LEGAL AID SOLICITORS WANT BETTER TREATMENT FROM WHO EVER GOVERNS AFTER THE ELECTION.

DAN BINDMAN LOOKS AT WHAT MAY LIE AHEAD FOR THEM.

The future holds few certainties for legal aid practitioners, whichever party forms the next government.

However, on some matters there is virtually universal agreement: that efficiency, lower overheads and keen attention to the needs of clients are prerequisites for success in the modern legal aid marketplace.Ten months ago the government's duty 1996 white paper was greeted with apprehension and hostility by the Law Society and specialist practitioners' groups.

In place of an open-ended, demand-led system, a variety of suppliers of legal services would compete for block contracts, dispensed by the Legal Aid Board (LAB) and paid for out of a capped budget.Th e plans brought about a sea-change in the terms of the legal aid debate.

Earlier attention had been focused largely on the franchise scheme.

Although sceptical about the worth of a franchise and frustrated by bureaucratic hoops that had to be jumped to win one, practitioners were slowly coming to realise that acquiring a franchise was a matter of survival.

At the end of 1995,1,140 offices were franchised.

In March 1997 the figure was 1,712, with 570 applications in the pipeline.

Only the approaching general election and Conservative central office resentment at the poor handling of the Family Law Bill prevented the Lord Chancellor, Lord Mackay of Clashfern, from turning the white paper reforms into legislation.

Instead, he instituted a wide-ranging programme of pilots to test the viability of providing advice and assistance through block contracts.

In the event of a Conservative election victory, early legislation embodying the white paper proposals can be expected.To date, only one of the LAB's planned pilots is fully underway.

A project to test contracts with voluntary advice agencies has completed its first phase but not its second.

Several others are at an advanced stage of development.

A family mediation pilot -- to examine legally aided mediation services provided under the Family Law Act 1996 -- is due to begin next month.A pilot to test contracts for solicitors doing green form work, involving 145 offices in four cities, is scheduled to begin in June 1997.

The structure of the green form pilot is disputed by the Law Society, whose Council last week recommended that firms decline to participate until the contract terms are fundamentally altered.

The next Lord Chancellor's approval will have to be given before the pilot can go ahead.Paul Boateng, Labour's legal affairs spokesman -- who is tipped to become junior minister at the Lord Chancellor's Department if Labour win -- said that under a Labour government, decisions on the long-term future of the pilots would follow a major cost-benefit review of legal aid and civil justice: 'Whether [the pilots] continue after the review will be dependent on the results of the review,' he said.Bill Montague, co-chairman of the Legal Aid Practitioners Group, believes that restricting the scope of the pilots is vital, in particular with regard to the green form pilot.

'The proposals raise issues that go far beyond simple research data gathering and call for full and proper consultation.

A halfway house may be that the Lord Chancellor goes ahead with the pilot's research project but would not go ahead with the baggage of the white paper proposals.'Labour has not opposed block contracts either for advice and assistance or for civil litigation, although it has accepted the danger of competition leading to solicitors turning away complex cases.

In a speech to the Bar last September, Lord Irvine of Lairg QC, the shadow Lord Chancellor, welcomed the success of the first phase of the advice agencies pilot.

It was encouraging, he said, for the development of the Community Legal Service (CLS) -- Labour's proposed regional funding agency based on existing LAB offices.In Access to Justice, Labour's 1995 proposals for reforming the civil justice system, it was envisaged that the CLS would disburse the national legal aid budget on a regional basis.

Working within allocated local budgets, regional offices would carry out assessments of legal needs and would be able to bid for earmarked funds within the national budget to 'establish in novative schemes to meet particular local needs.'In poi nting to the cost-cutting potential of block contracts Lord Irvine was acknowledging that a Labour government will have to square the circle of financing legal aid if -- as it has pledged -- it abides by the budgetary constraints set by the present government.

This with involve turning around legal aid funding from its present increase of about 10% a year to a 5% cut by the financial year 1999-2000.However, in a statement that exposed the difficulty of reconciling the necessity for an entitlement-based target aid system for those on two incomes -- many of whom are Labour voters -- with the need to keep costs down, Lord Irvine spoke out strongly against cost capping.

'It would in practice become a discretionary benefit, available at bureaucratic disposal.

Legal aid would cease to be a service available on an equal basis nationally, because cases would go forward in one region where identical cases in others, of equal merit, would not,' he said.

He also supported the extension of legal aid to industrial tribunals.According to Legal Action Group (LAG) director Roger Smith, Lord Irvine's approach would bring down costs through expanding the role of the not-for-profit sector in the CLS and relying on standard fees for solicitors in place of competitive bidding.

In a recent article in the LAG's Legal Action bulletin Mr Smith said the difference between the two major parties is as follows: where the Conservatives would adopt a 'hard cap' involving a fixed and inflexible budget, Labour would use a 'soft cap' where expenditure would be based on a budget calculated according to accurate predictions of need.In the highly unlikely event that the election produced a Liberal Democrat government (more likely is a coalition government involving the Liberal Democrats) an indication of the party's approach to legal aid can be found in a manifesto produced last month by the Liberal Democrat Lawyers Association.

