House of Commons
Constitutional Affairs
Committee
Civil Legal Aid:
adequacy of provision
Fourth Report of Session 2003–04
Volume I
HC 391–I
House of Commons
Constitutional Affairs
Committee
Civil Legal Aid:
adequacy of provision
Fourth Report of Session 2003–04
Volume I
Report, together with formal minutes
Ordered by The House of Commons
to be printed 6 July 2004
HC 391–I
Published on 16 July 2004
by authority of the House of Commons
London: The Stationery Office Limited
£0.00
The Constitutional Affairs Committee
The Constitutional Affairs Committee (previously the Committee on the Lord
Chancellor’s Department) is appointed by the House of Commons to examine
the expenditure, administration and policy of the Department for Constitutional
Affairs and associated public bodies.
Current membership
Rt Hon Alan Beith MP (Liberal Democrat, Berwick-upon-Tweed) (Chairman)
Peter Bottomley MP (Conservative, Worthing West)
Mr James Clappison MP (Conservative, Hertsmere)
Ross Cranston MP (Labour, Dudley North)
Mrs Ann Cryer MP (Labour, Keighley)
Mr Jim Cunningham MP (Labour, Coventry South)
Mr Hilton Dawson MP (Labour, Lancaster and Wyre)
Andrew Rosindell MP (Conservative, Romford)
Mr Clive Soley MP (Labour, Ealing, Acton and Shepherd’s Bush)
Keith Vaz MP (Labour, Leicester East)
Dr Alan Whitehead MP (Labour, Southampton Test)
Powers
The committee is one of the departmental select committees, the powers of
which are set out in House of Commons Standing Orders, principally in SO No
152. These are available on the Internet via www.parliament.uk.
Publications
The Reports and evidence of the Committee are published by The Stationery
Office by Order of the House.
All publications of the Committee (including press notices) are on the Internet at
www.parliament.uk/parliamentary_committees/conaffcom.cfm.
Committee staff
The current staff of the Committee are Roger Phillips (Clerk), Richard
Poureshagh (Committee Assistant), Alexander Horne (Legal Specialist) and Julie
Storey (Secretary).
Contacts
All correspondence should be addressed to the Clerk of the Constitutional
Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The
telephone number for general enquiries is 020 7219 8196. The Committee’s
email address is [email protected].
1
Contents
Report
1
Introduction
The Inquiry
2
Background
Legal Aid Spending since 1998–99
Access to Justice Act 1999 changes
Quality Assurance
Matter starts and Legal Help Contracts
Cost Compliance Audits
Number of people helped
3
Impact on Suppliers
Number of suppliers
Trends
Balance of leavers and new entrants
Geographical spread
Why are there fewer legal aid practitioners?
Level of fees
Bureaucracy
Lack of esteem
Incentives for legal aid practitioners
4
Impact on customers
Limits on eligibility
Means
Scope
Research done on need
5
Broadening means of provision
Not for Profit agencies
Advice from Government agencies
A salaried service
Legal insurance
Telephone advice and new technologies
6
Page
3
3
5
5
8
9
9
11
11
13
13
13
15
17
21
21
23
27
27
30
30
30
30
32
34
34
35
35
38
38
Conclusion
42
Conclusions and recommendations
43
2
Formal minutes
47
Witnesses
48
List of written evidence
49
Reports from the Constitutional Affairs Committee
51
3
1 Introduction
The Inquiry
1. Access to justice is a basic right. The UK National Action Plan on Social Exclusion1
recognises this by giving access to justice similar priority to healthcare and education. The
legal aid system is a vital element of the strategy to prevent members of the public from
suffering social exclusion. Without a strong civil legal aid system to ensure that members of
the public can obtain legal services when they need them there would be widespread denial
of access to justice.
2. Legal aid spending occupies almost two thirds of the Department for Constitutional
Affairs’ budget. This fact alone justifies a close inquiry by us on the way in which the
system operates. There was a further reason for the inquiry: many informed commentators
have raised serious concerns about the workings of the civil legal aid system since the
reforms in 1999. There was a good deal of evidence, much of it anecdotal, about the
shortcomings of the system. We were concerned that a loss of practitioners who are willing
to do legal aid work might lead to a serious decline in the ability of the system to provide
access to justice, especially for those who are most vulnerable and whose need for
competent legal advice is often greatest. The Citizens’ Advice Bureau Report “Geography
of advice", published in February 2004, while praising recent reforms, identified serious
problems which had to be addressed for the Community Legal Service (CLS) to be
sustainable. That report concluded:
“Advice deserts are opening up, and the infrastructure of the CLS is underdeveloped
and unsustainable. Fragmentation and desertification are posing serious challenges
to the long-term viability of the CLS, and providers are being discouraged and
demoralised by the deadweight of unnecessary bureaucracy”.2
3. We realised that there was a pressing need to inquire into these issues. We decided to
focus on: the extent to which advice deserts existed; whether solicitors and barristers were
leaving legal aid work; and the shortcomings in the organisation of the system—in
particular the arrangements for auditing accounts and whether the “matter starts” system3
was over restrictive. We were concerned about the impact of these issues on recruitment
into the profession to do legal aid work.
4. The particular questions which we posed at the start of the inquiry when calling for
written evidence were:
— What evidence is there of the emergence of ‘advice deserts’?
— How can the Department for Constitutional Affairs and the Legal Services Commission
provide incentives for legal aid practitioners to continue legally aided work?
— Is the perception that legal practitioners are moving out of legally aided work correct?
1
UK National Action Plan on Social Exclusion 2003–2005, Department for Work and Pensions, July 2003
2
Geography of advice, Citizens’ Advice Bureau, February 2004, p 3
3
For an explanation of the “matter starts” system see below, paras 24 to 29
4
— Can the requirement for legal aid be reduced by the resolution of some legal issues on a
more informal basis, through the Citizens’ Advice Bureaux, long distance services or
otherwise?
— Would a salaried service or the provision of law centres be viable solutions to lack of
provision, either in areas without sufficient practitioners or elsewhere?
— What would be the comparative funding costs of a salaried service?
5. We took evidence from the witnesses listed on page 48. In addition to the formal
evidence, we relied on important research commissioned by the Government, “Causes of
Action: Civil law and Social Justice”, which provided a wide range of up-to-date evidence
about the potential obstacles in the way of members of the public in their search for access
to justice.4 During the course of our inquiry, the Government published significant pieces
of research on the financial impact on the legal profession of the current system of
providing civil legal aid, one by Matrix and two by Frontier Economics.5 The LSC has also
published work on quality and access under contracting.6
6. We are grateful to our two specialist advisers during the inquiry: Professor Hazel Genn,
CBE, University College, London, and Mr Richard Moorhead, of Cardiff University.
4
Causes of Action: Civil Law and Social Justice, Pascoe Pleasence, Alexy Buck, Nigel Balmer, Aoife O’Grady, Hazel
Genn and Marisol Smith, p 78
5
Available on the DCA website: www.dca.gov.uk
6
Quality and Access: specialist and tolerance work under civil contracts, Moorhead and Harding, Stationery Office,
London, 2004
5
2 Background
7. Legal aid consumes the major part of the Department’s budget. In Financial Year
2002/2003 legal aid took up £1,908,500,000 out of a total budget of £3.2 billion.
Legal Aid Spending since 1998–99
Cost per year in £m
1998-99 1999-00 2000-01* 2001-02 2002-03
CIVIL
Legal representation net
(of which Family)
Legal Help***
(of which Family)
564.9
(362.1)
203.6
(59)
560.2
(378.9)
231.7
(64)
476.2
(349.1)
258.3
(50)
483.3
(389.1)
329.5
(61)
Total Family element of Legal Rep &
Help
423.5
421.1**
442.9
399.1
450.1
TOTAL CIVIL
836.4
768.5
791.9
734.5
812.8
CRIME
Criminal defence net
Higher Courts
401.7
411.6
450.4
422.0
508.3
474.1
526.4
569.3
872.4
982.4
1095.7
1664.4
1716.9
1908.5
TOTAL CRIME
TOTAL CIVIL + CRIME
Notes:
*
Introduction of contracting inflates expenditure due to influx of old bills prior to start of new
system.
** “Total Family element of Legal Rep & Help” has been revised using a more sophisticated
apportioning technique than previously employed (see ***).
*** The legal help figures are being re-examined for years prior to contracting in order to more
accurately align what would have scored as legal help then. Prior to the implementation of the Access to
Justice Act “Legal Help” did not exist. Up until April 2000 legal help would have comprised matters
falling under Assistance by Way of Representation and Green Form advice and assistance (which included
criminal advice and assistance). From 1997 contract pilots were also brought in. This makes the task of
comparing “like with like” complex and the LSC is addressing this issue as part of an exercise to provide
more accurate data to the Fundamental Legal Aid Review.
This data, drawn from Legal Services Commission/Legal Aid Board Annual Reports, is expressed in Cash
terms, and is not therefore directly comparable to the information in table 2 of the DCA Annual Report,
2003/04, which is expressed in Resource terms.7
8. These figures indicate that the civil budget has remained fairly constant; however, there
are several factors which influence how these statistics should be interpreted. The first is a
drop in funding for civil representation. This is partly explained by the disappearance of
personal injury work, which is now done almost entirely on the basis of conditional fee
agreements (CFAs) rather than through the legal aid system. The drop in spending on civil
representation is rather greater than was predicted when CFAs were introduced, which
7
Source: Department for Constitutional Affairs
6
may suggest that there is a further drop in civil representation over and above that caused
by personal injury work.8 The second factor is the impact of asylum and immigration costs.
The legal aid costs of providing advice and representation in those cases rose from £81.3
million in 2000 to 2001 to £174.2 million in 2002 to 2003.9 This accounts for the overall
civil budget increase between those years. In addition, there has been a dramatic annual
increase in criminal legal aid costs.
9. The Legal Services Commission has previously told the Committee that average civil
case costs were steadily increasing.10 In 2001 to 2002 the Legal Services Commission said:
“The upward trend in the cost of advice is …much higher than anticipated and has yet to
flatten out”,11 and in 2002 to 2003 this trend continued with an above inflationary rise
“increasing pressure on the budget”.12 The former Chief Executive of the Legal Services
Commission, Mr Steve Orchard, stated that “average cost growth in civil work is high and
unsustainable within a fixed budget. Either average cost is brought under control or fewer
people will be eligible for help.”13
10. In a letter to our Chairman of 4 February 2004, Mr David Lammy MP, Parliamentary
Under Secretary of State, Department for Constitutional Affairs, said:
“….While in an ideal world we might all wish for more resources, the reality is we
have a fixed budget within which we have to live. While you cannot prevent your
witnesses proposing solutions which call for increased funding, I would hope that
they will also be asked how to achieve that within the available funding of £1975m
(resource) in 2004/05.
My intention, and the LSC’s is that, besides answering the questions posed by the
Select Committee, we will indicate how we intend to maintain the supply of legal
services with the constraints of a fixed budget, what choices we may have to make
and how we are looking for ways of reducing cost which do not impact on
services.”14
In other words, there is no prospect of an increase in the budget for civil legal aid—and
every prospect of a cut.
11. The Access to Justice Act 1999 introduced a cap on the civil legal aid budget (covering
representation and Legal Help) for the first time. The criminal legal aid budget was not
capped; this would be difficult to do for human rights reasons (Article 6 of the Convention
guarantees a right of funded representation for criminal defendants who cannot pay).
There is, of course, a tension between the duty to provide for the most vulnerable in the
8
The cost savings to legal aid fund of removing all personal injury cases from the legal aid scheme were originally
estimated as being in the region of £37 million. See Parliamentary answer of Geoff Hoon MP, Minister of State, LCD
HC Deb 2 February 1999, Col 561W. See also [1999] 1 Litigation Funding 12
9
Public Consultation on Proposed Changes to Publicly Funded Immigration and Asylum Work, LCD, June 2003,
CP 07/03
10
Oral evidence, 16 September 2003, HC 1106–i
11
LSC Annual Report 2001/02, para 2.17
12
LSC Annual Report 2002/03, para 2.16
13
Development Of Legal Services Policies in England and Wales 1989/1990 to 2001/2002, Steve Orchard, Chief
Executive, Legal Services Commission and Aoife O'Grady, Legal Services Research Centre
14
Ev 72
7
community by way of legal aid and the need to exercise prudence over public expenditure.
Lord Irvine, before he became Lord Chancellor, stated that:
“Cost capping … is unattractive in principle, because legal aid would cease to be a
benefit to which a qualifying individual is entitled. It would in practice become a
discretionary benefit, available at bureaucratic disposal, a benefit which would have
to be disallowed when the money ran out, or when another category of case was
given precedence. Legal Aid would cease to be a service available on an equal basis.”15
12. The Legal Action Group echoed these concerns when it commented that:
“The Legal Services Commission operates within a cash limited budget. We of course
recognise that there must be reasonable containment of costs. However, we strongly
object to the arbitrary capping of legal aid expenditure. If a cash limited budget is
allowed to undermine quality of services, access, consumer choice or independence,
the legal aid scheme will fall short of providing satisfactory access to justice. We are
very concerned about the growing pressures on the civil legal aid budget from the
increasing costs of criminal legal aid. There is a clear need to introduce a transparent
separation between the civil and criminal legal aid budgets—not only to ensure
adequate access to civil justice, but also to ensure the long-term survival of the
supplier base for civil legal aid.”16
13. The Criminal Defence Service budget is demand led. Increases in spending on
criminal legal aid reduce the availability of money for civil help and representation.
