The death of legal aid
Legal aid will begin to die at the end of this year if the governments proposals cannot be stopped.
History
Legal aid began in its present form with an act passed by the post-war labour government. It began small and grew slowly until by the 1970's it was a comprehensive and worthwhile part of the system of justice.
Is legal aid important?
Legal aid helps ordinary people to defend themselves against unjust or repressive actions by other people, institutions or the state. A judge, Lord Denning, said that rights are no use without the means to enforce them. Only the very wealthy (there are more of them now than there have ever been) can afford to go to court of to defend themselves without financial help. Most people need help and that is what legal aid is designed to do - 'To open the doors of the Queen's Courts to the man in the street'.
How it works now
There are three kinds of legal aid; family, criminal and advice (mostly handled by advice centres). If you bring an action in the courts to recover damages (for instance if you have been injured) you have to find a solicitor who will take the case on a 'no win-no fee' basis. This has removed such cases from legal aid; the system is not comprehensive and it is uncertain in its application. The cost of legal aid has grown, largely because life is more complicated and therefore cases last longer. Word got about that legal aid lawyers were lining their pockets at the expense of the taxpayer and driving up the cost of legal aid. There are rascals and rogues in every walk of life ad the legal profession has a few. When discovered they are suspended from practice and, if fraudulent, prosecuted. A few go to prison. Generally, legal aid lawyers are hard working, well motivated and competent. They work long hours in stressful circumstances. In family work the clients are often traumatised; in criminal work matters have to be handled on a twenty four hour basis and much time is spent in police stations, magistrates courts and prisons. It is not an easy life and the rewards are small. Lawyers go bankrupt too, but that is not newsworthy so you don't hear about it.
What did the government do?
It took fright and capped the legal aid budget; not, as a rational government would have done, after consideration of what a reasonable service should cost, but arbitrarily. Just like that.
What happened?
The three kinds of legal aid began to compete with each other. One kind is growing faster than the rest and taking more than its fair share of the budget. Very large, complicated, criminal cases have become very costly to defend. The cases themselves are complicated and the prosecution serve more and more evidence on the defedant which the defence lawyers have to study. These very large cases number only one or two percent of the total number of cases but they take up fifty percent of the cost. Other kinds of legal aid, family work and the smaller but much more frequent criminal cases are short of funds. An unjust situation which puts ordinary people at risk through no fault of their own.
What did the government do?
It set up a Review under Lord Carter of Coles who had built up and then sold a chain of healthcare centres. To help him he had, first, three advisers from the business world, one of them a venture capitalist and one the senior partner of one of the largest international property firms of solicitors in the City of London. Perhaps not the people who would come first to mind to advise about legal aid in high street solicitors' offices. Second, he had a team of seven in-house civil servants from the Department of Constitutional Affairs, the Legal Services Commission (the body which runs legal aid) and the Crown Prosecution Service. Another unlikely choice if, as the governemtn claimed, the Review was independent. People and institutions working in legal aid and the justice system, and consumers of it, were 'widely consulted'.
The Review proposals
The proposals have been accepted by the government and will be coming into force this year unless the government can be pursuaded to see sense. The ideas for criminal matters fall into two groups
1 Payment
2 Control of solicitors
1 For most of their work at present solicitors are paid an agreed fee per hour for which which they actually do and which the Legal Services Commission (LSC) accepts as reasonable. From this year they will be paid a fixed fee depending on the type of case but irrespective of the amount of work done on the case. Do it for less and they will still be paid the fee; spend more time on it and they will lose. The psychological effect of this is damaging to solcitors' professional standing and injurious to the public.
2 There will be a system of competitive bidding for contracts to do a set number of cases. LSC will decide which firms to invite to bid and will award a small number of contracts in areas drawn round police stations. The Review sees police stations as 'generators of market share' You, the client, have become a unit of market share and if your own solicitor is not within your area you will have to accept one of those who is. There is a contract system at present; the difference is that new contracts will be awarded in limited numbers to the lowest bidder. Solicitors who wish to do legal aid must sign a contract - they are 300 pages long setting out what kind of work may be done, how much of it, how the office is to be organised, what records are to be kept - but if a solicitors' firm under the new scheme does not get a contract it will not be allowed to do legal aid work at all. Clients, you and me, are called 'matter starts' and solicitors who get a contract must carry out a numder set by the LSC.