The lawyers vigorously attacked the white paper reforms, in particular cost capping and block contracting.

They also targeted what was described as Labour's failure to make commitments to either Lord Woolf's reform proposals or to the future of legal aid.

A Liberal Democrat government, said the manifesto, would begin by making the legal system more efficient in order to control legal aid costs.

A Ministry of Justice would provide the legal system with a 'unified structure'.

Non-franchised firms would not be excluded from legal aid work.Whatever the outcome of the election, legal aid solicitors hope for more sympathetic treatment than that meted out in the past year.

Weary of being often portrayed as greedy and careless of their public service function by a hostile tabloid media, they demand respect.Says Bill Montague: 'Generally speaking, legal aid practitioners are tired of the deep cynicism of the present administration.

It would be refreshing to deal with any government that valued the essential service provided by legal aid lawyers and one that appreciated in us one of the last vestiges of a public service ethic.

But there will inevitably be a debate about the affordability of the legal aid system.'EUROPEAN ISSUES SEEM SET TO DOMINATE THE PRE-ELECTION DEBATE.

ROBERT VERKAIK LOOKS AT HOW CHANGES IN EUROPE COULD AFFECT THE PROFESSION.There is always a single issue upon which political pundits claim a general election is won or lost.

In 1992 it was tax, this time Europe is playing the dominant role.

Such is its importance that Sir James Goldsmith's Referendum Party has been formed solely to make Europe the deciding issue.The thor niest of all the European questions is whether we should join Economic Monetary Union (EMU).

It is such a tricky one that Labour and the Tories have the same policy -- which is to do nothing but 'wait and see'.

The Liberal Democrats would like us to join up as soon as economically possible, but in common with the other two parties would not do anything until there had been a referendum on the subject.

The Referendum Party just wants a referendum on the question of whether Britain should be part of a federal Europe.

The only party which has unequicocally nailed its colours to the mast is the UK Independence Party.

An Independence spokesman told the Gazette his party 'wanted absolutely nothing to do with a single currency' and did not require a referendum to say so.But it is what the other parties have not been saying about a single currency that worries lawyers.

Geoffrey Yeowart is a senior banking partner at Lovett White Durrant who is advising the 100 Group, the UK's leading financial directors.

He points out that whether we like it or not EMU will take place on January 1 1999.

So it does not matter whether the UK is in the first wave because the EMU will still have an impact on British business.

Says Mr Yeowart: 'While many of the bigger banks are already seeking advice from law firms some other industrial clients have not fully thought through the consequences.' The 100 Group warns British business: 'It is unwise for business to defer preparation merely because they believe, for whatever reason, that it is unlikely that the UK will join in the first wave.'In the last year the European Commission has been developing the legal framework which will support EMU.

The first regulation will be introduced by using the fast track procedure provided by Article 235 of the Maastricht Treaty and requires unanimous member state participation.

This regulation is currently being considered by a UK parliamentary committee and is expected to be adopted soon.

The second regulation is to be adopted in 1998 under article 109 1(4).

The 100 Group points out that if the UK government opts out of EMU it will not be able to vote in respect of this regulation.

Mr Yeowart advises companies to 'review their existing contracts which continue beyond January 1 1999 and identify whether any changes are necessary.' He also urges companies to consider what is the most appropriate choice of law to govern contracts denominated in Ecus or any currency likely to be replaced by the Euro.Monetary union is not the only European issue with legal significance to play a part in the election.

The European Court of Justice (ECJ) has been targeted by the Conservatives as an institution in need of reform.

White the Tories recognise that the ECJ should be strong so that community rules can be enforced across are member states they also believe that some of its power needs to be curbed.

Proposals contained in a government memorandum retrospective application of ECJ judgements, establish an internal appeals procedure and implement national limits for the implementation of Directives.

It also wants a limitation of damages payable by member states found to be in breach of treaty obligations, and clarification of the principle of subsidiarity in the interpretation of community law.

Labour would leave the ECJ as it is.

The Liberal Democrats also offer no changes for the ECJ but would give additional resources to the Court of Auditors.Fraser Younson, head of Baker & McKenzie's employment group has wide experience of ECJ cases and believes the ECJ has moved further towards the emp loyer.

Explains Mr Younson: 'The ECJ is more likely to be affected by political and social policy than a UK court.' He supports the Conservatives' proposal for a restriction on retrospective application of ECJ judgements but only in a limited number of cases.

However, he sees no value in an internal appeals procedure and regards the principle of subsidiarity as something about which lawyers and politicians are sufficiently knowlegeable.James Davies is an employment lawyer with Lewis Sitkin and has had a lot to do with the ECJ over the last few years.

He believes the judges do take account of what the 'general consensus' is among governments of the member states.

But he does not think a Labour government would get any more directly involved in the outcome of cases than the Conservatives have.

However, a Labour government would enact the European Convention on Human Rights so that UK citizens would be able to use the UK courts when arguing human rights cases.

'But I don't think this will lead to our courts being flooded by Convention cases because these are quite unusual,' says Mr Davies.