End of term report on legal aid: could do better?
I do not think anyone would claim the legal aid scheme is perfect anymore than the NHS is. Far from it, most people would say, but both could be worse. The NHS has much more support from the public than legal aid is ever going to get. The perception of legal aid is it provides money for undeserving causes such as criminals, foreigners and lawyers. However, most people’s attitudes only change when they are seeking funding for themselves or others.
The complexity of legal aid is the product of history. It was run by the Law Society, then the Legal Aid Board, and then franchising came in and who knows what the future will hold. Different governments all had bright ideas on how to save money and complex commercial law has dictated how contracts are won and lost.
If you had to throw away the whole thing and start again from scratch what would you do? I imagine your heart skipped a beat, dear reader, when I put the idea into your head. I don’t mean just change the name and organisation, I mean stop it and start again.
I imagine you would want something that pays a reasonable living to lawyers. I cannot see any reason to be ashamed of that. Other professions have retained a reasonable lifestyle compared to us. Unless the remuneration is adequate there will not be people of good enough ability to do the work.
It is a welfare benefit like any other department of the state, which needs to be properly funded. It cannot be paid for by interest, pro bono, a tax on compensation or the National Lottery. Perhaps we could have a compulsory insurance scheme but really that is a tax like any other.
We would want to ensure specialist work is done by specialist lawyers - surely that is a great success story of legal aid reforms, but not all work is specialist. We would want to allow basic advice to be available to everyone who needs it everywhere. Who should run it? The Law Society was ambivalent about legal aid in the years they ran it. Perhaps we (meaning the profession as a whole) could do better than the agencies that have run it since.
David Pickup is a partner in Aylesbury-based Pickup & Scott
Comments
Self-interest or public interest?
I may be mistaken but providing a reasonable living for legal professionals is not and should not be the aim of a publicly funded legal aid scheme but rather providing access to justice to those in need.
@ Trainee Solicitor
Well, since doctors have salaries which are there to provide access to healthcare it follows that lawyers should have similar salaries as to enable them to provide access to justice. If this does not sink in maybe nothing will.
How can you have a discussion about aims without considering the delivery agents - i.e lawyers when the matter is justice and doctors when the matter is healthcare? That would be a dry and futile discussion full of fundamental truths which will solve exactly nothing - i.e. it is desirable for justice to prevail! And then everyone will agree and nothing concrete will be achieved because it has no practical implication being a simple statement of belief.
The demise of legal aid - too late to save it?
The public perception of legal aid is that it is not that important an issue - until, of course, said public actually needs it in the future, by which time it will be gone, and the true importance may be realised.
This point was pretty much confirmed by our local MP, who admitted that the Government aren't that concerned about the issue, since it is "not a vote-loser" like other issues.
I met with our contract manager from the LSC this week, and asked - in desperation - if there had been any indication that the Government might perform (yet another) embarrassing U-turn. Her reply was that they they had only been given a single, clear indication - that there would be no such U-turn.
So, from April next year, all family and civil practitioners have to look forward to a future which is depressingly certain - that significantly fewer people are going to qualify for legal aid; that significantly fewer people are going to get proper access to justice; that the Courts are going to be overwhelmed with litigants in person; that the system is going to grind to a halt; and that we - as the practitioners in the firing line - are going to be expected to sort out the mess created by the idiots in Westminster.
Thank you for all your
Thank you for all your comments.
I am not really saying that the aim of the system is to provide a reasonable living for us, but we are entitled to be paid a reasonable amount. Only today I was talking to a colleague about how much
time he spends arguing with the LSC over how much experts expect to be paid. their hourly rates are of course much more than ours.
without reasonable remuneration there will be fewer lawyers to do the work.
I suspect I am preaching to the converted here.
Legal aid is dead long live legal loans
1.Legal aid should not be regarded any longer as a state ‘benefit’. It
should be treated as ‘aid’ not a gift. It should be administered as if it
were a loan. Think about student loans and you will get the point.
People who are convicted of crime do have a choice. I accept that poor
social conditions such as inadequate housing, poverty, unemployment
and family breakdown all play a part as the triggers of crime. However
failure to encourage people to take personal responsibility will not cure
these sociological ills. Many people who are affected by such problems
do not commit crime. In fact the majority do not. Those who do offend
have made a wrong choice. They do not generally have to commit
crime. They are volunteers. Why should they not pay for their defence
by instalments or at least make a substantial contribution to their own
defence?
