LAG understands that many firms have applied without having the necessary staff in place and are relying on recruiting them before the new contracts commence. This has led to accusations by some losers of underhand tactics by successful firms.

The Law Society believes that the level of refusals for family contracts is far higher than either the LSC or the Ministry of Justice envisaged and has today written to the legal aid minister, Jonathan Djanogly. It is asking him to consider whether the market can cope with 'this degree of restructuring' without compromising the availability of family legal aid services for members of the public.

Social welfare law
The LSC has advised LAG that it believes around 70 per cent of existing social welfare law providers will be allocated new matter starts (NMS). It is undertaking 'due diligence checks' in five areas and will confirm the numbers of providers which have been successful in obtaining NMS once these are complete. LAG has spoken to a number of providers, including Simon Harris, chief executive of Stoke-on-Trent Citizens Advice Bureau: 'The bureau was allocated virtually everything we asked for. Overall, we feel quite relieved.' The bureau has contracts in housing, welfare benefits, debt, immigration and employment.

Image: Legal Action Group

Thursday, 15 July 2010

Citizens Advice seeks divine intervention?

Fear stalked the campus of York University, along with Church of England clergy, at the Citizens Advice Bureaux northern conference last week. Bureaux from northern England were meeting for their annual get together, under the cloud of impending cuts.

A potentially cataclysmic funding storm is brewing for the bureaux as they await the results of their tenders for civil legal aid contracts from the Legal Services Commission (LSC). Many of the bureaux currently undertake advice work in debt and welfare benefits under contracts with the LSC. Some of the larger ones also have contracts in other areas of work, for example, Gateshead Citizens Advice Bureau works in immigration, employment, benefits, debt and is looking to expand into family law. The results of the new tenders for the contracts, which commence in October, were due to be announced on the second day of the conference last Friday (9 July). However, the LSC seems to be in the midst of administrative meltdown and has had to delay advising bureaux whether they have a contract or not. This has left many on tenterhooks, fearing they will have to make staff redundant in the coming months and reduce their opening hours to the public.

Some managers and trustee board members gathering in York believe that up to 80 per cent of their funding could go in the next few months. One manger from a bureau in Lancashire told LAG that it could lose nearly £800,000 in contract cash by April next year, leaving it with less than £100,000 in funding. Like many, this bureau potentially faces losing its legal aid contracts as well as central government funding. Money given to Citizens Advice by the last government to help it cope with the extra work caused by the recession is due to run out by March 2011, as is cash from the Financial Inclusion Fund (FIF).

The FIF was established in 2006 by the previous government. The total fund allocated was £120m and it was intended to tackle debt and money problems through a combination of educating the public and advice. £45m of the fund has gone on frontline advice services paying for over 300 debt advisers in Citizens Advice Bureaux and other advice agencies. According to Citizens Advice, over 70,000 people facing money problems have been helped by these FIF services. The new government, though, is staying tight-lipped on whether it will renew the grants.

The delegates might have been tempted to enlist the support of their fellow temporary residents at the University of York, as the Church of England Synod was meeting at the same time on campus. This made for an interesting juxtaposition of discussions on seemingly intractable problems.

Rowan Williams, the Archbishop of Canterbury, cut a careworn figure in a corner of the refectory at breakfast time last Friday. Around the refectory his bishops and other clergy were discussing a compromise deal over women bishops. Meanwhile, the Citizens Advice delegates, often sharing the same tables as the clergy, discussed legal aid contracts and the FIF. Perhaps they could at least draw comfort from the fact that one person in the room was facing seemingly greater problems than their own?

Despite the bleak outlook last week Rowan Williams managed to put together a compromise on women bishops earlier this week. Perhaps his success at crafting an agreement can give hope to his temporary cohabitees from last week? Hopefully, the funding problems which Citizens Advice Bureaux and other advice providers face will be resolved with government rather than divine intervention, although at times like this I am sure they are willing to accept any help they can get.

