Legal Aid

Fighting fire

PUBLISHED December 1, 2006

As the new Chief Executive of the Legal Services Commission, Carolyn Regan is battling solicitors on several fronts, from means testing to the Carter Reforms. Rachel Rothwell speaks to her.

Carolyn Regan has certainly picked her moment to take over at the helm of the Legal Services Commission (LSC). Criminal lawyers are up in arms over what they claim to be the ?shambolic? implementation of means testing, while the Carter reforms appear to have achieved what many considered to be impossible within the profession: uniting all lawyers ? civil, criminal and even City ? against them.

Some solicitors are threatening a national strike over the coming changes, and the LSC?s Carter consultation provoked a record 2,372 responses. While Ms Regan will not be wading through those personally, as chief executive she will have responsibility for the way the reforms work ? or do not work ? in practice.

Ms Regan joined the LSC in September from the North East London Strategic Health Authority, where she was also chief executive. She describes the role so far as ?challenging and exhausting. There is a lot to do, and there?s a huge agenda. The learning curve will be steep?.

Ms Regan has already begun a whistle-stop tour of the LSC?s 12 regional offices, and will have seen them all by Christmas. She says she has learned a lot from the local suppliers. ?Solicitors have been quite positive in terms of the relationship they have with their local contract manager. Then you go to meetings with the professional associations and you hear a very different story. We need to build on those local relationships. I want to devolve more responsibility for making things happen to the regional offices, because they have the relationship with local suppliers.?

Indeed, she can already see one quick win when it comes to the LSC?s relationship with lawyers: ?The whole way we do business with suppliers, because of the way the system works, is very paper driven, and that can?t be a good way of spending our money. I would like to reduce that, and providers tell me they would as well, so that is a win-win.?

Less paper will of course mean fewer Biros and paper-clips ? something Desmond Hudson, the new chief executive of Law Society Representation, should be pleased about. Mr Hudson recently attacked the LSC for spending ?605,000 on stationery last year. ?So if you can?t find a legal aid solicitor when your partner has assaulted you, at least you have the recompense of knowing the civil servants won?t go without their pens,? he quipped.

Ms Regan was not impressed. ?That is very unhelpful, and you could also lob something back. We want to work with the Law Society and I think we have established an initial relationship with Des Hudson which will be productive. It?s early days.?

Is it fair to say that the LSC is wasting money in some areas? ?LSC costs have gone up, but so has the amount we have taken on,? she says, in a response that echoes a point criminal defence lawyers frequently make about their share of the legal aid budget.

Recognising lawyers? concerns over the way means testing for criminal legal aid has been implemented, the LSC has recently brought in some changes aimed at making the system run more smoothly (see [2006] Gazette, 23 November, 3). But Ms Regan does not accept that the implementation so far has been a disaster.

?Means testing is a new system, and any new system will have problems. But 65,000 applications have been processed so far, so there are a lot of good things going on. We need to work with the professions to get it right. You hear stories of forms not being processed because of the colour of the ink, or faxes not being accepted, or inconsistency between courts. We have to resolve these issues.? She adds: ?It is not in our interests to not change anything ? and I am very aware of the strength of feeling.?

What makes solicitors particularly irate is that they feel they warned the LSC of many of these issues in advance, but were ignored. Indeed, as one furious delegate at the Criminal Law Solicitors Association?s annual conference recently put it, even a ?dead monkey? could have foreseen them.

?Solicitors probably did warn us about these problems, though that would have been before my time,? Ms Regan says. ?But it is not all gloom and doom. The link with the Department for Work and Pensions is now working, and there are emergency stocks of forms.?

Even if means-testing difficulties can be addressed, there is still considerable anger over the Carter proposals ? with criminal lawyers set to strike in a bid to derail the process. No solicitors could mean more defendants in custody, crammed police cells, log-jams at magistrates? and Crown Courts, and the criminal justice system potentially grinding to a halt.

A daunting prospect? ?Strikes would be hugely regrettable,? Ms Regan says. ?I take [the threat] seriously, and we would like an indication about the direction of Carter soon. Prolonging uncertainty is not always helpful. Whether the outcome will be [what lawyers want] I do not know.?

Striking solicitors could potentially be in breach of their contracts with the LSC. What action would she take? ?If solicitors are in breach of their contract, that is one for the Law Society.?

While the government seems likely to hold firm on the criminal side, the Lord Chancellor has indicated that he will look again at the fixed fees proposed for family work, with a possible delay in implementation. Legal aid minister Vera Baird has made similar noises in relation to mental health. Why not see how fixed fees work in criminal law first ? and what savings are made available to transfer to the under-funded civil side ? rather than jumping in with both feet and rushing to introduce fixed fees in civil legal aid at the same time? Ms Regan will not be drawn on her own view.

?I would hope that when we get an indication [of the government?s reaction to the Carter consultation response], there will be a clear time frame. I would want to see a timetable that clearly says what?s going to happen when. But is, say, a year worse than or better than six months or 18 months? My job is to deliver the outcome of the consultation.?

She adds vaguely: ?There are some arguments for revisiting some of the context of some of the proposals. The last thing we want to do is to encourage high-quality providers to stop providing. But we need to get on with peer review to make sure that everyone is high quality.?

Coming from an NHS background, Ms Regan does not have much time for some solicitors? protests that Lord Carter?s ?marketisation? approach is flawed, given that a market with only one purchaser ? namely, the LSC ? is not a true market. She points to the way contractors bid for NHS and local authority contracts as an example of how it can work.

Another gripe of criminal law solicitors is that the LSC has still not published its long-awaited independent research into the Public Defender Service (PDS) pilots, where the LSC has employed defence lawyers directly. The longer the research takes to materialise, the more convinced lawyers become that the PDS has been an expensive failure, and the commission is stalling for time while it spins the document into something more positive.

Ms Regan accepts that the delay in publication is potentially damaging. She says: ?We have to get it published. I need to make a decision about the future of the PDS. There may be a role for a PDS provided cost and quality are equal to what everyone else is getting.?

Will she stand by the LSC?s original assertion that the report would provide a benchmark by which to judge what the cost of running a private practice firm should be? ?It will be a benchmark [of] what people will get under the Carter proposals when they are implemented,? she says.

One more issue in Ms Regan?s bulging in-tray is the community legal advice centre (CLAC), a key plank in the LSC?s civil legal aid strategy. Providers are supposed to bid against each other for
a chunky contract to provide a whole range of social welfare law services to an area. But of the two CLACs tendered for so far, Gateshead received one joint bid, while Leicester had just one, from the local law centre.

Ms Regan has commissioned a report into what went wrong. ?We can learn the lessons, and change it for the future,? she says. ?We don?t want to see people [forced to go through] long complicated tendering processes.?

She adds that she also wants to develop the more flexible alternative of community legal advice networks (CLANs). ?We have not made much progress on CLANs. If that is a better way of doing it [than CLACs], then maybe that?s what we should do,? she says.

So what is Ms Regan?s overall message to her solicitor supplier base? She strikes a conciliatory tone. ?We have to work together,? she says. ?We are all in this together.?