As legal aid awaits Lord Carter?s final report, concerns over how the market model will operate, the future of the supplier base and implementation of the reforms are uppermost, says Janet Paraskeva
The publication of Lord Carter?s report in mid-July is expected to be a landmark for legal aid procurement. The government has asked Lord Carter and his team to deliver a procurement system that achieves ?maximum value for money and control over spending, whilst ensuring quality and fairness of the justice system? ? a massive challenge.
Attempts by the government to deal with the rising legal aid budget by tinkering with the existing system ? for example, by pay freezes and restrictions on scope and eligibility ? have failed. Such changes have also entrenched some of the financial difficulties for suppliers offering legal aid services. Against this backdrop, there are high expectations in government that Lord Carter can deliver proposals that will meet its objectives, while maintaining access to justice.
The reforms that Lord Carter is expected to propose in his review will create fundamental challenges. The expected market model would, in its fully developed form, require law firms to compete for work on the basis of quality and price. In the run-up to this full-blown version of the market model, firms will be subject to fixed and graduated fees and, in allocating work, preference will be given to those firms with the capacity to do larger volumes of work.
The Law Society has been involved with the review from the start. We have sought to ensure that the Carter review team has the greatest possible understanding of the impact of its proposals on legal aid practitioners and the clients they serve. We have stressed that the full application of the Carter market model would be totally inappropriate in certain geographical areas and in some circumstances because of the risks posed to access to justice. And we have championed the need for adequate client choice, urging the Carter team to ensure any restrictions are kept to a minimum. Lord Carter has acknowledged both of these concerns, and we hope his final report will include proposals to accommodate them.
Our other key message on behalf of practitioners has been the importance of ensuring the sustainability of the supplier base for the future. We have emphasised the fragility and low to non-existent profitability of the current supplier base, warning that fee rates in the future must be set at a level that guarantees viability.
The need to maintain the current diversity among legal aid practitioners is also vital for the future. Many small firms provide vital services in rural areas. And many ethnic minority law firms serve communities whose ethnic origin demands that services take account of religious and other observances. Therefore, we have urged the Carter review team to ensure the proposals are sufficiently flexible to enable smaller suppliers not only to stay in business, but also to thrive.
We have stressed all along that any impact on the supply of criminal legal aid will affect civil legal aid too. More than 60% of practitioners who do publicly funded work offer both criminal and civil legal aid services. If firms consider themselves unable to continue to offer a service in criminal legal aid, they may pull out of doing civil work too, restricting supply still further in an area where the government has acknowledged there is undersupply in some areas.
It has been almost a year since the Lord Chancellor announced the Carter review. So what happens when Lord Carter produces his report? We might not like all that he says, and practitioners have a right to expect the government to hold a lengthy consultation to afford the full opportunity to review the implications. Assessments of the potential impact on ethnic minority practitioners and the clients they serve, as well as other vulnerable clients, such as the disabled, will also be needed to inform any final decisions.
The government must also ensure that the timeframe for implementation reflects the enormity of the changes and recognises that firms will have to make substantial adjustments. The Law Society has successfully argued for a review body to be set up (on which the Society would be represented) to monitor implementation.
When the implementation plans are published, the Law Society will need to work with practitioner groups to help firms prepare for the reforms. The Carter team is likely to recommend a package of support for some firms to help them to adapt. We will be pressing government to ensure that such help is adequate and that firms are given sufficient time to use the support to make whatever changes are necessary.
The Carter review was established to address budgetary difficulties at the Department for Constitutional Affairs. We are wary that the reforms will be used to achieve savings that will be pocketed, for the most part, by government.
Lord Carter?s team has indicated that savings derived from a more efficient procurement system should be shared between procurers and suppliers. This is fine, as long as there is no attempt to extract savings before suppliers have realised the efficiency gains that the proposals purport to achieve. Practitioners will need reassurance if they are to face the future with any confidence.
If legal aid practitioners perceive that the Carter reforms are proposed at the expense of access to justice, it will be a difficult challenge for them to accept those reforms and even more difficult to deliver them.
Janet Paraskeva is the Law Society chief executive