A Right to Justice
Liberal Democrat Lawyers Association Policy
Proposals on Civil Legal Aid
Members of the
Working Group
Executive
Summary
Introduction
Labour’s
Failed Access to Justice Policy
Ø
Geographical Coverage
Ø
Rationing
Ø
Bureaucracy and Micro-management
Ø
Funding and Remuneration
Ø
Reduced scope of Legal Aid
Ø
Verdict on the Access to Justice Act Regime
The Liberal
Democrat Approach
Ø
Department of Justice
Ø
Overall Resources
Ø
Ring Fencing
Ø
Rationing
Ø
Commissioning Services – SLAs
Ø
Bureaucracy
Ø
Remuneration
Ø
Advice Centres
Ø
Call Centres
Ø
Outreach Services
Ø
Partnerships
Ø
Scope of Legal Aid
Ø
CFAs
Ø
CLAF
Conclusion - A Civil Justice System Fit for the 21st
Century
Appendix
– Costings
Members
of the LDLA Working Group on Access to Justice
The members
of the Working Group are:
The Hon Sue Baring Former Chair, British
Institute
of
Human Rights
Sue Bucknall,
Director,
Solicitors Pro Bono Group
Jo Hayes, Barrister
Jonathan Marks QC (Chair) Barrister
Richard Miller, Director,
Legal Aid Practitioners Group
Lord Phillips of
James Sandbach
(Rapporteur) Social
Policy Adviser (Legal Affairs)
Citizens
Advice.
The
Working Group is also indebted to the following for their invaluable assistance
Evlynne Gilvarry Director, Representation
and Law Reform, The Law Society
Nicola Mackintosh Partner, Mackintosh Duncan
Tom Mellhuish Policy Officer, Health
and Safety Department TUC
Janet Paraskeva Chief Executive, The Law Society
Nicola Rudkin Partner, Fisher Meredith
Roger Smith Director, Justice
Executive
Summary
Access to the legal system is a
necessary aspect of the rule of law and
an important feature of a liberal and democratic society. People with limited
resources should not be deterred from seeking legal advice, or representation
because they are out-priced from the market for legal services. Policy on the public funding of legal services
must start from a requirement for universality in the provision of legal aid.
The demands on legal services are likely to continue to grow as we live in a
world of increasing legal complexity. However, legal aid provision has reduced
and legal advice centres supported by pro-bono (voluntary lawyer) services
cannot cope with increasing demand.
New Labour
established the Community Legal Service (CLS) to replace the legal aid scheme,
a public subsidy system for legal services, introduced by the Attlee
Government. The Community Legal Service introduced by the Access to Justice Act
1999 established a bureaucratic system of contracting for solicitors and
not-for-profit advice organisations, which rations the services that can be
delivered. At the same time the Government also reduced the scope of legal aid.
There are
inadequate resources overall for civil legal aid. Although spending on legal aid has risen from
£1.5 billion in 1997 to £2 billion this year, this does not reflect
responsiveness to demand and is largely accounted for by the growth of criminal
legal aid. In 2001 the civil legal aid budget took up 43% of an overall legal
aid budget of £1.716 billion, being £476 million for certificated work and £259
million for help and advice. Legal aid
currently provides 13% of solicitors’ overall income. Within the civil budget, the expenditure on
legal aid for asylum seekers has increased from £81.3m in 2000-2001 to £129.7m
in 2001-2002 and £174.2m in 2002-2003, thus squeezing the remainder of the
civil legal aid budget. Currently, legal aid costs the equivalent of just 5% of
the expenditure of the NHS. It is
incumbent upon Liberal Democrats to tackle myths and to meet challenge of
properly funding legal aid, which we regard as a vital public service.
Liberal
Democrats put justice first, believing that there should be no discretionary
rationing of legal assistance, that remuneration for those undertaking publicly
funded work should be set at a level that ensures quality of service, that
there should be an easy-to-use and widely accessible publicly funded legal
advice scheme and a new Department of Justice. Liberal Democrats would regard
the resourcing and organisation of publicly funded
legal services as a key responsibility of the new Department.
The backbone
of any publicly funded legal service should continue to be solicitors’ firms
playing to their local market strengths and legal expertise, but solicitors’
work should be supported by a diverse network of advice agencies and community
organisations. Liberal Democrats would move from the current system of narrowly
focused, case-rationed and heavily regulated contracts to a system of service
level agreements. In order to retain and build skills in legal aid advice work
the issue of remuneration needs to be addressed. Remuneration rates should be
sufficiently attractive both to recruit and to retain competent legal
professionals and should be set by an independent board
Challenging
questions remain about the scope of legal aid funding. Under current
eligibility rules, legal aid is only available for the very poorest and is not
available for tribunal cases or mediation. Alternative mechanisms for funding
cases such as conditional fee agreements have not been altogether successful,
but we would not want to put such funding arrangements in jeopardy when access
to justice is genuinely widened. This paper contains a number of proposals on
these issues.
Our proposals
can be briefly summarised as follows.
- To ring-fence the civil legal aid budget, so
that increases in priority spending on criminal and asylum cases do not
reduce the remaining civil budget
- To substitute for the current regime of
rationing the number of clients a solicitor or advice agency may advise a
system of carefully adjusted criteria governing the scope of and eligibility for legal aid, to be applied
fairly and universally
- To substitute for the present heavily regulated
contracts a flexible system of service
level agreements, tailored to the skills and capacity of service
providers;
- To involve lawyers with recent practical
experience of publicly funded work in allocating and monitoring agreements
in a proportionate and cost-effective way;
- To establish an independent review board to set
legal aid rates at a level appropriate to recruit and retain competent
legal professionals
- To facilitate the establishment of a network of
call centres and community justice centres country-wide to offer legal
advice and information as cost-effectively as possible and to encourage
the development of outreach services in remoter areas.
