Transforming Legal Aid Consultation 9 April 2013
Response from Legal Aid Practitioners Group 3 June 2013
C Storer
Director
LAPG
242 Pentonville Road
London N1 9UN
020 7833 7431
[email protected]
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Legal Aid Practitioners Group: LAPG is an independent membership organisation
representing several hundred firms and organisations working under LAA contracts.
Our members are spread throughout England and Wales. They range from sole
practitioners to large legal aid firms, from firms with a contract in one area of law to
firms with contracts in all or almost all areas. We have an increasing number of not
for profit members.
LAPG is represented on numerous government and other stakeholder and advisory
groups including the Legal Aid Agency’s Civil and Criminal Contracts Consultative
Groups.
Introduction
a. LAPG considers that the proposals in this latest consultation will, contrary to their
stated aims, undermine rather than strengthen the credibility and reputation of the
British justice system. We consider that they are unconstitutional, undemocratic and
a direct attack on the rule of law.
b. We deeply regret the decision to announce a proposed series of fundamental
changes to legal aid only days after the passing of secondary legislation and the
implementation of the Legal Aid, Sentencing and Punishment of Offenders Act and
with no warning to representative bodies, the public or Parliamentarians considering
the legal aid reforms only days before these new proposals were disclosed.
c. We consider that the very short consultation period allowed is wholly insufficient to
allow for proper consideration of all consequences of these major changes which will
have drastic implications for the entire British legal system. We do not consider that
the consultation paper and its annexes contain sufficient information including data
to allow for us to respond properly on a fully informed basis about the impact of the
proposals. We are concerned by the assumption that despite the serious
consequences of the proposals, providers will be able to continue to offer the same
service at the same quality standard, and that clients will obtain advice from
elsewhere to resolve their legal problems. This is plainly incorrect and illustrative of
the approach taken throughout.
d. In relation to the proposals to impose a system of PCT for criminal work we
consider that:
- The proposals are unworkable in practice and will result in the destruction of
our criminal justice system because of the effect on suppliers and the effective
removal of sufficient quality assurance
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The removal of client choice of representative is unconstitutional and will
result in gross injustice, with additional human cost and expenditure to the
state in due course
The effect of major changes on criminal firms will have a consequential effect
on the delivery of civil legal aid services which is not properly considered or
analysed in the paper.
e. In relation to the proposals for changes to scope in civil work our view is that:
- The application of a residence test for all clients is discriminatory,
undemocratic and unlawful. It will result in the entire legal aid system breaking
down because of the practical impossibility of establishing eligibility when
clients require legal advice
- The removal of funding for judicial review cases unless permission is granted
is a direct attack on the rule of law and the accountability of the state to its
citizens
- The removal of funding for prisoner cases is based on a false premise that
such persons can use internal complaints processes and need no legal
advice, which ignores the vulnerability of persons in ‘total institutions’, and will
result in severe hardship
- The removal of funding for ‘borderline’ cases will adversely affect some of the
most vulnerable clients.
f. In relation to the proposals to cut fees still further:
- We regret that the savings which will result from the implementation of
LASPOA are not being taken into account, which brings into question the
evidential basis for further cuts to be made
- The supplier base cannot sustain further reductions in payments having
already had rates frozen for years and having sustained a recent further cut
and major changes to the scope of legal aid
- Harmonisation will, we fear, result in difficulties in obtaining quality advocacy
services particularly in relation to more complex cases
- The effect of the expert fee cuts will be to deter experts from offering services
even further, and have a direct effect on the quality of justice in complex
cases where early expert advice can invariably save costs.
g. Access to justice is of the essence in a civilised society. The state must secure the
rule of law by providing a justice system which balances the need for citizens to
obtain advice and representation when required, with the need for such services to
be paid at a reasonable rate. These proposals do neither. Instead, if implemented,
they will start a process of complete disintegration of the justice system with
devastating consequences for society as a whole.
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Chapter 3: Eligibility, Scope and Merits
1. RESTRICTING THE SCOPE OF LEGAL AID FOR PRISON LAW
Q1. Do you agree with the proposal that criminal legal aid for prison law
matters should be restricted to the proposed criteria? Please give reasons.
1.1 The proposal leaves legal aid available for parole reviews and disciplinary
matters where an outside judge is brought in or the adjudicator decides that a client
meets the criteria for representation at an internal adjudication under the Tarrant
criteria. A range of other important work is removed altogether. This includes
‘sentence cases’ which are fixed fee cases which enable lawyers to make
representations about a range of legal issues including access to offence focused
work or resettlement packages so they can be released safely from prison. In
addition, treatment cases are being removed. Although these were made subject to
rigorous prior authority applications in 2010 and since that time, only 11 applications
have been granted (see p. 146 of the consultation), the previous administration
decided to keep them in scope to safeguard against serious abuses of power. LAPG
believes that the tiny saving that will be made by removing these cases cannot
justice the important safeguard they represent.
1.2 It is clear from the consultation that the savings anticipated from prison law are
relatively modest. Part of the rationale for the changes appears to be the Ministry’s
concern that the prisoner complaints system is an adequate alternative. LAPG is
concerned that this is not the case. Complaints procedures are slow and our
members consider that the results are inadequate. For example, a prisoner with
psychiatric problems who needs to go on a course is unlikely to have the matter
resolved through the complaints system where the issue will be dealt with by a
prison officer rather than the treatment manager who is responsible for the decision.
It may be that the prisoner’s reason for wanting to do the course is that not being
able to do it is preventing him from having a meaningful and swift parole review in
breach of his entitlement to one. However, even if he was able to articulate this, it is
unlikely that the officer dealing with the complaint would be in a position to put him
on the course.
1.3 Vulnerable and/or minority groups are already over-represented in the prison
system. Many prisoners who are disabled, young, old, suffering from dementia and
with mental disorders already face widespread discrimination. These client groups
within the general prison population have particular difficulties and cannot readily use
other forms of complaints or dispute resolution processes (even if effective). They
are less likely to be able to write coherently and to be able to present their case
without skilled assistance. These prisoners are also more likely to require additional
care services and health care services, and as the prison structure is not well suited
to accommodating, for example, severely disabled persons, they will suffer double
discrimination if access to advice about essential services to which they are entitled
is denied them.
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1.4 The kind of assistance that lawyers presently provide is subject to a sufficient
benefit test and prison lawyers are only able to provide legal help with legal issues.
The confusion arises from the fact that many legal processes such as
recategorisation appeals have been funnelled into the complaints process
2. IMPOSING A FINANCIAL ELIGIBILITY THRESHOLD IN THE CROWN COURT
Q2. Do you agree with the proposal to introduce a financial eligibility threshold
on applications for legal aid in the Crown Court? Please give reasons.
2.1 No.
2.2 When prosecuted by the state for a crime, we believe that not only is a person
innocent until proven guilty but that there should be every effort made to ensure
equality of arms.
2.3 In the magistrates’ court, it is very common to see unrepresented defendants
who do not qualify for legal aid on means, but cannot afford to instruct a lawyer
privately. We believe that unrepresented defendants will become commonplace in
the Crown Courts, if a means test is introduced at that level.
2.4 Although the Ministry of Justice acknowledges that the legal fees for different
types of crimes will vary significantly, it has given one threshold disposable income
figure. This is despite the fact that a murder trial or a serious and complex fraud case
could cost significantly more than £37,500. The range in the cost of Crown Court
cases is enormous.
2.5 This proposal is a very crude mechanism which would neither save money nor
enhance public confidence in the system. It may be that the public are concerned
about the perception that multi-millionaires receive legal aid to fight criminal charges
but there is no evidence provided by the Ministry that a cut-off point of £37,500 is the
correct one or necessary at all.
2.6 We have seen no convincing evidence that the savings gained would offset the
cost involved in risking miscarriages of justice.
2.7 This proposal:
 will lead to injustice in cases where people are unable to represent
themselves effectively;
 will lead to huge problems for unrepresented defendants trying to find the right
expert witness and pay for them;
 will lead to extra costs for the court system in dealing with cases where the
defendant is not represented; and
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
will lead to extra costs in carrying out the means test, dealing with hardship
reviews and paying back money for acquitted defendants.
2.8 Cases where people are unable to represent themselves effectively. Will
this proposal mean that people will not be represented? Yes. Some people outside
the financial limit will not be able to pay for representation and will represent
themselves. That will put a burden on
 the criminal justice system - cases will take longer and may be more likely to
be appealed. What will the financial impact of this be? What will be the
reputational damage to our justice system?
 the individual concerned. Criminal prosecutions affect people’s lives on every
level – family relationships, working life, finances and mental health.
Representing oneself in a criminal trial will cause enormous pressure on the
individuals concerned and their families.
 the individual in a case where expert evidence is needed. Without legal advice
and representation in cases where an expert is needed the defendant will
have to find the right expert (often difficult enough for legal representatives)
and find the money to pay them.
2.9 Fairness. We believe that this proposal compromises the right to a fair trial.
People may not be able to represent themselves properly but have no available
funds to finance their defence – thus affecting the right to a fair trial and potentially
costing the state more as the case will proceed more slowly.
2.10 Paying Privately and Being Acquitted. LAPG is concerned that a citizen who
is innocent could be prosecuted by the state and left out of pocket for the expense of
defending themselves as (para 3.36) they would be reimbursed at legal aid rates
which could be considerably less than private rates.
When reimbursements of privately incurred defence costs from Central Funds were
originally limited to legal aid rates, the justification was that all defendants were
entitled to legal aid in the Crown Court. If a defendant instructed a lawyer privately, it
was his own choice, and he should not expect to be reimbursed by the public purse
at higher than legal aid rates. What would be the justification for limiting
reimbursement to legal aid rates, if a defendant had no choice but to instruct a
lawyer privately?
2.11 Disposable Household Income. The introduction of means testing in the
magistrates’ court was intended so that those who could afford to pay for a lawyer,
should pay. That there are so many unrepresented defendants is because the
average cost of a magistrates’ court case has been decided incorrectly, and the
reality of how much an applicant’s outgoings are is not taken into account.
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Consequently, the system excludes defendants who genuinely cannot afford a
lawyer. We believe it is unwise to extend the system of magistrates’ court means
testing to the Crown Court.
2.12 The root of the problem is the use of legal aid rates to determine the average
cost of a case, when the person who does not pass the means test will be forced to
pay at higher private rates. So, in the magistrates’ courts, while the average cost of a
legal aid case may be £500, that is the private rate for a one hearing guilty plea.
Privately paid trial bills are usually around £2000, and as much as £3000. The
financial eligibility threshold should be several times higher than it currently is.
2.13 That issue is then exacerbated by the use of a standardised weighted annual
living allowance (and weighting, where there are dependents) to account for all
outgoings that are not income tax and National Insurance contributions, housing and
council tax costs, childcare costs, and maintenance costs. This allowance is set at
£473 a month. A true calculation of a person’s outgoings usually places them at
more than £473 a month. A fair means test should not use the standardised annual
living allowance, but instead should have regard to the person’s actual financial
circumstances.
2.14 Extra bureaucracy and cost.
 The complex means testing necessary to assess eligibility will have its own
costs and will add an additional layer of bureaucracy.
 People will have to apply for legal aid even if they are outside the financial
threshold (para 3.37) to be able, if acquitted, to claim the fees back at the
lower legal aid rates.
 The reviews on the grounds of hardship will have to be funded and at a level
to ensure that delays do not cause court cases to be delayed.
 Identifying and collecting any contribution will also cost money
2.15 Solution. In any democratic country we believe that one of the prime duties of a
government is to ensure fair trials. Equality of arms is fundamental. The proposal set
out in this part of the consultation paper does not ensure a fair trial and will lead to
more unrepresented people having to navigate the system themselves. The
Government seeks to make cuts but we think this proposal is not going to lead to
savings and will lead to injustice.
2.16 The magistrates’ court means testing system is flawed and leads to many
defendants representing themselves, because they genuinely cannot afford to pay a
lawyer at private rates. Under no circumstances should it be extended to the Crown
Court, where defendants face even more serious charges and longer sentences.
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2.17 Contributions are collected under the current system. That system, if modified,
has the potential to work more fairly than the current proposals. However, currently
90% of an applicant’s disposable income is taken as a contribution. This is
draconian, and must be assessed downwards by a significant amount. It must be
remembered that defendants are innocent until proven guilty, and it is not fair to
deprive them of so much of their income in the months before their cases conclude.
2.18 Further, contributions are taken to a point that is 5 or 6 times the average cost
of the case in relation to the offence with which the defendant is charged. This is
excessive and must also be reduced.
2.19 We would say that other means of funding Crown Court cases should be
explored e.g. using seized assets.
Q3. Do you agree that the proposed threshold is set as an appropriate level?
Please give reasons.
3.1 No. We do not agree with the threshold. If it is brought in, what would be the
disregards? We believe that it would be disastrous to extend the system of
magistrates’ court means testing to the Crown Court. We think it important that there
is sufficient flexibility to recognise people’s expenditure.
3.2 There is reference to a hardship review so that if a person’s financial position
changes, eligibility will be reassessed. While this is sensible, it raises questions in
practice. Will efforts to claim this slow down the trial or preparation for the trial? Will it
cost more to administer than the savings to be made?
3.3 For our full answer please see the response to Question 2 above.
3. INTRODUCING A RESIDENCE TEST
Q4. Do you agree with the proposed approach for limiting legal aid to those
with a strong connection to the UK? Please give reasons.
4.1 No.
4.2 The proposal is to introduce a residence test in order to qualify for any level of
civil legal aid, with two limbs: firstly to be lawfully resident in the UK, crown
dependencies or overseas territories, and secondly to have resided lawfully in these
places for 12 months.
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4.3 We note the consultation (para 3.42) is unable to quantify the number of such
cases. Thus this proposal is not about costs savings but about an ideological stance
which is offensive to our democratic society.
4.4 The consultation talks about an increase in public confidence by bringing in this
measure. There is no evidence that there is a lack of public confidence which
necessitates the introduction of a measure which challenges the rule of law. As the
Lord Chancellor swears to uphold the rule of law this proposal is of serious concern.
4.5 We are of the view that this proposal undermines the credibility of the British
justice system and is contrary to fundamental principles of fairness and antidiscrimination.
4.6 We believe that this proposal is unlawful, unjust, impractical and
unnecessary. It removes access to justice arbitrarily for all vulnerable client
groups and is indefensible.
4.7
a. Unlawful
We consider that the proposal is unlawful on a number of grounds, and is
immediately and rightly open to challenge if implemented.
Other organisations will expand on this further e.g. The Law Society, Immigration
Law Practitioners Association, the Public Law Project and Counsel’s chambers e.g.
http://www.4pb.com/media/PDFs/Transforming_legal_aid__4PB_International_Child_Law_Group_Response_to_Consultation_final_.pdf
They will cover compliance with Articles 6 and 14 of the ECHR, Article 47 of the EU
Charter of Fundamental Rights, the Equality Act and other relevant legislation.
The Equalities Impact paragraph 5.3.1 sets out that the residence test will put nonBritish nationals at a 'particular disadvantage'. Para 5.3.3 states that this is a
proportionate means of 'achieving the legitimate aims set out in section 4'. We
disagree.
In our view the proposal is discriminatory and will affect large numbers of vulnerable
people who will, if the proposal is implemented, be at serious and immediate risk of
physical and mental harm.
4.8
b. Unjust.
This provision – which the Government does not suggest will save money – will
affect all clients because the test will have to be met by all those seeking advice.
Many will be lawfully here for a period of 12 months but will be unable to provide the
necessary evidence. The practical effects of this are outlined below.
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However, the proposal will by definition exclude all those who will not meet the
lawfully resident test of 12 months. This will mean that extraordinarily vulnerable
individuals such as the following will have no right to any legal advice or
representation:
 people suffering from domestic violence
 trafficked individuals
 children e.g. unable to prove residence
 babies under a year old – particularly important as they would not be able to
obtain legal aid in care proceedings
 asylum seekers in the year following the grant of asylum
 victims of forced marriage
 mentally ill persons detained for their own protection or protection of the public
 people with learning disabilities and other incapacitated persons
 older people with mental health needs or physical disabilities
 homeless people
 It appears that whilst there is an exemption for asylum seekers after one year
there are no proposals to exempt children or those responsible for their care
which gives cause for serious concern
 Children in Care Cases. In Care Cases there will be many children who have
not been resident in the UK for 12 months and who are not necessarily
entitled to be here who would not be eligible to be represented. That would
mean that a guardian would presumably be appointed but there would be no
legal representation. It is not difficult to envisage a case when the local
authority would be legally represented but the child and guardian would not
have access to legal representation. This flies completely against all
principles of equality of arms and access to justice. An example: in care
proceedings before a baby is born there will be meetings to discuss if the
baby should be taken into care. The mother may be able to obtain
representation but the baby will not until he/she is a year old.
 Clinical negligence cases will not be able to commence in the first year of the
baby’s life – that is surely not what Parliament intended when it agreed the
exemption during the passage of LASPOA.
 International Child Abduction Cases: This proposal would also effectively rule
out most foreign claims for child abduction in the UK. This will have a serious
effect on parents of children born or living in the UK to seek the return of
children from abroad. Similarly “left behind” parents of children abducted from
other countries to the UK will have no access to the British Courts for orders
that the child be returned to their rightful country of residence. The proposal
says that the British Government will continue to meet its obligations under
the EU and International Law meaning presumably the Hague Convention but
what attitude are other convention countries likely to take when it appears that
the UK only pays lip service to the Treaty and devotes hardly any resources at
all to providing the remedies and protection for children the Treaty intended?
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