Steve Hynes

Image: York University Conference hall- Legal Action Group

Wednesday, 7 July 2010

Aspiring lawyers disappointed

LAG was disappointed to learn this afternoon that the Legal Services Commission (LSC) has decided not to go ahead with plans to sponsor training contracts for young legal aid lawyers. We believe this is a real kick in the teeth for many newly qualified or aspiring lawyers who want to pursue a career in legal aid work. The decision on the training grants had been delayed for over a year.

Over the years, the LSC has sponsored the training of 750 lawyers in legal aid firms and some Law Centres. The scheme gave them a chance of getting a foot on the career ladder and more importantly ensured the legal aid system recruited talented lawyers at the start of their careers, rather than letting them go off to pursue more lucrative careers in commercial law.

Laura Janes, chairperson of Young Legal Aid Lawyers, told LAG, 'This was promised by the last government. The minister even showed me the paperwork and said it was going to go ahead. It will be a bitter disappointment to many law students and newly qualified lawyers, as this was their last hope of a career in legal aid work.'

LAG appreciates times are hard in the world of legal aid. Cuts are looming. But surely £2 million could have been found out of the total budget of over £2 billion for the scheme? The sponsorship of training contracts by the LSC was widely supported by practitioners and was seen as one of the most positive things it did. A good quality legal aid system is dependent on recruiting and retaining the most able lawyers. LAG fears that firms will increasingly be reluctant to pay the wages of trainee lawyers and instead opt for unqualified staff to carry out legal aid work.

Wednesday, 30 June 2010

More immigration advice providers could close

LAG has learnt that only 252 out of over 400 applicants were successful in their bids for immigration and asylum contracts from the Legal Services Commission (LSC). Providers were told the results of the tender exercise this week. Many are also disappointed over the number of new cases, or to use the jargon new matter starts (NMS), they have been allocated. One London firm told LAG that it had been allocated less than half of the immigration cases and only 70 per cent of the asylum cases it had applied for. According to the Legal Aid Practitioners Group (LAPG), which represents both solicitor firms and not for profit legal aid providers, some of them are facing closure due to not being allocated sufficient NMS to make their services viable.

The NMS had been allocated to geographical areas and providers had applied for blocks of them. LAG estimates that between 30-40 per cent of providers have had the number of NMS allocated to them reduced. The situation is particularly severe in London as LAG understands that the LSC, which administers the legal aid system for the government, received applications for over double the number of NMS available.

An LSC spokesman told LAG that the overall number of NMS for immigration and asylum cases had not been reduced, but that in most areas they had been 'oversubscribed' for the ones available. According to the LSC, 47,744 NMS for immigration cases and 48,761 NMS for asylum cases have been awarded in the tender round. It believes that there is no right of appeal against decisions on the number of NMS allocated and providers can only appeal against a decision not to grant them a contract. The LAPG, though, is advising its members to put in appeals if they disagree with the number of NMS allocated.

LAG believes the number of applicants for the available work must have played a part in the government’s decision not to help Refugee and Migrant Justice (RMJ). It represented over 10,000 immigration and asylum clients a year and had been forced to call in the receivers two weeks ago due to cash flow problems caused by the change over to fixed fees for cases. Despite raising over £76,000 in a few days in an effort to save the service, Caroline Slocock, RMJ's chief executive, was forced to admit defeat, saying, 'RMJ has received the most amazing support from supporters and we were overwhelmed and touched by the offers of financial help in response to our campaign. We would like to thank everyone who has tried to save RMJ and very much regret that it has not been possible.' Unfortunately it appears that RMJ will not be the last immigration provider to go under this year.

Thursday, 24 June 2010

Legal aid under threat

As anticipated the government has announced its review of legal aid. The announcement was made in a written ministerial statement to parliament yesterday by Lord Chancellor and Secretary of State for Justice, Kenneth Clarke.

LAG understands that the government is currently studying the previous reviews of legal aid before releasing a consultation paper in the autumn which will outline some options for reforming the system. Kenneth Clarke made it clear in his statement that the priority for the government is to reduce the financial deficit.