- To extend legal aid to tribunal cases and for
alternative dispute resolution
- To introduce a scheme of regulation for
organisations providing services under conditional fee agreements.
Introduction
– The Civil Justice Crisis
- Liberal
Democrats have always put the protection of individuals’ rights at the
heart of their approach to policymaking and government. In order to fulfil
people’s legitimate expectations to be able to enjoy their statutory
rights, citizens must have access to legal advice services when and where
they need them. Arguably, since the Human Rights Act came into effect the
Government has a duty to ensure fair access for all to the legal system.
However, for many in today’s society gaining access to the civil justice
system is simply impossible - high legal costs and inadequate provision of
publicly funded legal services present real barriers to seeking help for
those with moderate and low incomes. Furthermore, the Courts themselves do
not have sufficient resources to manage cases effectively - in short the
civil justice system is in crisis.
- There are
increasing concerns, especially in the press, about the growth of a
‘compensation culture’ and it is therefore suggested that access to the
courts and public funding should be restricted. Liberal Democrats must
treat such claims with scepticism. Whilst it is always desirable that
disputes should be settled appropriately and without undue acrimony or
expense, it is an essential part of a liberal and democratic society that
citizens should have recourse to legally enforceable rights and remedies -
whether against the state, service providers or private individuals.
Access to the legal system is a necessary aspect of the rule of law.
- Public
policy on civil legal aid should therefore always be developed in this
context. People with limited resources should not be deterred from seeking
legal advice and legal help or representation because they are out-priced
by the private market for legal services. Research shows that around forty
per cent of the population experience ‘’justiciable problems’’ during
their lives; that figure increases significantly amongst socially excluded
groups.[1]
Around forty per cent of those who experience these problems do not gain
access to appropriate help. It must be better understood that civil
justice problems are not abstract legal problems; they concern people’s
accommodation, employment, families, consumption, health and income, as
well as the quality of services that they can expect as consumers. These are the issues of everyday life.
- The
starting point for any fair policy on the public funding for legal
services is a requirement for universality in the provision of legal aid.
Strategically, legal aid should be seen as part of the government’s total
spending on solving social problems and tackling social exclusion. If funded and managed appropriately,
legal aid can be a powerful lever to achieving a solution to other
problems, for example of housing disrepair and poor landlord practice, and
has the potential substantially to reduce spending in many areas of state
provision. Indeed it is estimated that unresolved justiciable problems
cost the economy some £12 billion in terms of lost productivity and
additional social and welfare state costs.
- A
properly functioning civil justice system therefore adds much to prosperity
and social progress. Eight years
ago, Lord Woolf outlined his vision for the civil courts, which included
the simplification and streamlining of civil procedure and the
introduction of a comprehensive IT system. Government failure to back such
reforms has undermined the courts. The Courts have inadequate facilities
and ADR remains under-resourced, despite the high importance attached to
ADR and pre-action procedures in the new Civil Procedure Rules. Although the recent reviews of the Civil[2]
and Criminal[3]
Courts have resulted in improved procedures and administrative
arrangements, the Government has continued to ignore the problem of
funding the Courts system. The Treasury requires that the Courts should
fund themselves by recovering costs from users (‘’full costs recovery’’)
and rationalising the Courts estate. As a result Court fees have increased
and many local courts have closed, making the courts system less
accessible for the most socially excluded.
However, for much of society, it is still the lack of availability
of legal services that denies citizens access to justice.
- The
demands on legal services are likely to continue to grow as we live in a
world of increasing legal complexity. A society cannot enact over 12,000
pages of new law every year without direct consequences for legal
services. The morass of welfare
law, for example, which grows ever more technical, forces many of its
beneficiaries to seek advice. It
thus makes heavy demands on the legal system, to which voluntary
organisations such as Citizens Advice have responded well. But, as they are the first to accept,
where cases are particularly complex or contentious, recourse to
solicitors is often necessary.
However, with the number of legal aid providers decreasing, the
difficulties for consumers in accessing appropriate and affordable legal
services mean that the failure of the system is now becoming ever more
apparent.
- The
pretence that legal advice centres (employing less than 5% of the legal
workforce) supported by pro-bono (voluntary lawyer) services can cope with
existing levels of demand is a delusion, which imperils adequate funding.
One of the most disreputable aspects of the present crisis in legal
services is the readiness of some ministers and law officers to jump on the
“let’s kill all the lawyers” bandwagon, regularly taken up by some
tabloids. Lawyers are often seen as pariahs rather than fair and fearless
advocates. In the course of the Access to Justice Bill, for example, the
Lord Chancellor Lord Irvine highlighted “fat cat” Q.C’s in the criminal
legal aid system, a tiny number, to obscure the reality of under-funding,
just as some ministers are now failing to make clear that lawyer abuses of
legal aid in the immigration and asylum field are wholly untypical of legal
aid generally.
- Our
proposals aim to redress the balance. They are anchored in gaining the
benefits as well as meeting the costs of an effective, fair and accessible
civil justice and legal aid system. The proposals are both consistent with
and essential to the party’s longstanding commitment to guaranteeing civil
rights. The key is access to information and advice, and, where necessary,
the financial and social support to help people to take effective action
to enforce their rights and fulfil their obligations of citizenship.