Provision for civil legal aid has been squeezed by the twin pressures of the
Government's reluctance to devote more money to legal aid and the growth in criminal
legal aid, as well as the cost of asylum cases. Whatever action the Government may take
to reduce the financial impact of asylum cases on the legal aid system, it is likely that the
growth in criminal legal aid will continue to be a burden. There may be scope for
bearing down on the cost of criminal legal aid by better case management and a new
criminal procedure code. The Government should ring fence the civil and criminal
legal aid budgets so that the funding for civil work is protected (as immigration work
is) and considered quite separately from criminal defence funding. We will continue to
examine the means by which the Department for Constitutional Affairs monitors
expenditure on criminal cases and the impact that such expenditure has on civil legal aid
expenditure. We will be reporting separately on the Government’s draft Bill on the
Criminal Defence Service.
14. A further area of difficulty is that expenditure on civil legal aid is affected by policy of
other Government departments. The Matrix Review of the Community Legal Service,
which was commissioned by the Department for Constitutional Affairs, noted that there is
a need to “protect the CLS budget” and for the DCA to:
“undertake more robust legislative impact analysis and seek an understanding either
from the Treasury or other government departments that the DCA’s budget will
15
Speech at Bar Conference, 29 September 1996
16
Ev 117
8
increase by the amount necessary to meet increased demand due to new
legislation”.17
It goes on to note specifically that:
“At a national level, the CLS is vulnerable to policy changes made by other
Government departments, with the civil legal aid budget being eroded by the
changing demands of the criminal legal services agenda”.18
This problem was underlined by the former Lord Chancellor, Lord Irvine of Lairg, when he
gave evidence to the Committee in April 2003 about the departmental budget.19 Although
he was speaking about the impact on the criminal legal aid budget, his comment is relevant
to civil legal aid expenditure as well.
15. At present, there seems to be no coherent or transparent way in which the Government
factors in the cost to the civil legal aid budget of new initiatives and rights for citizens. If
this is not done, many of these rights will in practice be unenforceable. It is vital for the
Government to ensure that part of the cost calculation of policy initiatives includes an
assessment of the impact on the legal aid budget and that there is adequate liaison
between the Constitutional Affairs Department and departments such as the Home
Office which legislate in relevant areas. This is a key recommendation; we expect the
Government to be able to demonstrate that it has significantly improved its system for
ensuring that legislative changes proposed by departments are costed to take into
account the full impact on the legal aid budget.
Access to Justice Act 1999 changes
16. The Access to Justice Act 1999 introduced a number of reforms into the way the budget
for civil legal aid was managed.
17. The Legal Service Commission (LSC) was created as an executive non-departmental
public body under the Access to Justice Act 1999 to replace the Legal Aid Board. It is
responsible for the development and administration of two schemes in England and Wales,
namely:
a) The Community Legal Service, which from April 2000 replaced the old civil scheme of
legal aid; and
b) The Criminal Defence Service, which from April 2001 replaced the old system of
criminal legal aid.
18. The 1999 Act introduced new controls which took three main forms: quality assurance
was strengthened and made compulsory; Legal Help contracts were let on the basis of fixed
‘matter starts’ for each area of civil law; and Cost Compliance Audits replaced billing.
17
Matrix Review, para 1.3.3, p 6
18
ibid, para 5.3, p 27
19
Oral evidence, 2 April 2003, HC 611–i
9
19. These controls over costs were primarily aimed at Legal Help work. Specific approaches
were adopted for very high cost cases in civil representation, but otherwise control over
civil representation took the traditional form (bills were assessed or taxed).
Quality Assurance
20. No firm can now undertake legal aid work unless it meets the Specialist Quality Mark
(SQM) and it has a contract with the LSC. The Specialist Quality Mark is based on a
previously voluntary system of quality assurance that met minimum standards of
specialisation.
21. The requirement that solicitors’ firms should have a civil contract in order to start new
publicly funded cases was introduced in January 2000. The contracts cover two broad types
of cases: those involving formal legal representation, each of which requires an individual
application to the Commission for a public funding certificate; and those mainly involving
legal advice (Legal Help).
22. In addition to meeting the requirement of the SQM, firms must have a specialist lawyer
in each field of law in which the firm has a contract to act as supervisor for all the work
done under the contract. The supervisor does not have to be a qualified solicitor. Much
publicly funded civil work is carried out by specialist firms or agencies working under a
subject specific contract, although firms are sometimes entitled to undertake a small
number of cases outside their normal field (known as tolerance work). The main reason for
these tolerances is to enable firms to provide a holistic service to existing clients and to
ensure access to legal services in fields which are low priority, or in which there is
insufficient demand to justify the LSC granting a contract.
23. A firm’s contract with the LSC contains a licence to undertake work under a public
funding certificate. The contract places no limit on the numbers of such cases that a firm
can do. The bill for each certified case is assessed by the LSC, or in some cases the court,
and paid for individually.
Matter starts and Legal Help Contracts
24. Under the Access to Justice Act 1999 the contract for Legal Help (and Controlled Legal
Representation) specifies the number of cases the firm can undertake (referred to as
‘matter starts’). Legal Help is roughly equivalent to the old green form scheme. It covers
advice and correspondence in connection with people’s rights, initial steps in dispute
resolution prior to issuing Court proceedings and preparation but not representation for
certain tribunals in fields such as welfare benefits and employment. It does not cover any
steps within Court proceedings. To be funded by legal aid for Court proceedings, the client
must obtain a public funding certificate. The process for obtaining one is broadly similar
to an application for a legal aid certificate under the pre–1999 scheme. There is a means
test to ensure that the client falls within the eligibility limits and a merits test to ensure that
the case has sufficient legal merit to proceed. Both tests are carried out by the Legal Services
Commission. The means test has been simplified, which has brought some people into the
scheme and excluded others who would previously have qualified. The merits test has been
significantly tightened compared with the pre–1999 Act system. Most importantly,
10
personal injury negligence claims, business matters and neighbour disputes no longer fall
within the legal aid scheme, apart from some very limited exceptions.
25. If the firm reaches the limit for matter starts under its contract, it can ask for more
matter starts, but the Commission is not obliged to grant them; and if it does not do so, the
firm must refer all new clients elsewhere. The LSC retains the right to reduce the number
of matters starts issued to all firms each year to ensure that it does not overshoot its budget.
26. Under the ‘matter start’ system, suppliers must organise carefully the way in which they
accept cases. This means, for example, that they must restrict the number of cases which
they take to a set number each month. Necessarily, when they reach their set maximum for
a particular month they must turn clients away. The system encourages solicitors to choose
cases which are more profitable. 20
27. The LSC has attempted to relieve difficulties arising from the shortage of "matter
starts". It told us that:
“So far this year, the rate at which new cases are being started is lower than it was last
year. In order to ensure that as many people as possible get the help they need from
the funds available, the Commission’s Chief Executive announced on 25 November
2003 that a further 20,000 “matter starts” (authority to start new cases) were being
made available to solicitors for use by April 2004. The additional new matter starts
are focused on priority areas such as mental health and family cases.”21
28. Although the Legal Services Commission has responded by providing new matter
starts, its action underlines two serious problems with the system:
•
Certain case types are seen as being unattractive. There is a good deal of anecdotal
evidence, for example, that domestic violence cases are often turned away because they
involve a lot of unremunerative work and occupy scarce resources.22 By their nature,
they require immediate action which takes priority over other (more profitable) files.
The system is so tightly controlled that solicitors’ firms do not carry the spare capacity
to cope with emergencies of that kind.
•
The uncertainty surrounding the number of matter starts in any particular year make it
impossible for solicitors’ firms to make proper forward business plans. As the LAPG
told us:
“…when a firm is allocated a set number of matter starts, it can run into various
problems. First, it will be cut if their average cost per case increases. Secondly, the
number can be cut if the firm does not take on new matter starts at the rate expected.
Thirdly, if the demand for their services increases, whether or not their contract
capacity is increased accordingly is entirely within the discretion of the LSC. If the
LSC believes there is other capacity available (and unfortunately the LSC cannot
know when firms are turning matters away for reasons other than having exhausted
their contract capacity) it will refuse to increase matter starts and require the firm to
20
Q 25
21
Ev 161, para 19
22
Advice Needs of Lone Parents, Moorhead, Douglas and Sefton, OPF, London, 2004
11
refer clients to its competitors. And if the budget does not permit an increase, it will
be refused regardless of whether there is alternative supply, except in the highest
priority cases.”23
29. When making its forward planning for matter starts, the Legal Services
Commission must take into account the need for solicitors’ firms to make similar
forward planning. It is entirely unreasonable to expect solicitors’ firms to be able to
function without making such forward business plans.
Cost Compliance Audits
30. Suppliers no longer submit bills for Legal Help work. They submit basic claims
containing minimal information. Cost Compliance Audits were introduced to enable the
LSC to check a sample of files to see if the cost claims submitted on those files are justified
and clients are demonstrably eligible for legal aid under the scheme. Firms are graded on
these audits (“1” being good, “3” being poor). Where claims are found to be too high, they
are reduced. If the overall level of claims reduction is high, then the LSC extrapolates the
findings on the sample of files to reduce claims across the whole of the supplier’s caseload
(subject to appeal). The process is extremely controversial. It has led to accusations that
solicitors firms have indulged in significant levels of over claiming, although the profession
has countered that the process is flawed, being subject to sizeable regional variation and
relying on auditors who do not have appropriate legal knowledge to be able to judge
properly the justification for work done on files.24 We discuss this further in paragraphs 76
to 94 below.
Number of people helped
31. The right to access to justice raises many questions relating to eligibility, opportunity
and take-up.25 During the course of this inquiry, it became apparent that there are serious
problems relating to all these issues. In particular, in respect of opportunity and take up,
there have been concerns about geographical access and the ability of solicitors to take
clients because of both the matter start system and the limits of physical capacity.
Moreover, the LSC accepts that it is helping fewer people. Excluding immigration/asylum
cases, about 585,000 people were helped in 2003/04 (658,000 were helped in 2002/03).26
LSC also calculates that about 128,000 people with immigration/asylum cases were helped
in 2003/04. This is fewer people than the 156,000 helped in 2002/03, but these numbers
reflect changing Home Office practice in the processing of asylum applications.27
32. The Legal Aid Practitioner Group commented that:
“Apart from in the immigration field, there is no evidence of any reduction in
demand. We attribute the drop partly to restrictions on matter starts under the
23
Ev 145, para 17
24
Q 111
25
Integrated Legal Services: The role of law related education presented by Tim Bannatyne, New Zealand Legal
Services Agency, 25 March 2004, LSRC Conference ‘Social Exclusion: A Role For Law’
26
Ev 229
27
Ev 231, para 16
12
contract, and in part to the drop in the number of solicitors offering legal aid
services, and a reduction in the amount of legal aid carried out by those remaining
within the scheme.”28
33. The Legal Aid Practitioner Group also provided evidence that in the current year 74%
of firms reported that they had turned clients away. Of those, 36% said they had run out of
matter starts (even though the survey on which the evidence was based was carried out less
than three quarters of the way through the year), and 45% said they had run out of physical
capacity to take on clients.29
34. The LSC provided a number of reasons for the fact that it is helping fewer people. It
said:
•
Early in the year, the Commission may have controlled too tightly the number of
new cases that some solicitors’ firms were authorised to start. They sought to
address this by authorising a further 20,000 nationally in November 2003.
•
Some solicitors’ firms started fewer cases than were authorised by their contracts—
perhaps because they wanted to concentrate their efforts on the most profitable or
meritorious cases (“cherry picking”)
•
New initiatives introduced as part of the CLS—telephone services and the internet,
for example—may have reduced the need for face-to-face services in some areas.
•
Economic circumstances may have meant that fewer people had problems about
which they sought advice.30
35. Despite the factors raised by the Legal Services Commission, we are satisfied that
there is still ample evidence of unmet demand. When there is no evidence of reduced
demand the number of people helped is a key indication of how successful the system is.
It is unacceptable that the system is helping fewer people.