Significant cuts in legal aid spending are a very real possibility. In the budget this week the government outlined its policy for reducing the deficit which includes a 25 per cent or more cut to expenditure in departments other than health, education and defence. For the Ministry of Justice (MoJ), a 25 per cent reduction means around £2.25 billion would need to be found from a budget which has already been hit by ten per cent spending cuts over the last three years.

Some savings might be found by closing under-utilised courts and reducing prisoner numbers, but LAG believes that to reach a 25 per cent target significant cutbacks would also have to be made in legal aid. The options are limited. Revisiting the levels of fees paid to lawyers in legal aid cases is not likely to meet with much protest from the public, but there will be increasing complaints if people cannot find help as firms are forced to withdraw from legal aid. Other options include cutting what legal aid will pay for, for example, the government could decide to take help with divorce cases out of scope. The government’s room to manoeuvre is limited due to its obligations under the Human Rights Act 1998.

Finding cash from other sources to off-set the cuts could be a solution. Ideas such as a levy on all criminal clients and using interest on money held by solicitors on behalf of clients have been suggested by some as ways of funding the system. The consultation in the autumn should provide the forum to explore these and other ideas, as some original thinking will be needed if access to justice is to be maintained.

Image: Legal Action Group

Wednesday, 23 June 2010

Mental health firms under threat

Many firms representing patients detained under the Mental Health Act are under threat of closure or drastic cutbacks as the Legal Services Commission (LSC) has offered them reduced contracts in the current bid round.

According to the LSC, firms were invited to bid for a slightly increased number of cases overall, provided they met criteria such as having sufficient qualified staff to undertake the work. The amount of cases allocated, or new matter starts as they are known, is largely determined by the number of firms bidding in an area. This is where the problems seem to have arisen. According to Richard Charlton of the Mental Health Lawyers Association: 'The offers are terrible. Some members have less than a third of what they have now, many have less than a half of what they bid for. Many members are facing redundancies or closure. The established firms that have bid for their existing level of matter starts have been worst hit.'

Figures released by the LSC show that there has been an increase in the number of firms bidding for the work. This has meant that much of the work has been carved-up into smaller contracts. London is the worse affected area as 67 firms have been provisionally successful in bidding for contracts and 34 of these firms are new entrants to the market. LAG is unsure why there have been so many new bidders. They could be firms that have recruited mental health specialists as they saw this as a potential 'recession proof' growth area, as well as solicitors splitting off from existing firms to form new ones.

The LSC says that all the successful firms in each geographical area got a minimum of 30 cases topped up with pro-rata allocation between firms of the remaining cases. The LSC believes that its decisions on case allocation cannot be challenged, though once the contracts are signed firms can apply for permission to start more cases. What might happen is that those firms that can afford to will sit tight and see which firms are unable to take-up the contracts in the hope they can get extra work.

Mental health tribunals undertake a difficult job. They have to balance the freedom of an individual, his/her interests as a patient and the protection of the public in making their decisions. Specialist representation for patients is vital as their liberty and health are at stake. LAG fears the present allocation of cases could lead to many good firms being lost. To a large extent the problems have been caused by the open nature of the tendering process. Without a reliable measure of experience and quality to differentiate between firms the LSC had no other option than to spread the available work in this way, penalising the established firms. The public would have been better served and tax payers’ money saved if this tender system had not been introduced.

Wednesday, 16 June 2010

Refugee charity faces closure

Accountants BDO have taken over as administrators of the charity Refugee and Migrant Justice (RMJ). LAG understands that BDO took over from 4 pm today. RMJ is appealing to the government to make £1.8 million in payments for legal aid work or the charity will be forced to close.

RMJ is in cash flow difficulties due to the change over to fixed fees for legal aid work. Prior to October 2007, not for profit agencies were paid fixed contractual payments for undertaking the work. From April 2009 the government ended the transitional arrangements which had been in place and this has led to the cash crisis at RMJ.

