The Legal Advice and Assistance Act 1949 was a part of the post Second World War Welfare State settlement and the start of an attempt to provide State funding for both criminal and civil cases to ensure that people who could not afford to pay privately could enforce their rights, defend actions and especially in the Criminal Justice system be represented.
There has never been a universal provision and Means Testing has become a mechanism for limiting the population of those eligible for assistance.
Major reform was necessary in the 1980’s to deal with widespread police corruption, beatings, planted evidence, false confessions and racism.
Through the Police and Criminal Evidence Act 1984, Legal Aid funding was established for solicitors to attend police stations during the post arrest interrogation process which coupled to protocols which delivered rights to legal access and the introduction of tape recording very substantially ameliorated previous malpractice.
Better training and professionalization of both police officers and other parties in the Criminal Justice system, including magistrates’, solicitors and the development of an independent Crown Prosecution Service have also contributed greatly to a rise in standards
The budget for Criminal Legal Aid grew over the next two decades driven in part by this increased access to representation and by the growth of volume in cases and their complexity. Whilst access and volume have been the key cost drivers what should also not be underestimated has been the impact of technology on the prosecution,in particular mobile telephone evidence, DNA and other forensic investigation as well as very large increases in expenditure on policing and prosecution. This has been accompanied by government policy setting targets for bringing "more people to justice" and these trends in turn have fuelled enormous increases in the prison population.
The Legal Aid budget issue is being resolved by a ruthless attack on the rates of payment to solicitors involved in criminal defence. This has proceeded from a decade long freeze on Legal Aid rates (allowing them to be eroded by inflation) to even more severe cuts by the implementation of fixed fees for police station work, cuts in the rate of pay for Very High Cost Cases and removing the link between effort and price in Crown Court cases by creating a mathematical formula for each case which determines remuneration. These fee changes have displaced the tension in the system on to solicitors who now face daily invidious choices between the economics of each case and the quality of the work that should be done.
The government now proposes the implementation in England and Wales of a policy of Best Value Tendering (see link to consultation paper), in summary this would involve every supplier who wishes to undertake publicly funded police station work bidding in an auction process to do the work at the lowest prices. It is an enormously complex and bizarre scheme likely to have disastrous consequences for the supplier base and for client choice. Legal Aid had established a national network of firms, competing by reputation and often supplying both criminal and civil Legal Aid services at single points of contact. That increasingly fragile network of supply is now to be the subject of a "market experiment" without precedent in publicly funded services.
| Show All » Legal Aid » Procurement » | |||||
|
Carter's report - ill considered, unsupported by research - February 9, 2006 Source: Linda Woolley, LCCSA
LCCSA President describes Lord Carter's preliminary findings as "an ill-considered report, apparently unsupported by any research". “In summary, Lord Carter is recommending ‘Pile them high, sell them cheap’ when it comes to legal aid for the general public” says Linda Woolley, President of LCCSA.
"This is an ill-considered report, apparently unsupported by any research. If the proposals are implemented it will destroy not only the criminal defence system but the adversarial system within which it operates.
“If the proposed reforms are carried through they will be a disaster for the profession but more importantly for those it represents. They are amongst the most vulnerable people in our society. And this at a time when, as the report acknowledges, the resources given to those on the other side of the adversarial system have increased by 46% in six years. “The LCCSA has always supported proper resourcing of the police and prosecutors but fears that these proposed reforms are part of the marginalisation of the suspect/defendant in the criminal justice system and the incremental loss of the adversarial system of which this country - and Lord Carter himself - claims to be so proud.
“The report pays lip service to the "respect" owed to existing legal aid, provided within an adversarial system that delivers "one of the fairest and most respected justice systems in the world today". It then goes on to propose decimation of that system by recommending one based on lawyers working for fixed fees on work won by offering the cheapest price.
“The report openly states that small firms will be unviable and that this is a "significant departure from the current system" yet there is no suggestion of a pilot scheme. There is no evidence to support the assurance that the "supplier base" will be "supported and maintained through the transition.
“This can only be described as a hasty attempt at a pure cost cutting exercise. Yet, he has made no attempt to quantify the cost cutting that this disastrous approach will produce. There are no figures and no costings. There is no research, there are to be no pilots and there is no evidence base to demonstrate how this “market” will work.
“Will we only really truly value our system once it is lost and we are benighted, again, by a series of miscarriages of justice?”