This is but one example of the credibility of the British justice system being
undermined by this proposal.
Parents in Care Cases. Many parent parties would struggle to meet this test.
The test will lead to a plethora of care cases with just one parent being
represented. This cannot be said to be just in any way especially for the child
who will suffer from the inevitably poor outcome. A poor outcome for the child
in these cases is clearly also a poor outcome for justice and society in general
and will lead to greater costs elsewhere in the system.
The proposal will also adversely affect vulnerable mentally incapacitated
adults who currently have the protection of the powers of the Court of
Protection.
Schedule 3 of the MCA 2005 deals with the International Protection of Adults
with incapacity and sets out the scope of the Court of Protection's
jurisdiction in relation to those adults at paragraph 7 of the Schedule. . Part 2
of the Schedule specifically provides at Para 7(1) (c)
'the court may exercise its function under this Act ( in so far as it cannot
otherwise do so) in relation to:...
...
(c) an adult present in England and Wales or who has property there, if the
matter is urgent, or
(d an adult present in England and Wales, if a protective measure which is
temporary and limited in its effect to England and Wales is proposed in
relation to him.
These provisions appear to have been specifically added to include adults
who would not otherwise meet the residency requirements of the Schedule. A
typical case would be the removal of an incapacitated adult from another
jurisdiction to England or Wales and an application to return the adult to the
other jurisdiction. If the residence test as currently formulated is implemented
then severely disabled persons who are at risk and require protection will be
left without any remedy. This could in many cases result in physical or mental
harm or even death.
We cannot call ourselves a civilised society when so many vulnerable people would
be excluded, such as those who are at risk of violence, or who are trafficked into the
UK. They may have limited command of English and would have very little possibility
of obtaining help under the legal system.
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4.9
c. Impractical
In our view any system which requires the provider to obtain proof of lawful
residence for a period of a year will be wholly unworkable both because of practical
difficulties in obtaining such evidence and also due to the complexities as to who is
‘lawfully’ resident (and for a year). If this proposal is implemented it will apply to all
clients, and will bring the legal advice system to an immediate halt because of the
practical difficulties in obtaining proof.
We are concerned that the legal aid provider would need to gather the evidence in all
cases, including people who are extremely vulnerable per se but also whose
circumstances mean that they cannot easily find their own paperwork e.g. homeless
people, people suffering domestic violence and children. Many people, particularly
those who have chaotic lifestyles or disabilities, or who are in a time of crisis do not
readily have access to documentary evidence of lawful residence. Even if, which we
doubt, that this client group could provide evidence of lawful residence for a year, the
delay in producing the evidence prior to accessing legal advice would place them at
very serious risk and may in some cases lead to their suffering harm or even death
because of the administrative requirements.
We are grateful to ILPA for pointing out that the UK Border Agency guidance for
employers on preventing illegal working, which is concerned with verifying
immigration status, runs to 89 pages and still employers rely on lawyers to help them
‘interpret it’.
The complexity around the term ‘lawfully resident’ will result in confusion, people
being denied advice to which they are entitled, and second guessing by the LAA.
This in turn will lead to considerable additional expense for the LAA in auditing firms,
appeals and other challenges, something recognised by the IA. We think that this
has been seriously underestimated and will create massive problems for the efficient
operation of the legal aid scheme.
Additionally this is time which providers can ill afford to spend on administrative
matters when businesses are already under extreme pressure.
British Citizens who have not lived here for the last 12 months will have to show
proof they have lived here in the last 12 months which providers need to check,
which for people who have lived abroad, possibly with their partner's job, may find
very hard to prove.
It is already difficult for people who are entitled to legal aid to satisfy the eligibility test
because of its increased complexity following LASPOA. The residence test will make
it even more difficult for people to obtain legal aid, even if under this new test they
are lawfully entitled to do so.
4.10
d. Unnecessary
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4.10 This is a non-evidence based proposal which the Government has shown no
logical or defensible reason for its introduction. It is flawed on every level.
The Government has acknowledged that it does not have data on the numbers of
people affected by this proposal. It cannot cost it, both in terms of any savings to the
legal aid fund or the additional cost to society from removal of access to legal aid.
It has no evidence to say that this proposal is needed to shore up public confidence.
There is no evidence that access to legal advice is a cause of unlawful entry or
residence in the UK (and this would be most surprising). Public confidence in the
legal aid system could be fostered by the Government explaining to the public what
legal aid remains available for, and the fact that already only a very small percentage
of the population is eligible for any legal advice at any level.
4.11 We have a number of Questions because the consultation paper does not
contain sufficient information for us to be able to comment effectively on the
matters upon which our views are sought:
I. How many people will this proposal affect?
II. What areas of law will this proposal affect (with data)?
III. What, if any, savings to the public purse will be achieved by the residence test
for each category of law?
IV. How were these calculated? What management Information/ data did the
MoJ rely on in making these calculations?
V. What does the MoJ define as ‘lawfully resident’?
VI. What will legal representatives have to do to obtain relevant information to
prove lawful residence of a client over a period of 12 months?
VII. How will that affect the ability of those with LAA contracts to use devolved
powers so that the parent can be represented at initial hearings?
VIII. How will those at risk of violence or other harm be protected if the test is
implemented?
IX. How does the Government consider it has met its Article 6 obligations by
removing legal aid from this client group?
4.12 Conclusion
The effects of the LASPO cuts have yet to be evaluated but it was anticipated by
many that they will result in over 600,000 people a year being denied access to
justice. The LASPO cuts left a rump of a legal aid system accessible to a very small
minority of the poorest and most vulnerable in society. The residence proposal will
ensure that the poorest and most vulnerable of those, many of them lawfully and
properly in the UK, will also now be excluded from access to justice. This proposal is
not a transformation. It is a cut of the most politically cynical ‘slash and burn’ variety.
Contrary to the stated aim of the policy it will strip the legal aid system of any
remaining credibility.
4. PAYING FOR PERMISSION WORK IN JUDICIAL REVIEW CASES
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5. Do you agree with the proposal that providers should only be paid for work
carried out on an application for judicial review, including a request for
reconsideration of the application at a hearing, the renewal hearing, or an
onward permission appeal to the Court of Appeal, if permission is granted by
the Court (but that reasonable disbursements should be payable in any event).
Please give reasons.
5.1. No. LAPG does not agree with this proposal.
5.2 Judicial Review is a vital constitutional procedure for holding the decisions and
omissions of public bodies to account in a democratic society.
5.3 The proposal amounts to an effective removal of legal aid in this area. This is
because by developing a system of payment only when and if permission is granted,
the ability of individuals to challenge decisions of the State is entirely dependent on
suppliers being able and willing to undertake that work without payment. For the
reasons below we think that the consequence will be that such cases will not be
brought, regardless of their merits.
5.4 We consider that the proposal wholly undermines the credibility of the British
justice system. We share the serious concerns expressed by senior lawyers and
politicians about the consequences for the reputation of the country on a world-wide
stage if this proposal is implemented.
5.5 This proposal is not founded on a pressing need to make financial savings,
because at best it is expected that the proposal will achieve only £1m of savings (a
figure which is rounded up in any event). This proposal is plainly ideological and
political and intended to prevent challenges to decisions of the Executive by ordinary
citizens.
5.6 We were extremely surprised to see the proposal included in the consultation
following the express assurances given to Parliament by Ministers regarding the
availability of legal aid for judicial review during the passage of LASPOA only a very
short period previously.
5.7 Other organisations are well placed to develop the plethora of arguments against
the implementation of the proposal and therefore we are making brief references to
the main concerns below.