Labour’s Failed Access to Justice Policy
- New
Labour established the Community Legal Service (CLS) to replace the legal
aid scheme, a public subsidy system for legal services, introduced by the
Attlee Government in 1948. Despite the government’s good intention, to
enhance access to justice for the most socially excluded, the CLS has not
proved a success. Even the Government’s own review questions whether the
CLS delivers a "seamless" service for disadvantaged people or
ensures easy referral to the right agencies to deal with their
problems. All the research on how
the new system is working shows that lawyers are withdrawing from publicly
funded work in large numbers as a result of bureaucracy and under-funding.[4]
Since the introduction of the CLS the number of solicitors’ offices
undertaking publicly funded work has reduced from over 10,000 to around
4,500.
- When the
Attlee Government introduced the legal aid scheme after the war, it was,
apart from
- The
Community Legal Service – as introduced by the Access to Justice Act 1999
- established a system of contracting for solicitors and not-for-profit
advice organisations under the management of the Legal Services
Commission, working to a common system of quality marks and supported
through a network of local partnerships. This was a major departure from
the old legal aid scheme under which solicitors’ firms received a direct
subsidy for qualifying cases. Greater quality control has had some effect
in driving out poor quality suppliers from the legal aid market. However,
there have been a number of serious problems with the new approach. Chief
amongst these are: -
·
Geographical coverage;
·
Rationing;
·
Bureaucracy and micro-management;
·
Inadequate resources overall;
·
Disincentive levels of remuneration;
·
Reduced scope of legal aid;
·
Uneven planning and the mixed success of CLS partnerships.
Geographical
coverage
- Because
of the reduction in the number of outlets, the geographical spread of
legal aid firms has been substantially and perhaps irrevocably
compromised. The effect of this has
been particularly acute because of the defined specialisms for each
contract. Outside major towns and cities there are very few contracted
welfare, employment, housing or immigration practitioners, and more
specialist areas of public law practice are less accessible still. A
detailed analysis of the problem of ‘Advice Deserts’ can be found in a
recent report from Citizens Advice[6]
and in evidence taken by a major inquiry into the adequacy of legal aid
provision by the Select Committee on Constitutional Affairs. For example;
-
·
In
Buckinghamshire and Oxfordshire there is only one law firm in each county with
an LSC housing contract, compared with nearly 30 firms with family contracts.
·
In
·
In
·
There is a lack of specialist housing advice services in
Northumberland and Redcar and
Rationing
- The
contracting regime means that the amount and type of work that providers
can take on is rationed and
controlled by the Legal Services Commission. Contracted solicitors are
given case quotas (“matter starts”) in particular areas of law, whilst
advice agencies have to achieve target hours. As a result, legal aid
lawyers regularly have to turn away clients. Under the present system, the
resources given to legal aid are rationed in three ways, all of them completely
arbitrary: -
(i)
First, as evidence from Citizens Advice shows and as the
LSC’s figures for the numbers of contracts held indicate, there are significant
parts of the country where legal aid services are not available either at all
or in particular fields of law. Would-be
clients therefore face a postcode lottery as to whether services are available
close enough to be accessible.
(ii)
Secondly, because of the capped budget, the Community Legal
Service is vulnerable to what the DCA’s Independent Review of the CLS describes
as “policy exocets”. These strike when
the policies of other Government departments, most notably the Home Office,
cause an increase in the demand for legal aid for criminal and other cases, where
funding is mandatory, consequently reducing the money available for civil legal
aid in a way that is entirely arbitrary.
(iii)
Thirdly the system of “new matter starts” means that a
solicitor can only see an arbitrarily fixed number of new clients during any
one year. If the solicitor runs out of matter starts, any subsequent clients
seeking legal help must be turned away. Again this comes about not as a result
of any logical decision as to which cases should or should not be funded, but
as a result of the time of year at which the client happens to seek assistance.
Bureaucracy and micro-management
- At the
heart of the CLS is an elaborate and byzantine system of bureaucracy,
operated by the Legal Services Commission, to award, audit and quality
control legal aid contracts and other partnership projects. The LSC does
not come cheap: its administrative costs are around £70m, double that of
the Legal Aid Board – its predecessor agency.
- The
system wastes significant resources on time-consuming contract compliance
and performance management processes. Contracts contain an unnecessary
level of detailed reporting and administrative requirements, to the extent
that some providers find that the actual costs of running a legal aid
contract can turn out to be more than they’re being paid by LSC. At worst
the LSC can impose financial penalties during the financial year, if LSC
auditors are unhappy about the management of contracts on the basis of a
small sample of files.
- The
contracts contain a number of unfairnesses and inflexibilities and use
proxies for quality to measure performance; the contracts run to 250 pages
of detailed rules on the type and units of work that can be claimed. If
providers do not work to the LSC’s strict rules, contract payments can be
downgraded within the financial year to reflect audit results. In some
cases, the LSC attempts to claw back money. This all creates huge uncertainty for providers
and further undermines their capacity to plan their services and
employment arrangements.
- Above all
the auditing system is profoundly wasteful. It is manifestly absurd to
have a thousand auditors auditing five thousand contracts. Indeed reports
from both the National Audit Office and the Public Accounts Committee have
questioned whether the introduction of contracting and its accompanying
compliance and enforcement regime have provided value for money.[7]
Moreover, civil legal help and advice only account for 12% of the overall
legal aid budget, yet it is these files that are the most heavily audited.
