Legal Aid

How have practitioners responded to the Final Report? Counsel rounds up some of the comments made on the NLJ Jackson webcast 

David Greene 

NLJ Consultant Editor & head of the litigation & dispute resolution team at Edwin Coe LLP. NLJ Jackson webcast participant 

“A lot of solicitors get their business from referral fees, agencies and management companies. If they didn’t get that business you would probably find that they would have to go out and advertise and spend the money in that way, so I don’t think it is a straight game in terms of referral fees. 

The Ministry of Justice has announced plans to re-focus legal aid away from low value damages claims against public bodies or “hopeless” judicial reviews. 

Before legal aid is granted in divorce and child contact disputes, the LSC will contact opponents to check applicants’ eligibility. Access to civil legal aid for non-residents will be restricted. Legal aid minister, Lord Bach said the changes would be introduced in April 2010. A consultation, “Legal Aid: Refocusing on Priority Cases”, took place last year. 

Crown Court means testing was re-introduced for defendants on 11 January 2010. Privately represented defendants who are acquitted can apply to reclaim their costs. The government has published new guidance on how to apply for legal aid in criminal cases in the magistrates’ and Crown Courts. The Criminal Legal Aid Manual can be downloaded from the LSC website: www.legalservices.gov.uk 

The Bar should not fear the development of enforceable standards of advocacy in all areas of practice, writes Nick Green QC 

 I have barely got my feet under the Chairman’s desk on the 7th floor of the Bar Council offices on Holborn when it is time to write my second Chairman’s Column.   

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.” 

Chambers are being encouraged to contribute to pro bono work under the “Friends in Law” scheme launched by the Bar Pro Bono Unit and the Free Representation Unit. Scheme members can highlight their pro bono work on stationery and websites. 

A deal to ensure proper funding for representation in the most complex criminal trials has today been threatened by a last-minute change of heart by the Government, the Bar said. The Bar Council and the Criminal Bar Association have reacted angrily to a new Legal Services Commission consultation paper on pay for so-called Very High Cost Cases – VHCCs – which include some of the most sensitive terror and murder trials before the courts. 

Bar representatives have been working with MoJ officials for nearly two years on a flexible pay scheme for senior advocates that would match the pay in each case to its particular circumstances. However, it emerged late in talks last month that the Government wanted to introduce a new, costcutting option for pay in these cases, involving an extension of the existing, fixed-fee scheme for shorter cases to include much longer cases lasting up to 60 days. The consultation paper of 2 December 2009 confirmed the eleventh-hour change. 

A Bar Council snapshot survey of chambers around England and Wales has revealed that the proposed cuts to criminal legal aid fees
would force many barristers to leave publicly funded criminal work while several chambers said they would be unable to offer pupillages
and one chambers feared closure. The proposed cuts are contained in the Ministry of Justice Consultation Paper, “Legal Aid: Funding
Reforms”. The consultation period closed on 12 November and the Bar Council, the Criminal Bar Association, young barristers and
regional Circuits have opposed the cuts, claiming they could drive barristers away from publicly funded criminal defence work, and create a potential risk of miscarriage of justice. Criminal Bar Association Chairman, Paul Mendelle QC said: “The cuts proposed in this paper are an unjustified and unprincipled attack on criminal legal aid. The government has gone back on the agreement made a mere two years ago following the Carter review.” 

Lord Goldsmith QC has expressed concern that budgets for pro bono and voluntary advice sector budgets are falling just as the recession is increasing demand. 

Addressing the National Pro Bono Conference, in London in November, he emphasised the need for lawyers to seek pro bono costs
orders, pointing out that they produced a “double win” for pro bono clients by generating new funds to support other pro bono work in the future. Lawyers needed to be “creative” to fi nd other means of funding, such as unclaimed client accounts. “This sector is stretched to capacity, swamped by an ever increasing demand and an ever decreasing budget,” he said. 

A rush to slash legal aid fees will cause damage to the quality of justice, barristers have warned Ministers. A raft of submissions from the Bar Council, the Criminal Bar Association (CBA), young barristers and the Bar's regional circuits are unanimous in criticising proposals by the Ministry of Justice for cuts in criminal legal aid. 

The Government wants to cut pay for barristers doing publiclyfunded criminal defence work by up to 23%. They propose to reverse the 2007 implementation of a review of legal aid by Lord Carter of Coles which was designed to head off a crisis in the criminal justice system triggered by a 10-year pay freeze for barristers. The Bar Council and CBA today voice grave concerns about the impact of the cuts on the diversity of the Bar and the Judiciary, and the potential risk of miscarriages of justice which cause needless cost to the public purse.