Funding of ‘weak cases’. LAPG challenges the assertion that legal aid is
being used to fund a significant number of weak cases, and is concerned
about the apparent distortion of data about cases to support the argument for
reduction in legal aid availability. We refer to the research carried out by the
Public Law Project which sets out a full analysis of what can be identified from
the data that is collected. In particular we note that data about ‘other’ cases is
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not collected in a way which can result in sensible or logical decisions being
reached to support proposals to reduce public funding for such cases.

Furthermore the Civil Legal Aid (Merits) Regulations 2012 issued under
LASPOA provide an increased robust test for availability of legal aid for
judicial review cases and has already restricted the availability of public
funding. In addition the Legal Aid Agency scrutinises applications for legal aid
to ensure that only those cases with sufficient merit proceed. The proposal
appears to acknowledge that the LAA is incapable of assessing the merits of
a case.

If, which we do not accept, there is a problem of ‘weak’ cases being brought,
then this can be remedied by the Judge considering permission making an
order for costs in cases where s/he considers that the case is wholly without
merit and should never have been brought.

The outcomes for judicial review proceedings are uncertain and
unpredictable, even when case law is settled. Those cases which are
considered by some senior public lawyers to be worthy of proceeding can
equally be considered by others to be lacking in merit. There is no readily
recognisable way of assessing or predicting ‘weak’ cases. This proposal will
apply equally to all cases, whether strong or weak, and effectively prevent the
ability of even strong cases from proceeding because funding is removed.

Equality of arms – there is no suggestion that the State would have no access
to legal advice or representation unless successful. This exposes a
fundamental unfairness in the system which already places the citizen at a
disadvantage by operating a restrictive means test for legal aid (thereby
excluding most of the population). The Government might consider the
consequences of the proposal if the position was reversed, namely if
permission was granted then the legal team instructed by the Government or
local authority should personally bear the cost of the case. All these cases are
funded by the taxpayer, and it is a breach of the principle of equality of arms
for Government to be legally represented from public funds whilst the citizen
is not.

The proposal is based on an assumption that cases are issued and then
permission is either granted or refused. This is not the case. Many cases
settle post issue and pre permission. Some cases are rendered academic
because of an external event. While we note that the FAQ arising from the
consultation events indicates that it would be possible for the supplier to seek
an order for costs from the Court, this will result in increased satellite litigation,
and costs to the public purse. In any event the rules on costs orders do not
15
give certainty that costs would be ordered. The practical effect is that the case
would not be brought in the first place because the legal team could not
predict in advance how many cases would not proceed post permission or
whether the opponent might concede before permission is considered.