The charity represents clients in around 10,000 cases a year. It estimates that it will cost at least £2m to close the charity, as the government will have to reallocate most of its ongoing cases. RMJ has been running a high-profile campaign to persuade the government to change the rules on payment for legal aid cases. So far, though, the government has stuck to the line that it cannot make an exception for the charity. The government is in a difficult position as legal aid firms might cry foul if the charity receives special treatment.

LAG believes the system needs to be changed so that organisations like RMJ, which represents clients in complex cases, do not lose out. Over half of RMJ's cases are undertaken on behalf of asylum-seekers and these cases can take two or more years to resolve. Legal aid providers do not get paid until the end of the cases. Those providers which run complex cases are penalised under the fixed fee system, while those undertaking many short cases, which they can advise on and close quickly, benefit. LAG suggests that complex cases need staged payments or payments on account. A balance needs to be struck or clients in desperate need of help will lose out.

Wednesday, 9 June 2010

Very High Cost Cases u-turn

After a short consultation the Legal Services Commission (LSC) announced at the end of last month that the system for accrediting firms to undertake Very High Cost Criminal Cases (VHCCs) is to be abandoned.

VHCCs number only a few hundred each year. They usually concern complex fraud or other serious crimes such as terrorism-related offences in which the trial is scheduled to last 25-40 days or more. Two years ago the LSC established a panel system in which firms experienced in such cases had to apply to be included if they wanted to take on VHCCs. This was to ensure quality but the Law Society argued that the system led to the exclusion of many firms capable of working on VHCCs. The rumour is that some firms were not being honest about their breadth of experience in VHCCs at the expense of others who were.

Though it seems a combination of accepting the criticisms of the panel system and insufficient resources to run a new bidding process, the LSC has now decided to revert to individual contracting arrangements for VHCCs from 14 July. The Law Society has welcomed the move, but solicitors have rightly protested at the wasted time and money which both they and the LSC have lost in running the panel system. LAG has learnt that the LSC is secretly consulting with practitioners over revised arrangements for allocating VHCCs. The results of this consultation will be made public next month.

The total costs of the abandoned panel system could run into millions. Lawyers are annoyed at what they see as another unnecessary LSC initiative taken-up and then abandoned, but these are lucrative cases for them. With fees of up to £1000 a day, there will be plenty of firms keen to join the new system. Last year just under 400 VHCCs cost £125m, or 25 per cent of the entire budget for Crown and other higher court work. The remaining budget of £700m went on just under 125,000 cases. Much of the cost of VHCCs is caused by factors external to the legal aid system such as court delays,but with government budgets under such pressure and the fees paid to lawyers in VHCCs being disproportionately higher than the bulk of legal aid work, this is likely to come under scrutiny in the coming months.

Thursday, 27 May 2010

Legal aid winners

Awards ceremonies can be tedious, but last night's Legal Aid Lawyer of the Year awards proved to be inspiring and surprising, with the winners all demonstrating great commitment to their clients and an instant government response to a legal question.

'His devotion to his clients is routinely exceptional' was one of the comments made by a fellow lawyer who nominated David Jockelson, a solicitor at Miles & Partners. Jockelson, who also qualified as a therapist to assist in his work, won family legal aid lawyer of the year. Kathy Meade, a solicitor at Tower Hamlets Law Centre, won social welfare lawyer of the year and gave an impromptu speech that spoke to the hearts of all in the audience, made up of legal aid lawyers and luminaries from the legal world. She could not help reflecting on the plight of a client who had been referred to her by the social services department just a few hours before she attended last night's event. She had to drop some other work she was doing to advise him, but she explained he was in a desperate state having been made homeless with six children. Having talked through his problems over the phone she made an emergency appointment to see him today: 'Law Centres have their backs to the wall and many have closed, but I will only be paid the housing fixed fee of £174. No way will my time be properly funded under the legal aid system for this case.'