28
Ev 146, para 21
29
Ev 145, para 15
30
Ev 231, para 15
13
3 Impact on Suppliers
Number of suppliers
Trends
36. The introduction of legal aid contracting in January 2000 (civil) and April 2001
(criminal) led to a reduction in the number of suppliers doing legal aid from about 11,000
to about 5,000. The Legal Services Commission told us that those giving up legal aid at the
start of contracting were generally the smaller providers, who did not contribute significant
volumes of work to the legal aid scheme and those who could not meet the quality
standards.31
37. By April 2003, the number of solicitor firms holding civil contracts with the LSC had
further declined by about 14%, while the number of firms contracted to provide family law
had fallen by 20%. The reductions do not follow an even pattern across work types:
mainstream areas (family, debt, welfare benefits and housing) have tended to see
reductions in contract holders, whereas areas smaller work types have seen increases
(education and public law for example). The number of criminal contracts has remained
fairly stable.32
38. The Legal Services Commission’s Civil Contracting Report (January 2004) shows that
the number of solicitors with controlled work contracts has fallen by 17% since January
2000.33 The graph below “Total number of solicitor offices with General Civil Contracts”
sets out the position since April 2001.
31
Ev 161, para 20
32
Ev 162, para 26
33
Ev 100
14
Total number of solicitor offices with General Civil Contracts
5,300
5,200
5,100
Number of Civil Contracts
5,000
4,952
4,932
4,900
4,800
4,659
4,700
4,641
4,600 4,606
4,500
4,543
4,400
4,383
4,425
4,377
4,369 4362
4,383
4,300
4,200
4,082
4,088
4,100
4025
4,124
4,000
Dec-03
Oct-03
Nov-03
Sep-03
Aug-03
Jun-03
Jul-03
May-03
Apr-03
Mar-03
Jan-03
Feb-03
Dec-02
Oct-02
Nov-02
Sep-02
Aug-02
Jun-02
Jul-02
May-02
Apr-02
Mar-02
Jan-02
Feb-02
Dec-01
Oct-01
Nov-01
Sep-01
Aug-01
Jun-01
Jul-01
May-01
Apr-01
Months
Solicitor Offices with General Civil Contracts
Solicitor Offices with Controlled Work Contracts
39. The decline in the number of contract holders slowed somewhat in 2003, but there are
further changes on the horizon which may mean that the decline was temporary. In
particular:
•
The stated aim of reducing the number of criminal contract holders in certain urban
areas may reduce the willingness or ability of the losers in this shakeout to continue
with civil legal aid work;
•
Changes in immigration work may well reduce significantly the supplier base for this
type of work. The reduction in legal aid funding, coupled with recent reduction in
asylum seekers and proposed reform of the appellate structure of immigration work are
predicted (by immigration practitioners) to have a dramatic effect on the sustainability
of immigration practices; and
•
Only about 90% of existing contract holders had applied for their civil contracts to
continue to run after the annual April watershed; this suggests that there would be a
further 10% reduction in contract holders.
40. The LSC was confident that the number of solicitors’ firms with Legal Aid contracts
would not fall. Clare Dodgson, the Chief Executive of the Legal Services Commission, said
that in the present tender round firms wanting to expand their Legal Aid contract or come
into Legal Aid for the first time would more than fill the shortfall.34
41. The reaction of witnesses to the LSC’s claim that the shortfall would be made up was
one of surprise. The Legal Aid Practitioner Group (LAPG) thought that this bidding was
very much against recent trends, noting that the number of firms holding contracts in one
34
Q4
15
or more fields of law had dropped from 4,641 in March 2003 to 4,369 in October 2003, a
fall of 5.9%. It offered two explanations for the apparent inconsistency in the evidence:
“We suspect many firms are bidding for as much as they can in order to keep their
options open. We also believe that a significant proportion of the bids come from
lawyers who may wish to break away from existing firms. Such bids therefore
represent a reorganisation of supply rather than an increase”.35
Balance of leavers and new entrants
42. Between 1992–2002, the number of solicitors with practising certificates increased by
49.5%, from 59,563 to 89,045. In July 2002, 8,513 students were enrolled with the Law
Society, an increase of 12.1% on the previous year and 28.3% on the 6,635 who enrolled in
1991–2.36
43. Nevertheless, there is strong evidence of a serious and growing recruitment and
retention problem in high street firms which are legal aid providers. In a survey by the
Solicitors’ Gazette, 60% of respondents stated that they had experienced problems
recruiting lawyers. It stated that:
“On current trends, the prospects for the future of publicly funded legal services are
bleak. Those providing legal aid are a comparatively elderly cohort of the profession.
The enormous gulf in earnings prospects between those in commercial firms and
those doing publicly funded work means that despite their social conscience few
newly qualified solicitors feel able to pursue a career in legal aid firms or the not for
profit sector.”37
44. We took informal evidence from legal aid practitioners in Hackney about their
experience. A number of the practitioners informed us that they simply could not recruit
trained lawyers. Peggy Ray, a family practitioner and a partner at Goodman Ray, stated
that she had advertised heavily but received no applications. When questioned about
taking on trainees, she stated that this had been attempted, but many were subsequently
tempted away by an extra £10–15 thousand payable by private practice firms. She noted
that lawyers would be unwilling to invest in training just to lose qualified staff.
45. There are widespread complaints about the difficulty of keeping trained staff: once
qualified with a Legal Aid firm solicitors often leave legal aid to conduct more
remunerative private work in order to pay off their debts. One solicitor wrote to complain
that the situation was “like qualified doctors coming to the UK after receiving their training
in the third world, [since] it puts the cost of training members of the profession upon those
least able to afford it”.38
46. The firm Bell Hoare Bell, which has four offices in Sunderland, wrote that:
35
Ev 143, paras 6 and 7
36
Protecting Rights and Tackling Social Exclusion: Proposals for the Future Delivery of Legal Aid Services, Law Society,
2003, Appendix 2
37
Ev 101
38
Myles Hikey, a partner at Dowse & Co, who also gave evidence at our session in Hackney
16
“Although the firm has a good reputation, offers flexible working and has close links
with the key educational establishments it is becoming increasingly difficult to attract
staff. We are determined to maintain our standards. We are presently advertising for
a housing solicitor, and have not received one application. In crime we note that the
Public Defender Service are offering newly qualified staff £32,000, plus pension plus
lease car. We can offer £20,000. While we do not expect to be able to match the
salaries offered by commercial firms (one locally offers their trainees as much as our
most experienced solicitor), it is galling to find that the LSC is willing to pay more for
what is on present evidence a less efficient service”.39
47. The Law Society is concerned about:
“…growing evidence that legal aid is no longer viewed as a viable career by those
entering the profession. Preliminary findings of research conducted by the Law
Society in January 2004 show that although, all things being equal [for example
salaries, hours of work, working conditions etc.], about half of first year trainee
solicitors would have been likely to pursue a career in legal aid, in fact, only about
one in twelve are now likely to do so.”40
48. This problem affects the Bar as well. The Bar Council has warned that:
“…as the older practitioners retire, and those practitioners who can move away from
publicly funded work to privately funded work, recruitment fails to keep pace. Both
in the law and other professions, young practitioners have often begun wholly or
partly in the public sector. This has provided mutual benefit, giving the young
professionals the opportunity to hone their skills, and providing public service with
well-motivated, able young practitioners. We are now at the point where in legal
practice this is being lost.
There is a time-lag before the effect of such a trend is manifested. But once it occurs,
it is too late to remedy quickly, and restoration costs at that stage are much greater
than if the trend had been recognised and reversed at an earlier stage. The Bar’s
provisional evidence suggests that the number of pupillages on offer this year in
chambers doing publicly funded work has materially declined. If that is the case, and
if it continues, it reflects the anxiety of such chambers that their income is
insufficient to fund pupillages and that the future is unpromising. Whatever the
reason, it does not bode well for the future.”41
49. The evidence on the difficulties of recruiting solicitors and barristers to legal aid
work and retaining them underlines one of the most serious threats to the provision of
publicly funded legal advice. The significant trend of young lawyers away from legal aid
work puts into question the future of the civil legal aid system.
39
Ev 209
40
Ev 101
41
Ev 92, para 17
17
Geographical spread
50. In its evidence to the Committee, the LSC acknowledged that:
“It is clear that there are parts of England and Wales in which the need for publicly
funded legal services is not currently being met. This is likely to be common ground
between all the bodies submitting evidence to this inquiry.” 42
51. Prior to last year’s annual report (which was published after a new Chief Executive took
over at the LSC and which suggested that the situation was stabilising) the LSC pointed to
several concerns about the decline in legal aid contract holders. It thought that the impact
would be felt particularly in rural and semi-urban areas.43 The Commission also began to
report for the first time that the letting of family contracts was a priority need in the more
affluent and suburban south east.44
52. As an illustrative example we asked the LSC about specific problems in
Northumberland, where there were shortages in provision: for example, there was no legal
aid housing law advice provider.45 LSC described its provision in Northumberland, which
included some “outreach” provision. For example, one firm provides weekly “outreach”
services in Berwick on Tweed. Some of the services are supplemented by telephone advice.
Nonetheless, during the course of the inquiry we received written evidence confirming
that, in addition to the absence of any housing law advisors, which had been acknowledged
by the LSC, there was no contracted provision for health or community care in the North
East and that there was no contract for immigration law in Northumberland. Furthermore,
the Advice Service Alliance noted that the are only two contracts for employment law in
Northumberland.46
53. There is a role that “outreach” programmes can play in adding to the range of
services giving advice to the public. The details of their implementation are, however, of
crucial importance. They can be an effective complement to other services if they
encourage people to take advice who might be reluctant for any reason to consult a
solicitor or who do not know how to go about seeing one. “Outreach” programmes can
provide good cover for legal advice in a wide range of cases. If proper use is to be made
of such facilities, they must not be irregular or infrequent and they must integrate
properly with other legal services to enable proper referral.
Advice deserts?
54. We have received a wide range of representations about the shortage of legally aided
advice for civil matters in many parts of the country.47 The Law Society ascribed the
development of “Advice deserts” at least in part to the exhaustion of matter starts.48
42
Ev 157, para 1
43
LSC Annual Report 2001/02, para 3.5
44
Legal Services Commission Contracting Priorities and Strategies, An overview, LSC, London, 2003
45
Q 63
46
Ev 88 and 98
47
Ev 98 and 99
48
Ev 100 and 103
18
55. LSC’s written evidence referred to “advice deserts” as having :
“….become part of the lexicon of publicly funded legal services, but the phrase has
no precise or commonly understood meaning. It is sometimes used to describe
unmet need for legal services and at other times to suggest unmet demand. It has
been applied to circumstances ranging from a lack of available solicitors offering
legal aid litigation services in highly specialised categories of law, to general difficulty
in gaining access to advice services.” 49
56. Clare Dodgson refused to accept the term “advice deserts”, preferring instead to refer
to:
“….. areas of unmet need. We would like that unmet need to translate more into
demand, coming back to this piece of research that a significant number of people
who have problems do not act on them…..”50
The distinction between “unmet need” (namely, that people do not ask for advice) and
“unmet demand” (namely that people are being turned away) is in one way a slight one. It
is certainly not true to say, as Clare Dodgson implies, that the problem is only one of
encouraging demand. There is plenty of evidence that there are people who are being
turned away from solicitors because of lack of capacity. Nonetheless, the emphasis on
addressing unmet need is important. The LSC’s own research “Causes of Action: Civil law
and Social Justice”51 shows that there is plenty of unmet need as does their evaluation of
telephone advice pilots.52
57. The Law Society’s view was that:
“…. there is evidence of advice deserts emerging for some areas of law—especially
housing—in some areas of the country ….. and that recruitment trends and the
career intentions of newly qualified solicitors suggest that unless action is taken, this
problem is likely to escalate”.53
58. This evidence is supported by the LSC’s own statistics. It acknowledges that it
“remain[s] concerned about the provision of services in certain categories of law. The
number of housing contracts, for example, has fallen from 841 in April 2000 to 595 in
December 2003”.54
59. More generally, there is evidence that the contracting system does not have sufficient
geographic coverage. In 1998–99, before the introduction of the Community Legal Service,
of 9,527 wards in England and Wales, 6,800 saw no delivery of legal aid and these wards
covered 60% of the population.55 In 2001, 42% of bid zones had no welfare benefits
49
Ev 157, para 5
50
Q4
51
Causes of Action: Civil Law and Social Justice, Pascoe Pleasence, Alexy Buck, Nigel Balmer, Aoife O’Grady, Hazel
Genn and Marisol Smith, p 78
52
Telephone Pilot Evaluation Report, available on the LSC website: www.legalservices.gov.uk
53
Ev 106
54
Ev 162, para 23
55
Community Legal Service: the introduction of contracting, Report by the Comptroller and Auditor General, Session
2002–2003, HC 89, para 3.18
19
specialist funded by the LSC. The percentages of bid zones without a specialist contractee
were: for debt, 40%, housing 44%; and employment 63%.56 Such figures need to be
interpreted carefully: members of the public may be willing to travel across ward
boundaries and bid zones (and into town centres) to get their advice and the LSC is
developing helplines and other ways of reaching poorly served areas. Nevertheless, they
serve as an important indicator that provision may be patchy. The CAB movement has
been particularly vocal in drawing attention to parts of the country where there are now no
legal aid providers in, say, housing.57
60. The Advice Service Alliance pointed out that “advice deserts” might well exist in areas
where there were suppliers, but where the suppliers had no spare capacity.58 It goes on to
emphasise the difference in perceptions between people in urban and rural areas:
“There is also an issue about distance and the extent to which people can be expected
to travel in order to obtain the advice they need. Many rural areas, for instance,
contain no legal aid suppliers, but people are used to travelling significant distances
[maybe 20 or 30 miles] to access various services, or indeed to do their shopping. If
the appropriate advice is available in the nearest large town, to which they usually
travel, then this may not be seen as a significant problem. It appears however that
there is also a converse problem, and that many people in large cities are unable or
unwilling to travel a few miles to obtain the advice they need. For them, there is a
problem if the service in question is not available in the vicinity of where they live
[and/or work].”59
The Advice Service Alliance consider that in order to avoid the creation of ‘advice deserts’
there should be access to legally aided advice services:
•
At a ‘local’ level in relation to family, housing, debt, benefits, employment and
immigration law [although they accept that the demand and need for immigration
law varies between areas depending on the nature of the local population]; and
•
At a ‘sub-regional’ or ‘regional’ level in relation to the other main categories of
contracted supply—community care, education, public law, actions against the
police, mental health, and clinical negligence.60
The Law Centres Federation agreed about the willingness of people to travel to seek advice
and said:
“One solution was found in Cumbria, where the Law Centre operates a justice bus, to
tour the county to give advice directly to the public.”61
56
Quality and Access: specialist and tolerance work under civil contracts, Moorhead and Harding, Stationery Office,
London, 2004, p 49
57
Ev 174 and 175
58
Ev 86, paras 15 and 16
59
ibid, para 17
60
Ev 87, para 20
61
Ev 82
20
61. We are in no doubt that the term “advice deserts” reflects the concerns which exist
in some geographical areas and in some fields of law where advice is not readily
accessible.
