The Legal Aid Board has published its response to the Lord Chancellor's green paper 'Legal aid -- targeting need'.

The response is designed to provide a platform for informed debate on how a reformed legal aid scheme might work, rather than to put forward concrete proposals on how it will work.We recommend a new approach to the merits test in civil legal aid.

All civil cases should be subject to clear merits criteria which apply universally.

Criteria could vary according to the type of case and subject matter of the action, but not according to the geographical region or to the particular contract under which the case was taken on.

The general merits framework should be contained in statute but contracts should require solicitors to apply a simple initial test at the outset and progressively more detailed criteria regularly throughout the case.

The aim should be to stop work, irrespective of the work already done, once it became clear that the chances of success had reduced beyond what was reasonable, or the likely benefit to the client could not justify continuing work.We also recommend changes to eligibility limits.

In our view eligibility should be the same for advice and assistance and alternative dispute resolution as for litigation.

One of the Lord Chancellor's objectives is to encourage dispute resolution other than by litigation.

The current eligibility limits act against this because they allow more people into the scheme who can demonstrate a right to litigate than those whose case can be settled th rough mediation or alternative dispute resolution.

The dividing line between advice and assistance and representation should be the act of issuing court proceedings.

The scheme should include incentives and disincentives around this point to encourage resolution other than by litigation in court.We believe there are major advantages in contracting because contracts will allow control of the total amount of expenditure from the legal aid fund.

Only with this control can the scheme be expanded to include, for example, the advice sector and tribunal representation.

However, contracting should not be seen as a straitjacket and we are satisfied that sufficient flexibility can be included to ensure that new areas of law which emerge can be covered.

Most importantly, we accept that there has to be a radical change from thinking about individual pieces of 'green formable' work or single legal aid certificates, to a concentration on individual clients and their problems and their resolution in the best way possible, subject to continuous application of a merits test.The current legal aid system is complex, covering many different types of cases of varying length and cost.

Contracts must be able to accommodate that complexity.

We have already started work on the analysis of the detail of how cases work in particular categories.

The nature and range of work which is associated with them, the stages at which they are typically settled, the associated costs profile and the cost components, for example when counsel or expert witnesses are necessary.

The latter will be particularly important as it would be for the solicitor to manage the cost of disbursements from their overall contract budget, except in very high cost cases.

All this information will be crucial in determining the price structure within different contracts and could allow contracts to be tailored for a particular profile of cases.Different arrangements will be needed for very high cost cases.

Here we believe that a standard contract would be inappropriate.

We recommend a procedure which builds upon a requirement in the Law Society's practice management standards for case plans.

Very high cost cases in both civil and criminal work could be treated similarly.

At the start of the case the conducting lawyer will have a view on the work that needs to be done in the light of the information available at that point.

That could be planned and costed.

Clearly, plans could change as the case progresses, for example, in very high cost criminal cases by the disclosure of additional evidence by the prosecution.

This would result in changes to the case plan and adjustments to the costings in it.

However, at any point the board would be aware of its committed liability for the individual case and this would be continuously updated as the case plan and the costings change.

We see this as building upon the arrangements we have already started to introduce for multi-party actions.In our response we express reservations about contracting on the basis of competitive price tendering alone.

However, we have suggested a way that competitive tendering could be piloted without risk.

It is our view that a pilot is necessary to identify the strengths and weaknesses of any system where price competition is an element.We are particularly anxious to ensure that the Lord Chancellor takes account of the commitment shown by franchised firms when deciding the terms on which the legal aid scheme will be reformed and contracting introduced.

However, we are also concerned that franchising should be strengthen ed.

We believe the best way of achieving this is for the Law Society to work with us in introducing more accreditation schemes, building upon the scheme for non-solicitor representatives giving police station advice.

We are particularly concerned that the current franchising arrangement cannot monitor quality in the area of advocacy.

This is particularly important in criminal legal aid where advocacy is probably of greater relative importance than in civil legal aid.Finally, we have considered whether legal aid can be delivered within the context of a pre-determined budget as proposed in the green paper.

We are satisfied that expenditure on civil legal aid could be controlled to the extent that it would not exceed a predetermined budget, but the position is far more difficult in the area of criminal legal aid.Our experience over the past few years has taught us that the volume of criminal legally aided cases is notoriously difficult to predict because it is so dependent on changes in the behaviour of the courts, the police and the prosecution services.

While we are satisfied that the service could be delivered through contracts there would be unfortunate consequences if courts had to be adjourned because a contracted solicitor had met or exceeded the expected volume within the contract.In its response to the green paper the board is firmly recommending a gradual approach to the implementation of change.

However, we argue that fundamental change is necessary.

The Legal Aid Board's response can be obtained from its head office on 0171 813 1000 ext 8560.