Many of the lawyers nominated had worked on ground-breaking cases. Peter Mahy from Howells solicitors, who won the criminal defence lawyer award, challenged the government’s retention of DNA samples from people not convicted of a crime, on behalf of his clients. The case, S and Marper v UK, was lost at every level in the domestic courts before succeeding in the European Court of Human Rights. John McSweeney, who is the managing partner of Howells, accepting the award on behalf of Mahy, said: 'It just goes to show you can knock a legal aid lawyer down. Do it three times in a row as happened in this case and they will still get back up again.' The new Attorney-General, Dominic Grieve, who was sitting in the front row of the audience was asked from the stage if the UK government would abide by the decision. To the surprise of the audience, Grieve shot back confirming that the government would. This commitment is in line with the coalition agreement published last week. After last night it seems that implementation is happening quicker than expected.

The LALYs, as the awards are known, have been running for eight years and are organised by the Legal Aid Practitioners Group. They recognise the achievements of legal aid lawyers in the front line of providing services in both criminal and civil legal aid. Legal Action magazine is the media partner for the awards. The other winners last night were Adam Straw from Tooks Chambers (young legal aid barrister), Katherine Craig from Christian Khan (young legal aid solicitor), Sophy Miles from Miles & Partners (mental health lawyer), Amie Henshall from Parker Rhodes Hickmotts (immigration lawyer), Mark Henderson from Doughty Street Chambers (legal aid barrister), Just for Kids Law/Lawrence & Co youth department (legal aid firm/not-for-profit agency) and Michael Mansfield QC (outstanding achievement award).

Photograph: Robert Aberman

Friday, 21 May 2010

New legal aid minister

It's been a bit of a wait, but we now have a new minister with responsibility for legal aid. His name is Jonathan Djanogly and he is the MP for Huntingdon, John Major's old seat. Djanogly is a qualified solicitor and was a partner in a large commercial firm.

Yesterday the coalition government published its policy programme. Included in the section on justice is the commitment to ' ... carry out a fundamental review of legal aid to make it work more efficiently'. It is an unfortunate choice of words as legal aid watchers will be aware that we have previously had a 'Fundamental Legal Aid Review', or FLA as it became known, in 2004. The FLA got lost, though, as a final report was never published. LAG believes that ministers did not like what the civil servants had come up with. Instead we got the Carter review, ordered by the then Lord Chancellor, Lord Falconer, and published in July 2006, the findings of which have been partially implemented over the last few years.

To be fair, in opposition the Conservatives did seem serious about trying to find new ways of getting money into the legal aid system, including a £200 contribution from all criminal clients and looking at 'polluter pays' methods of funding. So we will see what Jonathan Djanogly and this latest review of legal aid comes up with. Implementing new funding methods could be wrapped up in a new or amended Access to Justice Act, which could also deal with bringing the Legal Services Commission under the control of the Ministry of Justice as recommended by the recent Magee Review. Perhaps the Queen's Speech will contain details of this next week?

The really interesting part of the justice section of the coalition's plans is the commitment to a 'rehabilitation revolution'. The coalition wants independent providers, paid for by the savings made by introducing the policy, to reduce reoffending. Does this mean the prisons building programme is going to be put on hold and the savings made put into the scheme? Let us hope so. However, the programme also commits the government to a sentencing policy review. A harsher sentencing policy, if this is what is intended, would not necessarily sit easily with the planned 'rehabilitation revolution'.

Picture: Ministry of Justice

Monday, 17 May 2010

Civil liberties policy: more liberal than conservative?

A few days on from the tumultuous events of last week and the UK is settling down to coalition government. Details of specific policies have yet to emerge, but the signs are hopeful as regards human rights and civil liberties.