Rationalization?
62. The Law Centres Federation suggested to us that the LSC is actually encouraging the
reduction in firm numbers, since it is logical for it to wish to deal with fewer suppliers, for
reasons of economy, quality control and administrative convenience. The LCF said that, in
addition, many suppliers had withdrawn from legal aid work, as the administrative burden
of applying for a quality mark was not justified for the volume of work.62
63. The LSC has awarded new Legal Help contacts as part of the new bidding round
covering: 182 categories of law to suppliers who did not previously have any contract; 123
categories of law to suppliers who previously only held contracts allowing them to provide
civil representation; and 313 categories of law to suppliers with an existing Legal Help
contract in another category—subject to their accepting the terms offered and possibly also
subject to a Quality Mark audit. It believes that “it is already clear that the bid round has
been broadly successful in meeting its aims”.63 It admitted that “it was not an explicit aim
of the bid round to increase overall numbers of contracts” and that “numbers of contracts
were sometimes deliberately reduced in order to concentrate on those suppliers who best
met the criteria”.
64. Measured on the change between the end of the 2003/2004 year and the start of the
next year, approximately 590 fewer contracts will be offered to solicitors and Not for Profit
organisations in 2004/5.64 These reductions reflect changes in provision for in personal
injury, clinical negligence and immigration and asylum. In relation to personal injury this
represents the winding down of work in a category of law which is no longer within the
Legal Aid scheme. However, if measured against the change in the thirteen months
between the end of the 2002/2003 year and April 2004, when new contracts were offered a
different picture emerges: adjusting the figures to leave out immigration, PI and clinical
negligence, which are being run down and complicate the picture, there were the following
numbers of contracts: 6262 at the end 2003; 5671 at the end of 2004: and 5671 at April
2004: i.e. a loss of 591 contracts over thirteen months—well over 10%.
65. The overall number of matter starts awarded to solicitors’ firms for 2004/5 is greater
than the number which are likely to have been started in 2003/4. The number of hours that
can be worked by Not for Profit agencies in 2004/5 is greater than the number that are
likely to have been worked in 2003/4.65 The reduction in the number of contracts supports
the view that the LSC is committed to dealing with fewer suppliers, even if there is an
increase in the volume work conducted.
62
Ev 83
63
Ev 238, para 47
64
Ev 239, para 49ff. The figures supplied for 2003/4 amounted to 6,928 to solicitors and 846 to NFP, as compared to
6,242 to solicitors and 942 NFP in 2004/5. The LSC points out that this is not a final position, as some contracts may
not be taken up
65
Ev 240, para 60ff
21
66. There are growing concerns about access in rural and semi-urban areas. In some rural
areas and small towns there has been a dependence on generalist local firms of solicitors
providing advice in areas of law in which they do not specialize under the “tolerance”
procedure; while there is a case for making more specialized advice available, a move away
from the tolerance system will leave more gaps in these areas. Whether the trend towards
fewer contracting firms is the result of a conscious policy or not, the geographical impact of
any such rationalization needs careful exploration.
67. If it is the policy of the Legal Services Commission to deal with fewer firms, this
creates a number of problems. For example, if fewer solicitors’ firms have contracts the
problems of supply in rural areas will be exacerbated, especially in family law disputes
which require different solicitors’ firms for each of the parties. In time, the limited
sourcing of legal aid work to fewer firms may result in higher fees being charged, since
the bargaining position of the Department will be weaker. Fewer contracts with firms
would involve the loss of investment in resources which the current body of
experienced, trained and motivated legal aid practitioners represents. Once these
valuable practitioners are lost, they will be hard to replace.
68. At present, it is possible to take advice from a wide range of firms in which there is a
good general spread of expertise. Over-specialisation in certain areas of legal aid work
may tend to prevent solicitors from providing a holistic approach to the advice given,
unless steps are taken to avoid this. Although specialisation can provide a
concentration of expertise which allows a better service to be given, firms must be able
to offer a “joined up” service, since many people turn to solicitors with a series of
connected problems that require expertise in different legal areas. For example, a
divorce may result in debt problems, mental health problems and, perhaps, housing
problems.
Why are there fewer legal aid practitioners?
Level of fees
69. The LSC believes that “current levels of remuneration, …. should be able to secure
sufficient supply to meet demand”.66 The Department of Constitutional Affairs
commissioned a report from Frontier Economics, which supported this view in respect of
solicitors:
“There is no case, at this time, for a general increase in remuneration rates—although
this does not preclude the possibility of a need for targeted increases in certain
categories of law, such as housing, to ensure continued supply”.67
It is worth noting that the Frontier Economics survey was based on a low response rate
which was biased towards particular types of legal aid firm.68
66
Ev 166, para 64
67
ibid
68
For a critique of the Frontier methodology, see Ev 243ff and Ev 246ff; for the DCA’s reply, see Ev 247ff
22
70. The legal profession disagrees. We have already mentioned some evidence put to us, in
connection with the balance of leavers and new entrants above (paragraphs 42 to 49). At a
special meeting on Monday 30 April 2001 the Bar Council approved a resolution brought
forward by the Family Law Bar Association (FLBA) that cases subject to family graduated
fees should no longer automatically be deemed to be at a proper professional fee for the
purposes of para.604 (b) of the Code of Conduct. This has the effect of exempting this area
of work from the “cab rank” rule, under which barristers must accept legally aided cases
within their area of competence. The FLBA made it clear that its members remain
committed to publicly funded work, but the removal of the ‘deeming provision’ for this
category of work means that it is no longer a matter of professional misconduct not to
undertake it. The FLBA remains committed to doing emergency work such as domestic
violence and care applications. This decision took effect from 1 May 2001.69 (A similar
decision more recently was taken in respect of criminal legal aid). This change exposes the
level of payment to market testing (in itself a serious move, since cheapest is not necessarily
best in provision of professional advice); and it is a serious statement of lack of confidence
in the current system on the part of the profession.70
71. The Bar Council spelt out the impact of these changes:
“…when the rate of reward drops below a critical level in a particular area, problems
arise in relation to the willingness of practitioners in that area to provide services at
the available rate. Choice of counsel will be materially reduced. Solicitors in
provincial areas are finding it increasingly difficult to find suitably qualified and
experienced counsel to defend grave and serious criminal cases.”71
It also said:
“The goal is to stop the present trend of discouraging new entrants to legally aided
work and to retain existing practitioners. The reality is that financial reward is
important. The perception of new and would-be entrants to the profession is that
those doing publicly funded work have endured cuts in fees and that remuneration
rarely increases in this area. Accordingly, as the older practitioners retire, and those
practitioners who can move away from publicly funded work, recruitment fails to
keep pace.”
72. There is parallel evidence in the family sphere of solicitors’ firms reducing the levels of
legal aid work that they do under contracts. An independent study for the SFLA concluded
that, “Over half the family departments interviewed seemed to be shifting in the direction
of a reduced reliance upon legal aid. This downward trend is consistent across all
regions.”72 Nevertheless, the LSC reports that the number of family matter starts under
Legal Help contracts has continued to increase modestly.73
69
Ev 93, 202 and 203; further details are available on the Bar Council website: www.barcouncil.org.uk
70
ibid
71
Ev 91, para 6
72
Report of a survey of solicitor firms with active family law contracts with the Legal Services Commission in 2002,
Gwynn Davis, Steven Finch and Lee Barnham, SFLA and FLBA, 2003
73
Ev 160
23
73. The LAPG compared the earnings available to solicitors in legal aid work and in private
work:
“…the salaries available for legal aid work are now substantially less than those even
for private work in small firms. In City firms, newly qualified solicitors can start on
salaries in excess of £40,000. A legal aid lawyer may never see that level of income.
Research undertaken by the Law Society in 1999 indicated that a quarter of the
equity partners in those firms who undertake more than 20% legal aid work had
incomes of less than £28,000. We understand that current research is being carried
out by the DCA on this issue.”74
74. Paul Gilbert, of Hutchins and Co., one of the legal aid solicitors who gave informal
evidence to us when we visited Hackney, agreed. He told us that solicitors are not as
attracted to legal aid work as they may have been previously. When he had started work in
the sector rates of pay were much higher in real terms; the rates of pay are £53.10 per hour
in London, whereas in 1995 they were £46.75—a rate of increase of 70p per year.
75. There is a serious risk that if legally aided work is associated with very low fees, this
may have a serious impact on the quality of people who undertake legally aided cases.
The problems that are faced by clients who require legal aid support are often of the
most complex variety. Many vulnerable citizens have problems which come in
“clusters”. It is vitally important that they have access to justice which can only be
guaranteed by recourse to fully competent advisers.
Bureaucracy
76. We received a great deal of evidence, both formal and informal, from solicitors about
the system of Cost Compliance auditing. Cost Compliance Audits are used by the LSC to
check that claims for contracted work are supported by evidence from case files and that
they only relate to work covered by the General Civil Contract. (These audits are not yet
fully in place for NfP providers).
77. The principle of the Cost Compliance Audit is that an auditor (who the LAPG
complain is often a recent graduate, given training by the LSC75) examines a sample of a
firm’s files and assesses whether the firm has claimed the correct amounts. The firm is then
put in one of three categories, dependent upon the extent of the differences between the
firm’s claims and the auditor’s assessments.
78. If an LSC auditor discovers significant levels of ‘failure’ in contract compliance across a
sample of case files, this can lead to a reduction in payments (by ‘extrapolation’) right
across the board in relation to all the provider’s case files, on the assumption that the
failure is a systemic one.
79. The system has been subject to almost universal criticism. Reputable solicitors have
discovered that their firms have been given a Category 3 (“poor”) Mark following a Cost
74
Ev 146, para 23; recently announced pay rates in the solicitors’ firm Clifford Chance were £50,000 for newly qualified
solicitors and £68,000 for those with three years’ experience: see press reports 13 May 2004
75
Ev 148, para 42
24
Compliance Audit.76 One example (among many), was that of Lucy Scott-Moncrieff, who
described her experience:
“What happens is that practitioners get a piece of paper saying that they have been
overcharging on their files. In my firm they started off by saying that we were
overcharging by 53%. That just made me angry, because that is the way I am, but the
case workers concerned were dreadfully upset because they were either being told
they were incompetent or they were being told that they were cheats and liars. It is a
terrible thing to say to people when it is not true. In the end it was down to 2% and
we could probably have got it lower if we had argued for long enough. A great deal of
damage was done to the relationship between our practitioners and the Legal
Services Commission. They are the ones who say mutual trust and respect,
partnership. They do not treat firms with mutual respect, they do not work in
partnership and it does not look to me as though their new schemes are very much
better…For a practitioner who is trying to keep up a case load and deal with the
Legal Services Commission, dealing with ignorance and obstinacy and arrogance and
complacency… is very upsetting.77
It is worth noting that Ms Scott-Moncrieff’s firm is sufficiently highly regarded by the LSC
to be undertaking a pilot on its behalf on auditing on-line.78
80. The LAPG is highly critical of this system:
“The auditors, never having done the work, do not have the experience necessary to
make these subjective judgments appropriately…. There is a fast turnover of
auditors, so that the first problem is not being put right through further training,
even though the LSC is trying to address this concern. As a result, auditors end up
making foolish and untenable decisions that have resulted in a number of the most
trusted and respected firms in the country being place in Category 3 [the worst
category] while other firms that do not have the trust and respect of their peers but
know how to tick the right boxes are assessed as performing acceptably”.79
81. There is widespread agreement among solicitors that many of these ‘failures’ are rooted
in differences of interpretation of complex guidelines between the practitioner and the LSC
auditor, or a misunderstanding on the part of the auditor—who is not necessarily legally
qualified or with experience of having worked in a solicitor’s office—as to what is
professionally necessary to ensure that the solicitor is acting in the client’s best interests.80
We have received many written submission complaining about the standard of auditing
conducted by the LSC and the administrative burden which this causes. In particular,
concerns have been raised that the audit does not check the actual quality of the work
undertaken.81
76
Q 111–112; and Ev 123; Ev 148, paras 41–46, &c
77
Q 172
78
Q 112
79
Ev 143, para 42
80
Ev 122, para 34
81
Ev 104, Ev 148, paras 41–46, & c
25
82. A concrete example of the apparent lack of thought behind the cost compliance
auditing process was given by a representative of the Welfare Rights and Advice Service
Centre (among others) who said that the standard times for producing and reading
standard correspondence did not reflect the time costs involved in retrieving files and
recording or documenting activity in any common sense fashion.82
83. We received evidence on this point from Bell Hoare Bell Solicitors, which is typical of
the views of solicitors with legal aid contracts:
“We are audited yearly. We accept that we should account for public money.