These resources could be better spent on supporting providers through
‘quality development and support’ services rather rigid rule-based
contract compliance audits. The LSC has now undertaken to lighten the load
for providers achieving ‘’preferred supplier status’’, but the majority
are intermediary and average performing suppliers, helping many thousands
of clients. These potentially reach the level of the best with some extra
support. However, the policy of only supporting ‘preferred suppliers’ will
drive many more firms and agencies out of the market.
- Despite
the introduction of a rigorous audit regime, there nevertheless continues
to be a problem with ‘rogue firms’ operating in certain legal practice
fields, such as immigration, which raises questions over how effective the
audit process really is. The problem is that the LSC ‘uses a hammer to
crack a nut’, which penalises good, average and poor providers equally. It
would be preferable to weed out the rogue suppliers at a much earlier
stage, through operating a blacklist.
Inadequate
Funding
- There are
inadequate resources overall for civil legal aid. Although spending on legal aid has risen
from £1.5 billion in 1997 to £2 billion this year, this does not reflect
responsiveness to demand and is largely accounted for by the growth of
criminal legal aid. In 2001 the civil legal aid budget took up 43% of an
overall legal aid budget of £1.716 billion, being £476 million for
certificated work and £259 million for help and advice. That made a total of £750 million odd
for civil legal aid, in addition to which there was £400 million odd
recovered under the statutory charge.
Legal aid currently provides 13% of solicitors’ overall
income. That figure used to be 30%
in early 1990s, though the larger part of that amount was criminal legal
aid.
- The spend
breaks down into different fields for advice and representation. Family work tops both but thereafter the
money spent on advice and legal help is the greatest for immigration, then
welfare, debt, housing and employment.
The money spent on representation, after family work, goes on
clinical negligence, immigration, actions against the police and
employment, and the small amount of personal injury work that remains
within scope.
- Since the
advent of the CLS, the civil budget has been capped at £820 million – it
cannot go over this figure, whilst the criminal legal aid bill has
increased by 22 % over the last year alone. Within the civil budget, the
expenditure on legal aid for asylum seekers has increased from £81.3m in
2000-2001 to £129.7m in 2001-2002 and £174.2m in 2002-2003, thus squeezing
the remainder of the civil legal aid budget.
Remuneration
- All
contract values have been frozen at 2001-2002 levels, with no allowance
for the RPI, cost of living increases, rises in national insurance
contributions or upgrading of IT and other office systems. In real terms
this means that providers are having to subsidise contracted work and
deliver more work for less every year.
This is having a devastating effects on professional morale in the
legal aid sector. Research suggests that 44% of legal aid firms would be
unwilling to take on more work at current remuneration rates whilst 24% of
firms surveyed stated that they would be willing to take on more legal aid
work, but would need to hire more staff and/or expand their premises to be
able to do so.[8]
- The
increasingly unviable pay rates for solicitors are at the root of the
long-term rundown in the legal aid system.
To that must be added its stultifying bureaucracy and the
relentless increase in the volume and complexity of statute law, which
affect the costs per case. The assumption by this Government and its
predecessor that cost savings can always be squeezed out of any system by
economies of scale may work in the retail sector but has little
application to legal services.
This is the because legal services are, intrinsically, highly
personal and, where the legal aid scheme is concerned, are also
concentrated on the most disadvantaged and needy citizens. They, in turn,
can be a demanding clientele in terms of their ability both to impart
clear instructions and to understand and act on advice.
- The truth
is that solicitors doing legal aid work are, far from riding a gravy
train, undertaking some of the most difficult and yet the worst
remunerated work confronting the profession. Typically legal aid rates (most of which
have not been uprated in line with inflation for years) are half or less
than the rates for the same work done for private clients. To make matters
worse, the bureaucracy imposed by the Legal Services Commission is
choking, ineffectual and demoralising.
As the Legal Aid Practitioners Group makes clear, it often involves
a paper-chase charade in which real quality of outcome is largely
overlooked. Perhaps that is
unsurprising given that only a tiny number of Commission assessors have
hands-on experience of the type of work they are auditing. Furthermore solicitors are not
remunerated for the considerable time spent dealing with the bureaucracy
involved in managing the work they do.
- It is against
this backdrop that many legal aid solicitors, whilst still possessed of a
strong sense of public service, are ‘getting out’, with many others
cutting back on the volume of cases they will undertake and/or
cherry-picking those that they do.
Often it is the most capable practitioners who are giving up,
confident that they can replace their legal aid caseload with private work
with less trouble and more reward. Thus, as this report and other reports
detail, there are now growing deserts of legal aid provision all over the
country and, no less important, a clear but immeasurable decline in the
quality and experience of those offering it. This is particularly obvious in the
immigration and asylum field, because of a combination of the above
factors reinforced by a concentration of that work in urban areas and
amongst certain communities. None of these issues can be addressed without
a clear and transparent system of remuneration tied to professional
competence and public service ethics.
Reduced
scope of legal aid:
- Finally,
the Access to Justice Act reduced the scope of legal aid in order to
target more resources on social welfare law. Personal injury cases were excluded from
legal aid altogether and the rules excluding tribunal cases from legal aid
were made harsher. The withdrawal of legal aid from personal injury in
particular in favour of promoting conditional fee agreements has led to
the growth of an unregulated claims handling industry (such as Claims
Direct (now insolvent) and the Accident Group) and ethical concerns about
their practices.