Permission is increasingly a high threshold and not just whether the case is
‘arguable’. Therefore in addition to being unpredictable, the grant of
permission rests on the decision of the Judge on a particular day and whether
the correct test of ‘arguability’ rather than ‘likely to succeed’ test is being
applied. This adds to the uncertainty and therefore acts as a deterrent to
bringing cases in the first place.

If this proposal is implemented then it will further advantage the Defendant
and disadvantage the Claimant because despite the requirement for
compliance with the pre action protocol, including letters before claim etc.
ultimately the Defendant will know that the Claimant’s legal team will have to
issue proceedings ‘at risk’ on costs. This will deter early settlement and
discourage Defendants from resolving disputes without litigation because they
will know that there is a real risk that the case will never be brought because
of the costs risk. The stark reality is that the Defendant is in a strengthened
position by this proposal, and can delay early resolution because of the
likelihood that proceedings will not be issued.

As referred to above, the practical effect of making payment dependent on the
grant of permission is that such cases will not be brought. This is because
carrying out work ‘at risk’ when organisations are already working on low or
non-existent profit margins means that from a business perspective the
organisation will not be able to take such a risk.

If specialist providers are unable to afford to bring judicial review cases or
their ability is reduced, then it is more likely that providers who are not well
versed in public law will take the risk. A poorly run case will result in additional
cost to the taxpayer and place the client at risk.

Without proper representation more cases will be badly run by litigants in
person, costing the taxpayer even more. As judicial review challenges are
brought against local or central Government departments, the outcome is
likely to be that the additional onus on Government counsel to assist litigants
in person will mean that the cost of such cases will increase exponentially.

Whilst it is stated that pre permission work will remain in scope, it is unclear
whether this will cover preparation of pleadings, grounds, witness statements,
bundles and the issue fee. If it does not then removal of legal aid unless
16
permission is granted will indeed act as a complete bar to a case being
brought. The more complex a case, and often the more important it is as far
as public interest issues are concerned, the more work is required to apply for
permission (e.g. decisions affecting large numbers of the population rather
than just one individual, public interest cases, care home closure cases etc.).

Moreover the current limitation on new matter starts for public law cases
means that already existing providers have to ration legal help cases in public
law. If the existing limits on new matter starts remains, then it will not be
possible for providers to undertake work under legal helps because there are
insufficient allocated at present.
5.8 For all the reasons above we consider the proposal to be ill founded,
undemocratic and undermining of the rule of law.
5. CIVIL MERITS TEST – REMOVING LEGAL AID FOR BORDERLINE CASES
6. Do you agree with the proposal that legal aid should be removed for all
cases assessed as having borderline prospects of success? Please give
reasons.
6.1 No. Borderline cases are high priority cases including cases holding the state to
account, public interest cases and cases concerning housing, and including asylum
(para 3.87). This is not about a large number of cases. The Ministry of Justice states
that there are 100 a year (a rounded up figure). It is precisely because of the
overwhelming importance to the client or the public interest that it is vital that these
cases when they arise will be funded.
6.2 In some cases it is not possible to evaluate the chances of obtaining a successful
outcome is, because there is a dispute about the facts, the law or expert evidence.
These cases are defined as “borderline” cases (this does not mean that the
prospects of success are less than 50% or poor, but that the prospects cannot be
assessed, i.e. the court must interpret the law, decide on the disputed facts or expert
evidence).
6.3 The current merits regulations provide that borderline cases can be funded by
legal aid because of their importance, either to the individual or constitutionally
because they are about holding the state to account.
6.4 The points raised in these cases are often of high importance and the very
nature of a legal case is that the final outcome cannot be determined without intense
deliberation on what are often controversial issues. Test cases on “borderline” issues
are vital for determining the shape of the law’s development and clarifying the most
difficult questions. Removing this possibility will increase the power of public bodies
17
and may allow undesirable practices to continue without a realistic option to
challenge them.
6.5 Family cases are often difficult to assess.
6.6 Wherever the interpretation of the law is at issue or the case depends on how the
judge assesses the factual or expert evidence, these cases are likely to be
borderline.
Chapter 4: Introducing Competition in the Criminal Legal Aid Market p37
i) Scope of the new contract
Q.7 Do you agree with the proposed scope of criminal legal aid services to be
competed? Please give reasons.
7.1 No.
7.2 Our reasons are as follows:
Argument 1: right to choose your lawyer. We believe that it is fundamentally
important for people facing criminal investigation and charges to be able to choose
their own lawyer. This is acknowledged in Article 6 of the HRA.
Argument 2: we think that choice of lawyer drives up standards in a way that the
state run appointment of lawyers would not. Removing client choice is contrary to
policy in other public services such as health and education where giving choice to
the users of the services is acknowledged as a way of driving up standards.
Argument 3: client choice increases the chance of better representation e.g. the
lawyer may have acted for the client before. They already know lots of information
about the person and can deal quickly and efficiently. Additionally if client choice is
removed, clients will not be able to have the same firms dealing with related civil
issues e.g. family, housing or mental health. Clients will no longer be able to choose
a specialist lawyer in dealing with their type of case such as fraud, extradition,
terrorism, sexual offences, HIV related prosecutions, protest lawyers and the
expertise of specialist lawyers built up over years of experience will be lost for ever.
Clients will no longer be able to choose to be represented by a lawyer from their own
community who can speak to them in their own language and understand their
culture.
Argument 4: there is a much better chance of the lawyer being able to persuade the
client to be more realistic, where appropriate, and e.g. plead guilty. The client is
more likely to accept advice and e.g. plead guilty if they trust their lawyer.
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Argument 5: we believe that a bid based on price with very limited quality measures
will have a drastic effect on the criminal justice system. Criminal defence
practitioners need to be independent and fearless – representing their clients’
interests and advising appropriately. Without quality the justice system will be a
façade of justice and miscarriages of justice will take place. We cannot emphasise
enough the importance of quality and independence in the criminal defence system.
There is already significant inequality of arms between the prosecution and the
defence but these proposals will turn a chasm into a gulf.
Argument 6: the proposals will destroy the free market by artificial restrictions. While
we understand that the Ministry is seeking to provide enough work to offset against
the reduced fees and believes that there will be savings in delivering larger
contracts, our view is that the proposals will not deliver this. Why?

In many areas there would be less work than now and this could lead to large
firms pulling out. They could under these plans be awarded contracts for less
work than they do now and would have to lay people off or move them to
another area (with all the added costs of so doing) if they bid in more than one
CJS.