However the audit process is oppressive and might have been designed to drive firms
like ours, with a wide range of civil work, out of the system. This would happen even
if the vast majority of our categories of work were found on audit to have been billed
perfectly. The LSC rules contain no discretion. Even if it is clear that there is a
specific problem confined to a single area of work, or even a specific member of staff,
they will penalise an entire firm’s work because their rules say they must. The annual
audit thus puts at risk not just our livelihood, and that of many staff, but also the very
existence of what the LSC tells us is a valued firm. This system disproportionately
affects firms like ours which run a number of small social welfare departments, since
1 or 2 mistakes inside one of those departments can give rise to vast recoupments
across the whole contract. It would be a simple matter for the LSC to change their
rules so that extrapolation was restricted to the specific areas where fault had been
found or where there were clear patterns of misclaiming.”83
84. The Law Society summed up the situation:
“…the current legal aid system has become unnecessarily bureaucratic. Under the
terms of their contracts, providers of legal aid services are audited on costs and
quality. Each claim for costs is subject to assessment by the LSC and providers are
required to submit a number of files for assessment against amounts claimed.
Providers are also audited against the Legal Services Commission’s quality standards
(SQM). The original vision for contracting assumed that quality assurance would
supersede case-by-case checking. Instead we have a system that has simply loaded
one check onto another—a system which has proved very expensive; a recent report
by the Public Accounts Committee commented that there were 1000 LSC staff
monitoring 5000 contractors. The Legal Services Commission’s administration costs
have increased by 17.6% over 3 years…”84
85. At our session in Hackney, a number of issues were raised about the auditing process.
There were complaints that there was a focus on “trivial matters” rather than quality. One
solicitor complained that he had been placed in category 3 (the lowest category) for
“technical errors”, with no criticism of the quality of work. All the solicitors at the session
were in favour of peer review. This was justified on the basis that firms could be judged on
quality and not formalities.
82
Ev 79, paras 38–42 and Ev 81
83
Ev 208 and 209
84
Ev 103 and 104
26
86. There was some difference in emphasis in the oral evidence given to us by the LSC.
Philip Ely, the Chairman of the LSC, said that on the basis of his experience as a
practitioner, those who ran their business and their files properly and who were open to
audit on that account were more likely to be giving sound advice at the right stages because
they were required to do it at the right stages.85 In relation to the issue of ‘peer review’ of
files, Mr Ely said that he had:
“….. little doubt that those who do not like interference with their time will complain
as much about that as they do about the existing process, because that is the nature of
the market in which we work.”86
However Clare Dodgson, the Chief Executive of the LSC, acknowledged that the audit
process was not “perfect at all” and that LSC needed “to do more on [the] concept of
earned autonomy.”87
87. Those who receive public money for providing a public service need to maintain
proper professional standards. However, the current system of auditing solicitors costs
is arbitrary, inaccurate and bureaucratic. Furthermore, it is not linked to quality of
advice given. It is clearly punishing competent and honest solicitors and is operated in a
way which completely fails to attract the support of the profession. This is the most
serious criticism of the current system for managing legal aid work that we have found.
A solution is urgently needed.
88. A further refinement of the problem is that the LSC has a rule that two category 3
markings mean automatic loss of the contract to carry out legal aid work. This rule was
applied with little warning. The practical effect of this is that solicitors firms must waste a
lot of otherwise chargeable time in arguing the auditors decisions. If they do not, the
auditors will report that they have overcharged and they will receive a category 3 mark.
This rule imperils the existence of firms which concentrate on legally aided work.
89. The principle that two successive category “3” marks means automatic loss of
contract—“two strikes and you are out”—is unnecessarily draconian. Even if it were
based on a recognisably fair system it would be harsh, but the combination of this rule
with the arbitrary application of the LSC’s rules make it unacceptable. A similar mark
should begin a process of consultation and assistance which would help solicitors, who
may be providing a perfectly good service to the community, to improve their
management systems. Simply eliminating them from the list of contract holders is
wasteful and counter-productive.
90. LAPG suggests that instead of using the system of contract compliance, audits should
be abolished in favour of a system of peer review, combined with analysis by the
Commission of the range of data at its disposal.88
85
Q 47
86
Q 41
87
Q 45
88
Ev 152, para 79
27
91. We are pleased to note that the LSC is committed to introducing ‘light touch audits’ for
firms that it assesses as producing high quality work (‘category one’ suppliers) and to
developing the Quality Mark so that it is better able to measure the ‘real’ quality of advice
rather than measuring management proxies. It has also indicated a willingness to explore
the increased use of peer review as a means of assessing quality.89
92. In March 2004, the LSC invited applications from suppliers to take part in a ‘Preferred
Suppliers’ pilot. To participate, suppliers will need to be able to demonstrate high levels of
performance in terms of quality, cost and commitment to publicly funded work. The pilot
will run from June 2004 and will explore a variety of relationships and packages tailored to
individual suppliers and their needs. Benefits will include innovative business incentives
and simplified systems and processes. The objective is to establish the best working
methods so that the scheme can be introduced nationwide in April 2005. At that point,
‘preferred’ status would not be confined to an elite few, but available to all who meet
specific performance criteria.90
93. LSC intends to introduce independent peer review using a process developed by the
Institute of Advanced Legal Studies to assess the quality of advice provided and whether it
represents value for money. The LSC explained:
“Although not an inexpensive process, peer review, in combination with a file
assessment process, would significantly reduce the need to conduct on-site audits.”91
94. Peer review has been accepted by all parties as providing an appropriate means of
audit for practitioners. If properly implemented it should reduce bureaucracy and
provide a much clearer picture of the value of the service provided.
Lack of esteem
95. Throughout our formal and informal evidence sessions we heard a lot of evidence from
practitioners about the depressing impact of the popular perception of all solicitors as “fat
cat” lawyers who were milking the legal aid system. Before the 1999 Act there were no
doubt solicitors who were not providing a good service. The new system has operated
successfully in removing such practitioners from the system. We were impressed with the
strong commitment of many of the solicitors and advice sector workers whom we met.
The public service which they carry out deserves wider recognition, as they are often the
only barrier between a citizen and complete denial of legal rights. A proper system of
access to justice for all the community depends entirely on such professionals.
Incentives for legal aid practitioners
96. We have mentioned above (paragraphs 42 to 49) important concerns about the
recruitment of new practitioners into the legal aid system, despite the increase in the
number of solicitors who are qualifying. One of the main complicating factors is the
89
Ev 166 and 167, paras 66–67
90
Ev 232, para 31
91
ibid, para 30
28
burden of student debt which new entrants to the profession carry with them as they start
their professional lives.
97. The Trainee Solicitor’s Group indicated that:
“The general perception is that those considering a career in law who may be
attracted to legal aid, simply cannot afford the costs of qualification if they are then to
train and practice in a legal aid firm. It may therefore assist if the DCA and LSC were
to provide some kind of financial assistance towards the cost of study to those who
had secured a placement in a legal aid practice.”92
98. This was echoed by other witnesses. LAPG said:
“…many students are emerging from their undergraduate courses with substantial
debts. They tend to gravitate towards those firms that can offer them sponsorships
through their Legal Practice Course. Legal Aid firms are rarely able to do this. The
LSC has recently introduced an admirable scheme whereby they fund students
through both the LPC and their training contracts, but the scheme is limited to only
100 students per year. About 5,000 students start training contracts each year, and
several hundred others seek such contracts unsuccessfully.”93
99. The Young Solicitors Group make a number of suggestions for potential
improvements:
•
In order to meet the future demand for qualified legal aid solicitors, the Legal Services
Commission should extend the operation of its training support scheme.
•
That those outside the Legal Services Commission Training Support Scheme should
have access to low rate student loans for the Legal Practice Course if they commit to
working in Legal Aid for a minimum period.
•
That the Law Society of England and Wales works with the providers of the Legal
Practice Course to develop a dedicated Legal Practice Course to meet the needs of
aspirant legal aid lawyers.94
Nigel Bastin, the Head of Education and Training at the Bar Council has set out some
figures as to how much it would cost to complete professional training requirements after
the introduction of “top-up” tuition fees.95 The figures for solicitors are broadly
comparable:
92
Ev 129, para 3.2
93
Ev 146, para 24; Ev 191 and 192, para 13
94
Ev 138
95
‘Can we afford the BVC and LPC’, Counsel, February 2004. The difference between the amount of the student loan
and the estimated total to fund living expenses is compiled using Barclay’s Bank figures less course fees. The fees for
undertaking the Legal Practice Course, completion of which is required to enter a training contract are broadly
similar to those for the BVC
29
Total University Fees (3 years)
Total Student Loan
£3,750
£11,470
Shortfall
£8,807
Bar Vocational Course Fee (1 year postgraduate course)
£7,220
Living Costs BVC year
£6,759
Total After 4 years’ study
£37,631
100. The LSC has recently announced a legal practice course to be launched next year
which will be geared towards helping entrants to the solicitors’ side of the profession who
intend to practise in the legal aid area. The ‘public legal services pathway’ course—devised
by the College of Law and the Legal Services Commission (LSC)—will feature modules in
advanced criminal litigation and housing. The course will also include a tailored
programme of legal aid-related topics linked to the standard curriculum, including ‘master
classes’ aimed at giving students an insight into how legal aid practices work at the coalface.
The new legal practice course, from September 2005, will be backed by a grant from the
LSC. The LSC plans to increase its current programme of grants by helping 100 extra
future trainees. The money will cover tuition fees for students on the one-year legal
practice course and 75% of the minimum trainee salary laid down by the Law Society for
students who promise to remain with their legal aid firm for two years after completing
their training.
101. We think that the idea of financial support for those newly qualified entrants into
the legal profession who will provide publicly funded legal services is a good one.
Initiatives of this kind will become a necessity in order to ensure that the public service
provided by legal aid solicitors is maintained. We commend the work by the Legal
Services Commission in developing policy in this area.
30
4 Impact on customers
Limits on eligibility
Means
102. The legal aid system today falls far short of the system envisaged by the post-war
Attlee Government. Financial eligibility was originally set at a level where around 80% of
households were eligible, either free or on payment of a contribution. Failure to upgrade
the eligibility limits meant that that proportion declined steadily until the 1970s.
103. In 1979—with all-Party support—the then Government raised the financial limits
substantially so that the free income limit was set about 40% above the level of income
support and around 70% of households were eligible either free or on payment of a
contribution. According to the Law Society, since then there has been a very sharp drop in
the financial eligibility and that:
"…there are increasing difficulties in some areas of the country in finding Legal Help
(especially in housing law); and rationing through limits on the number of cases
solicitors can taken on has further damaged the service. There have also been some
modest improvements, especially in representation in asylum appeals—but the
significance of these is far outweighed by the reductions in service.”96
In 2001 about 47% of households were eligible for Legal Aid.
104. The Law Society also told us that:
“An attempt in April 2002 by the then Lord Chancellor’s Department to extend legal
aid to a greater proportion of low-income families, has been undermined by failure
to commit corresponding funds. In order to achieve the increase in scope without
increasing the legal aid budget, caps on gross income and capital were imposed.
However, as the value of an individual’s home is taken into account in the
calculations, many homeowners have found themselves excluded from eligibility.
During a period of rising property values the problem is exacerbated.”97
105. At present, the legal aid system is increasingly being restricted to those with no
means at all. There is a substantial risk that many people of modest means but who are
homeowners effectively will fall out of the ambit of legal aid. In many cases this may
amount to a serious denial of access to justice.
Scope
106. One of the major reforms in the last five years has been to remove personal injury
from the ambit of government funded work. The previous system had always limited the
scope of legal aid—for example, defamation was never included. The recent removal of
96
Ev 97
97
Ev 102
31
personal injury work, however, involves a more commonly used type of redress than
defamation. It introduced a new way of funding: Conditional Fee Arrangements.
