NAO identifies significant weaknesses in legal aid administration

THE Bar Council has welcomed the report on the procurement of criminal legal aid in England and Wales, which has been published by the National Audit Office (NAO). The NAO’s report examines the procurement of criminal legal aid by the Legal Services Commission (LSC), the body responsible for the distribution of the legal aid budget within England and Wales. 

The NAO’s report paints a picture of a chaotic, cuts-driven ‘reform’ programme being rolled out by the LSC, which threatens value for money and the provision of an essential public service. It warns of “confusion and duplication in the oversight of criminal legal aid”. 

The LSC is condemned for not understanding the market and for using “inaccurate and incomplete” data. The spending watchdog concludes that no further reforms to legal aid should proceed without having been properly piloted using guidance from the Office of Government Commerce. 

The report, which was considered by the House of Commons’ Public Accounts Committee in December, goes on to consider the cost drivers which affect legal aid and the LSC, saying that: 

“The cost of criminal legal aid provision is driven by a number of factors, including the complexities of the criminal justice system, and the level of crime, both of which are beyond the control of the Commission”. 

This is followed by concern on the part of the NAO that the LSC does not understand the market in which it operates, saying: “At present, gaps in the Commission’s knowledge about its supplier base prevent it from making the most of this position. In particular, we consider that the Commission has not marshalled the knowledge of its local managers well enough to develop a good understanding of the market for criminal legal aid, such as the cost structures of different types of firms and their profit margins”. Commenting on the report, the Chairman of the Bar, Nick Green QC, said: 

“The NAO has blown the whistle on the LSC’s cuts-driven, chaotic ‘reform’ programme, which must now be stopped so that any current proposals can be properly evaluated. Today’s report is a sad indictment of the state of the LSC and reflects the Bar Council’s concerns about the administration of legal aid. The LSC’s ‘reforms’ are disorganised and have not been evaluated. They threaten this fundamental service. When an NAO report states that ‘the Commission does not currently hold enough information centrally about its suppliers to be an intelligent commissioner’, it is time to rethink the way in which the Ministry of Justice and the LSC together run legal aid policy. These criticisms reinforce those set out by the Justice Committee in their July 2009 report on the LSC's consultation on family legal aid, where they noted the LSC's lack of an evidence base for their policies and called for the LSC to implement a fundamental shift in attitude toward such consultations. The Bar Council has always said that the justice system must serve those going through it. We support the NAO’s recommendation that all reforms to the legal aid system should be piloted using guidance from the Office of Government Commerce, in order to reduce the risk of irreversible and damaging cuts to the legal aid budget with little or no empirical evidence. We look forward to assisting the Public Accounts Committee with its recommendations to Parliament following the publication of this report.” 

Paul Mendelle QC, Chairman of the Criminal Bar Association, welcomed the NAO report, saying: 

“This report confirms what the Criminal Bar Association has told the Government time and again: that cuts to legal aid are unjustified and unprincipled, as legal aid expenditure is controlled and falling in real terms. The drivers of legal aid expenditure are the government’s own policies, not the actions of barristers. It also highlights that it is the LSC’s lack of data that has been the road block on the road to reform of the system for paying for Very High Cost Cases. The Government must rethink its policies otherwise it will do real and lasting damage to our criminal justice system.”