2.The Defendant who is convicted should be offered a legal aid loan
granted from the first day upon satisfying the interest of Justice Test,
to be paid back by instalments if necessary under a ‘Recovery of
Defence Costs Order’. The application for legal aid will require
agreement to pay in the event of conviction.
3. A simple means form will be completed at the conclusion of the case
which is in fact the present practice for assessment of means prior to
the imposition of fines compensation and CPS costs. This is not a
means tested benefit in the sense of excluding anyone. All, with limited
exceptions are entitled to legal aid but allowance will have to be made
as under advice and assistance (the old green form calculator) for
children. Always the full amount of the present lower standard fixed
fee will be paid in full but the rate of repayment will depend upon the
level of income. It is a matter for discussion and debate as to whether
the whole legal aid bill in the magistrate’s court should be paid where
this exceeds the LSF.
4. The well off will pay at once. The less well off by instalments. There
are a few exceptions to the universality of this scheme. I concede
there is an argument for an available capital test (not own dwellings)
set at a sufficiently high level to exclude most but to catch the cash
rich. No more headlines about wealthy footballers. But the hard
pressed tax payers, presently excluded from legal aid by means testing
due to the misfortune of earning a joint income over £21,750 pa but
who fund the system through taxation, can once again be eligible as
there will be no income based means test.
5.Following a Recovery of Defence Costs Order after conviction the
student loan company (suitably renamed e.g. the ‘state loan
company’) will recover the costs through the tax system or by way of
attachment of benefit. There is no escape. The tax coding is not to be
distinguishable from student loans and civil legal aid cases to avoid
employment discrimination.
6. Solicitors will not be involved in any way with the collection of money
nor will the local Magistrates Court (where there should be a further
saving of public expenditure.) The system simply bolts on to the
existing tax and benefit systems. No complex integrated computer
systems will be required to link these collection agencies, as they
never work. A simple paper and e mail communication will be all that is
needed as and when people switch between employment and benefit.
Either way the repayment will be difficult to avoid unlike the present
discredited system for recovery of fines etc.
This will work. Why don't they do it?
legal aid loans
Nice idea but i'm not sure it will work in practice. those who are sent to prison cant pay it back as they are not on benefits and what about those on benefits with multiple cases, the amount taken out of their benefits will end u exceeding the amount received?
Legal Aid
If one were to start again one might like to consider which people and for what cases legal aid should be available.
I am sad enough to have read a lot of the Parliamentary Debates surrounding the introduction of legal aid in the late forties. Far from it being envisaged as limited to vcertain types of work the truth is that the debates were about legal aid for every legal issue and before every tribunal.
The problem was then and remains the definition of vulnerable or poor people who would require financial assistance to access Justice.
My specialised subject is criminal legal aid:
The State prosecutes through its agencies. It finds the prosecution process.
The Labour party got very excited about professional footballers accessing legal aid in the Magistrates' Courts and so re-introduced means testing. What that means is that people of moderate means cannot get legal aid and cannot afford to pay for a lawyer. What would be a better idea is to make public funding a universal benefit and for those who can pay if they "lose" to pay the costs not only of the prosecution but also of their defence. Instaed of £15 or £25 towards victims, those who are convicted and pay 40% tax or are registered as a non-dom should pay a further penalty by way of a % of income. Call it the Guilty Tax.
No-one gets excited if a Millionaire sends his children to a State School. No-one gets excited if the millionaire uses the NHS. Rich people pay taxes-they fact they dont pay their fair share is an issue for HMRC-and should eb able to access taxpayer funded schemes.
The "seeking value for taxpayers" mantra is a way to disguise the fact that HMRC and Govt can't or wont organise a fair and effective tax raising system.
I can understand why those who wish to divorce or separate should have to use whatever assets they have to pay the lawyers to sort out the financial settlement. If the State didn't pay towards the wedding then why should it pay for the divorce. Where one party has no cash then the other party should pay up money so the impecunious party can pay for legal advice. From a Solicitors point of view private clients mean less work for more money. Each legal aid file pays about 25% of an equivalent private client divorce/ancil file. If neither party has cash then let State paid mediators and the Courts sort it out.
Where children are involved and where the State or Local Authorities are involved then the Sate should pay.
