Legal Aid

'Price is important, but quality can't be sacrificed'

PUBLISHED February 14, 2006

Lord Carter of Coles wants to introduce market-based legal aid 
?ILL-CONSIDERED?, ?unresearched?, ?likely to be a disaster? and to ?destroy the criminal justice system?: comments made by criminal solicitors? groups in response to Lord Carter of Coles?s plans for shaking up the legal aid scheme last week. Twenty-four hours later he was sanguine: the professional bodies, after all, had delivered a cautious welcome.
?I thought some of those comments a bit intemperate, really,? he said mildly. Research had been undertaken and there had been consultation, including position papers and two big meetings with all interested parties. The criticisms had not been voiced then. ?I?m not claiming perfection. We?re just saying ? this is the direction of travel we?d like to take, come and say why it won?t work. But what?s inescapable,? he says, ?is a move to a market economy; the question is how we get there in a measured way.?
His market-based model would mean law firms bidding for tenders for legal aid contracts and fixed prices for most work. But tendering cannot be introduced overnight where the market does not have the capacity for it, he says. ?That would not be good for us, nor good for the profession. So it?s a question of staging.? There will not be a pilot, but he envisages a roll-out or ?phased introduction? of the plans. ?We have said to everybody: this is very difficult so we want to make it an iterative process. We will talk about how we are getting on all the way. And if people say we are barking mad, we will consider it and back off.?
Lord Carter, 60 on the day his report came out, is a Mr Fix-It in government circles who has chaired a number of projects. The chairman of Sport England, he also serves on the Public Services Productivity Panel of the Treasury and the group executive board of the Home Office. Most recently, in 2004, he chaired a review of offender services that led to the National Offender Management Service. So he knows the justice system. But reforming legal aid, he admits, is a difficult task. ?It ?s about trying to make the service efficient so that costs are saved for the Government, yet sustainable?; that is, ensuring lawyers come into legal aid and stay.
What he found was a service that, if not quite dying, was time-limited because of the average age of practitioners ? many in their fifties ? and demoralised, with unfairnesses in the way that practitioners are paid. ?I was quite shocked, in certain parts, by the clear impoverishment of it. You do have incredible inequities in the system, some people do well and others doing not very well at all. And there is a general sense of unhappiness.?
Seeing first-hand how police stations work was an eye-opener. He saw the spectrum of clients: the first-timers in a state of shock, some of whom wanted legal advice, and the old hands. The Police and Criminal Evidence Act 1984, which governs what goes on at the station, worked well, he said. ?But when you drill down into it, you find the help people get . . . is not from loyal Mr X from such and such a firm, who stays with you through the episode and sees the case to court and back. It?s an agency business: people are processing these cases on behalf of firms ? often former policemen or trainee lawyers, albeit accredited to do police station work, but not qualified solicitors. You think of these plucky, down-trodden solicitors out there, but in fact it?s a bit like doctors using agencies at night.?
As for the lawyers themselves, he found ?all types?: ?many are dedicated, have done the work all their lives?, for others it is ?just a job? and there is abuse ? ?they have found techniques to ?sweat? the file and exploit loopholes?. But that, in turn, reflects the low rates of pay for some work, he argues. It is like a constant game of dodge with the taxman: ?People find a way to maximise income, then that is closed and they find another ? it?s a determination to maintain income levels.? His aim is to end that battle and devise a system that is fairer to both sides.
The crunch question is whether a price-driven model can preserve quality and ensure no corner-cutting. He believes that it can: the professional bodies will be in charge of standards ? peer review, he says, is the key. And price will be one factor, but not the only one ? ?service will also be important?. The price at which a job can be fairly and properly done will be calculated, then firms asked what discount they can provide. ?But if we think 20 per cent is the maximum reasonable discount, we?d not allow 30 per cent. There will be a floor. We?ve got to be absolutely clear, nothing must undermine quality.?
As for access, another key concern, he rejects the notion that a move to fewer, big firms necessarily means lack of access. Many small firms will close or merge, but bigger firms will provide continuity of care and service, he says. ?Closure of many of these firms will happen anyway because of the ageing cohort of practitioners.?
Figures are being hammered out. Lord Carter ?thinks? savings can be made but declines to put sums on it. He aims to share the savings achieved, both among criminal practitioners and, he hopes, between the civil and criminal legal aid services, although he has ruled out any ring-fencing of the civil legal aid budget to protect it from increases in criminal costs. And any impact, he says, would not be immediate: there could even be an initial cost to put in place the new regime. ?Everyone agrees savings can be made ? such as on travel and waiting time costs, particularly in London.?
But he is not just out there with an axe. When the reforms are in place and a ?steady state? achieved, ministers cannot expect more savings if more offenders are brought to trial or there are more terrorism cases, for instance. ?You can?t keep impoverishing the system ? it diminishes it and people already feel very diminished by it. He adds: ?There are no silver bullets, no magic wand. But this is not about short-term savings ? it?s about creating a sustainable system in the long term, a legal aid system that people can be proud of.?