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.