The State should pay a reasonable rate. It has managed getting away with paying well under the odds for years. I suggest that whatever is the average hourly rate the Government pays for external legal advice (remember this is taxpayers' money the Government is using) should be the legal aid hourly rate.
Proper Funding.
As one who has worked at the LSC and then as a consultant with the Legal Profession, I have often considered the issue of what you would do if you recreated the system again. I remember once showing some Lawyers from Mumbasa around the LSC and their amazement at the complexity of the system and the number of people checking data. This is an unnecessary cost and burden to the tax payer.
The aim of a recreated system would allow the following, proper remuneration for Lawyers, but as important certain remuneration for Lawyers allowing them to provide a service they can resource without fear of money being recouped retrospectively.
A system needs to be designed that utilises technology, on-line access, telephone access, reduces bureaucracy, and facilitates the court service, ensuring people get specialist advice when required. This will only be achieved by the removal of the parent child relationships between Lawyers and the LSC, the Ministry of Justice and the LSC, and the National Audit Office and the LSC with the acceptance that change needs to be funded ie providing appropriate IT systems to the LSC that allows quick decision making and new schemes to be introduced. At the moment this is done using systems that are not fit for purpose. Providing assistance to crime solicitors to allow paper free communication between them and the CPS etc would be beneficial, rather than getting something introduced to achieve a Civil Servants bonus that is not beneficial to all. Hopefully the advent of the Executive Agency will allow more joined up working across Government.
I am always amazed that it is not possible for the Court Service and the LSC to confirm if someone is on benefit as Government representative rather than make the Lawyer confirm this. Also the Audit Office state people were not eligible for funding and they say the LSC overspent money, when invariably they were but it was just not proven. Surely the Audit Office and LSC could confirm this. This creates the perception of Lawyers taking money, and the Daily Mail headlines.
Finally there needs to be awareness from Lawyers that whilst being entitled to a living from Public Funded work, they need to adapt to deliver this, as market reform will not be driven by the LSC, but by the market place. ABS will allow national services to be introduced and market forces to come into place, fulfilling the vision of Carter not by the LSC. Private funded legal services are competitive and public funded services will be and must be to.
The collapse of the legal aid system - merely a question of time
Absolutely no point comparing solicitors to doctors. The public love doctors and as a result the press rarely like to be seen to criticise them – in contrast, solicitors are always portrayed as fat cats [though I would hazard a guess that the vast majority of solicitors outside the city would love to be paid anywhere near what the state pays the average GP!]. But it's a good point about starting legal aid from scratch. The current legal aid system simply cannot carry on the way it is – and with the truly feeble rates being paid to many solicitors, often below cost, the whole system is bound to collapse. It’s merely a question of time.
If you look at the history of
If you look at the history of legal aid schemes last century you will see that many did just that - they collapsed because they became unworkable and the government had to start again.
I think legal aid is a benefit that should be a right in some cases.
key agents
So comparing solicitors with doctors will fail simply because the public has different perceptions about th two? Or on the basis that one category attracts more criticism than the other? Well maybe the category attracting more criticism is also better equiped through professional development to handle criticism becaue its activity is not always surrounded around science which is a rather fixed subject but mostly around humans applying procedures or providing reasoning which in case of failure require explantions. I am not sure that I can follow your reasoning.
I would agree that most solicitors outside the City would love to have a GP salary and that is the point I was making. Agents delivering key services such as healthcare or access to justice should not earn similar to a warehouse supervisor with all due respect for warehouse supervisors.
Start again by scrapping franchising
Some of us can remember the fight to stop limiting criminal legal aid to franchised firms. We warned then that all the bureaucracy would cause costs to spiral and no one listened. Lord Carter did not identify any of the "costs drivers" in the system, but noted how the cost of administration had doubled. Extraordinary he failed to make any connection! So here's a thought: scrap franchising (ticking all those boxes did not produce anything anyway), keep fixed fees,either convert the LSC into an outfit which just pays the bills and leave it to the real market - the punters! - and the courts to control the quality. Scrap QASA and all accreditation systems. I have never had a single client as a result of accreditation or franchising. What matters is a) ability to understand what is happening in a case and b) ability to explain this - and to listen! Neither of which is susceptible to measurement.
As a freelance agent these days, I see files of various different firms. It is apparent from talking to their clients that it is not always those with the most compliant files that are doing their job effrectively. Some solicitors take trouble and time; others (mentioning no names of course) do not. Yes, it would be nice no doubt to have audits and other forms of bureaucratic snooping but it adds no value, fosters an unhelpful focus on procedure rather than what is produced - and anyway, the system obviously can't afford it. We are like an army with too large a baggage train and too few infantry.