- The
withdrawal of public funding from claimants in personal injury cases has
led to a substantial growth in the use of conditional fee agreements (“no
win no fee”). This was intended by
the Government in passing the Access to Justice Act. The benefit of the
availability of conditional fee agreements (“CFAs”) is that access to the
courts is available to claimants with strong cases, particularly simple
ones, even if they would not have qualified financially for legal aid.
However, there are serious ethical and consumer concerns about the effect
of CFAs on the provision of legal services (see paras. 66-74 below).
Uneven
Planning and Partnerships
- There are
two mechanisms for tackling local service gaps in the CLS: needs
assessments are carried out by the Regional LSC Offices and local
partnerships (CLSPs) have been established to help formulate contracting
strategies and develop local services. CLSPs are charged with a number of
challenging tasks: first, assessing
local priority needs for legal advice and guidance and the production of a
Strategic Plan; secondly,
establishing referral systems;
thirdly, taking action within local communities to increase access
to justice for all, especially those groups or individuals experiencing
social deprivation. They are also expected to establish linkages with
Government programmes and local initiatives. Without support it is
impossible for partnerships to fulfil this role, and research shows that
in many parts of the country these partnerships are moribund – this is not
surprising as they have very few resources to support their challenging
development brief.
- CLSPs
were developed under the Access to Justice Act across most of the country.
In theory, they bring together local solicitors, not for profit advisers
and funders from the LSC and the local authority to discuss and plan local
provision of advice services. In practice CLSPs have not been a success.
The Department of Constitutional Affairs has recently published its
three-year review of the Community Legal Service. The problems it
identified with CLSPs included the following
(page 62):
(i)
The role of CLSPs is unclear;
(ii)
The influence of CLSPs and their strategic plans for funding
and other decisions is unclear;
(iii)
Initial enthusiasm for the new CLSPs has diminished as their
initial role has been fulfilled and their future role is unclear;
(iv)
Membership of CLSPs is variable and limited, particularly
among private sector providers;
(v)
There is relatively little emphasis on preventative policy
work within the CLS;
(vi)
There are relatively few ‘levers’ for encouraging active
participation in CLSPs;
(vii)
There is some (largely anecdotal) evidence to suggest that
local authorities are seeking ways to reduce their input into CLS services.
- CLSPs
have been hampered in their development by the fact that members are not
entitled to any compensation for the time spent on CLSP work, or even out
of pocket expenses. The involvement of solicitors in private practice has
been patchy. Legal professionals make up 25% of the membership of CLSPs,
while those from the not for profit sector make up 33% of the membership.[9]
Yet 93% of the CLS budget of £812 million goes to solicitors, and only 7%
to nfp agencies.[10]
Other findings of the Review Team make for more discouraging reading. 31%
of respondents to the Review Team’s survey considered their needs analysis
to be “not very accurate” or “not accurate”; while many of the referral
systems have already fallen into disuse because they were unduly complex.[11]
- The Review
Team indicated that it seriously considered recommending the abolition of
CLSPs. However, it drew back from this step “because it would leave the
CLS without a local strategic presence and would fail to capitalise on the
useful work already undertaken by partnerships”. Good work the Review team
identified included the following:
·
The development of outreach services where providers are
awarded contracts which authorise them to provide outreach sessions to cover
areas where there is no current contractor. These are understood to be
particularly useful in rural and remote areas where there is not enough demand
to sustain a full time contract.
·
Innovative approaches such as telephone helplines dealing
with specific areas of advice provide mechanisms to improve coverage and
access. Such initiatives have been developed not only to help address gaps in
provision of legal services, but also to help people in rural areas and people
with disabilities to obtain access to justice.
·
Regional LSC contracts given to providers to provide
specialist support services offering telephone advice, mentoring and support to
organisations working within the CLS to enable them to undertake cases which
would otherwise be beyond their ability; and
·
The Partnership Initiative Budget (PIB), which has enabled
CLSPs to access funds to develop local initiatives to address problems
associated with gaps in provision.
- On the
wider issue of strategic planning at regional level, the LSC allocates
contracts on the basis of contracting strategies, which prioritise areas
with high indicia of social exclusion. However, these priorities are
assessed borough by borough and that makes it difficult for more affluent
boroughs, which nonetheless contain significant pockets of deprivation and
legal need, to access sufficient provision in their deprived areas.
Verdict
on the Access to Justice Act regime
- The
mechanisms described above were intended to control cost and ensure value
for money from a limited budget for civil legal aid. However, as discussed above, within the
overall legal aid budget, spending on criminal and asylum cases, where
legal aid is mandatory, has squeezed the remainder of the civil legal aid
budget. The increases in expenditure in criminal and asylum cases, at the
expense of other important areas of civil law such as housing and family,
have been explained by the Government in terms of their having to meet
obligations under the Human Rights Act.
This is not an adequate explanation, because the HRA applies
equally across a wide range of civil cases. Furthermore, considerable
legal expenditure on legal aid in asylum cases has been attributable to
the failure of Home Office procedures, increased refugee flows from
conflict zones and the effect of dispersal policy.
- The
result, however, of capping the civil budget is that there is manifestly
an insufficient level of service provision in important areas of social
welfare law such as housing and employment. Legal aid clients often have
to travel significant distances and wait a number of weeks to access the
appropriate specialist services; for the client who needs an emergency
injunction against his or her violent partner, a defence in housing
possession proceedings, or a challenge to a bailiff’s warrant, this is far
from helpful.
