Legal Aid

Funding fundamentals

PUBLISHED February 17, 2006

Lord Carter?s market model must be fully costed before a final verdict can be made, argues Kevin Martin

There is broad agreement among practitioners, the public and government that the current legal aid system needs to change. Those firms and solicitors that have dedicated themselves to legal aid perform a critically important role for society. Yet they have found it increasingly difficult to make such work pay. The need for a review that addresses these problems is therefore long overdue.

Lord Carter has a difficult job as he tries to restructure legal aid. He must perform a precarious balancing act within existing budgetary constraints in creating a system that is worthwhile and sustainable. His initial report on how criminal legal aid should be procured in the future proposes a market approach.

The Law Society recognises that such an approach can have a role in any new structure, but it doubts that it would work universally across the system. Lord Carter has similar reservations and we were pleased his report acknowledges that a market model would not be appropriate in some circumstances and in some geographical areas.

The success of any new proposals will crucially depend on how they impact on the viability and long-term sustainability of legal aid providers. Therefore, the Carter market model must be fully costed and evaluated before we can assess its prospects for success.

The legal aid system has reached a point of crisis. A major problem arises from the fact that successive governments have failed to budget properly for the impact of new criminal justice policies and laws. The spiralling cost of the biggest criminal cases in particular has had the effect of depleting the civil legal aid budget to the point where millions of people are unable to access legal advice to solve serious social problems, such as housing, debt and family breakdown.

Ministers have acknowledged that the system is blighted by legal aid deserts ? parts of the country where legally-aided advice is sparse or non-existent. Because most law firms undertake a balance of both criminal and civil legal aid work, it will be important to ensure that any reforms of criminal legal aid do not have the effect of reducing provision of civil legal aid. We were pleased that Lord Carter acknowledged this week that the problem of civil advice deserts would have to be tackled with extra investment.

In addition, any reforms must also preserve the diversity of legal aid practice to ensure that minority communities ? often served by small firms and those operated by ethnic minority solicitors ? can continue to receive the legal aid services that meet their needs.

Lord Carter?s remit does not extend to the courts, the police and the prosecution, but he has identified areas of significant waste outside the control of solicitors. For example, the justice system is blighted by delays in the arrival of prisoners at court, prosecution evidence being disclosed at a late stage, and the inefficient listing of cases in courts. These problems, too, must be tackled if any reforms in the way legal aid services are procured can be successful.

Across the country, there is a dedicated body of legal aid solicitors running practices that, on current rates of remuneration, are barely profitable. The government must secure the long-term sustainability of the supplier base. Worryingly, the present legal aid system is failing to attract entrants, and many solicitors are leaving the system. Any new arrangements must convince newly qualified solicitors that publicly funded work provides a rewarding and secure career path. Legal aid must avoid the kind of human resource problems that have hampered the health and education sectors and have been so expensive to remedy.

Reflecting the urgency to develop a more effective legal aid system, Lord Carter has been set an extremely tight timeframe to develop his proposals. Nonetheless, there are a number of fundamental issues at stake. Price competition must not undermine quality, independence or choice for vulnerable clients, and any reforms must preserve the wealth of talent, commitment and diversity of legal aid solicitors in England and Wales.

I sincerely hope this review signals the start of a more secure future for the legal aid system. In an effort to achieve this, the Law Society has contributed a great deal to the review. There are several areas where we will be seeking further clarification and putting forward the views of practitioners, such as the financial assumptions that underpin the model, and how the transition would take place from the existing system to any new model that is finally adopted.

We look forward to continuing our work with Lord Carter over the coming months as he refines his proposals on criminal legal aid and develops those on civil legal aid so that we can have a sustainable and worthwhile model for users and practitioners.

Kevin Martin is the Law Society President