What will be the result?
1 Payment by fixed fee might or might not be fair depending on the amount fixed for each type of case but the system is open to objection because of the tempatation to do as little work as possible or to avoid taking on cases which look as though they are going to be lng and complicated.
2 The contract system is wholly bad. The Review thinks that there should be many fewer solicitors and that those that are left will be bigger and therefore more efficient. It is goverment policy therefore that there should be fewer solicitors in legal aid. In big cities the smaller firms will lose out, particularly those who specialise in certain kinds of work and are experts in it and those who cater for the needs of minorities. In small towns there may very well be no legal aid solicitors because the exisiting firms will be too small to undertake the considerable expense of bidding and the cost of re-organising themselves to meet the new requirements. The goverment thinks the big firms will be better and more efficient. How much bigger? Lord Cart said in evidence to the Parliamentary Commitee that a firm whith a legal aid turnover of £100,000,000 would not be surprising. Is that any kind of solicitor you recognise?
Criticism
Solicitors firms in the high street have no place in big business; they are made up of people who have chosen to work in small firms with congenial partners in a place of their own choosing. They like to build up relationships with clients which last over the years. I was a legal aid solicitor (I retired in 1997) and it was a pleasure to find that I would be seen as a family lawyer for more than one generation; that there were people in my town who would say "My solicitor is Peter Soar" and would be very fed up to be forced to go to someone of the government's choosing, not theirs.
Those firms which do not get a contract in the first round will not be allowed to do legal aid. Contracts last for two or three years and in that time they will have had to find something else to do. They have mortgage payments to meet, families to feed and their careers to consider. Many already do other kinds of work and they will simly turn to that work and lose their skills in criminal work. When the next bidding round comes they will not be in the running. Of those who did get a contract some will not wish to continue and others will not be considered by LSC.
The Review spends a lot of time (it runs to 120,000 words talking about efficiency and the advantages of large size. It spends virtually no time discussing the lawyerly qualities of knowldege, skill, experience, loyalty to clients, observation of the rule of law and duty to the Courts. It is a superficial document which skates over the real needs and mposes a pre-determined dogma of big business.
The result
Quite clearly there will be fewer solicitors first time round and fewer still next time. It will be a diminishing spiral. The goverment thinks that solicitors in firms which do not get contracts will join the firms which did and so create the larger firms which will be more efficient. We are asked by the Review to take this on trust; these wise business men, they know what they are talking about. But the Review has failed to understand the mechanics of exisiting solicitors firms and is prepared to ride roughshod over people's freedom of choice. Many smaller towns will have no legal aid lawyer. If you live in Hertford, Bideford, Wigan or any one of hundreds of small towns you will have to get on a bus (many legal aid clients do not have a car or access to one) and go to the next large centre Most cases involve several visits to the solicitor so there will be hardship as well as lack of choice.
Freedom and human rights.
It is about more than hardship and long bus journeys. The existence of independent lawyers is one of the main guarantees of individual freedom, the proper working of the rule of law and the reality of our human rights. Rights, you remember, are no use without the means to enforce them. This weakening of legal aid is the other side of a coin which has seen the government make the position of the defendant more diffcult than it was. Some of the safeguards in court procedure which have taken many years to win are being removed. Our prison population is the highest in Europe, judges' discretion in sentencing is limited, there is a move to restrict theright to trial by jury; there are other dangers too many to list here. So, on the one hand the criminal justice system is becoming harsher and more punitive and on the other the government is weakening the possibility of defence. The purpose of the defence is to make the prosecution prove the case in the hope of limiting the number of wrongful prosecutions (and how many of those do we see now?) but it will not be able to do so if it is weakened as the government proposes and if the independence of the remaining legal aid firms is compromised because their only employer, LSC, has the power to award or take away their means of livelihood.
It is little wonder that for the first time in living memory solicitors are staging protests and working to rule. Lawyers often have a bad press but matters have now come to such a pass that everyone should understand what is afoot and do what they can to prevent it.