107. The effectiveness of Conditional Fee Arrangements (CFAs) is for another inquiry, but
many witnesses have warned that straightforward eligibility for legal aid cannot easily be
replaced with other concepts such as conditional fee agreements without problems. For
example, the Bar Council drew attention to the problems associated with the collapse of
Claims Direct and the Accident Group. It pointed out that:
“Serious personal injury is a matter of real importance to the livelihood of the victim.
Not all victims have the benefit of unions or legal insurance. Some claims are
complex and expensive to manage, and lawyers may well refuse to undertake them
on CFAs for this reason.”98
There is much anecdotal evidence in favour and against CFAs. There is little hard evidence.
Further research is needed on this area in order to determine the full impact of CFAs on
the ability of the public to obtain advice and representation.
108. Another important area in which eligibility is restricted is in the field of employment.
This is an area of legal complexity. The only legal aid available for employment work is
Legal Help; controlled legal representation does not apply to employment tribunal
representation (except for a very limited discretion in a very limited number of cases). This
work can be done on a Conditional or Contingency Fee Arrangement. Thus practitioners
are paid for preparation work only; for representation clients must rely on a Not for Profit
agency’s other funding (such as a grant from the Association of Local Government in
London), their own pockets, a student representative, the occasional pro bono lawyer and
often nothing.99
109. Lord Irvine of Lairg, before he was appointed Lord Chancellor, described the
exclusion of tribunal representation from legal aid funding as a:
“…gap which cannot be rationally justified in the provision of legal aid… there is no
greater unfairness than the legally unrepresented applicant against the legally
represented employer in industrial tribunal cases… (it is) …irrational to exclude
tribunal cases from any call on the legal aid budget.”100
Several research projects have shown that unrepresented claimants in tribunal hearings are
at a substantial disadvantage101 and the LSRC’s research for the LSC has demonstrated that
employment problems are often triggers for a whole host of other justiciable problems,
which tend to lead to further needs for advice.
110. In London, representation can arranged in some instances by the Free Representation
Unit (FRU) a registered charity dedicated to the provision of free legal representation to
98
Ev 94, para 35
99
Ev 78, para 26
100 ‘The Legal System and Law Reform under Labour’, Lord Irvine of Lairg in Law Reform for All, Blackstones 1996
101 See e.g. Tribunal Users’ Experiences, Perceptions and Expectations: A Literature Review, Michael Adler and Jackie
Gullaud, 2003, published by the Council on Tribunals, especially para 3.3; Tribunals, Advice and the Community
Legal Service, Moorhead, 2001; The Leggatt Review of Tribunals, Academic Seminar Papers; Tribunals and Informal
Justice, Genn, 1993; [1993] 56 Modern Law Review, 393–411
32
those who cannot afford paid legal representation, before Tribunals in the Greater London
area where legal-aid is unavailable. The FRU acts as a second-tier referral agency and
clients are referred to it by referral agencies such as Citizens’s Advice Bureaux, Law
Centres, and solicitors. Nonetheless, FRU's volunteer representatives are mostly law school
students, pupil barristers and trainee solicitors, although there are also volunteers who have
completed their training and are qualified barristers or solicitors.102 In employment cases,
private employers will often employ solicitors and counsel to represent them in the
tribunal and proceedings can be complicated and legalistic.
111. It is not acceptable that in employment cases employees can be forced to represent
themselves in circumstances where private employers are able to employ lawyers to
represent them. If proceedings are to be fair, there needs to be equality of arms. Legal
aid should not automatically be excluded from such tribunal hearings.
Research done on need
112. The Community Legal Service aims to provide a “seamless service” throughout its
different levels of provision. The client who has contacted a legal aid solicitor who cannot
help him should be referred to another organisation or solicitor that can do so. This system
of referrals has its difficulties. Legal Action Group pointed out:
“…research carried out on specialist Quality Mark providers using ‘mystery
shoppers’ to test referral activity suggests that the ‘seamless service’ is not working
well in practice.103 Findings suggest that a significant proportion (up to 40%) of
clients are referred to another agency that is less than appropriate; and a worrying
minority (around 12%), instead of being referred, were given poor advice—outside
the provider’s area of expertise. This study suggests that, in many cases, access to
suitable specialist provision may be inhibited rather than facilitated by the CLS
network.”104
113. It has also been suggested that such refusals lead to “referral fatigue” on the part of
claimants with otherwise resolvable legal problems. “Referral fatigue” is the term used to
describe the situation where claimants become despondent and demoralised as a result of
being pushed from advisor to advisor. Research work done in connection with the study
“Causes of Action: Civil Law and Social Justice” indicates that constant referral leads to
fewer successful outcomes for potential litigants. It is not surprising that the researchers
found that “some respondents felt unable to maintain the necessary level of persistence and
to invest the necessary amount of time to follow up repeated referrals in order to obtain the
help they were looking for”.105
114. Any system of civil legal aid must cater for the most vulnerable in society. These
are the people whose problems may often to come in “clusters”. They also include some
102 Although in the main, the scheme is perceived to be most popular with Bar Vocational Course students, who are
able to obtain advocacy practice
103 An anatomy of access: evaluating entry, initial advice and signposting using model clients, Moorhead and Sherr,
2003
104 Ev 119, para 14
105 Causes of Action: Civil Law and Social Justice, Pascoe Pleasence, Alexy Buck, Nigel Balmer, Aoife O’Grady, Hazel
Genn and Marisol Smith, p 78
33
of the people who are most likely to suffer from “referral fatigue”. We believe that the
current system of referring people results in many people giving up on legitimate
claims.
34
5 Broadening means of provision
Not for Profit agencies
115. The LSC has diversified the types of supplier by encouraging greater use of the notfor-profit (NFP) sector in the provision of legal advice services, predominantly in the field
of Legal Help. Although private practice remains the dominant supplier of legal aid
services both in terms of number of providers and amount spent, not for profit providers
are larger providers of certain types of work such as debt and welfare benefits work.
116. The LSC argues that:
“A simple absence of solicitors offering publicly funded services in a particular legal
specialism for a particular geographical area does not necessarily constitute an unmet
need. For some problems—those involving welfare benefits and debt, for example—
we believe that services are generally better delivered by the not-for-profit sector. For
others, where there is insufficient need to justify the funding of a local service, there
are well established ways of accessing legal services; it applies to shopping, banking,
health services and many other aspects of modern life. In addition, we are making
increasing use of ways in which to bring services closer to people in or near their
homes.”106
117. The research evidence supports the LSC’s contention that advice provided by
specialist, not for profit agencies in social welfare law is generally of a higher quality than
that provided by solicitors (though they may also be more expensive).107 Similarly,
witnesses were by no means against a broader range of organizations offering help. LAG
thought that:
“There should be a planned expansion of law centres and other [Not for Profit]
solicitor agencies. Although it is unrealistic to expect law centres to take over the role
of private practice firms, we believe that every major town should have a local
resource of this type, employing at least two solicitors.”108
118. There is considerable scope for employing knowledgeable advisers who are not
solicitors to give advice in specific areas. Often such advisers are at least as good as or
better than solicitors in providing for the needs of clients in their area of specialism, for
example, welfare benefits or debt. Law Centres provide an established example of how
such advice can successfully be provided.109
106 Ev 158, para 13
107 Quality and Access: specialist and tolerance work under civil contracts, Moorhead and Harding, Stationery Office,
London, 2004
108 Ev 125, para 49
109 Ev 82 and 83; but see Q 238ff on claiming costs
35
Advice from Government agencies
119. Clare Dodgson has indicated that advice can be provided via government
departments, commenting: “people are not particularly concerned about who is giving that
advice or what label is on it as long as it meets your needs”.110
120. LAG disagreed with the LSC’s point of view, especially in relation to advice from
government departments. It believes that these initiatives raise important concerns about
independence of advice and that there is potential for conflicts of interest. For example, a
JobCentre Plus employee may less readily advise a client to appeal against the DWP’s
refusal of a welfare benefits claim than (say) an adviser at a citizens advice bureau. It is also
concerned about the breadth and the quality of government-sponsored advice. It referred
to a report of the Parliamentary Ombudsman which noted that over a third of the
complaints she received related to the DWP and, of these, a ‘significant number’ of
complaints against JobCentre Plus involved either incorrect or misleading advice about
entitlement to benefits.111 Research conducted for One Parent Families shows that
satisfaction with advice provided by the Benefits Agency and the Child Support Agency to
lone parents was very low, although help provided by New Deal for lone Parent Advisers
was high.112
121. Non-independent sources of advice can only be a complement to and never a
replacement for services available from solicitors and independent advice agencies.
Ideally, they should be independent of the organization against which the citizen is
claiming and they should not be the only avenue of advice.
A salaried service
122. In 1998, the Scottish Office carried out a literature review113 to inform the
development of a pilot public defence solicitor project. Information comparing the delivery
of criminal legal aid by public defenders and staff lawyer schemes with private (judicare)
solicitors was identified in 3 common law jurisdictions, including Canada. The paper
identified that in Canada, the average cost of staff lawyers was cheaper than private lawyers,
that staff lawyers were found to achieve broadly similar, or better outcomes at sentencing
and that clients of staff lawyers were no more or less likely to be convicted than clients of
private lawyers (60% of all accused were convicted regardless of lawyer type).
123. In May 2001, the Government began a pilot scheme in which six public defender
offices (PDO) were opened between 2001–2002. That service comprised individuals
employed directly by the Legal Services Commission, and the offices were required, at
minimum, to meet the same quality standards as those laid out for private firms operating
under contracts. Subsequently two further offices were opened.
110 Legal Action, July 2003, p 6
111 Ev 118, para 10
112 Advice Needs of Lone Parents, Moorhead, Douglas and Sefton, OPF, London, 2004
113 A Literature review of Public Defender or Staff Lawyer Schemes, Legal Studies Research findings No.19
36
124. During 2002/3 the PDO’s dealt with 3,849 cases with costs directly attributable to the
PDO’s at £3.5 million.114 Those costs would however include the costs of setting up and
maintaining premises, IT and support staff. The Law Society have expressed concerns that
the current PDO scheme appears to be anti-competitive and unfair.115
125. Law Centres already show how salaried provision can work. The LSC has no current
plans to put in place a salaried service for the generality of legal services falling within the
CLS.116 As part of its overall review of legal aid, however, it is considering whether a
salaried service would be a cost-effective way of dealing with pockets of unmet need.117 It
regarded the possibility of establishing and operating a salaried service to provide criminal
defence services as demonstrated. The Public Defender Service (PDS) was established in
2001 with a four year research programme operating along side it. The LSC thought that it
was too early in the Public Defender Service pilot to provide meaningful figures comparing
funding with that for private practice, although this is one of the issues which the pilot and
the independent research should answer. The research is scheduled to be completed in
2005.118
126. In a report into Legal Aid issued in 2003 the Law Society supported the idea of
establishing salaried civil legal offices, similar to the PDS model, in areas where there were
problems with access and where neither private practice firms nor the not for profit sector
were able to provide legal services. It emphasised that this should be on the basis of “a very
clear view of the unmet need in those areas, to justify the expense of establishing and
funding new services… the development of such a model may become inevitable, if private
practice firms continue to withdraw from publicly funded work”.119
127. The Bar Council was not sympathetic to the idea of a salaried service (at least, to
replace barristers) on the basis that the organisation of the Bar maximised choice and was
economical, with self employed professionals, operating on “piece work” with no
employers’ national insurance cost, no employers’ pension provision, no sick pay and no
employment rights.120 The Frontier study on barristers supported this view.121
128. LAPG agreed that where the market has failed, and firms have not been willing to
offer legal aid services in a particular location, salaried services might be one way of
plugging the gap, but that it was questionable whether this would be a cheaper option than
114 LSC Annual Report 2002/03
115 Protecting Rights and Tackling Social Exclusion: Proposals for the Future Delivery of Publicly Funded Legal Services,
Law Society, 2004, p 32
116 After we had concluded taking oral evidence, the LSC announced that it was intending to set up a new public
immigration and asylum service. This is a trial which involves the creation of a single office in Birmingham, which
will also be used for outreach work. When announcing the service, the LSC stated that it: “is being created to give
the LSC a direct and improved understanding of the cost and quality drivers in immigration”
117 Ev 167, para 70
118 ibid, para 74
119 Protecting Rights and Tackling Social Exclusion: Proposals for the Future Delivery of Publicly Funded Legal Services,
Law Society, 2004
120 Ev 95, para 39
121 Frontier Study, paras 5.1.1 and 5.3
37
addressing the market failings by providing incentives and assistance for private practice
firms to set up in the relevant area.122
129. JUSTICE and LAG supported the idea of salaried services as part of a mixed economy
for provision of legal aid, provided that these services were genuinely independent of
government.123 LAG suggested that:
“The piece-rate system of payment to private practice firms could be
complemented—and perhaps eventually replaced—by a funded caseworker model
that does not impose a minimum number of case starts. Research published in 2000
(based on a pre-CLS pilot) suggests that agencies funded in this way have higher
levels of client satisfaction and deliver work of better quality—although they tend to
spend longer on each case.124 Initially, this approach could be used to plug gaps in
provision, and it would be suitable for NfP agencies as well as solicitors firms.