The need to become bigger would prevent smaller and medium sized firms
from competing for contracts. The consultation refers to organisations having
to increase by 250%. At a time when it is difficult to borrow from banks and at
a time when practices are hard pressed financially, we believe that it would be
hard for all firms to restructure in the timescale provided but more importantly
at all.
Argument 7: the state is effectively a monopoly buyer and with no lower limit of bids,
if firms bid and are awarded contracts there Is reason to fear that poor quality work
will be routine. Or firms will collapse and that will cause distress for clients and cost
for the LAA and the court system.
Argument 8: another concern about the viability is will TUPE apply? Any bidders who
are successful will have to take this into account.
Argument 9: Much of the criminal justice system is driven by changes in legislation,
operational issues at the CPS and other parts of the criminal justice system, and
initiatives and operational issues in the police force. Firms would be bidding for an
unknown amount of work and changes e.g. if their local police force offered more
cautions rather than prosecutions, this would affect their ability to survive. Why would
anyone want to bid for a fixed share of an unknown amount of work for a three year
period when volumes of work are outside your control?
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Argument 10: spend on criminal defence work has reduced considerably in recent
years. LAPG committee members regularly attend meetings with the LAA and MoJ.
It is clear that spend on criminal defence work is reducing and that the LAA
anticipate that it will be below £1billion in 2013/14 – indeed the budget is £0.941
billion p23 of the LAA’s business plan. Spend has decreased for many reasons: the
effect of fixed fees, changes in payment for committal, the way that the CPS
operates and the number of alternatives to charging e.g. cautions. In analysing
spend, the Ministry of Justice figures include VAT so when there is an increase in
VAT most recently to 20% then that is included in the crime spend figures. That
means that even though VAT has increased expenditure has continued to decline.
7.3 More detailed figures and analysis is needed to understand what is likely to
happen over the next four years and therefore it is difficult for firms to assess how
much of a risk this is.
7.4 LAPG calls for a review of the criminal justice system. The criminal defence
practitioners are one of the few parts that function properly. Many other parts are
dysfunctional. There is a lot of rhetoric but little or poor delivery. For example, saving
travel time by having video links in prisons is a good idea, but without the resources
to ensure that this can be accessed when needed it has achieved little.
7.5 The savings are likely to increase costs in other parts of the system i.e. an
increase in the prison population which is already one of the highest in Europe as
bail applications are less well prepared and increase in court costs as trials are less
well prepared and managed. Mentally ill clients whose lawyers do not know their
history could be wrongly incarcerated for longer periods resulting in a deterioration in
their health and further costs of treatment.
7.6 LAPG is concerned at the proposal that prison law could only be delivered as
part of the criminal contract and that those who win a contract will be obliged to
provide prison law services to eligible clients.
7.7 At present prison law services can be provided by both those with and without a
general criminal contract. A number of specialist practices who carry out prison law
work do not do any criminal defence work. Prison law is very different from general
criminal work. For instance, parole board hearings are inquisitorial in nature.
Q.8 Do you agree that given the need to deliver further savings, a 17.5%
reduction in the rates payable for those classes of work not determined by the
price competition is reasonable? Please give reasons.
8.1 No. The market is incredibly competitive in many areas of the country with a
strong focus on quality. Firms are innovating to survive.
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8.2 There have been surveys of earnings. We are aware that the Law Society has
commissioned research on the financial viability of firms and would refer to that
research. Any firm seeking to bid at 17.5% (or more) than current fees would face
the following difficulties:
 There are too many variables and risk factors (the market is not static).
 This will impact on mixed practices already having had to absorb the cuts and
changes imposed by LASPOA.
 We think the current model, the fees reduction and the timescale make this
unworkable.
 The price should be a price that providers can deliver a quality service on. If
we are right that the figure is too low, it could only be achieved by using junior
staff.
 The duty of COFA officers is to ensure that the firm remains financially sound.
The new code of conduct is self-regulating – if the Managing Partner decides
to bid should these proposals go ahead, the COFA will have to consider if the
firm’s viability is at stake and may have a duty to report the situation to the
SRA.
 The cuts also mean that firms will risk being in breach of the regulatory
requirements under COLP.
ii) Contract length
Q.9 Do you agree with the proposal under the competition model that three
years, with the possibility of extending the contract term by up to two further
years and a provision for compensation in certain circumstances for early
termination is an appropriate length of contract? Please give reasons.
9.1 LAPG believes that the proposals are not workable.
9.2 If the proposals go ahead we think there will be many more serious questions to
address than the length of the contract. Probably three years is adequate. Our
concern is the need for people to terminate the contract if they have bid too low and
cannot make the contract work. We would suggest a one-way break clause at, say,
18 months.
9.3 Much depends what else changes. If the market continues to diminish then even
if a firm has managed to deliver a service, circumstances outside their control may
mean that the contract is completely uneconomic.
iii) Geographical areas for the procurement and delivery of services
Q 10 Do you agree with the proposal under the competition model that with the
exception of London, Warwickshire/ West Mercia and Avon and Somerset/
Gloucestershire, procurement areas should be set by the current criminal
justice system areas? Please give reasons.
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10.1 The responses to this and the following questions are predicated on the basis
that LAPG does not agree with the proposals to implement Competitive tendering.
10.2 LAPG agrees that if this was to proceed, dividing the country up by CJS area is
an appropriate starting point.
10.3 However conditions vary widely across the country and any proposals should
be the subject of further locally based consultation to ensure sustainability.
10.4 For example in London the proposal is to have three areas. These are very
large and would present difficulties for client travel and indeed for practitioners
covering large areas. Some of the CJS areas are extremely large. Really careful
consideration has to be given to this and we cannot comment in more detail.
Q 11 Do you agree with the proposal under the competition model to join the
following CJS areas: Warwickshire with West Mercia; and Gloucestershire with
Avon and Somerset, to form two new procurement areas? Please give
reasons.
11. As above.
Q 12: Do you agree with the proposal under the competition model that
London should be divided into three procurement areas be aligned with the
area boundaries used by the Crown Prosecution Service? Please give reasons.
12.1 No. As above. We refer to the answer above to question 10. We think many
factors need to be considered including that: The CPS areas are fairly newly implemented and often suffer from
administrative problems themselves.
 The market in London is very different and many providers are delivering a
service to their local community based on years of involvement.
 Some firms specialise in serving BME communities who are not all based
within one procurement area.
 Also many prosecution agencies are in London and defence agencies have
located themselves there. These firms have developed specialisms and often
service a nationally based client group.
Q 13: Do you agree with the proposal under the competition model that work
tendered should be exclusively available to those who have won competitively
22
tendered contracts within the applicable procurement areas? Please give
reasons?
13.1. No. This question is predicated on agreeing with the model proposed which we
do not.
13.2 Criminal law is a vast field with several specialisms. Not all of the specialisms
are to be found in one procurement area. Even where the specialism is to be found
in one area, it may be the case that a provider in a different area is reputed to do the
work to a much higher standard. Criminal law engages fundamental rights, and the
consequences of conviction can be life-changing, career-ending and lead to prison; it
is vital that criminal lawyers can offer their expertise across England & Wales, and
not be geographically limited.
13.3 We can see that if the proposals come in there might in some cases be a need
for flexibility on this issue e.g. if a case was transferred to a Crown Court the other
side of the country.
iv) Number of contracts
Q14 Do you agree with the proposal under the competition model to vary the
number of contracts in each procurement area? Please give reasons
14.1 No.
14.2 By limiting the number of contracts in each area, the Government would create
an oligopolistic model within each area. This would pose a problem at the next round
of retendering; the remaining providers would set a minimum price below which they
would refuse to do the work. The anticipated savings from PCT would be mitigated, if
not wiped out. The Government could not rely on new entrants to the market to
ensure a competitive price, as firms will have shut down and left the sector for good.
14.3 When the Legal Aid Board trialled PCT in the criminal legal aid sector in the
late1990s problems occurred which we would urge the Ministry of Justice to consider
more fully now.
14.4 In the areas where there would be very few providers our concern is that if a
provider closes suddenly it will be difficult for those remaining to cover the work.
14.5 If a large provider goes under, this causes a huge problem for clients, other
providers and the court service.
23
14.6 In some areas a number of providers will have to double or treble in size to
deliver the contract. Paragraph 4.65 identifies that providers will need to grow their
business on average by around 250% or join with others.
14.7 This is not possible in the time-scales envisaged.
14.8 LAPG understands that the LAA would like to manage fewer providers and cut
down the number of contractual relationships it has. However if a few firms get into
financial difficulty the time expended on sorting them out may well mean that there
will be no administrative saving.
14.9 Our concern is that on all levels this is not manageable and the risk to quality is
considerable. Junior staff, high numbers to be supervised, the financial pressure of
rolling with this unknown structure, new IT – we fear miscarriages of justice and
failing firms.
14.10 In some areas of the country if one or two providers had financial difficulties
there could be major repercussions – we doubt that there will be firms who could
take over contracts at short notice.
Q15 Do you agree with the factors that we propose to take into consideration
and are there any other factors that should be taken into consideration in
determining the appropriate number of contracts in each procurement area
under the competition model? Please give reasons
15.1 We do not have the resources to be able to assess this fully. We note that the
government identifies that the number of providers has to vary per procurement area
and that the aim is to ensure
 Sufficient supply to deal with conflicts of interest
 Sufficient case volume to allow fixed fees to work
 Market agility
 Sustainable procurement

15.2 The proposal is also to ring fence the PDS. We do not understand the
reasoning behind this as all figures produced have shown that the PDS is more
expensive than private practice and the proposal is anti-competitive.
15.3 There are many risks involved in these proposals, most importantly for the
client, but also for the government and the providers.
 Sufficient supply to deal with conflicts of interest. There needs to be flexibility
to cover those cases where there are more defendants than providers.
 Sufficient case volume to allow fixed fees to work.
24


This is a profoundly important point and is better expressed in this way: can
the government drive down the price of criminal defence work even further by
driving clients to firms in some way that means that there is enough volume of
work to ensure that the firms remain in business? The answer is that this can
be done but only by driving down the quality of representation by depriving
clients of choice of representative. We consider that this is absolutely
unacceptable.
Market agility.
15.4 Businesses dealing with a government that is effectively a monopoly buyer face
many difficulties not least how much work to do to fit into a model that may or may
not happen. When Lord Carter was asked to look at the market he made it clear that
the direction of travel was for larger firms to flourish as they would be able to
increase in size and with that focus, reduce overheads.
15.5 However it could be argued that in the years since then that one person/small
firms with good IT have achieved the highest profits. By cutting down on overheads,
such as an office, some have made a reasonable living. There is such widespread
concern about these proposals that even if the government drives them forward in
the face of all opposition, firms are not likely to be able to transform themselves in
time.
15.6 Sustainable procurement: we simply cannot see that there will be sustainable
procurement either in the first round because the proposals are likely to be
disastrous for many providers, but also in subsequent rounds because of how few
providers will be left. It seems extremely unlikely that new providers will be attracted
to this work for many practical reasons e.g. setting up prior to bidding and the
difficulties of financing that and finding staff before bidding for a contract.
vi) CONTRACT VALUE
Q16 Do you agree with the proposal under the competition model that work
would be shared equally between providers in each procurement area? Please
give reasons
16.1 This is not a competitive model in the sense that providers cannot bid for what
share of the market they want – this is particularly important if people are bidding for
work at artificially low fees. This is anti-competitive.
16.2 Clients will be denied access to specialist lawyers and/or lawyers from their own
community. Clients could have many lawyers dealing with a series of cases and
would be far less likely to be able to have the same provider dealing with related civil
matters.
25
16.3 The implication of sharing out the work equally varies.
16.4 For large providers, the work on offer (but not guaranteed) will not be enough
for many large providers in their area so they will have to consider their options.
 Downsize and stay in one area – will this be sustainable?
 Or move into other areas? What will be the costs of doing that? What will the
requirements be? We are acutely aware of the difficulty some practices have
had in bidding for contracts in recent years and in meeting the requirements
particularly in the verification process.
 Close down and bill all possible work?
 Work on different ways of complying with the proposals but which are not
identified by the government?

