Protecting legal aid

AS THE GOVERNMENT UNVEILS CONSULTATION PAPERS ON LEGAL AID AS IT APPLIES TO CRIMINAL WORK AND IMMIGRATION AND ASYLUM CASES, JANET PARASKEVA ASSESSES WHAT THEY COULD MEAN FOR THE PROFESSION

Last week, the government published two important and much anticipated consultation papers on legal aid, one addressing various issues in criminal legal aid, the other dealing with public funding for immigration and asylum cases.

The proposals will be significant for solicitors practising criminal and immigration law and for their clients.

The Law Society welcomes the government's explicit commitment to the provision of publicly funded legal services as a means of promoting social justice, economic well-being and tackling social exclusion.

We would add that both in criminal cases and in immigration and asylum cases, the provision of legal aid is crucial to ensure that the judicial system can operate fairly and that the government can meet its obligations under the Human Rights Act.

Funding legal aid is not unlimited, of course, and it is the government's responsibility to ensure that in providing legal services it secures value for money.

However, it must ensure that this commitment to value for money does not degenerate into assuming that cheapest is best.

It is essential that those relying on public funding - like those paying privately - receive a quality service.

And the vital civil legal aid work - which promotes social justice and addresses social exclusion - should not be crowded out by overspends elsewhere in the budget.

The consultation paper on criminal work focuses on reducing the entitlement to legal advice in cases where the government thinks such advice is not necessary.

There may be some scope for savings here - in advice on cases where representation could never be justified and in achieving greater consistency in application of the interests-of-justice test in magistrates' courts.

But the proposals to limit the right to advice for suspects in police stations raise serious issues.

Excluding public funding for legal advice for some suspects in the police station would mean that the rich could have a lawyer present where the poor could not.

Plainly that is not right.

The government also proposes curbs on publicly funded representation in some hearings.

There is a real risk that those proposals would leave some defendants without representation when they need it, thus also prejudicing the smooth running of the magistrates' courts.

The second consultation paper addresses issues relating to publicly funded immigration and asylum work.

The Society can make common cause with the government in its concerns about the shortage of high quality advice to meet the increased level of demand in recent years.

This problem has been exacerbated by low levels of remuneration for immigration work, which has meant that there is no real incentive for firms to expand to meet the increased demand.

The government proposes in the paper to set maximum limits on the time which will be paid for on legal advice and representation in immigration and asylum cases.

It suggests a limit of just five hours for preparing a case and a maximum of only four hours to prepare an appeal to an adjudicator.

But experienced practitioners report that dealing properly with an initial application takes around 10 to 12 hours, while preparation of an appeal to an adjudicator commonly takes between six and seven hours.

We have strong reservations about the proposal that maximum fees should be set for these cases at all.

And it is abundantly clear that if maximum fees are to be set, the level must be sufficient to enable efficient and competent practitioners to prepare cases properly and there must be adequate discretion for the limit to be extended in appropriate cases.

The government also plans an accreditation system for solicitors handling publicly funded asylum and immigration cases.

Such a scheme could make a significant contribution to ensuring that asylum-seekers receive quality advice.

We are pleased that the government has recognised the value of the Society's own accreditation scheme, on which it plans to build, and that it has asked the Society to administer the new scheme.

We look forward to working with the government and the Legal Services Commission on the details.

These consultation papers are important and we will respond to them in detail in due course.

However, fundamentally they do not address the real problem facing legal aid, which is the continued failure to protect civil legal aid from constant erosion through overspends on other areas, thus undermining the contribution legal aid can make to promoting social justice and tackling social exclusion.

The Society is developing its own strategy for the future of legal aid following extensive consultation with the profession and other stakeholders.

The challenge is clear - to devise an approach which would enable the government, in partnership with the profession, to re-establish a legal aid scheme that provides equal access to justice for all at a cost that it is reasonable to expect taxpayers to meet.

Janet Paraskeva is the Law Society chief executive