Funded caseworkers could be permitted to offer more flexible services—for example,
outreach work in areas of undersupply; training, supervision and support for other
providers; group work and public legal education work.”125
130. An alternative model which the Law Society suggests is where:
“The Government, through the LSC,… introduce a salaried element into private
practice firms contracted to provide publicly funded work. Under this model, the
LSC would provide a firm with funding to cover the salary and overheads of a
solicitor(s) employed to deal with publicly funded matters. The LSC would,
undoubtedly, want to audit the work undertaken by the funded solicitor(s) in the
firm. However, this could be achieved more efficiently than the current system of
auditing work undertaken on a piece-work basis.126
It was not clear to us how this would work. It does not explain why a firm would give room
to a person who brought little or nothing into the practice that could not be provided by a
solicitor engaged in private work (apart from some cross-referral of cases and rental
income). As JUSTICE pointed out, it might be that such a contract would work best within
the not-for-profit sector (as in Greater Boston Legal Services in the United States).127
131. There is still some doubt about the financial advantages associated with establishing a
salaried service. A salaried system would certainly be expensive to set up, whether or not its
running costs were lower than the current system. The structure of a salaried service would
have to guarantee that advice was given with the same independence as is shown by
solicitors and barristers at present. Nonetheless, as salaried service may well provide a longterm solution to the problem of extending rights (and expectations) within a limited
budget for publicly funded legal advice and assistance. More research on the viability of a
122 Ev 151, para 74
123 Ev 124, para 48 and Ev 191, para 12
124 Quality and cost—final report on the contracting of civil, non-family advice and assistance pilot, Moorhead, Sherr et
al, 2001
125 Ev 124, para 49
126 Protecting Rights and Tackling Social Exclusion: Proposals for the Future Delivery of Publicly Funded Legal Services,
Law Society, 2004
127 Ev 191, para 12
38
salaried service should be undertaken, following assessment of the LSC's Public
Defender Scheme. If any salaried system is introduced it must be properly funded.
Legal insurance
132. One reason why Legal Aid expenditure is lower in some other European countries
than in the United Kingdom128 is the widespread use of Legal Expenses Insurance (LEI),
although expenditure is affected by the operation of the inquisitorial system and
expenditure on the judiciary in such jurisdictions is substantially greater.129 Companies
already offer LEI in the United Kingdom. One of the larger providers, DAS, describes the
benefits to purchasers:
“…unlike conventional insurance, LEI does not make a direct payment for a claim.
Instead, the insurance covers the legal costs involved in pursuing or defending a
claim. Legal costs include the appointment of solicitors, barristers and expert
witnesses. In many cases, the LEI provider manages the claim from start to finish.”130
133. LEI is sometimes also available with mortgage providers. It has been estimated that at
least 50% of households in Germany and 80% of households in Sweden have some kind of
LEI, although the figure is lower in other European countries. Unsurprisingly, the available
evidence suggests that higher income individuals are disproportionably likely to take out
LEI.131 A survey conducted in 1991 demonstrated that only 7% of UK citizens had any
form of LEI132 and this scheme would be unlikely to provide easy redress for the most
disadvantaged members of society, who may not have more common forms of house or
life insurance.
134. Legal Expenses Insurance can be useful as a supplement to the Legal Aid system. It
has the advantage of already being available for some areas of law or for specific
purposes. If it were to be relied on as an important addition to the general system of
civil legal cover it could to be part of the usual household insurance contract. This
might require an element of compulsion.
Telephone advice and new technologies
135. The LSC has supported the use of new technologies to address gaps in provision. In
particular, it has focused on the telephone and the internet. It has piloted telephone advice
services since January 2000. The pilot was designed to “help address gaps in provision of
legal aid services and to help people in rural areas, people with disabilities and others who
might find it difficult to reach a face to face advisor, to obtain access to justice”.133 For
example, in the Tyne Valley in Northumberland, the LSC has contracted a solicitors’ firm
128 For example, France and Germany spend about €235million and €358 million a year, respectively (see New
Statesman, 16 Feb 2004); Joel Bennathan and Andy Unger make reference to the European spend on legal aid, and
quote figures, which were subsequently confirmed by the Law Society
129 John Ludlow, Head of Parliamentary Liaison, The Law Society, 11 March 2004
130 www.das.co.uk
131 ‘Financing Legal Services: A Comparative Perspective’, Alan Paterson a paper taken from Resourcing Civil Justice
edited by A Paterson and T Goriely, Oxford University Press, 1996
132 Legal Expenses Insurance in the UK, Consumers’ Association/Law Society, 1991
133 Ev 163, para 37
39
in Hexham to spend one day a fortnight delivering legal services in a church hall in
Haltwhistle, 16 miles away.134
136. The LSC believes that telephone advice:
•
can successfully offer a specialist casework service
•
achieves equivalent outcomes more quickly than face to face advice
•
attracts a similar range of clients (in terms of age, ethnicity etc.) including people who
otherwise would not have sought advice
•
produces outcomes that are equivalent to those achieved by face to face services, and
with which clients are satisfied.135
137. Clare Dodgson told us that LSC was:
“…. planning for that expansion [nationally]. The pilot results which you have seen
are positive. I draw across to previous experience of NHS Direct where you can deal
with relatively straightforward but quite complex professional judgment issues. NHS
Direct was staffed by highly qualified nurses, not doctors. There is a question about
highly specialised advice-givers who may not necessarily be lawyers and how we
work with the not-for-profit and the voluntary sector area. We are committed to
doing more telephone work with clients.”136
The Commission intends to develop telephone advice to offer advice on Debt, Welfare
Benefits, and Education law from summer 2004.
138. Almost all of our witnesses were united in concluding that the adoption of a telephone
service could be a useful complementary way of providing Legal Aid.
139. However, Nony Ardil from the Legal Action Group cautioned against using the
telephone for unsuitable cases:
“I think there were a number of instances when telephone advisers wanted to refer a
client to a face-to-face adviser but were unable to do so because of a lack of capacity
and they then had to struggle on with the client through the telephone advice service,
which was far from ideal. There is also the question of whether a telephone advice
service can attract advisers and retain them. The skill-set required for telephone
advice is actually quite detailed, quite complex and quite high level and if you bring
in advisers who have been working in face-to-face services after they have been
employed in telephone advice for a year they are then going to lose their specialist
quality mark supervisor standard because they have to have representation as part of
their portfolio of work. There are issues of recruitment that would come out of this.
The more important point is whether telephone advice is suitable for all clients and
for all cases. If telephone advice is being presented as an alternative to face-to-face
services then we would very much resist that. If it is being presented to complement
134 ‘How To Plug Legal Aid Gaps—Get on the Phone’, The Times, 24 February 2004
135 ibid
136 Q 59
40
those services we support it because it does deliver access to people who would not
otherwise be able to access services.”137
She also pointed out (as did other witnesses) that legal advisers needed to have papers in
front of them, if they were going to deal with a complex case and understand the
background to the case properly. In addition, she thought that clients could not always
explain their own cases down the telephone and that in such cases they needed the adviser
in front of them to sift through “that carrier bag of documents because they are quite
unable to do that process themselves”.138
The use of telephone advice in appropriate cases has much to recommend it. It can provide
access to legal advice for a wide range of people who otherwise would be excluded from
obtaining advice, such as the housebound. It can avoid escalation of disputes to enable
early resolution of problems.
140. Richard Moorhead’s research on the needs of lone parents has demonstrated a
potential for telephone and internet services. The LSC has recently published a draft
evaluation report on its pilot telephone advice services, which indicates that users are
generally happy to use the service—and in some cases preferred it.139 However, as the
report recognises, telephone advice is not suitable for all clients and it cannot be used when
a client needs representation at court. Telephone services can complement face-to-face
advice services, but never wholly replace them. When it reported on the CLS last year, the
Public Accounts Committee expressed fears that a two-tier system of legal aid might
develop, with telephone access being the only help available to clients in rural areas.140
Clearly, this must be avoided.
141. We support the view that telephone advice could be made more widely available as
a cost-effective source of first-stage advice. It is possible that, in urban areas, face-toface services would need to be expanded to keep pace with the demand generated by
referrals from telephone services.
142. Other alternatives to traditional solicitor contact involve the use of internet
technologies. It is now possible for people to issue debt claims via Money Claims Online. In
evidence Mr David Lammy MP, noted that this initiative could be extended to include
housing matters.141 This simple procedure makes it easier for litigants to pursue claims
without the intervention of a solicitor. In addition, JUSTICE praised the LSC’s ‘JustAsk’
website, which has recently been redesigned.142 Innovative use of the internet has a longterm future for the provision of advice as more people become computer literate. Even
under this optimistic scenario, take up of such services could be hindered by limitations on
access amongst more disadvantaged members of society.143 Much web based legal advice
would require a degree of literacy which would rule out many legal aid clients. This will
137 Q 115
138 ibid
139 Available on the LSC website: www.legalservices.gov.uk
140 Committee of Public Accounts, Twenty-fourth report of Session 2002–03, HC 185
141 Q 318
142 Ev 192, para 15
143 Ev 150, para 68
41
necessitate significant technological advances (permitting much faster use of video, for
instance) and software designers overcoming the problems posed by heavy reliance on the
written word. LAPG raised the possibility for achieving savings using IT to bring people
together for conferences, Court hearings or other forms of meeting, on the basis that this
could lead to reductions in the amounts spent under legal aid on travel and waiting. This is
of growing importance in the light of the programme of Court closures that has occurred
in recent years. The difficulty firms face is that this will involve a significant investment in
computer hardware and software, which is largely unaffordable to them because of the low
margins under which they operate.144
143. New and alternative technologies can complement services provided under the
legal aid system, especially when dealing with hard to reach groups. They provide an
important way forward for combining an affordable system with quality advice. If their
use is to be successful they must integrate with the rest of the system to enable ease of
access for clients and transfer of files between advisers. They must also receive adequate
funding. Further research is needed on improving electronic means of access to advice,
in particular to enable less literate groups to use information technology.
144 Ev 151, para 69
42
6 Conclusion
144. The system of civil legal aid faces some serious problems. The evidence established
clearly that the laudable aim of ensuring that costs were properly audited has resulted in a
wasteful and self-defeating system of cost compliance auditing which bears little relation to
quality or even shows much accuracy in the assessment of costs. The LSC has done well in
using the Quality Mark system to remove solicitors from legal aid work who were unfit to
give advice, but this achievement risks being spoilt by an ill considered and over rigid
application of the cost compliance rules.
145. There is a significant danger that the system will not survive if urgent efforts are not
made to enable solicitors’ firms to recruit young entrants into legal aid work. There is
widespread evidence of serious recruitment and retention problems. The initiatives made
by the LSC to provide some support to students who wish to go into legal aid work (and
stay there) are to be welcomed. We fear that this may be insufficient to cope with the
immense problems surrounding student debt.
146. Although we believe that there is scope for improved management of solicitors firms,
we note that the system relies on the dedication and goodwill of solicitors, who are
committed to the service which they provide. They need more recognition for the work
that they do, which is underpaid in comparison to other areas of the law. The firms which
do legal aid work subsidise the system in a way which is not sufficiently quantified by
Government or acknowledged. Every change to the system of administration of legal aid
involves firms in considerable expense on business systems to cope with the changes. Much
of this is taken for granted.
147. We note with interest the evidence relating to alternative methods of provision. Any
new system must provide the same or better quality, access and value for money as the
present system of delivery through private practice firms.
148. There are human rights obligations in relation to civil cases. There is significant
evidence of unmet need for legal services by many in society—often among those who are
most vulnerable. Too much has been squeezed out of the CLS budget as a result of the twin
pressures of criminal and asylum work. Civil Legal Aid has become the Cinderella of the
Government’s services to address social exclusion and poverty. The highly desirable
extension of provision and services has been possible only at the expense of cutting back on
eligibility, scope and remuneration. This process has now gone too far.
43
Conclusions and recommendations
Background
1.
The Criminal Defence Service budget is demand led. Increases in spending on
criminal legal aid reduce the availability of money for civil help and representation.
Provision for civil legal aid has been squeezed by the twin pressures of the
Government's reluctance to devote more money to legal aid and the growth in
criminal legal aid, as well as the cost of asylum cases. Whatever action the
Government may take to reduce the financial impact of asylum cases on the legal aid
system, it is likely that the growth in criminal legal aid will continue to be a burden.
There may be scope for bearing down on the cost of criminal legal aid by better case
management and a new criminal procedure code. The Government should ring
fence the civil and criminal legal aid budgets so that the funding for civil work is
protected (as immigration work is) and considered quite separately from criminal
defence funding. (Paragraph 13)
2.
It is vital for the Government to ensure that part of the cost calculation of policy
initiatives includes an assessment of the impact on the legal aid budget and that there
is adequate liaison between the Constitutional Affairs Department and departments
such as the Home Office which legislate in relevant areas. This is a key
recommendation; we expect the Government to be able to demonstrate that it has
significantly improved its system for ensuring that legislative changes proposed by
departments are costed to take into account the full impact on the legal aid budget.