I write this with no hope of anyone in authority taking the slightest notice. The LSC staff are not like turkeys who will vote for Christmas.
Jan Davies
07774 152235
Legal Aid
Assuming that it is reasonable to compare Legal Aid and Health provision is not the most dramatic difference that a criminal defence solicitor is available 24/7, whereas health provision is rather more Monday to Friday Office hours.
Legal Aid was not a construct of the post war social reforms, it was largely set up and adminstered by lawyers, who contributed a proportion of the fees back into the system to help fund it. (I am old enough to remember 10% of the fees in Divorce cases, then in the High Court, being clawed back).
What is now happening is the system is destroying itself with its own complexity and market forces will eventually mean that no one wants to take the risk of running legal aid work. Franchises or Contracts, or whatever they want to call them will not be taken up by private practice.
The only hope for the future is that one of the big players like a bank will decide to take on a nationwide contract and then they will have the muscle to bully the government into financing it properly.
Starting again
The Banking Industry makes huge amounts.
The Entertainment industry makes huge amounts.
The Fashion industry makes huge amounts.
The burden of prosecuting financial crimes, copyright thefts, and other "industry protecting" prosecutions should be passed on to the beneficiaries of the said prosecutions. Why should the tax payer pay for this? Do I care that the Chinese migrant selling dodgy DVD's is profiting from poor Hollywood's efforts? If Hollywood cares, or Armani cares that their clothes are being ripped off, they should be doing something about it, or at least paying for it.
The same can be said about a lot of financial crimes from credit card frauds, to high value complex frauds. Very often the high value complex frauds are committed by greedy people against equally greedy banks. Prosecution of credit card frauds is usually for the benefit of the banking industry and many police officers will agree that the banks do not even co-operate with the prosecutions if it is not ECONOMICALLY viable.
Retail outlets could be charged a prosecution levy. This will no doubt lead them to put in place better security and police their stores better. At present their stores are designed to ensure maximum sales and profit rather than protecting their goods from theft.
Criminal Defence lawyers and Legal Aid Lawyers are vital in a society where abuse by those in power is common place. It's worth noting that the Police and Criminal Evidence Act 1984 came about due to widespread social unrest. The relevance of this is the act guaranteed at the time free and independent legal advice in police custody, and this happened not as a result of kind consideration by parliament, but as a response to said social unrest. Now the citizen has to make do with speaking to an ex-police officer working for CDS direct, in many circumstances. This basis right is likely to be further eroded as a result of the anticipated changes.
So starting again requires looking at the whole Criminal Justice System and not just Legal Aid. Diverting money away from prosecutions designed to benefit the wealthy, would allow money to aid the needy.
Starting again
Picking up on the theme in this posting, as well as a legal aid loan scheme (and wealthy prisoners should not be exempt) there should also be a financial levy on all FSA regulated industry to pay the huge cost of fraud cases. A bit like the MIB for insurance. After each relevant case the bill should be sent by the LSC to the FSA as fraud is by definition a failure of a regulated industry. This will help fund legal aid.
starting again
Yes I wholeheartedly agree. But you know the government will do nothing to achieve this because there is no lobby for it. Perhaps members of the profession should form a group and start shouting about it. Nothing will change until we do.
Clin Neg
I like Robin Murray's idea about the legal loan for criminals. It could only work in that area of law though, not so fair for family or clin neg clients.
In calculating Legal Aid eligibility for my clients, I have often worked out that some get more money than I am paid. Thinking outside the box, perhaps it's the welfare state as a whole that needs a good shake up so people don't expect 'something for nothing'. QOCS might actually work in suitable cases.
I, for one, have no idea how things are going to pan out after April 2013. At least I won't have to spend hours filling in forms, asking the client cap in hand to re-sign the form and provide me with new financial evidence to resumbit the form to the LSC because it's been lost... and waste hours of my life on the phone to the LSC.
Every cloud.
