Legal Aid

Wait until I get Carter

PUBLISHED June 9, 2006

Remember the strike by barristers last October against criminal legal aid pay rates that sometimes left them with less than ?50 a day, before expenses? The Bar agreed to resume work after being told it had only three months to wait for Lord Carter of Coles to find a better way of spending the available budget.

An experienced trouble-shooter - "get Carter" must be a familiar Whitehall refrain - he has been working on legal aid procurement since last July.

January came and went without Lord Carter's expected report to the Lord Chancellor. In February, he published an interim response, promising a final report "later this spring".

Under Westminster's unique eco-climate, spring does not officially end until Parliament rises at the end of July: Lord Carter's report, I am assured, will be ready by the middle of next month.

Nothing less than the future of our justice system depends on it. While the overall budget for legal aid is capped, the proportion spent on criminal defence work is demand-led.

Unless Lord Carter can deliver criminal work more cheaply, there will be less and less left to spend on housing disputes, family breakdown, debt and other civil disputes. And if people cannot get early and effective help with these problems, some will turn to crime - increasing the cost of criminal legal aid and leaving even less cash to spend on the problems of social deprivation.

So Lord Carter has spent much of the past year in discussion with the legal profession. The message from the Lord Chancellor is that whatever he comes up with is something that the lawyers will simply have to accept.

Not that Lord Falconer's new legal aid minister would put it so crudely. Giving her first interview since joining the Government, Vera Baird, 55, is refreshingly free from the determination to ram home a message that characterises her more experienced colleagues.

On the contrary, she makes it clear that everything is still up for grabs. Asked to paint a picture of how legal aid will look in the future, she says this is difficult to do because Lord Carter "is only recommending and we are going to be consulting on what he recommends".

She hopes that the Government's consultation paper will be published before everyone packs up for the holidays. " I want it to be in the public domain while the public domain is still an active domain, because I want plenty of responses to it. That will help feed my views when I make some suggestions to the secretary of state."

This strikes me as an admirable approach to the business of government. After all, why should an unaccountable figure such as Lord Carter make decisions?

Instead, he will make recommendations to Mrs Baird; the minister will ask people what they think; she will tell Lord Falconer what she thinks and then he will tell us what he thinks. All the Lord Chancellor has to do after that is to put the changes into effect.

But there does not seem to be much urgency about this. After all, it was on July 5 last year that Lord Falconer announced Lord Carter's brief.

Lord Carter's interim report in February promised price competition and fixed-price contracts for groups of police stations, linked to contracts for court work. But although Lord Falconer seemed to know a year ago exactly what he wanted to do - and although Lord Carter seems to be working along the same lines - we are now told that Lord Carter's report will simply trigger further consultation. When, then, will it be implemented?

"I think we need to implement it very quickly," Mrs Baird tells me. "But we have to flag up sufficiently that it's coming, to ensure that people are able to adjust to it. And there will perhaps be people who don't benefit from it. We need to ensure that we give them time to get the advice they need."

What she means is that under plans for "bulk contracting" of legal aid work, small firms of solicitors that simply "dabble" in legal aid will not be awarded police station contracts; instead, they will have to join forces with other firms or give up crime.

What time scale are we talking about then - six months, a year?

"I can't say," the minister tells me. "Carter has been terribly good at engaging with the professions and it has taken him longer as a consequence than we predicted."

Mrs Baird, a QC, practised at the Criminal Bar before taking ministerial office and she hopes her appointment will be seen as a sign that the Government intends to work with the profession when implementing change.

"There is no point in having a legal profession that's unhappy," she says.

Lawyers know that there is not going to be more money for legal aid, she continues, but she is sure they understand that "they can work to help, within the envelope, to ensure that they give the best service and have the best opportunities to flourish themselves".

Maybe. But there still seems to be a sense of drift.

Barristers are still being paid just ?46.50 - unchanged for a decade - to "mention" a case in court.

Mrs Baird's solution is that counsel should no longer have to attend these hearings in person. Her department's ?915 million legal aid budget this year is overspent - by "?100 million or maybe ?130 million", she says, a trifle vaguely. So it looks as if Mrs Baird is pinning all her hopes on a report that she has not yet seen.

Not at all, she insists. "I am expecting Carter to deliver what he set out to do, which is to get the agreement of the professions to the new structure. That's not just a pious hope: that is the job he has taken on, and he appears to be a very accomplished individual, likely to produce it. If he does, it's our best chance ever."

And if he doesn't?