It was plain that repeal of the Human Rights Act would be a deal-breaker for any Liberal Democrat-Conservative coalition and so we have seen no mention of the Conservative Party’s manifesto pledge to replace it. At point ten of the document summarising the deal between the parties, the new government commits itself to passing: 'A Freedom or Great Repeal Bill'. This policy has Liberal Democrat fingerprints all over it as the party was touting a draft Freedom Bill at its last conference. It seems that many of Labour's measures which are perceived as anti-civil liberties are to be trashed. Out will go ID cards, the National Identity register and biometric passports. Also included is the reform of the libel laws and the Freedom of Information Act, the restoration of rights to non-violent protest and greater protections for the DNA database.

Perhaps part of the reason for the Conservative swing towards a more liberal civil liberties agenda is to save cash. Both parties claim savings can be made by scrapping the ID cards scheme - described as a 'laminated poll tax' by the Liberal Democrats. The Liberal Democrats also claimed in their manifesto that £795 million could be saved by cancelling the prison-building programme and replacing prison sentences of less than six months with community sentences. Such measures play well with those close to penal policy who know prison is hopeless at rehabilitation. LAG believes an opportunity exists to take on the mistaken policy assumption that 'prison works' and go for real reform.

There is much sense in what is proposed by the new government and there are some opportunities for reform, but such measures will need to be passed quickly while goodwill for the new government exists and discipline on the Conservative backbenches remains firm.

Photograph: Legal Action Group

Thursday, 13 May 2010

LAG news blog joins Guardian Legal Network

LAG is pleased to announce that the LAG news blog has become a member of the Guardian Legal Network, part of a new section of the Guardian website launched today which pioneers a new, interactive approach to law coverage. The legal network brings together the best blogs and sites that cover legal affairs and developments from around the world, providing high-quality news, comment, analysis, blogs and multimedia.

Other features available at: include news, analysis and comment on the latest legal developments; a blog from Afua Hirsch, the Guardian's legal affairs correspondent; weekly blogs from legal commentators Joshua Rozenberg and Neil Rose; an online legal document store and the option to sign up for a weekly law e-mail called 'The Bundle'.

Wednesday, 12 May 2010

Clarke takes over at the MoJ

It has just been announced that Kenneth Clarke will become the Lord Chancellor and Secretary of State for Justice in David Cameron's cabinet.

He was called to the Bar in 1963 and is likely to be the most experienced member of Cameron's first cabinet, having held ministerial positions in every government over the 18 years of the Thatcher and Major eras. As a former Chancellor of the Exchequer and Shadow Secretary of State for Business, he will probably be disappointed not to have been offered one of the major economic portfolios. But the alliance with the Liberal Democrats has meant that many Conservatives with shadow portfolios have been bumped out of positions they might have hoped for in cabinet.

The new Lord Chancellor is famously fond of jazz, cigars and the odd pint of beer. His pro-European views led to him losing the Tory leadership when he contested it in 1997, 2001 and 2005. It will be interesting to see whether his appointment indicates a shift in Tory policy on criminal justice to the more progressive stance of their Liberal Democrat coalition partners, who stated in their election manifesto that they wanted to reduce prison numbers. Both Labour and the Conservatives pledged to expand prison places.

Ministers below cabinet level and the law officers should be announced over the next 24 hours and the LAG news blog will report on these as soon as we have details.

Photograph: Legal Action Group

Tuesday, 4 May 2010

Legal aid and the election

In the run-up to the general election, LAG has been talking to politicians about their plans for legal aid. Labour indicated that legal aid would be subject to further cuts if it was re-elected. In contrast, the Conservatives would not be drawn on whether they would make cuts, but said that they would initiate a review of legal aid if they were to form the next government. They also want to put in place alternative methods for funding legal aid. The Liberal Democrats probably have the best party policy on legal aid and certainly the most progressive policies on civil liberties in general. When asked, though, they would also give no guarantees about their budget plans for legal aid. On a positive note, both Labour and the Conservatives told LAG that they will preserve the expenditure on social welfare law if elected.

