Legal Aid

Injudicious legal aid scheme to change

PUBLISHED November 23, 2006

Urgent changes were announced yesterday to a means-testing scheme that has led to injustices and delays in the magistrates' courts since its introduction less than two months ago.

The Government has been forced to make major adjustments to the system of testing applicants for legal aid after it became clear that magistrates were sending defendants to prison without a lawyer to speak on their behalf.

Vera Baird, QC, the legal aid minister, announced that she would have preferred to have introduced the changes "immediately". However, "consultation" and "guidance" are required, meaning that some improvements will be introduced next month and others not until January.

Last week, you may remember, I explained how a solicitor had been denied his fee of ?173, plus VAT, expenses, travel and waiting time, because his client had failed the means test for technical reasons after the solicitor had already represented her in court. Not unreasonably, the solicitor said he would not represent any future clients until they had been granted legal aid, meaning that cases would have to be adjourned and costs would increase.

Yesterday, the minister acknowledged the blindingly obvious ? that where a case can appropriately be dealt with on the defendant's first appearance in court it is in everyone's interests that this should happen.

"I want to avoid problems with payment for solicitors who represent clients at a first hearing, before a decision has been made on their legal aid application," Mrs Baird said yesterday. "They can get stuck without payment if the form is rejected because of a technical error and the case has ended. From December 11 this will not happen."

She continued: "In that situation, where a defendant qualifies for legal aid, the solicitor will be guaranteed payment from the date when the court received the original form. I would like this change to be brought in today but guidance has to go out to ensure that it works properly."

She also amended the "early cover" scheme, under which legal aid could be denied if an application form was not submitted within two days of the client being charged.

Defendants facing criminal charges are often not the most organised of people and magistrates' legal advisers were taking advantage of this by encouraging defendants who had missed the two-day deadline to plead guilty without a lawyer.

From next year, defendants will generally have five days to lodge a legal aid application after first seeing a solicitor. In addition, forms will be simplified and there will be more flexibility over the need for a partner's signature.

This announcement is clearly a step in the right direction, though lawyers say it does not go nearly far enough. Jim Meyer, of the London Criminal Courts Solicitors' Association, says the Government has "failed to address fundamental problems experienced in relation to defendants who are in custody, as well as the slow turnaround of applications by the Court Service". The ?75 fee for early cover is simply not enough to attract solicitors, he adds.

But my reason for dwelling on the minister's climbdown is not simply because it is embarrassing for the Government. It is that the Lord Chancellor is planning to introduce much bigger changes to legal aid from next spring. Under the so-called Carter reforms, lawyers will be paid on the basis of fixed fees per case ? or "graduated" fees in the Crown Court. I gave an example last week in which the solicitors' bill for a single Crown Court trial would be reduced from ?146,502 to ?19,257 under the new scheme.

This would be "highly exceptional" says the Legal Services Commission, which administers legal aid on behalf of the Government. But it concedes the figures are correct. What business could afford a pay cut of that size? If Lord Falconer's Department for Constitutional Affairs has made such a mess of introducing means-testing in the magistrates' courts, what confidence can we have in its plans to implement the Carter reforms? The Lord Chancellor caused a lot of confusion last month when he promised to go "back to the drawing board" in response to fears that vulnerable people would no longer be able to find lawyers to handle family and child-care work.

"We know that the proposals are not yet right in this area," he told reporters at the Law Society's annual conference. "We will not be introducing a policy in response to family and civil work until we believe it is right."

Lord Falconer also promised to look again at the timing of proposals under which solicitors would be expected to adopt a fixed-fee scheme from next spring while not enjoying the savings from multiple contracts until two years later.

Carolyn Regan, who became chief executive of the Legal Services Commission in September after 25 years in health service management posts, will have to put the Lord Chancellor's plans into practice.

At the end of last week, I asked Ms Regan whether Lord Falconer would defer the Carter proposals for a year. If she knows, she is certainly not telling.

"I hope he makes an announcement sooner rather than later about the total package, for 2007-2009. That would give us something to work to," she said.

When might that announcement be? Within the next three or four weeks, she promised: certainly before Christmas.

And what would the Legal Services Commission like him to say? "One of our key concerns has been sustainability," she said, meaning that she needs to ensure there are enough high quality solicitors continuing to do legal aid work until the benefits of reform can be seen. But why should any solicitor be expected to make sacrifices in 2007 in return for the promise of benefits in 2009?

"That takes you into the Lord Chancellor's announcement about timing of implementation," she explained, adding that she was looking at ways of implementing the benefits sooner. So what about bringing in both the pain and the gain in 2008?

"That would cost more money," she replied. But was it something she would like to see?

"I don't think it matters what I would like," she said. "Our job is to deliver."

And could she deliver that change, if asked? "Yes, it's do-able. But it would mean foregoing some of the savings that Carter envisaged."

Implementing the changes next year would drive a lot of lawyers out of legal aid, I suggested. "That would be hugely regrettable," she said. "It's not in our interests."

As Ms Regan knows, these solicitors are both angry and anxious. What reassurance can she give them that they will not have to stop helping the most disadvantaged members of society, giving up the work they love and earning some money instead?

"The Legal Services Commission is as concerned about making sure that those upset, worried solicitors will continue to practise," she pledged. "We need to work with them ? and we will work with them ? to make sure that as many of them continue to do what they want to do. It is going to be difficult, it is going to be challenging ? but we are in this together."

Time alone will tell.