At breaking point

The Gazette's annual legal aid survey reveals that the future is looking bleaker than ever. However, there are signs of concerted protest, reports Paula Rohan

When legal aid solicitors from across the land were invited to London to protest over competitive tendering in crime work last month, they turned up in droves.


Some 600 practitioners left their desks or rushed from the courts to jump on coaches and argue that tendering would be the final nail in their firm’s coffin (see [2005] Gazette, 21 April, 1). As far as they are concerned, competitive tendering threatens civil as well as crime work because if practices with a high proportion of criminal work lose their contracts, the civil departments will go down the drain as well.

The results of the Gazette’s annual survey of legal aid firms, which received 170 responses (see [2005] Gazette, 14 April, 1) showed that 87% are opposed to tendering. Such opposition is why 30 of the largest practices in London have banded together to set up the Association of Major Criminal Law Firms to deal with tendering.

However, a plethora of groups and initiatives have cropped up over the past year in response to increasing worries about the state of legal aid. These include the Access to Justice Alliance (AJA), which recently protested against legal aid cuts in Downing Street to mark the fifth anniversary of the Community Legal Service; ASBO Concern, a group combating the misuse of anti-social behaviour orders; and Justice Denied, Asylum Aid’s focus on the difficulties asylum seekers face in getting legal advice and representation. Eight groups including the Legal Aid Practitioners Group (LAPG), the Criminal Law Solicitors Association (CLSA) and the Bar Council also recently joined forces to create a Manifesto for Justice, backed by the Law Society, highlighting to political parties the importance of access to justice through legal aid.


CLSA director Rodney Warren is not surprised the profession is coming together to fight the problem. ‘If you look at the big picture, it becomes clear that the system is in an appalling state and there have to be radical changes and better long-term strategic planning, because the same concerns are being expressed year after year.’


Richard Miller, director of the LAPG – which backed the Gazette’s survey along with the CLSA and free on-line information service www.crimeline.com – argues that the rush of action indicates that people are at the end of their tether. ‘The results show that the number of people helped is down by a third in two years,’ he adds. ‘The number of solicitors prepared to do legal aid is dropping 10% every year. The amount of work done by those left is down 28% in one year. If that is not a crisis, I don’t know what is.’


He adds: ‘The government needs to realise that genuine access to real justice is the bedrock of a democratic and civilised society, not something to be rationed after trying to meet the potentially unlimited financial demands of the health department, education, and war in Iraq.’


Nony Ardill, AJA chairwoman and policy director at the Legal Action Group, agrees. ‘It is significant that a large group of well-respected national organisations, including Advice Services Alliance, Child Poverty Action Group, Justice, Legal Action Group and Shelter, have come together at this point to form the AJA to draw attention to the desperate state of civil legal aid. In a bid to save costs, the government is prioritising first-stage advice and lowering eligibility levels for legal representation – but this could put courts out of reach even for cases raising fundamental rights or challenging abuses of power by public bodies. We could be looking at a very different justice system in the future.’


Some 98% of firms say they are sick of legal aid, according to the Gazette survey, with nine out of ten saying they feel more pessimistic about the future than they did this time last year. One respondent said: ‘We are overwhelmingly gloomy and fed up to the back teeth with bureaucracy, low rates of pay and unrealistic expectations from our paymasters.’


The Law Society shares practitioners’ concerns. Chief executive Janet Paraskeva says: ‘Looking at the results from this survey, it is hard to see how people who are eligible for legal aid are going to find a solicitor to advise and help them. Already 74% of firms say they are turning work away and 82% say they think they will be doing less legal aid work in five years’ time. All in all, it paints a very bleak picture for the future of publicly funded legal services.’


Andrew Keogh, partner at Manchester firm Tuckers, who runs Crimeline, warns: ‘This survey echoes what is being said on the ground – legal aid professionals are literally at breaking point after a decade of unremitting cuts in scope and funding. The losers are real people with real problems. What the government fails to realise is that publicly funded work, once extinguished, will never be capable of restoration.’


Crime may have been in the headlines owing to tendering, but still beavering away in the background more quietly are the family legal aid practitioners. Firms pointed to family as the area where they were most likely to pull out of publicly funded work, if they have not done so already – 16% said this.


Legal academic Richard Moorhead, of Cardiff University, maintains that this is a real cause for concern. ‘If these figures are reflected in actual LSC contracts, then this suggests the decline in family legal aid is accelerating,’ he says. ‘Family law is not only the backbone of the civil legal aid scheme, but it has critical links with other social welfare problems. Any such decline would be very worrying.’


David Emmerson, head of legal aid at Resolution and partner at one of London’s largest publicly funded practices, Edwards Duthie, agrees. He points out that family matter starts have dropped from 338,000 in 2003 to a projected 268,000 this year. ‘Most [legal aid] law practices have either family or crime and have other areas attached. If family goes, then the rest will go with it.’


