The Legal Aid Practitioners Group today expressed concern that Lord Carter's proposals for reform of criminal legal aid will lead to a reduction in the quality of service available to clients.
Director Richard Miller said, "Lord Carter has probably done as well as anyone could have done with this brief, and has clearly listened and responded to concerns expressed about his interim report. The analysis that has been undertaken is also very informative. Nonetheless the result is disappointing, and depends on mechanisms that are untested and carry a significant risk of not working.
"Lord Carter has spelt out that delivering criminal legal aid within a fixed budget cannot work if increasing demands are placed on the budget by changes in the wider criminal justice system (see note 3 below). But we do not think it is either possible or desirable to constrain the system in such a way. We hope the police will continue to bring more offenders to justice. We hope they will continue to use more sophisticated techniques to detect crime. And we know the Government has announced a major review of the working of the criminal justice system. Fixed fees might work in a 'steady state' environment. The criminal justice system is not, and should not be, in a steady state. We believe that Lord Carter's premise underpinning his proposals for the criminal legal aid system is dependent on a precondition that cannot be met. The probable outcome of using fixed fees within a wider system that is not fixed is a serious reduction in the quality of service to clients."
The Group pointed to independent research carried out for Lord Carter, which demonstrated the economic problems at the heart of the criminal legal aid system. Miller said, "The Otterburn Consulting research demonstrated that even in the best-run firms, it is difficult to make a viable business of criminal defence work. The contrast between the ?50 per hour paid for this service and the ?300 per hour or more paid out of taxpayers' money to lawyers working for other public bodies is stark. The increase in the overall legal aid budget hides the fact that rates have not been increased in cash terms, let alone in real terms, for over a decade. For routine cases, the payments are now less than the cost of providing the service, which frequently has to be cross-subsidised from other work. Lord Carter's proposals do nothing to address these problems."
He continued, "We are disappointed that there has been no research into why there are so many small firms when the theoretical economic modelling indicates that this business structure is not viable at current rates. What are the other forces at work that have stopped firms from organising themselves in what the economists claim is a more economically rational way? Criminal defence services are personal services that must be delivered locally, which prevents firms outside the largest urban areas from structuring themselves in the way the economists recommend. This doesn't seem to have been understood, which makes it unlikely that these proposals will enable a viable criminal defence profession to emerge."
Lord Carter highlights how the changes he proposes are likely to have the effect of removing from the system many of the smallest firms, and acknowledges that black and minority ethnic firms in London are likely to be particularly under threat. It is vital that quality is not compromised, but subject to that proviso, there is an onus on the Government to ensure that the solicitors who are allowed to provide these services reflect the ethnic diversity of the client groups they serve.
LAPG believes that a fixed price system will inevitably lead to a driving down of standards. We are concerned that if responsibility is transferred to the Law Society, the Society will oversee the first impact of these changes in reducing quality, and may be wrongly blamed for it. We welcome in principle the proposal for a quality assurance scheme for advocacy, but do not believe it is practical to develop the scheme for criminal advocates by April 2007, and have concerns about the likely cost.
LAPG believes that the complex new system proposed in order to issue block contracts for police station work will deliver no significant benefits over the existing system. It is inappropriate to use fixed fees for work that can amount to anything from thirty minutes' work in an afternoon to several hours' work in the middle of the night to many hours' work spread over several weeks. Would Lord Levy be happy with a solicitor who was being paid just a fixed fee based on an average case? It is wrong to abolish higher payments for work in unsocial hours. The fees could be rendered inadequate by changes in the law, developments in the gathering of evidence, or in policing priorities. For example, the new CPS charging initiative means that many police station cases now need two separate attendances instead of just one. It is unreasonable to expect the lawyer to bear the cost of this. It is inappropriate to use fixed fees when a series of terrorist raids, or a single case such as the Soham or Sion Jenkins cases, can disproportionately impact on the cost to the lawyer of delivering their service.
LAPG sees no benefit to the taxpayer, the LSC, to clients or to firms in changing the current system of standard fees in the Magistrates Court. The current system has controlled costs to the satisfaction of the LSC and is understood by firms. We are glad that Lord Carter has moved away from recommending an immediate move to a different system of fixed fees. We accept the rolling up of travelling costs, but would urge that the fee is recalculated where Courts are closed, requiring solicitors to travel further. However, waiting time is driven by the inefficiencies of Courts, prosecutors and police and is not within the control of firms. Therefore removing payments for waiting only serves to penalise firms for the inefficiency of others under the control of the Home Office.
LAPG believes that there is merit in exploring a graduated fee scheme for Crown Court work. However, there is a major difference between a scheme covering a few hours work over a few days, and one covering many weeks of work over a few months. The scope for variation in the litigation aspect, as opposed to the advocacy element, is huge. We will need to consider the proposals very carefully to see whether the proposed triggers for uplifts are adequate to make the system fair and workable. The idea that the scheme could be ready to be introduced by April 2007 appears unrealistic.
The proposals for very high cost cases depend on a degree of forecasting of demand and supply that is in our view impossible. Demand for these services depends on decisions made by the Serious Fraud Office (and in future the Serious and Organised Crime Agency). This is not something over which the LSC has the remotest degree of control. Other aspects of the proposal merit further consideration.
Lord Carter's proposals for civil and family work show a welcome recognition that there are limits to the circumstances in which fixed fees are workable. While we may well have concerns about the detail of these proposals, they do not give rise to the same objections on principle that the criminal provisions do.