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Transforming Legal Aid: consultation response

June 3, 2013

OK then – you have until midnight tomorrow (4th June) to reply to the government’s consultation on “transforming” legal aid.  Basically, so far as I can see, they want to cut the cost by moving to a US “public defender” type arrangement, where you don’t get to choose a lawyer and have them paid for, you get appointed a lawyer and you like it or lump it.  Oh, and you’re not allowed to change them.  Ugh!  Here’s what I sent:

This is an individual’s response to the consultation “Transforming Legal Aid: Delivering a more credible and efficient system”. It will also be published, with commentary, on my blog, http://tiintax.com.

1. General comments. The document is 157 pages long with 36 consultation questions attached and Chris Grayling describes the proposals set out in those pages as “bold but fair”. I query the “fairness” in asking people to absorb 157 pages of closely argued text with an “executive summary” which appears to summarise what the government would like to get out of the consultation, rather than being a summary of the actual content of the document.

2. The total savings projected from the change are £220 million a year. However the “savings” seem to me likely to undermine the fundamental principles of justice for a comparatively paltry sum (this on a day when the projected £100 million saving from the proposal to abolish pensioner winter fuel allowances are described as “not much more than one thousandth of the projected annual deficit in 2015.”) You do not appear to include a regulatory Impact Assessment with your proposals, summarising the cost/benefit analysis of making these changes. To me as an ordinary citizen, however, a saving of 0.2% of the projected deficit does not outweigh the possibility of being falsely imprisoned because of a mistaken accusation dealt with by a cut-price lawyer wanting me to plead guilty to keep down his costs.

3. When you are dealing with a subject which is key to the relationship between citizens and their government and as important as the criminal justice system the first question shouldn’t, surely, be about how to cut the costs by restricting the eligibility and scope of financial support but, rather, how to improve the system administratively to prevent vital services like criminal advocacy being cut. For example, there are administrative reforms which would greatly cut the costs of the legal system. I realise basic administrative competence isn’t a “sexy” subject likely to gain headlines, but making sure that prisoners are brought to the right court at the right time, that prosecutors have the right papers in front of them (and are in the right place at the right time) and that interpreters are available, competent and, again, in the right place would, surely, contribute greatly to the efficient administration of justice and are all matters where you could make substantial savings via administrative competence rather than by cutting services? Surely this is a proposal which would be actioned before any cuts to services are considered?

In answer to your specific questions:

1) Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons.
No. If a person in prison was dealing with public servants then I might be prepared to agree that their rights could be protected by recourse to a complaints and ombudsman system. However when someone has been deprived of their liberty and imprisoned in a privately-run prison where they become a profit-centre for an unaccountable company I think it is vital that they are able to access legal assistance.
2) Imposing a financial eligibility threshold in the Crown Court
Q2. Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
No. See para 3.24 of the consultation! This basic “interest of justice” is not overturned by a temporary fiscal panic.
Q3. Do you agree that the proposed threshold is set an appropriate level? Please give reasons.
No. See answer 2 above.
3) Introducing a residence test
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
No response
4) Paying for permission work in judicial review cases
Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.
No. Judicial review is a vital way of enabling a citizen to challenge government overreaching its authority. There are already high financial barriers to pursuit of cases, and the fact that a proportion of cases were lost does not mean that arguing them was without merit. I would also like to see an impact assessment showing a cost/benefit analysis of this individual strand of the proposal – my suspicion is that it would not support the proposal.
5) Civil merits test – removing legal aid for borderline cases
Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success? Please give reasons.
No. This takes the decision away from the courts – where such matters should be decided – into a quango having financial prospects as a major decision-making criterion.
Chapter Four: Introducing Competition in the Criminal Legal Aid Market
i) Scope of the new contract
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
No. Putting contracts out to tender does not favour “competition” – there is already competition, between small firms with specialist expertise in different types of law. What you are talking about with “tendering” is encouraging them to band together under the umbrella of a financing organisation and produce representation at the lowest possible cost with no consideration of value or quality. It is, frankly, an appalling idea.
Q8. Do you agree that, given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.
No! But please, if that’s a reasonable idea, let’s see all Members of Parliament receive a 17.5% reduction in their salaries and expenses and revert to the idea after three years of successful operation.
ii) Contract length
Q9. Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination, is an appropriate length of contract? Please give reasons.
No response
iii) Geographical areas for the procurement and delivery of services
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset /Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.
No response
Q11. Do you agree with the proposal under the competition model to join the following criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.
No response
Q12. Do you agree with the proposal under the competition model that London should be divided into three procurement areas, aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.
No response
Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.
No response
iv) Number of contracts
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.
No response
Q15. Do you agree with the factors that we propose to take into consideration and are there any other factors that should to be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model? Please give reasons.
No response
vi) Contract value
Q16. Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.
No response
vii) Client choice
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.
Absolutely not! It is an inquitous idea, that a citizen will be prosecuted by the state and defended by a cheapskate state-appointed lucky-dip lawyer with no right to choice!
viii) Case allocation
Q18. Which of the following police station case allocation methods should feature in the competition model? Please give reasons.
 Option 1(a) – cases allocated on a case by case basis  Option 1(b) – cases allocated based on the client’s day of month of birth  Option 1(c) – cases allocated based on the client’s surname initial  Option 2 – cases allocated to the provider on duty  Other
This is an appalling idea, but if (as I suspect) you go ahead with it anyway, then at least let the person allocated be random. So a duty rota system is preferable to one based on surname, and a day or month of birth option preferable to either – neither the police (by arresting someone when a firm perceived to be less competent was on duty) nor a provider (by avoiding taking surnames beginning with a particular letter because of a perceived racial bias) should be able to game the system, so far as it can be prevented.
Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.
No response – I think I lost the will to live around this point in the condoc
Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.
Good god, no! No matter how hostile, unhelpful, incompetent or just plain uninterested your state-appointed lawyer might be, you’d have to stick with them whatever? No!
ix) Remuneration
Q21. Do you agree with the following proposed remuneration mechanism under the competition model? Please give reasons.
 Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
 Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
 Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
 Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area
No response
Q22. Do you agree with the proposal under the competition model that applicants be required to include the cost of any travel and subsistence disbursements under each fixed fee and the graduated fee when submitting their bids? Please give reasons.
No response
x) Procurement process
Q23. Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.
No response
Q24. Are there any other factors to be taken into consideration in designing the criteria against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competition model? Please give reasons.
No response
Q25. Do you agree with the proposal under the competition model to impose a price cap for each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the graduated fee below the relevant price cap? Please give reasons.
No. How can you put a price on justice, before you even know what’s involved? What if you need expert witnesses, what if you need to bring in outside expertise. A price cap is an appalling idea.
Chapter Five: Reforming Fees in Criminal Legal Aid
1) Restructuring the Advocates’ Graduated Fee Scheme
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
 introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
No response
 reduce the initial daily attendance fee for trials by between approximately 20 and 30%;
How on earth do you justify reducing fees by 20-30%? What possible basis is there for this – are your figures plucked out of the air? Please see response to question 8 and come back to me when MPs have done it themselves for three or four years and
 taper rates so that a decreased fee would be payable for every additional day of trial?
Actually, you got me. That’s one that I actually think is in principle a reasonable idea. Well done you.
Please give reasons. Because once the research is done and the case is prepared, the actual number of days involved doesn’t add value… although of course conversely if the length of the trial is down to administrative incompetence on the part of the prosecution, then logically the fees should INCREASE rather than decrease, so as to discourage prosecutors from trying to game the system.
2) Reducing litigator and advocate fees in Very High Cost Cases (Crime)
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Please give reasons.
See response to question 26 point 2
Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons.
No! Good grief, are you really saying there’s a 20-30% layer of fat in current pricing of legal work? Because I find that a bit improbable.
3) Reducing the use of multiple advocates
Q29. Do you agree with the proposals:
 to tighten the current criteria which inform the decision on allowing the use of multiple advocates;
No. There’s a basic fairness requirement. If the prosecution has two or three advocates, then the defence should be funded to a similar level.
 to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and
 to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges?
Please give reasons.
No: surely the state has all of the cards here. If we’re saying the citizen on the other side has to play by a set of cards dealt to them by the state, at least give them the same number from the same deck! Your proposals send the individual into a high stakes poker game with monopoly money.
Chapter Six: Reforming Fees in Civil Legal Aid
1) Reducing the fixed representation fees paid to solicitors in family cases covered by the Care Proceedings Graduated Fee Scheme:
Q30. Do you agree with the proposal that the public family law representation fee should be reduced by 10%? Please give reasons.
See question 8. No!
2) Harmonising fees paid to self-employed barristers with those paid to other advocates appearing in civil (non-family) proceedings
Q31. Do you agree with the proposal that fees for self-employed barristers appearing in civil (non-family) proceedings in the County Court and High Court should be harmonised with those for other advocates appearing in those courts. Please give reasons.
No: barristers get different fees for a reason (not least because they’re self employed businesses in their own right.)
3) Removing the uplift in the rate paid for immigration and asylum Upper Tribunal cases
Q32. Do you agree with the proposal that the higher legal aid civil fee rate, incorporating a 35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished? Please give reasons.
No response
Chapter Seven: Expert Fees in Civil, Family, and Criminal Proceedings
Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.
No: see response to question 8
Chapter Eight: Equalities Impact
Q34. Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Please give reasons.
You have failed to consider the possibility of a person being allocated a lawyer who is of a different gender, ethnicity or other protected characteristic from their own and of the effect the lack of choice and lack of ability to change might have on the client/provider relationship. In very simple terms, if you are a woman and are allocated a misogynistic solicitor, tough!
Q35. Do you agree that we have correctly identified the extent of impacts under these proposals? Please give reasons.
As above. You do not appear to have considered the intangible elements – trust, support, confidence – vital to the relationship. A take-it-or-leave-it, no choice, no change service will leave people with a much lower degree of confidence that they are being treated fairly.
Q36. Are there forms of mitigation in relation to impacts that we have not considered?
An ability to exercise choice of advocate should be included in the proposals. If necessary you could prevent people “gaming” the system by allowing one change without reasons being given and a second change (perhaps at judges’ discretion) if a reason was put forward.
Regards

Wendy Bradley
http://tiintax.con

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