History
Legal aid began in its present form with an act passed by the post-war labour government. It began small and grew slowly until by the 1970's it was a comprehensive and worthwhile part of the system of justice.
Is legal aid important?
Legal aid helps ordinary people to defend themselves against unjust or repressive actions by other people, institutions or the state. A judge, Lord Denning, said that rights are no use without the means to enforce them. Only the very wealthy (there are more of them now than there have ever been) can afford to go to court of to defend themselves without financial help. Most people need help and that is what legal aid is designed to do - 'To open the doors of the Queen's Courts to the man in the street'.
How it works now
There are three kinds of legal aid; family, criminal and advice (mostly handled by advice centres). If you bring an action in the courts to recover damages (for instance if you have been injured) you have to find a solicitor who will take the case on a 'no win-no fee' basis. This has removed such cases from legal aid; the system is not comprehensive and it is uncertain in its application. The cost of legal aid has grown, largely because life is more complicated and therefore cases last longer. Word got about that legal aid lawyers were lining their pockets at the expense of the taxpayer and driving up the cost of legal aid. There are rascals and rogues in every walk of life ad the legal profession has a few. When discovered they are suspended from practice and, if fraudulent, prosecuted. A few go to prison. Generally, legal aid lawyers are hard working, well motivated and competent. They work long hours in stressful circumstances. In family work the clients are often traumatised; in criminal work matters have to be handled on a twenty four hour basis and much time is spent in police stations, magistrates courts and prisons. It is not an easy life and the rewards are small. Lawyers go bankrupt too, but that is not newsworthy so you don't hear about it.
What did the government do?
It took fright and capped the legal aid budget; not, as a rational government would have done, after consideration of what a reasonable service should cost, but arbitrarily. Just like that.
What happened?
The three kinds of legal aid began to compete with each other. One kind is growing faster than the rest and taking more than its fair share of the budget. Very large, complicated, criminal cases have become very costly to defend. The cases themselves are complicated and the prosecution serve more and more evidence on the defedant which the defence lawyers have to study. These very large cases number only one or two percent of the total number of cases but they take up fifty percent of the cost. Other kinds of legal aid, family work and the smaller but much more frequent criminal cases are short of funds. An unjust situation which puts ordinary people at risk through no fault of their own.
What did the government do?
It set up a Review under Lord Carter of Coles who had built up and then sold a chain of healthcare centres. To help him he had, first, three advisers from the business world, one of them a venture capitalist and one the senior partner of one of the largest international property firms of solicitors in the City of London. Perhaps not the people who would come first to mind to advise about legal aid in high street solicitors' offices. Second, he had a team of seven in-house civil servants from the Department of Constitutional Affairs, the Legal Services Commission (the body which runs legal aid) and the Crown Prosecution Service. Another unlikely choice if, as the governemtn claimed, the Review was independent. People and institutions working in legal aid and the justice system, and consumers of it, were 'widely consulted'.
The Review proposals
The proposals have been accepted by the government and will be coming into force this year unless the government can be pursuaded to see sense. The ideas for criminal matters fall into two groups
1 Payment
2 Control of solicitors
1 For most of their work at present solicitors are paid an agreed fee per hour for which which they actually do and which the Legal Services Commission (LSC) accepts as reasonable. From this year they will be paid a fixed fee depending on the type of case but irrespective of the amount of work done on the case. Do it for less and they will still be paid the fee; spend more time on it and they will lose. The psychological effect of this is damaging to solcitors' professional standing and injurious to the public.
2 There will be a system of competitive bidding for contracts to do a set number of cases. LSC will decide which firms to invite to bid and will award a small number of contracts in areas drawn round police stations. The Review sees police stations as 'generators of market share' You, the client, have become a unit of market share and if your own solicitor is not within your area you will have to accept one of those who is. There is a contract system at present; the difference is that new contracts will be awarded in limited numbers to the lowest bidder. Solicitors who wish to do legal aid must sign a contract - they are 300 pages long setting out what kind of work may be done, how much of it, how the office is to be organised, what records are to be kept - but if a solicitors' firm under the new scheme does not get a contract it will not be allowed to do legal aid work at all. Clients, you and me, are called 'matter starts' and solicitors who get a contract must carry out a numder set by the LSC.