- The combined
effect of heavy-handed bureaucratic control from the centre and
insufficient resources for capacity building at local level is that
thousands of people do not get the help that they need and the Community
Legal Service remains at best a “fig leaf’’ or virtual service. In many
parts of the country, especially rural communities, solicitors are no
longer undertaking legally aided work on housing, domestic violence and
community care issues, employment or asylum and immigration. Clients
eligible for legal aid rarely have the resources to travel to obtain legal
advice. There is insufficient capacity in the advice sector to pick up
these cases at specialist and court practice level. For those most in need
the services simply aren’t there; this is not simply a problem in isolated
or ’ghost town’ communities - places like Maidenhead, Leatherhead, Romsey, Rugby and Newcastle-under-Lyme also have no
solicitors doing publicly funded work at all.
The Liberal Democrat Approach
Justice First
- The starting principles for Liberal Democrats
are that the civil justice system should serve everyone in society equally
and that no citizen should be without access to legal advice in respect of
his or her individual rights because he or she cannot afford to pay for
it. For those principles to be
reflected in reality it is clear that:
·
there should be
no discretionary rationing of legal assistance,
·
remuneration for
those undertaking publicly funded work should be set at a level that ensures
quality of service,
·
there should be
an easy-to-use and widely accessible publicly funded legal advice scheme and
·
there should be
a contributory legal representation scheme which ensures that there is
universal access to the courts.
Department of Justice
- The Liberal Democrats are committed to creating
a Department of Justice as the first step to improving the position of the
justice system in the public sector.
Liberal Democrats would regard the resourcing and organisation of
publicly funded legal services as a key responsibility of the new
Department.
Resources
- In today’s complex society a wholly demand-led
legal aid service would be difficult to achieve; however, as a minimum,
the system must be responsive to demand, to local conditions and
variations. There must be some minimal
guaranteed level of service accessible locally. If civil justice is not available
throughout the country citizens are not equal before the law. The response
to the rising cost of legal aid should be to recognise that expenditure on
the civil justice system is desirable and necessary in itself and that the
benefits of the availability of legal assistance include substantial
savings in other areas of government spending. These savings should be
taken into account when assessing the cost of legal aid and comparing the
allocation of resources to the DCA (or a Department of Justice as we
advocate) with the allocations to other major spending departments. It is simply not acceptable to Liberal
Democrats to scale back on legal advice and assistance in important areas
of social welfare such as housing, family, employment and debt.
- A
comparative perspective is needed.
Currently, legal aid spending is equivalent to 5% of the
expenditure of the NHS. Within the
framework of Government Department budgets, legal aid expenditure of 2 billion
is almost insignificant. Government locally and nationally spends
billions on publicly funded, subsidised, partnered or regulated services, and
yet a great deal of political commentary is devoted to the waste, travesty
and unaffordability of a growing legal aid budget. It is incumbent upon
Liberal Democrats to tackle these myths and to meet the challenge of
properly funding legal aid, which we regard as a vital public service.
Ring Fencing
- The civil
legal aid budget needs to be based more directly upon and to be subject to
a separate Treasury submission during Comprehensive Spending Reviews. There are a number of ways in which this
recommendation could be achieved, either directly (by ring-fencing the
civil legal aid budget) or indirectly (eg by ring-fencing the criminal
legal aid budget). A first step would be to fix the budget for elements of
civil law where increases in legal and advice costs associated with them
are driven by factors outside of the CLS (eg family law and mental
health). This is already being undertaken to protect the civil legal aid
budget from the rising of expenditure on immigration and asylum work.
Rationing
- Just as
it would not be acceptable to limit by arbitrary capping the number of
income support claimants that will be given help in any one year, it is no
more reasonable to limit the number of those provided with essential legal
help in this way. There should be honest prioritisation of resources. It
is of course accepted that it is not practical or financially possible to
meet all need for legal aid services.
But it is the responsibility of Government to maintain control of
the budget, not by imposing a cost-led limit on numbers of clients, but by
carefully adjusting the criteria for scope and eligibility. Once those criteria have been set, every
client who meets those criteria and seeks help should get it.
Commissioning
Services – SLAs
- We agree
with the broad aims of the CLS that publicly funded legal services must be
multi-agency in character and should be used to tackle the problems of
social exclusion. However, in practice providers are so restricted in the
work they are able to carry out under their contracts that multi-agency
working, holistic services and referrals are inhibited rather than
encouraged. Liberal Democrats therefore propose to introduce a different
model of legal aid practice focused on achieving diverse points of access
and ensuring a public service of high quality.
- The
backbone of any publicly funded legal service should continue to be
solicitors’ firms playing to their local market strengths and legal
expertise, but solicitors’ work should be supported by a diverse network
of advice agencies and community organisations. Continued support from the
legal professions for a thriving publicly funded sector is essential to
ensuring access to justice.
However, there will be a continued decline in the accessibility of
legal expertise unless the problems of under-resourcing and bureaucracy
which we have identified are fully addressed.
- Liberal
Democrats would move from the current system of narrowly focused,
case-rationed and heavily regulated contracts to a system of Service level
agreements. Service level agreements would specify certain criteria for
the services to be delivered, rather than numbers of cases. The terms might include the number of
hours to be undertaken, the number of sessions at a Court or in outreach
services at a particular location, or the number of advisors available to
provide a particular service; however, there should not be any standard
model for SLAs – they should be tailored to maximise the skills and
capacity of the service provider.