(Paragraph 15)
3.
When making its forward planning for matter starts, the Legal Services Commission
must take into account the need for solicitors’ firms to make similar forward
planning. It is entirely unreasonable to expect solicitors’ firms to be able to function
without making such forward business plans. (Paragraph 29)
4.
Despite the factors raised by the Legal Services Commission, we are satisfied that
there is still ample evidence of unmet demand. When there is no evidence of reduced
demand the number of people helped is a key indication of how successful the
system is. It is unacceptable that the system is helping fewer people. (Paragraph 35)
Impact on suppliers
5.
The evidence on the difficulties of recruiting solicitors and barristers to legal aid
work and retaining them underlines one of the most serious threats to the provision
of publicly funded legal advice. The significant trend of young lawyers away from
legal aid work puts into question the future of the civil legal aid system. (Paragraph
49)
6.
There is a role that “outreach” programmes can play in adding to the range of
services giving advice to the public. The details of their implementation are, however,
of crucial importance. They can be an effective complement to other services if they
encourage people to take advice who might be reluctant for any reason to consult a
44
solicitor or who do not know how to go about seeing one. “Outreach” programmes
can provide good cover for legal advice in a wide range of cases. If proper use is to be
made of such facilities, they must not be irregular or infrequent and they must
integrate properly with other legal services to enable proper referral. (Paragraph 53)
7.
We are in no doubt that the term “advice deserts” reflects the concerns which exist in
some geographical areas and in some fields of law where advice is not readily
accessible. (Paragraph 61)
8.
If it is the policy of the Legal Services Commission to deal with fewer firms, this
creates a number of problems. For example, if fewer solicitors’ firms have contracts
the problems of supply in rural areas will be exacerbated, especially in family law
disputes which require different solicitors’ firms for each of the parties. In time, the
limited sourcing of legal aid work to fewer firms may result in higher fees being
charged, since the bargaining position of the Department will be weaker. Fewer
contracts with firms would involve the loss of investment in resources which the
current body of experienced, trained and motivated legal aid practitioners represents.
Once these valuable practitioners are lost, they will be hard to replace. (Paragraph 67)
9.
At present, it is possible to take advice from a wide range of firms in which there is a
good general spread of expertise. Over-specialisation in certain areas of legal aid
work may tend to prevent solicitors from providing a holistic approach to the advice
given, unless steps are taken to avoid this. Although specialisation can provide a
concentration of expertise which allows a better service to be given, firms must be
able to offer a “joined up” service, since many people turn to solicitors with a series of
connected problems that require expertise in different legal areas. For example, a
divorce may result in debt problems, mental health problems and, perhaps, housing
problems. (Paragraph 68)
10.
There is a serious risk that if legally aided work is associated with very low fees, this
may have a serious impact on the quality of people who undertake legally aided
cases. The problems that are faced by clients who require legal aid support are often
of the most complex variety. Many vulnerable citizens have problems which come in
“clusters”. It is vitally important that they have access to justice which can only be
guaranteed by recourse to fully competent advisers. (Paragraph 75)
11.
Those who receive public money for providing a public service need to maintain
proper professional standards. However, the current system of auditing solicitors
costs is arbitrary, inaccurate and bureaucratic. Furthermore, it is not linked to quality
of advice given. It is clearly punishing competent and honest solicitors and is
operated in a way which completely fails to attract the support of the profession. This
is the most serious criticism of the current system for managing legal aid work that
we have found. A solution is urgently needed. (Paragraph 87)
12.
The principle that two successive category “3” marks means automatic loss of
contract—“two strikes and you are out”—is unnecessarily draconian. Even if it were
based on a recognisably fair system it would be harsh, but the combination of this
rule with the arbitrary application of the LSC’s rules make it unacceptable. A similar
mark should begin a process of consultation and assistance which would help
45
solicitors, who may be providing a perfectly good service to the community, to
improve their management systems. Simply eliminating them from the list of
contract holders is wasteful and counter-productive. (Paragraph 89)
13.
Peer review has been accepted by all parties as providing an appropriate means of
audit for practitioners. If properly implemented it should reduce bureaucracy and
provide a much clearer picture of the value of the service provided. (Paragraph 94)
14.
We were impressed with the strong commitment of many of the solicitors and advice
sector workers whom we met. The public service which they carry out deserves wider
recognition, as they are often the only barrier between a citizen and complete denial
of legal rights. A proper system of access to justice for all the community depends
entirely on such professionals. (Paragraph 95)
15.
We think that the idea of financial support for those newly qualified entrants into the
legal profession who will provide publicly funded legal services is a good one.
Initiatives of this kind will become a necessity in order to ensure the public service
provided by legal aid solicitors is maintained. We commend the work by the Legal
Services Commission in developing policy in this area. (Paragraph 101)
Impact on customers
16.
At present, the legal aid system is increasingly being restricted to those with no
means at all. There is a substantial risk that many people of modest means but who
are homeowners effectively will fall out of the ambit of legal aid. In many cases this
may amount to a serious denial of access to justice. (Paragraph 105)
17.
It is not acceptable that in employment cases employees can be forced to represent
themselves in circumstances where private employers are able to employ lawyers to
represent them. If proceedings are to be fair, there needs to be equality of arms. Legal
aid should not automatically be excluded from such tribunal hearings. (Paragraph
111)
18.
Any system of civil legal aid must cater for the most vulnerable in society. These are
the people whose problems may often to come in “clusters”. They also include some
of the people who are most likely to suffer from “referral fatigue”. We believe that the
current system of referring people results in many people giving up on legitimate
claims. (Paragraph 114)
Broadening means of provision
19.
There is considerable scope for employing knowledgeable advisers who are not
solicitors to give advice in specific areas. Often such advisers are at least as good as or
better than solicitors in providing for the needs of clients in their area of specialism,
for example, welfare benefits or debt. Law Centres provide an established example of
how such advice can successfully be provided. (Paragraph 118)
20.
Non-independent sources of advice can only be a complement to and never a
replacement for services available from solicitors and independent advice agencies.
46
Ideally, they should be independent of the organization against which the citizen is
claiming and they should not be the only avenue of advice. (Paragraph 121)
21.
More research on the viability of a salaried service should be undertaken, following
assessment of the LSC's Public Defender Scheme. If any salaried system is introduced
it must be properly funded. (Paragraph 131)
22.
Legal Expenses Insurance can be useful as a supplement to the Legal Aid system. It
has the advantage of already being available for some areas of law or for specific
purposes. If it were to be relied on as an important addition to the general system of
civil legal cover it could to be part of the usual household insurance contract. This
might require an element of compulsion. (Paragraph 134)
23.
We support the view that telephone advice could be made more widely available as a
cost-effective source of first-stage advice. It is possible that, in urban areas, face-toface services would need to be expanded to keep pace with the demand generated by
referrals from telephone services. (Paragraph 141)
24.
New and alternative technologies can complement services provided under the legal
aid system, especially when dealing with hard to reach groups. They provide an
important way forward for combining an affordable system with quality advice. If
their use is to be successful they must integrate with the rest of the system to enable
ease of access for clients and transfer of files between advisers. They must also receive
adequate funding. Further research is needed on improving electronic means of
access to advice, in particular to enable less literate groups to use information
technology. (Paragraph 143)
47
Formal minutes
Tuesday 6 July 2004
Members present:
Mr A J Beith, in the Chair
Mr Peter Bottomley
Mr James Clappison
Ross Cranston
Mr Jim Cunningham
Mr Clive Soley
Keith Vaz
Dr Alan Whitehead
The Committee deliberated.
Draft Report [Civil Legal Aid: adequacy of provision], proposed by the Chairman, brought
up and read.
Ordered, That the Chairman’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 148 read and agreed to.
Conclusions and recommendations read and agreed to.
Resolved, That the Report be the Fourth Report of the Committee to the House.
Ordered, That the Chairman do make the Report to the House.
Ordered, That the provisions of Standing Order No 134 (Select Committees (Reports)) be
applied to the Report.
Several papers were ordered to be appended to the Minutes of Evidence.
Ordered, That the Appendices to the Minutes of Evidence be reported to the House.
[Adjourned till Tuesday 13 July at 9.15am
48
Witnesses
(See Volume II)
Tuesday 24 February 2004
Philip Ely OBE and Clare Dodgson, Legal Services Commission
Ev 1
Tuesday 9 March 2004
Roger Smith, JUSTICE, Richard Miller, Legal Aid Practitioners Group and
Nony Ardill, Legal Action Group
Ev 15
Tuesday 23 March 2004
Peter Williamson, Evlynne Gilvarry and Lucy Scott-Moncrieff, The Law
Society, David Emmerson and Godfrey Freeman, Solicitors Family Law
Association
Stephen Irwin QC, Andrew Hall QC, Andrew McFarlane QC and Mererid
Edwards, General Council of the Bar
Ev 28
Ev 35
Tuesday 30 March 2004
Adam Griffith, Advice Services Alliance, David Harker, Citizens Advice and
Steve Hynes, Law Centres Federation
Richard Charlton, Bill Montague and Roy Morgan, legal aid practitioners
Ev 43
Ev 51
Tuesday 27 April 2004
Mr David Lammy MP, Parliamentary Under-Secretary of State, Department
for Constitutional Affairs
Ev 58
49
List of written evidence
(See Volume II)
Correspondence between Mr David Lammy MP, Parliamentary Under-Secretary of State,
Department for Constitutional Affairs and Rt Hon Alan Beith MP, Chairman,
Constitutional Affairs Committee
Ev 72
Justices’ Clerks’ Society
Ev 73
Benedict Keane, Chair, Norwich & District Legal Services, and Vice Chair,
Norfolk Law Centre Steering Group
Discrimination Law Association.
Ev 75
Ev 75
Ryszard Opasiak, Quality Representative, Welfare Rights and Advice Service,
Advice Centre
Ev 81
Law Centres Federation
Ev 81
Magistrates Association
Ev 84
Advice Services Alliance
Ev 84
General Council of the Bar
Ev 91
The Law Society
Ev 96
Association of Personal Injury Lawyers (APIL)
Ev 107
Solicitors Family Law Association
Ev 109
The Equality and Diversity Forum
Ev 112
Disability Rights Commission
Ev 115
Legal Action Group
Ev 117
Brent Community Law Centre
Ev 125
Trainee Solicitors’ Group
Ev 128
Association of Visitors to Immigration Detainees (AVID)
Ev 130
Young Solicitors Group of England and Wales (YSG)
Ev 134
Mental Health Lawyers Association
Ev 138
Legal Aid Practitioners Group (LAPG)
Ev 143
Shelter
Ev 153
Legal Services Commission (LSC)
Ev 156
Association of Lawyers for Children
Ev 170
Citizens Advice
Ev 174
Mrs M A Woolacott, Woolacott & Co. Solicitors
Ev 180
Criminal Law Solicitors’ Association (CLSA)
Ev 180
Civil Justice Council—Access to Justice Committee
Ev 182
Civil Justice Council—Housing and Land Committee
Ev 185
JUSTICE
Ev 189
Peter Soar, Retired Solicitor
Ev 196
Community Law Partnership
Ev 200
Family Law Bar Association (FLBA)
Ev 201
Professor Muir Hunter QC LLD (Hon)
Ev 204
James Murray Associates
Ev 206
Ben Hoare Bell Solicitors
Ev 207
Emma Sumner, Barrister
Ev 210
50
Law for All
Ev 211
Mackintosh Duncan Solicitors
Ev 217
Neil Howlett, Solicitor
Ev 220
Legal Services Commission (LSC)
Ev 228
Legal Aid Practitioners Group (LAPG)
Ev 242
Family Law Bar Association (FLBA)
Ev 244
The Law Society
Ev 245
Correspondence from Mr David Lammy MP, Parliamentary Under-Secretary of State,
Department for Constitutional Affairs to Rt Hon Alan Beith MP, Chairman,
Constitutional Affairs Committee
Ev 247
51
Reports from the Constitutional Affairs Committee
The First, Second and Third Reports of Session 2002–03 were published by the
Committee under its previous name, Committee on the Lord Chancellor’s
Department
Session 2002–03
First Report
Courts Bill
Government response
HC 526
Cm 5889
Second Report
Judicial Appointments: lessons from the
Scottish experience
No Government response expected
HC 902
Third Report
Children and Family Court Advisory and
Support Service (CAFCASS)
Government response
HC 614
Fourth Report
Cm 6004
Immigration and Asylum: the Government’s HC 1171
proposed changes to publicly funded
immigration and asylum work
Government response (Second Special Report, HC 299
Session 2003–4)
Session 2003–04
First Special Report Protection of a witness – privilege
HC 210
First Report
Judicial appointments and a Supreme Court
(court of final appeal)
Government response
HC 48
Second Report
Asylum and Immigration Appeals
Government response
HC 211
Cm 6236
Third Report
Work of the Committee 2003
HC 410
Cm 6150