What will be the result?
1 Payment by fixed fee might or might not be fair depending on the amount fixed for each type of case but the system is open to objection because of the tempatation to do as little work as possible or to avoid taking on cases which look as though they are going to be lng and complicated.
2 The contract system is wholly bad. The Review thinks that there should be many fewer solicitors and that those that are left will be bigger and therefore more efficient. It is goverment policy therefore that there should be fewer solicitors in legal aid. In big cities the smaller firms will lose out, particularly those who specialise in certain kinds of work and are experts in it and those who cater for the needs of minorities. In small towns there may very well be no legal aid solicitors because the exisiting firms will be too small to undertake the considerable expense of bidding and the cost of re-organising themselves to meet the new requirements. The goverment thinks the big firms will be better and more efficient. How much bigger? Lord Cart said in evidence to the Parliamentary Commitee that a firm whith a legal aid turnover of £100,000,000 would not be surprising. Is that any kind of solicitor you recognise?
Criticism
Solicitors firms in the high street have no place in big business; they are made up of people who have chosen to work in small firms with congenial partners in a place of their own choosing. They like to build up relationships with clients which last over the years. I was a legal aid solicitor (I retired in 1997) and it was a pleasure to find that I would be seen as a family lawyer for more than one generation; that there were people in my town who would say "My solicitor is Peter Soar" and would be very fed up to be forced to go to someone of the government's choosing, not theirs.
Those firms which do not get a contract in the first round will not be allowed to do legal aid. Contracts last for two or three years and in that time they will have had to find something else to do. They have mortgage payments to meet, families to feed and their careers to consider. Many already do other kinds of work and they will simly turn to that work and lose their skills in criminal work. When the next bidding round comes they will not be in the running. Of those who did get a contract some will not wish to continue and others will not be considered by LSC.
The Review spends a lot of time (it runs to 120,000 words talking about efficiency and the advantages of large size. It spends virtually no time discussing the lawyerly qualities of knowldege, skill, experience, loyalty to clients, observation of the rule of law and duty to the Courts. It is a superficial document which skates over the real needs and mposes a pre-determined dogma of big business.
The result
Quite clearly there will be fewer solicitors first time round and fewer still next time. It will be a diminishing spiral. The goverment thinks that solicitors in firms which do not get contracts will join the firms which did and so create the larger firms which will be more efficient. We are asked by the Review to take this on trust; these wise business men, they know what they are talking about. But the Review has failed to understand the mechanics of exisiting solicitors firms and is prepared to ride roughshod over people's freedom of choice. Many smaller towns will have no legal aid lawyer. If you live in Hertford, Bideford, Wigan or any one of hundreds of small towns you will have to get on a bus (many legal aid clients do not have a car or access to one) and go to the next large centre Most cases involve several visits to the solicitor so there will be hardship as well as lack of choice.
Freedom and human rights.
It is about more than hardship and long bus journeys. The existence of independent lawyers is one of the main guarantees of individual freedom, the proper working of the rule of law and the reality of our human rights. Rights, you remember, are no use without the means to enforce them. This weakening of legal aid is the other side of a coin which has seen the government make the position of the defendant more diffcult than it was. Some of the safeguards in court procedure which have taken many years to win are being removed. Our prison population is the highest in Europe, judges' discretion in sentencing is limited, there is a move to restrict theright to trial by jury; there are other dangers too many to list here. So, on the one hand the criminal justice system is becoming harsher and more punitive and on the other the government is weakening the possibility of defence. The purpose of the defence is to make the prosecution prove the case in the hope of limiting the number of wrongful prosecutions (and how many of those do we see now?) but it will not be able to do so if it is weakened as the government proposes and if the independence of the remaining legal aid firms is compromised because their only employer, LSC, has the power to award or take away their means of livelihood.
It is little wonder that for the first time in living memory solicitors are staging protests and working to rule. Lawyers often have a bad press but matters have now come to such a pass that everyone should understand what is afoot and do what they can to prevent it.
posted by Peter Soar at 10:59 AM
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