Summary of analysis of Lord Carter’s ReportA flawed processA review of the entire legal aid budget required experience, vision, time and well organised research – Lord Carter had just 6 months and a small team. It needed to be a transparent process, underpinned by a regard for the fundamental principle of an independent legal profession and for the interests of consumers in quality, choice and access and in the overall ability of the system to meet need. What Lord Carter has delivered is a series of recommendations constrained by narrow terms of reference restricting him solely to the question of procurement. We believe that for this reason, and because of the Treasury’s fixation on the introduction of price competition as a market mechanism, the entire process was flawed from the outset. What about quality?Price competitive tendering is about giving contracts to the suppliers with the lowest price. In legal aid it is also about creating monopolies. With the lowest price comes a steep decline in quality. In a criminal justice system this is likely to be a disaster and severely undermine public confidence. We might apply the same logic to Parliament. There is clearly no shortage of people who want to become MP’s and we are sure that they could be got for a cheaper price. The analogous proposal would be to reduce the number of MP’s to 100, make all the present MP’s bid to do the job at the lowest price and take the first 100 at the lowest prices and declare Parliament full. It does not seem likely that this process would improve or maintain quality. Efficiency savings through price cutsThere is not a single convincing statistic within Lord Carter’s 47-page report to show where savings would be made other than a simple price cut. His “efficiency savings” can effectively be translated to mean “less travel and waiting”, and even Lord Carter concedes that “part of the cause…is undoubtedly outside the suppliers’ control”. The fact that courts and police stations are very often not in the same place appears to escape Lord Carter’s team. His idea of localisation and increased volume runs contrary to the idea of very large economies of scale by big contract holders and it appears that no one has thought through the contradictions in these different propositions. Nor does Lord Carter make any mention of the concept of “polluter pays”, which we had thought an important one. Surely no one can logically argue against a system where the organisation that causes waste, inefficiency and delay bears the cost to the public purse? Flogging the invisible horseThe LCCSA and other professional organisations spent a huge amount of time and effort making constructive proposals for the reform of the current system. We have pointed out the real cost drivers within that system (namely the huge growth in resources for the police and the prosecution, the unending tide of legislation, changes to court practice, the inexorable growth of technology leading to more extensive investigation and above all the entry into the system of vast cases at the behest of prosecuting agencies), to which Lord Carter makes only passing reference. The legal aid budget deficit is a victim of prosecutorial decisions, and it is essential that an early warning system of the existence of “mega” cases and some cost benefit analysis of how they are to unfold in the criminal justice system is implemented. None of what we have said appears in Lord Carter’s proposals. If nothing is to be done to tackle the external drivers, the legal aid budget will continue to rise whatever the procurement arrangements. What happened to joined up thinking?The proposals in relation to crime are made in complete isolation of Lord Carter’s review of civil legal aid procurement. The fact that the same overlapping population of clients are involved in both systems appears to be too difficult a concept for policy makers to grasp. Legal aid lawyers perform an enormously valuable role in reconnecting people to justice. We are part of the fabric of many communities, and though Lord Carter attempts to draw comparisons with procurement in the health and education services, he misses this irony when making his proposals for legal criminal defence services. Can anyone offer a logical explanation as to why the criminal and civil legal aid budgets are combined? If it’s not broken, don’t try to fix itThe present market is sophisticated, stable and works well. There is a match between consumer need and provision. It has been enormously successful in attracting a great diversity of supply and this includes the most ethnically diverse range of supply in any public service. 40% of criminal defence firms in Is there a budget problem?There is complete lack of transparency about the legal aid budget and whether there is any true overspend. Lord Carter’s report has done nothing to address this criticism. There have been very substantial reforms which are likely to have an extremely significant impact on the budget (namely a huge reduction in the price paid for serious fraud cases to defence lawyers, the introduction of bad character in the Crown Court which seems likely to decrease the number of trials and the planned reintroduction of a means test). Lord Carter doesn’t say it, but it has widely been reported that the Legal Services Commission are content that the police station and magistrates’ courts budgets are entirely under control. Let’s wait to see the financial analysis – will the projected “cost savings” by radical rearrangement of procurement equal projected alleged overspend on the legal aid budget? And will the findings of the Fundamental Legal Aid Review ever be published (we suspect it will confirm that criminal defence practitioners are making little profit in the vast majority of cases they do). Did any of the “large” firms who cooperated with the review show any significant profit for undertaking police stations or lower court work? We suspect not. Sensible ReformThere are some sensible reforms which would achieve much. It would be possible to limit the number of duty solicitor schemes which only a solicitor could join. This would have the effect of localising work. It must also be possible to put in place institutional arrangements to detect and analyse very high cost cases before they enter the criminal justice system. For further informationMedia contact: Victoria Sabin or Heidi Mallace, Project Associates, 020 7432 3216 or 07971 430244: victoria@projectassociatesltd.com, heidi@projectassociatesltd.com Criminal Law Solicitors Association. Contact: Rodney Warren 07860 628844 or Ian Kelcey 07889 363185
Solicitors Association of Higher Courts Advocates. Contact: Avtar Bhatoa 07970 227530
Legal Aid Practitioners Group. Contact: Richard Miller 020 7960 6843 Society of Asian Lawyers: Contact: Sundeep Bhatia 020 8452 5151 Notes to Editors:The London Criminal Courts Solicitors' Association ("LCCSA") was founded in 1948. Members are solicitors who practise in and around the Greater London area. Included are prosecutors and self-employed advocates. Honorary Members (who are past members of the Association) include Circuit Judges and District Judges. The objects of the London Criminal Courts Solicitors' Association are to: -
« Go Back |
|||||