16.5 For smaller practices their choices are also stark.
 Work on some form of merger – always a gamble (and the time involved eats
into income)?
 Work on some form of structure so that firms work together but do not merge?
 Close down and bill all possible work?
vii) CLIENT CHOICE
Q17 Do you agree with the proposal under the competition model that clients
would generally have no choice in the representative allocated to them at the
outset? Please give reasons.
17.1 No.
17.2 We think that allowing choice drives up quality. We think this proposal is
illiberal.
17.3 Many people who are prosecuted trust their existing lawyer. That means that
the provider knows their client and is trusted. They know their family situation, any
previous convictions, any mental health or addiction issues. This means that clients
will accept advice more quickly and that cases can be dealt with more efficiently.
17.4 Clients will no longer be able to choose a lawyer specialising in their type of
case and the expertise of specialist lawyers will be lost for ever.
17.5 Some clients will choose to represent themselves rather than instruct a nonspecialist lawyer who is not experienced at dealing with the political and/or cultural
issues in their case leading to the courts being clogged up with unrepresented
defendants some of them in multi handed trials with the consequential costs
implications.
26
17.6 We would ask the government to explain how this fits into s. 27 of the Legal Aid,
Sentencing and Punishment of Offenders Act.
17.7 The proposal is in breach of Article 6 of the HRA and flies in the face of
increased choice in other areas of public services which is seen as mechanism for
driving up standards.
17.8 The argument against removal of client choice was made by the Prime Minister
in his ‘Big Society’ speech of July 2011, when he emphasised that choice in public
services was fundamental to ensure a good quality of service, a good range of
services, fairness, and accountability, and to ensure that the taxpayer gets value for
money. In that speech he said, ‘the old dogma that said Whitehall knows best – it’s
gone… wherever possible we are increasing choice by giving people direct control
over the services they use… for the first time ever we are looking at how we can
enshrine a general right to choose in law… in this world of restricted choice and
freedom it’s the poorest who lose out.’ The removal of client choice cannot be
reconciled with the promises made in this speech.
viii) CASE ALLOCATION
Q18. Which of the following police station case allocation methods should
feature in the competition model? Please give reasons
Option 1(a) cases allocated on a case by case basis
Option 1(b) cases allocated based on the client’s day of month and birth
Option 1(c) cases allocated on the client’s surname initial
Option 2 – cases allocated to the provider on duty
Other
18.1 We strongly oppose the current proposals for all the reasons set out so far.
18.2 We are extremely concerned that an individual would be allocated to different
practices each time he or she is arrested. That must not be allowed to happen for
many reasons to do with client choice. It is also economically nonsensical for a client
to have to go through their personal history each time they are arrested. Option 2 –
duty slots may be the least bad option because then firms can plan. Extensive work
would have to be carried out to analyse the effects of each option.
Q19 Do you agree with the proposal under the competition model that for
clients who cannot be represented by one of the contracted [providers in the
procurement area (for a reason agreed by the LAA or the Court), the client
should be allocated to the next available nearest provider in a different
procurement area? Please give reason.
27
19 No. This again removes client choice. The client should be able to choose.
Q20 Do you agree with the proposal under the competition model that clients
would be required to stay with their allocated provider for the duration of the
case, subject to exceptional circumstances? Please give reasons
20. No. These are cases about a person’s livelihood, liberty, reputation – his or her
entire life. Much depends on the interpretation of ‘exceptional circumstances’. We
have already expressed our concerns about lack of choice for clients.
ix) REMUNERATION
Q21 Do you agree with the following proposed remuneration mechanism
under the competition model? Please give reasons
 Block payment for all police station attendance work per provider per
procurement area based on the historical volume in area and the bid
price
 Fixed fee per provider per procurement area based on their bid price for
magistrates’ court representation
 Fixed fee per provider per procurement area based on their bid price for
Crown Court litigation (for cases where the pages of prosecution
evidence does not exceed 500)
 Current graduated fee scheme for Crown Court litigation (for cases
where the pages of prosecution evidence exceed 500 only) but at
discounted rates as proposed by each [provider in the procurement
21.1 We are concerned that if there is a very low bid, how will the LAA check that?
What level of bid would be rejected? Is there a floor that the LAA thinks is so low
they would reject any bids below it?
21.2 The timescale is incredibly tight. Due diligence would have to be completed by
September.
21.3 The Law Society has advised providers as follows: ‘You may also wish to
comment on your regulatory obligations under Principle 8, relating to sound financial
management of your firm, and what implications that might have when you come to
decide whether or not to submit a bid.’
21.4 Firm also risk being unable to comply with the COLP requirements.
21.5 One of the problems is that firms could corner the market and drive the price
down but if it is not affordable clients and the LAA will pay the price if that provider
closes down.
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21.6 This is about people’s liberty. This is a crude mechanism to drive prices down
and leave 400 practices hoping that they will be able to drive a better deal in the next
procurement round but unable to be certain that they will still be in business by then.
a) Police station attendance block payment
21.7 We understand the rationale for this but do not see any evidence that firms can
deliver this at a rate 17.5% at least lower than now.
21.8 It is essential that there is some escape clause because swings and
roundabouts is not an argument when rates are cut to the bone.
21.9 The block payment model for police station advice is unworkable. Police arrest
figures change all the time, from month-to-month, and year-to-year. It is simply not
viable to base payment for such work on historical data.
21.10 While it may not be desirable for administrative reasons, police station advice
and representation must continue to be paid on a case-by-case basis. That is the
only way to ensure that providers are paid for the work they do, and that taxpayers
do not end up paying for work that has not been done.
b) Representation in the magistrate’s court
21.11 As above
c) Crown Court litigation fixed fee (cases with less than 500 pages of
prosecution evidence)
d) Crown Court litigation graduated fee (cases with 500 PPE or greater)
21.12 As above.
Q22 Do you agree with the proposal under the competition model that
applicants be required to include the cost of any travel and subsistence
disbursements under each fixed fee and the graduated fee when submitting
their bids? Please give reasons
22.1 No. In view of the vast distances in some of the areas this would be
economically unsustainable. Already travel time is unpaid.
22.2 Firms are going to have to cover a wider area, e.g. Hampshire firms also have
to cover the Isle of Wight and cross one of the most expensive areas of sea in the
world. Courts and police stations often do not have parking facilities for advocates
and parking charges can often be £12 per day as a minimum.
29
22.3 Generally in rural areas e.g. parts of Wales, Northumbria and Devon/Cornwall
this would be impossible at the level fees are set now, let alone with a 17.5% plus
reduction.
22.4 Covering CJS areas will be very different to the areas covered at present.
Variable costs must not be included in the fixed fee.
x) PROCUREMENT PROCESS
Q23 Are there any factors to be taken into consideration in designing the
technical criteria for the Pre Qualification Questionnaire stage of the tendering
process under the competition model? Please give reasons
23.1 Our concern is that with the proposed timescale many organisations will not be
in a position to satisfy a PQQ that is in the form currently used. Major changes will
have to be made to staffing and structure. If for example practices are considering
becoming ABSs then that takes a considerable amount of time.
23.2 In seeking to alter the market in such a short time (and we would say unrealistic
time) it will be very difficult for practices to invest the time in making changes in the
hope that they will win a contract rather than in the expectation that they will. The
knock-on effect on the criminal justice system of devastation in the criminal defence
world gives cause for concern as to how any PQQ could be designed.
23.3 Firms will be going through a period of upheaval and are unlikely to be able to
reach a satisfactory size (if bigger: staff/agents on board and funding in place for
expansion or if having to reduce in size, redundancy and business planning re
downsizing) in the timescale given.
Q24 Are there any factors to be taken into consideration in designing the
criteria against which to test the Delivery Plan submitted by applicants in
response to the Invitation to Tender under the competition model? Please give
reasons
24.1 As we think it would be uneconomic to bid we think it would be hard to have the
structure in place or even the anticipated structure in place at ITT stage and in this
timescale.
24.2 We understand that the Law Society has spoken to major lenders about the
proposals and they have highlighted how difficult it will be to obtain lending in these
circumstances.
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24.3 Put starkly, firms will be bidding for an unknown amount of work in a wider
geographical area, facing possible TUPE claims and with no guarantee that work will
remain constant. Staff will be unsettled and hard to retain. Rates of pay may make it
hard to retain good staff or attract them.
24.4 How can the outcome be fair for employers and staff or agents when there will
be such a different landscape?
24.5 We think it will be difficult to design the ITT.
Q25 Do you agree with the proposal under the competition model to impose a
price cap for each fixed fee and graduated fee and to ask applicants to bid a
price for each fixed fee and a discount on the graduated fee below the relevant
price cap. Please give reasons
25.1 LAPG does not agree to the price cap as it is anti-competitive. Lord Carter’s
view was to allow free competition and the market would find its own level. We do
not consider that practices can survive in a system where fees are so much less than
now and with the decreasing number of cases identified in figures given to the Crime
Contract Consultative Group, the proposals look as if they will make the market
volatile, there will be collapses and there will be considerable downstream costs
such as the cost of rectifying miscarriages of justice.
25.2 People’s lives can spiral out of control without good quality representation in
criminal matters.
RESTRUCTURING THE ADVOCATES’ GRADUATED FEE SCHEME
Q26 Do you agree with the proposals to amend the Advocates’ Graduated Fee
Scheme to:
 Introduce a single harmonised basic fee, payable in all cases (other than
those that attract a fixed fee), based on the current basic fee for a
cracked trial;
 Reduce the initial daily attendance for trials by between approximately
20 and 30%: and
 Taper rates to that a decreased fee would be payable for every
additional day of trial?
Please give reasons