One of the ideas which the Tories favour to raise more cash for legal aid is a levy on the interest on money held by solicitors on behalf of clients. They give the example of France, where 300 million Euros are raised for legal aid services in this way. They have also floated the idea of a levy of £200 on every criminal legal aid client to help fund the system. Even if these ideas are implemented (and they would face strong opposition), given the state of the public finances LAG strongly suspects that any new money will not be in addition to the current legal aid budget.

In the current spending review period which ends in March 2011, the Ministry of Justice (MoJ) has had to find £1 billion in cuts. In this year’s budget, the government committed it to finding a further £360 million. LAG is struggling to see how these cuts, which amount to over a tenth of the MoJ’s budget, can be made without serious damage to the administration of justice. All the political parties are caught in a budgeting cleft stick of preserving expenditure on the NHS and education, which means the inevitable spending cuts will fall disproportionately on other departments including the MoJ.

Photograph: Legal Action Group

Friday, 16 April 2010

Debt advice strategy 'deficient'

A report critical of the government’s strategy for debt advice has been published by the House of Commons Public Accounts Committee. A total of £600m will have been spent on the strategy between 2004 and 2011, but
The Department for Business, Innovation and Skills: Helping over-indebted consumers (thirty-first report of session 2009-10) argues that it lacks co-ordination and effective evaluation.

Around 11 per cent of the UK population struggles with debt problems says the report, which was published on 8 April. Responsibility for managing the 51 different initiatives to help these people is split across three government departments - the Department for Business, Innovation and Skills (DBIS), the Department for Work and Pensions and the Ministry of Justice. The DBIS is supposed to lead the strategy, but has not produced an annual report on it since 2007. Due to various problems the individual departments have been left to evaluate their own programmes and so comparisons on costs and effectiveness between the different programmes are difficult to make.

While the report recognises the success of the face-to-face advice services funded by the DBIS, it argues that this is the most expensive form of provision and is concerned about the variation in costs between different providers. These range from £201 to £377 per client. The report observes that two-thirds of debt management plans are arranged by private sector providers and argues that the quality and capacity of these services needs to be evaluated.

Looking to the future, the grants for face-to-face services funded by the DBIS are due to end in March 2011. Further funds will depend on the government being able to find the cash from its overstretched budget. This report seems to hint that more services could be provided by the private sector and that telephone and internet services might be a more cost-effective way of providing debt advice. LAG would argue that this is true to a point, but the report acknowledges that demand is increasing for debt advice services. A high proportion of this and ongoing demand will be led by client groups, such as people without cheap internet access, who are best served by face-to-face advice.

With such tight public finances, LAG believes that funding for advice services will be subject to even greater scrutiny from government and this will be accompanied by a desire to join up different funding streams to avoid real or perceived duplication. Advice providers and their various umbrella organisations will need to respond to this by putting aside some of their traditional rivalries to work closer together in the planning and delivery of services.

Picture: UK Parliament website

Wednesday, 31 March 2010

Legal aid debate

'Legal Aid after the Election' was the title of the LawWorks debate last night. An invited audience heard from the legal aid minister Lord Bach, the two Shadow Justice Secretaries, Conservative Dominic Grieve QC MP and Liberal Democrat David Howarth MP, and Des Hudson, chief executive of the Law Society. Perhaps ominously, what was striking was the remarkable degree of agreement between the politicians on legal aid policy.

Paul Newdick, the chairperson of legal charity LawWorks, which organises pro bono work for city lawyers, said in opening the proceedings that: 'Pro bono is an adjunct to, not a substitute for, legal aid and it is important that the government is constantly reminded one is no substitute for the other.' This was clearly aimed at both reassuring the legal aid lawyers in the room and as a warning shot to the politicians.

Cutting to the chase Lord Bach said: 'Politicians should tell the truth and the truth is legal aid is liable for more cuts under any government.' In response to this comment, Dominic Grieve observed that the budget had planned a 17 per cent cut in public expenditure which would include legal aid. In his view the current legal aid system is 'not salvageable' and what is needed for the future is 'thinking creatively perhaps on a cross-party basis'. David Howarth also said: 'There would be no new money for legal aid.' He also emphasised the need to look at the cost drivers in legal aid such as experts’ fees and fees for high cost criminal cases.