Payment should be for delivery of the agreed level of service.
- As far as
possible, the SLAs will allow the solicitor to provide the service the
client needs in accordance with his/her own professional judgement. Service
level agreements could also be used as a vehicle for encouraging
innovation and partnership working between providers. For example, where
appropriate an
- We regard
it as essential to the restoration and maintenance of the confidence of
the profession in the system of allocating agreements that practising
solicitors, with current experience of publicly-funded work, be involved
in the process. We would establish
a system where such solicitors would be seconded to work with the LSC on a
part-time basis for periods or two or three years to assist officials in
assessing bids and awarding SLAs.
Bureaucracy
- There
must of course be accountability for the expenditure of public money, not
only in the selection of the firms to provide the service, but also in
ensuring that they have properly earned the sums paid to them. This should
be primarily by way of peer review, undertaken at arms’ length from the
Legal Services Commission, which would retain overall management of the system.
Where providers have demonstrated quality, the auditing should be as light
as is consistent with proper accountability, in order to ensure that the
cost burden of providing the service is as low as possible.
Remuneration
- In order
to retain and build skills in publicly funded advice work the issue of
remuneration needs to be addressed. Specialists and legal professionals
must be entitled to a fair rate of remuneration for their services. However, legal aid rates – far from being
a gravy train – are low in comparison with remuneration levels in other
parts of the public sector.
Recruitment into legal aid work is now becoming a significant
problem. This is not helped by the
level of debt that is commonly incurred in securing legal qualifications. For solicitors to remain the backbone of
the legal aid service, remuneration rates should be sufficiently
attractive both to recruit and to retain competent legal professionals
able to provide timely and effective advice and representation services to
their clients. We propose to address this problem by referring legal aid
rates to an independent Review Board, tasked to ensure that legal aid
rates are set at a level which will enable practitioners to earn sums
commensurate with the rewards of other comparable professionals within the
public sector.
Advice Centres
- The legal
advice sector as a whole needs to increase its capacity to deliver high
quality first-tier advice in the community, for which advice services are
often the first port of call – with appropriate specialists and
professionals easily available through advice networks. In many cases
legal action is required urgently to be of any use, so providers need to
work effectively in legal action networks. Solicitors and barristers specialising
in particular subjects should form part of these networks, whether in
private practice or attached to advice centres, but taking referrals and
providing “second tier” services across the network. It must always be the
choice of the consumer whether to contact an adviser, specialist or legal
practitioner in the first instance – multi-agency advice networks would
thus provide multiple points of access to the civil justice system.
- We would
encourage the development of a countrywide system of efficient well funded
Call Centres and Community Justice Centres geared to offering information
on a wide range of topics and to giving directions as to how and where to
access further advice. Some of the functions of the Community Justice
Centres we envisage are already well carried out by the 2,800 CABx across
the country. But some areas,
especially rural ones, are 'advice deserts', where citizens have no or
minimal access to advice. Upon the
establishment of the proposed Equalities and Human Rights Commission it
might be possible to establish combined advice centres with the
Commission.
- The value
of such centres would be that they would be able to offer more than a
traditional appointment with a lawyer.
They could be centres of multi-provision with other services,
including NHS and other local authority services. However, Community
Justice Centres must above all be properly resourced. They should offer a range of advice and
legal services. Different
disciplines could come together to work in them on a sessional basis. Staff should include mediators,
conciliators, specialist advisors, the public defender service,
rehabilitation services, lawyers, probation officers and local authority
officers. Such centres could provide an attractive setting for the
provision of legal services. We
would not rule out providing part-time courts for small claims resolution,
sitting in Community Justice Centres.
- We do not
propose that there should be any “one model fits all” solution to the
development of such centres. However, we believe that our proposals for a
flexible funding system based on service level agreements and the
encouragement of consortia would provide a framework for their
development. All local authorities should however be required to formulate
and publish advice strategies.
Call Centres
- We
recommend that a call centre system be set up and run by the Legal
Services Commission by extending the current National Telephone Service to
all areas of legal and advice expertise.
The LSC might in future work in close co-operation with the new
Equalities and Human Rights Commission over the development of telephone
and other non-traditional ways of providing and disseminating advice and
information.
Outreach
Services
- Outreach
services are often the most appropriate solution for areas of dispersed
population and poor proximity to service. There are many examples of good
practice and innovative ways of delivering outreach surgeries; for example
in Devon a project is underway for a ‘Law Bus’ based on the model of the
mobile library service. Outreach need not stop at the point of advice and
information giving, but could extend to other parts of the justice
system. Again, mobile courts would
be a possibility.
Public Education
- Access to
justice could also be improved with a better information and public
education strategy. Information needs to be provided in a variety of
ways. The young and computer
literate will probably choose the internet as a first port of call. But the most vulnerable people in the
community often lack both IT training and access to computers. For them the telephone is a vital
conduit to information.
- The
statutory inclusion of Citizenship classes in the curriculum of schools at
secondary level is welcomed by the Liberal Democrat Party. It should result in future generations
of young adults having a clearer understanding of their rights and
responsibilities. But greater
awareness brings with it higher expectations of the observance of these
rights and of quick and easy access to information about them. If expectations are left unfulfilled,
if access to information and advice is not available, citizens of all ages
are left feeling cheated, disillusioned and disenfranchised.
Partnerships
- Liberal
Democrats have strong reservations about the existing system of
Partnerships, but acknowledge that some of them are performing useful
work. An attempt should therefore be made to bring all of them up to the
standard of the best. If, however, this does not enable the majority of
CLSPs to perform a worthwhile function, reconsideration should be given to
abolition.