26.1 No. Justice must not only be done but be seen to be done. We cannot imagine
a quicker way to destabilise criminal defence than this proposal. Why should any
client believe the advice that they should plead guilty when their lawyer will be better
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off if they do so than contesting the hearing? It would be bad proposal if clients had
choice. It is even worse where it is tied to a no choice scheme.
26.2 We do not agree with any scheme that means that acting properly for your
client is penalised.
REDUCING LITIGATOR AND ADVOCATE FEES IN VERY HIGH COST CASES
(CRIME)
Q27 Do you agree that Very High Cost Case (Crime) fees should be reduced by
30%? Please give reasons.
27. We would want to be assured that quality would not suffer. A more modest
reduction might be possible at this end of the market but further consideration would
have to be given to that.
Q28 Do you agree that the reduction should be applied to future work under
current contracts as well as future contracts? Please give reasons.
28. No. Margins are too tight. Generally we do not agree with contract terms being
changed in this way. Businesses plan as best they can to deliver government
contracts. The government should not then reduce the costs.
Q29 Do you agree with the proposals:
 To tighten the current criteria which inform the decision on allowing the
use of multiple advocates;
 To develop a clearer requirement in the new litigation contracts that the
litigation team must provide appropriate support to advocates in the
 Crown Court; and
 To take steps to ensure that they are applied more consistently and
robustly in all cases by the Presiding Judges?
Please give reasons
29.1 No.
29.2 We think current guidance works well regarding the use of multiple advocates.
Multiple advocates are only granted in restricted circumstances following
consideration by a judge who understands the issues in a case.
29.3 The ability of the litigation team to ‘provide appropriate support to advocates in
the Crown Court’ is a good idea for clients as well but if rates are too low it is not
affordable.
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29.4 This proposal is likely to lead to poorer management of cases which increase
the length of trials and court costs.
REDUCING THE FIXED REPRESENTATION FEES PAID TO SOLICITORS IN
FAMILY CASES COVERED BY THE CARE PROCEEDINGS GRADUATED FEE
SCHEME
Q 30: Do you agree with the proposal that the public family law representation
fee should be reduced by 10%? Please give reasons.
30.1 No. We strongly object.
30.2 The proposal appears to be based on the premise that the family justice
reforms will result in a reduction in case duration and this will result in a reduction in
preparation work. However there is no evidence to suggest that this will indeed be
the case.
30.3 The whole basis on which the representation and advocacy scheme was
negotiated was that it had to be cost neutral. There was a lengthy negotiation and
the matter was resolved on the basis that there would be ‘swings and roundabouts’.
This was the bottom end fee manageable. The final fixed fee scheme had a
redistribution between the ‘representation’ and ‘advocacy’ elements. It was agreed
that the two sets of rates would be manageable but this consultation has looked at
these fees in isolation.
30.4 If the representation fee is cut then there is the likelihood that only junior
members of the profession will undertake such work despite the fact that such work
often requires a skilled and experienced lawyer. If fees for such work are reduced yet
again, this may well result in overall fees increasing as the number of hearings
required may increase if the cases are dealt with by junior members of the
profession.
30.5 Experienced practitioners can save costs overall as they will be able to advise a
client at an early stage about the likely outcome. It should not be forgotten that these
are complex cases where clients risk losing their children. The cases often involve
consideration of a large number of documents, and the number is unlikely to reduce
as a result of the family justice reforms. Indeed the amount of documents is likely to
increase under the new PLO introduced from 1.7.13 which involves a huge amount
of “front loading” of information from local authorities prior to and at the outset of
proceedings.
30.6 Practitioners submitted a bid for contracts which started on 1 st April 2013,
organisations were set up on the basis of the fees that had been established. It is
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unreasonable to suggest just 9 days later that there should be a fee cut. This is
unacceptable behaviour on the part of the government.
30.7 The suggestion that in April 2014 casework will be quicker is simply a hope and
assertion. Practitioners cannot run their offices on government assertions or hopes
that are not based in reality. Practitioners need to be able to plan ahead. The reality
is that nobody knows exactly what will happen in 2014. It is quite possible that the
time taken to prepare a case will remain the same but will have to be undertaken
much more quickly. This may result in fee earners having to reduce the number of
cases they have at any one time. The fee cut has been proposed on the basis that
there will be economies in the Court system but there is no guarantee that will be the
case. We would suggest that it would be better to wait until after the procedural
changes have been introduced to see what the net effect is. The assumption that the
changes will result in a reduced preparation time is not accepted.
30.8 We are opposed to the proposed reduction in fees, given the cuts that have
already been imposed, but would suggest that at the very least there should be a
delay in reviewing the fees paid until the proposed family justice reforms have been
in place for at least one year. We would suggest that at least one year is necessary
as it is only when a number of cases have concluded that conclusions can be drawn
as to whether there has been any reduction in preparation time for cases and other
savings.
30.9 If the cut comes in practitioners will have had a 25% cut since the fixed fee
regime was introduced in 2007. It is not the case that the LSC as it then was based
their figures on the actual costs: practitioners are not allowed to include a mark-up,
whereas before fixed fees came in practitioners had at least a 15% mark up on most
cases and often 25 - 50%, so the figures do not provide an accurate representation.
HARMONISING FEES PAID TO SELF-EMPLOYED BARRISTERS WITH THOSE
PAID TO OTHER ADVOCATES APPEARING IN CIVIL (NON-FAMILY)
PROCEEDINGS
Q 31: Do you agree with the proposal that fees for self-employed barristers
appearing in civil (non-family) proceedings in the county court and high court
should be harmonised with those for other advocates appearing in those
courts?
31.1 Generally, LAPG supports harmonisation of fees although we are concerned
about the impact on the senior junior bar of this reduction, which is likely to result in
far fewer experts conducting cases, and a likely consequential impact on the quality
of the conduct of a case as a whole. This could result in greater costs with cases
being conducted by more junior counsel.
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31.2 The junior bar is struggling and we think that more thought needs to go into this
proposal.
REMOVING THE UPLIFT IN THE RATE PAID FOR IMMIGRATION AND ASYLUM
UPPER TRIBUNAL CASES
Q 32: Do you agree with the proposal that the higher civil fee rate,
incorporating a 35% uplift, payable in immigration and asylum upper tribunal
appeals, should be abolished? Please give reasons.
32.1 No. It is unacceptable that practitioners have bid for a 3-year contract starting
1st April 2013 and are then faced with this proposed reduction (see q 30).
32.2 Immigration work is already paid at the lowest possible rates and appeals are at
the most complex end of casework. If the government want to continue to retain the
existing quality providers then they cannot reduce fees still further because
organisations will not survive.
EXPERT FEES IN CIVIL, FAMILY, AND CRIMINAL PROCEEDINGS
Q 33: Do you agree with the proposal that fees paid to experts should be
reduced 20%? Please give reasons.
33.1 LAPG would want to be reassured that there are experts of the requisite
standard who would be willing to work for the fee on offer. Much work has been
carried out to reduce fees and this has at times caused a great deal of difficulty for
clients, practitioners and the court service. It is not clear how the 20% figure was
arrived at and an explanation needs to be provided as to why this figure has been
suggested, as currently this appears to be an arbitrary figure.
33.2 The cap on experts’ fees was only introduced in 2011 and although there is
much anecdotal evidence as to detrimental effect on cases, we have not seen any
evidence to suggest that the rates could be reduced yet further, without causing
difficulties to clients. Practitioners have already experienced a great deal of difficulty
in finding suitable experts at the current rates, if the fees are reduced yet further,
there is a real danger that appropriate experts will not be found at the set rates. . In
addition, practitioners often have to spend a huge amount of time negotiating with
experts around the reduced fees, and then negotiating with the LAA after fees are
reduced.
This extra work, and the delay to proceedings caused by difficulties
around experts, will potentially increase fees.
33.3 Interpreters are already a real problem. Practitioners have found great difficulty
in finding suitable interpreters who will interpret at the current rates, and if rates are
reduced yet further, this will only increase the difficulties. Indeed the reduction in
rates paid to interpreters may well have increased costs overall as cases have been
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delayed due to the difficulty in finding interpreters at the current rates. There have
been many examples of interpreters travelling 50 to 100 miles as no local
interpreters have been found willing to work at the current rates. Obviously when the
travel costs are taken into account the overall costs have increased. Before there are
any further reductions in experts costs evidence needs to be obtained that this
proposal is workable. It may be that it would be possible to reduce some experts
fees, and not others, but proper evidence needs to be obtained before any further
cut in fees.
33.4 In addition there needs to be a mechanism for the small number of cases which
require very expensive experts, there needs to be an assurance that the right level of
expertise can be found for each case and the proposals do not take this into
account.
33.5 Many experts are employed by the NHS. Consideration needs to be given to
whether there can be any agreement that those employed by the NHS will be willing
to work at new rates imposed.
33.6 We would suggest that it is important that whatever rates are imposed are the
rates used by the Government in all departments and not just the Legal Aid Agency.
33.7 The proposals ignore the fact that in many areas of law aside from family, the
over rigid application of the considerably reduced expert fees has already resulted in
a decline in the number of experts willing to undertake the work, and the quality of
the experts available. Often the difference in hourly rates is minimal and is
outweighed by the costs in financial and human terms in obtaining a report from an
expert who is less experienced but willing to accept instructions at the already low
rates.
33.8 In Court of Protection cases involving disabled adults who are at risk of abuse
or neglect the numbers of experts nationally is already very low. The experts are
social workers, consultant psychiatrists, consultant psychologists, and nursing
experts. Para 7.13 of the consultation suggests that independent social workers are
not included in the current standard rates. This is not our experience in adult
abuse/neglect cases.
