HAS Carter got it totally wrong? ?Ill-thought out, rushed ? and will signal the meltdown of legal aid for families in crisis? was the verdict last week from family lawyers on the proposed legal aid reforms. Lawyers were never going to be wild about a radical overhaul of the ?2 billion legal aid scheme. But they do accept the need for change. As the Government?s consultation period on the proposals closes this week, however, the cautious welcome of July has swollen into a clamour of protest. And family lawyers are in the vanguard.
David Emmerson, spokesman for Resolution, which represents 4,000 family lawyers, gives warning that the plans ?will accelerate the exodus of lawyers from the system and deny access to justice for thousands of families?. And this comes on top of a system already creaking. In London and the South East, he says, there are already ?huge legal aid deserts, and stories like that of the woman who travelled from Oxford to North London to find the nearest legal aid lawyer?.
Evidence is mounting of the impact that the plans would have. In East Anglia, two dozen firms that do children?s work have mounted a campaign of opposition. Stephen Welcomme, of Metcalfe Copeman, & Pettefar, Wisbech, says: ?These proposals are ill-considered and misconceived. It will be disastrous if they are bulldozed through. It?s not that we want to give up this work ? it simply won?t be viable to do it.?
The victims, he says, will be the public. ?I can go off and do private work full-time and my standard of living and quality of life will improve immeasurably. We don?t do this work for the money.? But if offices close, people assaulted by a partner, for instance, could have to go miles to find a solicitor. ?How can you travel from Hunstanton to King?s Lynn ? 20 miles, by bus ? with screaming kids in tow when you?ve been beaten by your husband??
The knock-on costs will fall to other services, he says. Children?s cases, where courts already have long delays for hearings on removing children into care, will suffer further delays and children will be left at risk of abuse. Another childcare lawyer, Damian Norris, from Fulchers, in Woking, says: ?The Government wants to save some money. So where can it get it? Legal aid. After all, we?re all fat- cats; no one likes or trusts a lawyer. Lawyers who work with children and parents in care cases do some expensive work.
The timescales for these are tightly controlled but they still last 9 to 12 months. The lawyer charges by work done: if an adoption hearing lasts four days, they charge ? wait for it ? four days? work.? And the costs, he adds, are strictly controlled by costs rules, then approved by a judge or legal aid officials. ?Now, under the proposals, we will have fixed fees: ?3,500 for a case and nothing else. So on each case, lawyers will make a loss of ?5,000 or ?10,000. What will actually happen is that the lawyers won?t do the work any more. That?s fine for us but not so good for the children or families.?
This week new research shows a system already overloaded. If people cannot find lawyers, they try advice centres. But research by the Law Centres Federation in this month?s Independent Lawyer found nine in ten turning away clients even though eligible for legal aid; and seven in ten say their ability to offer legal advice is deteriorating; and seven in ten identified gaps in their service. Jon Robins, the editor, says: ?This represents a snapshot of a system fraying at the edges. The Legal Services Commission says that 94 to 95 per cent of the population in England and Wales live within five miles of a civil legal aid supplier. This survey tells a different story. Not only are centres regularly turning people away, they are struggling to stay afloat.?
Victoria McNally, of Brent Law Centre, says: ?There has been an increase in aggressive callers at the door ? this is symptomatic of an increasing number of clients being blocked out of the system and becoming increasingly desperate.?
Civil and criminal legal aid lawyers are also warning of the consequences of the plans. Richard Miller, of the Legal Aid Practitioners Group, says that fixed fees will be disastrous for lawyers acting for mentally incapacitated adults, community care clients or those with mental health needs. ?These cases take longer and working on a fixed-fee based on averages gives a disincentive to agree to act for such clients. It is our view that the proposals are discriminatory on the ground of disability.?
On the criminal side, hundreds of small firms will be forced to close or merge. Ged Hale, a Doncaster solicitor, says: ?As a result of the immense funding problems arising from the re-introduction of means testing for criminal legal aid (from October 2), firms will cease to exist in months, not years ? and I fully expect to be one after 20 years of battling with bureaucratic nonsense.?
Some have gone already. John Killah, a Frome solicitor whose firm did legal aid work for more than 20 years, has left to set up a consultancy, Russell Killah, to advise hard-pressed colleagues on how to survive. ?The firm where I was managing partner gave up providing a criminal legal aid service for precisely the same reasons as all the other firms in the town. The financial ?reward? was unjust, unfair and unsustainable. The morale among the diminishing number of criminal defence solicitors is rock bottom. Even with a compromise, Carter is not going to go away.? It would no longer be enough, he adds, to say ?we are a good firm of criminal defence solicitors. Firms would have to look at themselves as businesses and adopt all the tools needed to be profitable. That is the reality.?
The profession does not argue that Carter is all bad. New systems are needed, plus controls on the upward spiral of spending. But ministers may have to heed its warnings if plans for greater efficiency are not to kill off the system it seeks to improve.
MARTIN BELL is senior partner of the 23-lawyer Sunderland firm Ben Hoare Bell. ?Lord Carter of Coles consulted disproportionately with London firms and practices undertaking very high-cost criminal cases so his proposals do not address the issues facing most legal aid solicitors.
?We offer the largest range of publicly funded services in the area but we would have to consider whether we could continue operating across the field.
?Take the proposed standard fees in family and children work. These do not take account of complexity and there will be a positive financial disincentive for experienced solicitors to do this work, with no recognition for staff gaining external accreditation through specialist panels.?
CHRISTINA BLACKLAWS, of the London firm Blacklaws Davis LLP, is also chairwoman of the Law Society?s family law committee and childcare representative on the Law Society Council.
?We set up our specialist family law practice in May and now have one of the largest family law legal aid contracts in the country,? she says. ?After 12 years of static rates ? in effect pay cuts year on year ? we structured the new firm to be lean and efficient. If we can?t remain financially viable, then no one can.
?The proposals would mean a 42 per cent drop in what we?re paid. Although we?re committed to the work and do an excellent job, we just couldn?t continue to offer legal aid, which would be devastating for us personally and professionally.?
IAN KELCEY is chairman of the Criminal Law Solicitors? Association and senior partner of the Bristol firm Kelcey and Hall, one of the largest criminal legal aid practices in the West Country.
?About 75 per cent of our work is legally aided. If Carter goes ahead, life for our firm would be unsustainable and I suspect that we would have to close down the legal aid side.
?If you could achieve the cuts ? a 20 per cent cut in our criminal fees,
60 per cent for contact and residence cases, 80 per cent for ancillary relief financial issues ? it would mean operating a sausage machine approach, refusing any case that looked complex, which risks miscarriages of justice and is not the way we want to work.?
EILEEN PEMBRIDGE is senior partner of the London firm Fisher Meredith. It has 80 lawyers and 70 per cent of its work is legally aided. ?The Carter reforms could cut the heart out of the firm. Although highly proficient, we operate on the margins of profitability after a ten-year freeze on payments. The reforms show a stark lack of business understanding about how a firm such as ours is structured and financed.
?We could be one of the ?fewer large firms? Carter talks about but, if the cuts are imposed first rather than allowing us a transition period, all our legal aid teams would be hit and our survival put in doubt despite the fact that we are accelerating the amount of private paying work we do.?