Both Lord Bach and Dominic Grieve agreed that the legal aid fund needed to be compensated by other arms of government for policy changes which lead to increased demand for legal aid, but both acknowledged the difficulties in doing this. There was also consensus on the need to take direct control of the Legal Services Commission (LSC). Dominic Grieve said that if the government had not moved to do so, the Conservatives would have, if elected. He could not resist a swipe at the government, observing: 'The LSC was a creation of the present government. One of the motives behind its creation was to distance the government from difficult policy decisions.'

One point of significant difference between the two main political parties seemed to be over the question of competitive tendering for criminal legal aid. Lord Bach said that as a former criminal legal aid barrister he had taken some convincing that this was the way forward. Referring to the plans announced last week (see post from 22 March), he said that he was 'firmly of the view this was the only way criminal legal aid can work'. In contrast Dominic Grieve said that: 'Best value tendering is not the best approach' and, if elected, the Conservatives would carry out a legal aid review before making any changes to policy.

Des Hudson argued that legal aid was a 'frontline service as important as health or education' and that money should be found to fund it. He acknowledged that something had to be done as the present criminal legal aid system was not sustainable, but said: 'I have severe reservations about whether the government’s plans [for criminal legal aid] can be implemented.' He also suggested cash could be found for legal aid from other parts of government, for example from the '£2.5 billion a year that goes on management consultants'. In contrast to the politicians he emphasised that: 'There can be no rule of law without access to justice.'

From LAG’s point of view the debate last night indicated that, whoever forms the next government, the current policy of trying to cut back on expenditure will continue. Some of the Conservatives' ideas about bringing new money into the system, such as a levy on client account interest, are eye-catching but they will only bring in relatively small sums and there are no guarantees that the cash will not be swallowed up by the Treasury. The problem is, as argued last night: 'Legal aid is not a vote winner', but Des Hudson was right in arguing that it is essential to maintain the rule of law. Whichever party wins the general election will need to be constantly reminded of this fact in the difficult months ahead.

Monday, 22 March 2010

Culling of criminal legal aid firms planned

The government has published a paper on radical plans for a shake-up of criminal legal aid this afternoon. It says the aim of these new proposals for the tendering of criminal legal aid services is to deliver 'significant savings to taxpayers and a more sustainable future for the legal aid budget'. It intends to publish a consultation on the proposals after the election.

LAG understands the plans are supported by a group of large legal aid firms including Tuckers, Switalskis and Kaim Todner. Speaking to LAG this afternoon, the legal aid minister Lord Bach said: 'It is not an option not to make changes. We cannot raise rates, but firms are saying they are not being paid enough to be viable.' Under the proposals he says many firms would be forced to close or merge: ' … only efficient firms will thrive'.

Only eight to ten firms for each of the 42 criminal justice areas would be needed and they would be compelled to cover police station and magistrates’ court work - currently some firms only specialise in the more lucrative Crown and high cost cases. LAG estimates that up to 1,500 firms could close down or be forced to merge. The government says the earliest the new contracts could be introduced in selected areas would be by summer 2011. This means that the current crime contract, which was due to run until 2013, would be terminated early.

LAG questions whether these proposals are necessary. Tenders have only just closed for criminal contracts. The proposals will lead to further uncertainty and mistrust of the government among firms. Criminal legal aid expenditure has fallen in real terms by 12 per cent in the last five years and the overall budget for legal aid has remained the same, £2.09 billion, for the last three years. The government has reduced the costs of criminal legal aid by introducing means-testing and cutting what it pays lawyers to provide the service. What this paper proposes is a draconian culling of small and medium-sized firms in a desperate attempt to squeeze further savings out of the system. The risk is that this will restrict client choice and lead to the creation of a monopoly of large firms which would eventually ratchet up prices.