Yee Haw ! Part 5
The origins and mechanisms of the human organism remain shrouded in mystery over billions of years ; hence the respect afforded to doctors. Law on the other hand is a social construct whose evolution can be clearly traced through a series of judicial and political decisions very often echoing changes in society as a whole, mainly in the past 200 years. Small wonder then, that the concept of mass "access to justice" is a very recent one carried forward on the tide of idealism after the last war. However, idealism never comes cheap and the limitless economic boom that was once assumed (absurdly naively) as a "given" to support all this, has long passed. Recent history has shown a constant political and ideological retreat of the concept of "public provision" which (coupled with the popular image of lawyers as paid handsomely to natter abstractly about irrelevancies) has created a perfect storm. I wager on The neoliberal "solution" will be the classic American one; lawyers to get a cut of the damages, the State will maintain a minimal unimaginative and harsher and harsher service to maintain law and order / quash public disorder, ever more ominous in its implications for standards of social and economic coherence and ultimately, civilisation. Commerce may prosper but all else withers on the vine.
So, unless the forces of labour and culture mount resistance against the above ruthless project, we may as well don our stovepipe hats, "visit" the Poor and present petitions for the Improvement of the Toiling Classes.
The idea of equal access to
The idea of equal access to the law and justice for everyone goes back to Magna Carta and throughout the Seventeeth Century. Dock Briefs started before 1903 when the Prisoners' Defence Act came in.
I agree with everyone who says there are no votes in legal aid. The perception that lawyers are wealthy is a cultural stereotype similar to racial stereotypes that are unacceptable today. Until we have a cultural change with literature, and television that protrays the profession this will continue.
Twenty years late!
I am sorry to see solicitors fighting a battle we should have fought twenty years ago. !n 1992 -yes 20 years ago - I was the only person connected with our local law society who thought it important enough to challenge what Lord McKay was saying and doing when he visited our city.
I put the case for Legal Aid not as a way of lawyers making money -even though it had that side effect - but as a public service and protection of the defenceless and oppressed. I even got television time to express those views. The same arguments may apply today, but the case has been lost through past complacency. Additionally, there has been a downturn in the way the profession is viewed because there are too many (even in national firms) who have very different ethics from those who qualified not very long ago.
When the "reforms" came in the late 1990s, I saw the way that things were going for legal aid practitioners like me, and got out of private practice. I have never done such worthwhile work since, but I haven't had the worry of running a practice either.
Thank you for your comment.
Thank you for your comment. Why didn't we fight the battles then?
I seem to remember thinking then that things could not get much worse.
I laugh at this notion of
I laugh at this notion of “access to justice” as in my many years working for the system that facilitates the said access and seeing endless abuse and claims/cases doomed to fail but solicitors/lawyers pursing them simply because legal aid pays them to do so annoys me no end, many cases should be no win need legal aid paid cases as this would stamp out much of the abuse overnight and may sway the public to strengthen the legal aid system rather than rake it in.
What you call justice is the “whim” of an unaccountable man/woman in a silly wig/gown who in turn listens to the “spin” of the for and against lawyers, i.e., it’s about who takes the gray and wins on black or white – not “justice.” If it was about “justice” there would be no need for lawyers/solicitors as right and wrong would be in black and white and no need for solicitors/lawyers to play the gray…
Legal aid is just another benefit, and those who “benefit from it” are no different from the poor on the social except they have bigger TVs, better holidays from the said benefit making them more “well off”. In practice a solicitor working from legal aid that pays considerably more than the national average wage and therefore does make solicitors/layers “well off”.
The judicial system is seriously flawed and we need a discussion on how to make it fit for the 21s century as the Anglo-American system is out of date and not fit for purpose, but then neither is the present whole human social organisation and structures thereof…
Public perception of legal aid lawyers
I don’t normally read the Daily Mail but have noticed an article today headed,
“Lawyers are told: Take a bus to court as Government moves to slash £350m from legal aid bill
• The Legal Services Commission, which operates the legal aid scheme, is cutting the mileage rate for cars from 45p a mile to 25p
• Lawyers claim they were not notified of the changes"
(http://www.dailymail.co.uk/news/article-2193681/Legal-Services-Commission-Lawyers-told-bus-court-Government-moves-slash-legal-aid-bill.html#ixzz24fRTTy9R).
I am not in practice so I don’t know whether or not this is happening. However, if one reads the many comments to the Daily Mail article it will be seen just how poorly informed people are about the amounts legal aid lawyers are paid. The general public perception of all lawyers being “fat cats” makes it very difficult to challenge this type of proposal and I sympathize with all those who are continuing to practice in publicly funded work.