Mr Emmerson backs the view that money is the main issue, with only four rates increases in 15 years – 36% of firms that anticipated pulling out of legal aid cited this reason. He welcomes Legal Services Commission (LSC) initiatives such as the preferred supplier pilot, but says they fall rather flat because although they reduce bureaucracy – about which 24% of respondents complained – they offer no more money.



He also stresses that uncertainty is a problem; owing to plans such as competitive tendering, firms can now no longer predict whether they will have a contract in certain areas. This means they cannot get funding from their banks and are up in the air over whether to renew leases on premises. One disgruntled respondent to the survey complained: ‘There has been no stability for eight to ten years and we do not envisage the system getting any better.’


‘The LSC needs a clearer plan, particularly in family work, so that practitioners and students can see the way forward,’ Mr Emmerson argues. His firm no longer does immigration work and now intends to cut back on family.


Simon Pottinger, who runs specialist legal aid consultancy JRS, says immigration is definitely emerging as another major problem. ‘We have seen a continued decline of immigration suppliers in the last year and it’s not just the people the LSC would liked to have seen being bumped out who are going – it is the quality firms.’


His company has also received requests for help on matters such as the tailored fixed-fee scheme – which ‘has turned out more problematic financially than people originally thought’ – and has also seen evidence of ‘franchise fatigue’, where firms have forgotten to formulate and submit business plans and appraisals to the LSC.


Perhaps they are burying their heads in the sand for a reason – one respondent said: ‘We feel as a firm that the “partnership” [with the LSC] is a pretty one-sided affair. We find the audit system bureaucratic and invasive, on occasions conducted by individuals who have been unnecessarily aggressive, which seems indicative of a lack of trust and respect. That is not a good basis for a partnership.’


The absence of an announcement on the results of the government’s fundamental legal aid review, which were supposed to be revealed in March but will now be delayed until after the general election, has done nothing to ease the uncertainty surrounding affected practices. Mr Emmerson is cynical about the review. ‘It was a good tactic to ensure no one did anything for 18 months or two years,’ he says.


Mr Pottinger shares Mr Emmerson’s view that the failure to announce plans for the future of legal aid is hiding something. ‘I think competition in both crime and civil is a likely development,’ he says. He urges firms to put plans in place to make sure they are logging details of their performance, including the level of their casework, outputs and average costs to prove to the LSC that they can do the job. ‘They must be prepared to get involved in those types of statistics,’ he advises.


However, once again, many respondents to the survey echoed the plaintive cry of one of last year’s respondents: ‘Help, I am stuck!’ One said: ‘Many firms are locked in because of indebtedness to banks and financial institutions because of computerisation, which was a requirement under franchise specifications. As overheads increase, many firms will go under, but we think this is all part of the government’s strategy. God save us from failed lawyers who go into government.’


The fact that some firms are tied in will come as a relief to many clients across the board, commentators maintain. ‘[There are] growing numbers of people becoming seriously concerned about the government – and, indeed, the opposition and media – not respecting human rights and the right of every citizen to justice,’ Mr Miller says.


Andrew Bishop, partner at Brighton firm Bishop & Light, shares those concerns, especially as the government appears not to have budgeted for changes affecting the criminal justice system. ‘An increasingly overbearing executive through ASBOs, control orders, and anti-terrorism legislation, needs to be balanced by a strong judiciary,’ he insists. ‘Without adequate legal aid provision, there is no one to bring the cases before the judiciary to balance the power of the executive – but maybe that is what is intended.’


The fact that 60% of firms reported problems recruiting fee-earners, and just four out of ten intend to offer training contracts in the next year – on top of the third that said they had closed their doors to trainees for the past five years – means that a shortage of solicitors may push firms closer to disaster.


The LSC’s response to the survey was in part to question its methodology, but it also said it would not want to dismiss the concerns raised. ‘We have expressed many of them ourselves and have always been happy to debate these issues sensibly,’ a statement said.


Nonetheless, all factors combined, it looks like the 2006 survey results could top the last four years in the doom and gloom department – unless solicitors succeed in grouping together to make their voices heard. The hints from the Law Society suggest that it might well back criminal law specialists’ calls for a boycott on tendering, while groups focusing on other areas, from family to welfare benefits, also seem to be gathering momentum.


‘There now seems to be something of a head of steam building up amongst legal aid practitioners,’ Mr Bishop says. Perhaps the time has come for them to finally join forces and form a cohesive strategy to fight back against the system they feel has let them and their clients down.


Rodney Warren, who is also a member of the Law Society’s main board, says he shares other practitioners’ concerns and disillusionment, but senses that changes are afoot ‘once competitive tendering is no longer seen as the way forward’.


A self-confessed ‘eternal optimist’, Mr Warren says: ‘The mood of the profession is dispirited, and rightfully so, but I feel there is now a common acknowledgement across the profession that access to justice is a core public service, and I think there is also a commitment on the part of the LSC and the government. The trick will be joining the two and finding a successful long-term strategy.’


Links: www.we-are-jrs.co.uk






Gazette legal aid survey results