Winds of change

Carolyn Kirby calls for support from the government and profession as she throws herself into the fight to secure a viable community legal service

It is impossible to contemplate the future of publicly funded legal services without considering it in the context of the current far reaching debate about the future provision of legal services as a whole throughout England and Wales.

There can be no doubt that publicly funded legal services are in crisis - a crisis that has important implications, both for our profession and for society as a whole.

One thing is clear - the present structure for publicly funded legal services simply cannot remain as it is.

The unhappy truth is that legal aid has been undervalued and undermined for at least the past ten years.

With the exception of 2001, there have been no significant increases in legal aid rates over that period.

At the same time, legal aid practitioners have been asked to embrace, in turn, franchising, contracting and now the specialist quality marks, all of which have imposed a significant administrative burden.

It is a simple case of economics - it costs firms more to undertake this work and, in real terms, the pay is less.

Apart from low pay, other issues including retention and recruitment, have been identified as significant problems.

The inevitable consequence is that firms are likely to reduce their exposure to publicly funded work.

Solutions to the present crisis must be considered in the context of the outcome of the current Lord Chancellor's Department consultation, In the Public Interest? Final responses to the consultation are due by 22 November.

This is a tricky issue.

On the one hand, the government appears to think there might be some great - but, as yet, unquantified benefit - to be had from increasing the categories of people who can provide legal services.

On the other hand, allowing lending institutions and others to offer, for example, conveyancing and probate work, may have a far reaching, detrimental impact on practices that offer these areas of expertise alongside publicly funded work.

The implications of this are highly relevant in terms of access to justice and the future viability of the Community Legal Service.

Put bluntly, if law firms cannot make money from other areas of work, over which they currently hold exclusive rights to practise, then legally-aided work alone is not going to be of sufficient economic viability to support the practice.

We cannot enforce our will on the Lord Chancellor, or anyone else for that matter, even if our views are justified.

What we can do is continue to provide accurate information about the existing problems faced by legal aid practitioners, with appropriate evidence in support.

Those solicitors at the sharp end of legal services provision have crucially important information to impart, based on practical experience.

Please pass it on to us at the Law Society so that we may use it effectively.

I am not alone in my belief that our representations do make a difference.

The Financial Times suggested last week that the Law Society, among others, is the true opposition to the present government.

It is clear that our views are taken seriously.

Change is inevitable.

I doubt that the present structure would be adopted if the legal aid system were set up for the first time today.

England and Wales are very different countries from those that existed when the origins of the present scheme were recommended in 1945.

However, with change will come new opportunities and new challenges.

I do not pretend to have the definitive answer to the present crisis, but the Law Society is committed to identifying possible solutions to smooth the way for the evolution of publicly funded legal services.

We may have to recognise that if the Community Legal Service is to remain viable in the future, changes in the way publicly funded legal services are delivered may have to be embraced by the profession.

The current Public Defender Service pilot may provide the government with a model for expanding the numbers of employed solicitors in criminal and perhaps civil and family work as well.

The Society will continue closely to monitor these pilots to ensure that the key principles of access, quality, choice and proper funding are maintained.

Another possible model is that of a two-tier system, with advice and assistance provided predominantly by the voluntary sector and representation by private practice.

There may be an expanded role for law centres in the provision of legal services.

Or, perhaps it will simply come down to the issue of quality.

It is entirely possible that quality is the key to the future of legal aid work.

We must expect - and embrace - increasing specialisation.

The Legal Services Commission may adopt a system of specialist panels.

This would mirror the system already pioneered by the Law Society.

There may be the prospect of increased rates of pay for panel solicitors, in recognition of their quality 'guarantee'.

We have no option but to secure a better future for the Community Legal Service on behalf of those clients who so acutely need access to it.

The Law Society remains committed to this aim.

There will be further debates in the Society's council, continued initiatives to engage with relevant groups and sectors - both within and outside the profession - and ongoing consideration of possible alternative models for the future provision of publicly funded legal services.

The profession and the Law Society, the Legal Services Commission and the government, must work together as a matter of urgency to plot the future for a viable and properly remunerated Community Legal Service.

Carolyn Kirby is the Law Society President