33.9 The new fee regime did not take account of the fact that expertise in this
relatively new area of mental capacity law was scarce, and the reductions which
have been applied (without regard to the individual case in most cases) has resulted
in those who were previously providing a value for money service for the taxpayer no
longer being willing or able to do so. There is only a handful of experts willing and
able to undertake such work already and cases are being delayed (at considerable
extra cost) by there being so few available with the necessary experience.
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33.10 Take for example a consultant gynaecologist. The proposed hourly rate in
London is £72. Quite apart from the fact that this is, on any view, low for the
expertise required, when the case concerns serious medical treatment such as
whether a learning disabled woman should be subject to compulsory sterilisation, it
will quickly become apparent that the combination of clinical expertise in
gynaecology and mental capacity necessitates a higher hourly rate to ensure that the
vulnerable person and the Court has the benefit of proper expertise. There are
numerous other examples where in this field a standard rate is inappropriate.
33.11 Reducing the fees still further by 20% would sound the death knell for such
cases and would leave very vulnerable adults at serious risk both from abusive
family members and from social services’ departments who are failing to take
appropriate protective action.
33.12 We therefore propose that for these cases, the existing rates should not be
further reduced but to confirm that there is a clear discretion for this category to
increase the rates in a particular case if there is no suitable expert able or willing to
undertake the work at the lower rates, particularly where further delay would be
detrimental to the vulnerable person.
33.12 To summarise we would ask that the Government consider each type of
expert separately and provide evidence that it is possible to reduce fees further.
EQUALITIES IMPACT
Q34 Do you agree that we have correctly identified the range of impacts under
the proposals set out in this consultation paper? Please give reasons.
34. No. Please see below.
Q35 Do you agree that we have correctly identified the extent of impacts under
these proposals? Please give reasons.
35. No. Please see below.
Q36 Are there forms of mitigation in relation to impacts that we have not
considered?
36. Yes. Please see below.
36.1 LAPG has considered the assessment of the impact of the proposals on clients
and providers. We do not consider that proper and lawful equality impact
assessments have been undertaken of the proposals on both clients and providers.
Our general comments are set out below:
- It is notable that in many cases, the Ministry simply does not collect or have
the necessary relevant data to be able to assess the impact of the proposals
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-
-
-
-
-
-
-
at all. Therefore this lack of data wholly undermines the basis and validity of
the assessments.
The Ministry has failed to collect data which is easily available from other
sections of government i.e. the prison, immigration service and the court
service.
The Ministry has failed to consult organisations representing individuals with
protected characteristics who may potentially have legal problems requiring
legal aid i.e. disability representative organisations and the representatives of
lawyers with protected characteristics i.e. BME lawyers associations, women
solicitors’ associations and Young legal aid lawyers.
Even where collected the data does not cover all the protected characteristics.
Moreover in many cases the assessment does not differentiate between
different characteristics or different BME groups/communities. It is not
sufficient to refer to ‘BME’ as a whole without any analysis of the different
impact on some over others. The Ministry has failed to analyse data that is
easily and readily available to it. For example both the LSRC and the Bar
Council data referenced differentiates between different BME identities for
providers. CDS 1 and 2 (now Crim 1) forms & legal help forms record
numerous different ethnic identities.
As above. It is not sufficient to group together all disabled clients because the
impact of the proposals on some disabled groups will be different to others.
There is no such analysis provided.
In respect of the analysis of the data concerning solicitors provided by the
LSRC only the data concerning ownership of firms is analysed and the data
concerning employees and contractors who will also be affected is ignored.
There is no evidence that the proposals have followed the ECHR guidance re
EIA’s with respect to cross-referencing the proposal with the impact of
decisions made across other departments.
The assumptions underlying the assessments result in them being wholly
invalidated as a proper means of assessing the impact of the changes. For
example the assumptions that
(a) proposals regarding remuneration of providers will not have a direct effect
on clients
(b) there will be no change in provider behaviour as a result of the changes
(c) clients will be able to represent themselves and use other forms of dispute
resolution
(d) clients will have the same case outcomes whether they have the benefit of
publicly funded legal advice or not etc.
are bare assertions, are wholly unsupported, and fly in the face of the
evidence.
There is no provision for monitoring the ongoing effect of the changes either
on affected client groups or the profession. This in itself potentially makes the
changes unlawful.
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-
-
-
-
-
-
The LSRC which is heavily relied on for a profile of solicitors firms was
disbanded on 1st April 2013. There is no proposal for where future data
regarding the impact on solicitors firms will be obtained.
We also note that no account has been made of the changes introduced by
LASPOA, which also distorts the accurate picture of the impact on both clients
and providers, and the predicted costs savings.
The repeated assumption regarding the costs analysis that providers will
continue to undertake the same work as before, to the same quality standard,
is another bare assertion and without any account being taken of all previous
consultation responses such as to invalidate the basis of the assessments.
Paragraph 4.6 of the IA acknowledges that ‘nationality or immigration status of
civil legal aid recipients is not routinely recorded’. Therefore we are of the
view that any assessment of the impact of, for example, the residence test
cannot have been lawfully undertaken because the numbers, and protected
characteristics of the people who fall into this group have not been identified.
This is presumably why the assessment states that the impact on clients is
‘unquantifiable’.
Given the lack of data regarding the impact of the residence test the impact
on providers and the LAA of administering the test is equally elusive. In our
view the impact will be huge, applying to all cases and resulting in
insurmountable hurdles for clients, providers and the LAA and vastly
increasing cost with a corresponding hike in costs to the taxpayer.
In relation to prisoners the data, where available (see above) is also unreliable
being from ‘declared’ disabilities and is likely to be a considerable
underestimation. The proportion of prisoners with mental health needs,
disabilities, and learning disabilities is far higher than in the rest of the
population and therefore the impact of withdrawing legal aid from this client
group has not been properly assessed. The needs of physically disabled or
mentally ill prisoners for legal advice, or their ability to manage an internal
complaints procedure is not even mentioned.
We note that there is effectively no data regarding the judicial review
proposals- hence no proper impact assessment can have been undertaken.
There is also no data regarding experts although there is another assertion
that a further reduction of fees of 20% will not impact on clients. This assertion
is unsupported and contradicted by the experience of our members which is
that the standard fees for experts has already resulted in a marked
deterioration of quality experts being available, and a direct impact on clients,
particularly the most vulnerable.
The removal of choice from clients facing criminal charges will result in the
ludicrous position where individuals with mental health problems or other
disabilities facing criminal charges could be represented by multiple providers
in respect of different matters making it far less likely that their needs will be
addressed either appropriately or economically.
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-
-
-
-
-
Even where there is an identified adverse impact on a group with a protected
characteristic, it is not a proper response to state in every case that this is
‘justified’ with a view to the credibility of the legal aid system and to make
financial savings (even if this data were to be reliable). This mantra phrase
repeated throughout the documentation is not sufficient to comply with the
requirements of a valid equality assessment.
Although the impact of the proposal on clients is of paramount importance it
is also important that the legal aid professions are representative of the
community and provide fair and equal career opportunities to individual
lawyers with protected characteristics.
In respect of providers the EIA concludes only considers the effect on the
owners of firms and it is notable from the figures provided that men are
disproportionately represented in among the owners of firms (particularly
among criminal lawyers) and the bar. Women are represented in far larger
numbers among employees both as solicitors and support staff. This disparity
indicates that there are existing structural barriers to the progression of
women in the professions. A robust and properly undertaken EIA should also
address whether this inequality, particularly in respect of women who are
mothers, is going to increase following the implementation of the proposals as
money is taken away from the firms. It is almost certain that will be harder and
harder for women to fund maternity leave and recover their careers following
it.
BME lawyers are disproportionately represented among smaller firms and are
more likely to have community based practice where clients choose a provider
from their own community who can provide a culturally sensitive service.
These smaller BME providers are likely to be disproportionately affected by
the proposed changes and they and their clients will suffer.
Young lawyers, already burdened by student debt will be disproportionately
affected as training opportunities and career progression opportunities will
diminish.
Generally we are of the view that the effect on vulnerable client groups, particularly
disabled people, children and those fleeing violence and persecution has not been
properly assessed or analysed. In our view the impact of the proposals on these and
other groups will be highly significant and result in serious harm including risk to life.
We do consider that there are ways of mitigating the effect of the proposals. This is
simply to withdraw the proposals as currently drafted, and to undertake a proper
sensible dialogue with the profession, other sectors of the criminal and civil justice
system and groups representing potentially affected client groups, within a
reasonable timeframe as to how any savings which are required can be achieved
without the corresponding devastation which will follow if these proposals are
implemented.
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Any such dialogue should be informed by the savings which will arise from the recent
implementation of LASPOA, which may obviate the need for further extensive
savings and reductions to scope to be made, and is information without which any
consultation is flawed from its inception.
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