As the general election approaches, Edward Nally emphasises the crucial importance of putting legal aid high on the next Government's agenda

In light of the impending general election we can expect to hear the long-awaited outcome of the fundamental review of legal aid, initiated in May last year by the Department for Constitutional Affairs and the Legal Services Commission (LSC).


The Law Society welcomed the review as an opportunity to formulate practical solutions to ongoing problems in the current system. But the review must live up to its name. Whichever party wins the election, delivering lasting improvement in legal aid must be a priority.


Many firms are facing immense pressure as they try to deal with a myriad of proposals while already struggling with the complexities of the current system and the demands of running a business in a hostile environment. What business can operate effectively with a freeze on its income relentlessly sustained year after year? Isn't it obvious why so many practitioners are leaving legal aid? Should not government be doing something to stop the rot?


No system can be shaped around the needs of suppliers alone - it is the clients' needs that sit at the heart of access to justice. But it is folly to disregard the existing model of practice that delivers the overwhelming majority of this frontline public service. In the health service, no-one would suggest the government should disregard the needs of general practitioners if they were leaving the NHS, while concentrating exclusively on new and imaginative means of replacing them. The same applies to traditional legal practice, which is, and will remain, the cornerstone of the delivery of legal aid.


So what can be done? For a start, the system needs to be relieved of some of the most ridiculous extremes of bureaucracy imposed by contracting. Legal aid practitioners need some predictability in their businesses. An annual review, even if based around the retail price index, would be a worthwhile start. And a review of the system that recognises the challenges faced by the existing practitioner base would be welcome too.


If experienced legal aid lawyers operating in small firms are unable to cope with the additional regulatory burdens of the contracting scheme, then surely methods should be found to allow them to subcontract or to work in partnership with larger providers on a hub and spoke basis. Skilled legal aid lawyers will otherwise be lost irretrievably to the system.


Let me touch now on competitive price tendering, which is being proposed for a possible pilot in London. The Law Society Council opposes the particular proposals set out by the LSC. This is not just a protectionist reaction. The original franchising system, which developed into contracting, was defensible because it addressed the issue of quality of service. What we cannot, and will not, support is a system that runs a high risk of being no more than a cost-cutting exercise that will inevitably reduce access to justice and the quality of advice and representation available to legally-aided clients.


Given that a range of quality-accredited suppliers already exists, where is the justification for jeopardising quality purely to save costs? How would competitive price tendering deliver access to justice, as opposed to Treasury-driven savings? We need credible answers to this before price tendering is considered. The government needs to be frank about its objectives for a sustainable legal aid system.


But a modern and developing legal aid system will only be possible if imaginative solutions are sought, even if within a controlled budget. The legal aid review must be used to explore alternative methods of delivery of legal aid to improve access to justice. For instance, some legal aid firms might see opportunities in new practice models, for example, legal disciplinary partnerships along the lines recently supported by Sir David Clementi. For many firms struggling under the current scheme, external investment and expertise might bring the kind of financial stability that would enable them to continue their commitment to legal aid.


Another area of major concern is the falling number of solicitors now choosing legal aid as a career. 'All things being equal, nearly 60% of students and 50% of trainees would consider a career in social welfare law, according to recent Law Society research. But as things stand now, only 21% of students and 7% of trainees see their careers following that direction.


We cannot ignore this problem. We need to support initiatives by the LSC to fund course fees and salaries for trainees going into legal aid work. The Legal Aid Practitioners Group proposals for a collegiate approach to legal aid training also have merit, as they would enable students to earn as they learn. The government might also want to consider ideas such as the introduction of a 'golden hello' for those training within a legal aid practice.


The message in all of this is that we must remain open and responsive to new ideas and approaches to the delivery of legal aid. This is the only way to give legal aid a fighting chance as a front line pubic service.


But at the same time, the government must acknowledge the indispensable role that traditional providers of legal aid fulfil. More importantly, whichever government is returned after 5 May, it must take action to ensure a sustainable future for legal aid practitioners, because without them access to justice is undeliverable.


Edward Nally is the Law Society President