- It is
clear from the CLS Review that the best-functioning partnerships are
generally those to which the relevant local authorities have shown a
substantive commitment. We therefore accept the recommendations of the
Review that CLSPs should be made coterminous with upper tier and unitary
authorities, and that a statutory duty should be placed on those local
authorities to support the CLSPs. The authorities should be required to
undertake a triennial audit of supply and demand (which LSC regional
offices would use for making commissioning decisions), and a triennial
consultation exercise. They should then develop a three-year strategy for
legal and advice services in their area. The legislation should include a
requirement for the local authority to consider the impact upon the
Community Legal Service in all its decisions. The work of the CLSPs
should, as recommended by the review, be refocused on the following areas:
(i)
Strategic, preventative work, with the CLSPs facilitating
the development of preventative strategies with organisations whose policies
contribute to the causes of problems;
(ii)
The development of a more joined-up system through the
development and promotion of ‘care pathways’ through the CLS;
(iii)
Networking and relationship building, to encourage referral
activities to be based on a better understanding of providers and the services
they provide; and
(iv)
Contributing to, but not leading, supply and demand mapping
(including analysis of need), undertaken at regional level.
- Local
authorities should play a greater role in supporting partnerships; the
partnerships themselves need more autonomy and resources to add value to
the legal aid system; more
decisions about where and how services should be commissioned could be
devolved to partnerships. This
approach would be entirely consistent with the Liberal Democrats
long-standing commitment to decentralised decision-making.
Scope of Legal
Aid
- A number
of challenging questions remain about the scope of legal aid funding.
Under current eligibility rules, legal aid is only available for the very
poorest. Whilst there is a generous gross incomes test for eligibility of
£2288 per month, anyone with a monthly net income of more than £621 per
month, after housing costs and allowances for dependants, or savings of
more than £3,000, will not usually be eligible for civil legal aid under
the LSC funding rules. Policy on eligibility at national level must take
into account the wide variations of income, differences in living costs
and problem clusters in different parts of the country.
- We would
propose modifying the funding rules by reducing the gross income test and
increasing the net income test, whilst at the same time reforming the
system of contributions so that those who can afford to make contributions
towards their legal costs are required to do so, especially where cases
are successful and the client is deriving a financial benefit. However,
people should not be required to release equity in their homes to access legal
help. We are also concerned that
differences in housing costs, incomes and living costs can lead to
significant regional variations in legal aid access under a single funding
code.[12]
A solution might be a locally varied rate.
- In
addition, all cases have to pass through a rigid set of cost benefit,
chances of success, grounds of law and public benefit criteria in order to
merit funding. This is fine in principle and a sound basis for public
funding policy – it should never be the purpose of public funding to fund
trivial, frivolous or unmeritorious cases. However, claims of low monetary
value often fail the cost benefit test, even though the issues are of
great importance for the client. The merits test needs to be modified in
order to take account of the importance of the issues to the client. The merits test should require that
decisions on public funding are taken on a comparable basis to decisions
that might be taken by a privately paying client, even though their
choices, circumstances and options may be substantially different.
Tribunals
and ADR
- It is
essential for the protection of civil rights that publicly funded legal
representation should be available before tribunals as well as the
courts. Before taking Office as
Lord Chancellor, Lord Irvine of Lairg described the exclusion of tribunal
representation from legal aid funding as ‘’a gap which cannot be
rationally justified in the provision of legal aid….there is no greater
unfairness than the leally unrepresented applicant against the legally represented
employer in industrial tribunal cases ….(it is) ..irrational to exclude
tribunal cases from any call on the legal aid budget.’’[13]
However, once in office that is precisely what Lord Irvine did.
- Tribunals
provide a specialist adjudicative forum for certain kinds of dispute. It
is arbitrary and unfair to refuse publicly funded legal representation in
cases that fulfil the public funding merits criteria, merely because the
forum is a tribunal rather than a court. Both have the jurisdiction to
adjudicate disputes on their legal merits. The scope of public funding
should be extended to tribunals; arguably this is required in many types
of cases (e.g. discrimination cases) by the Human Rights Act.
- Resolving
issues through tribunal processes prevents legal problems from escalating
further. The same applies to other ADR schemes (such as the Ombudsman
schemes). However, there is currently no incentive for legal aid
professionals to use ADR. Furthermore,
lawyers are limited in the amount of contract time they can claim for
dealing with correspondence on behalf of clients, which may be essential
to negotiate the resolution of a dispute and can prevent litigation. Funding for tribunals and ADR must be
integrated into the funding arrangements established in service level
agreements. This could be introduced on an incremental basis, for example
by providing in the first instance for publicly funded representation in
employment tribunals.
Personal
Injury and Conditional Fee Agreements
- There
remains a strong public interest argument for the availability of legal
aid funding in personal injury cases. However, there is a quite legitimate
debate on alternative funding models for some types of compensation
claims, in which Liberal Democrats should engage. Taxing damages (the contingency
principle), insurance and
compulsory mediation schemes all bear consideration. We are clear, however, that we do not
favour the continuation of the current unchecked conditional fee agreement
(CFA) system in which unregulated and often unethical claims companies act
as gatekeepers to the legal process: this gives minimal consumer
protection.
- The
development of CFA funded litigation has been assisted by the provisions
of the Access to Justice Act enabling recovery from defendants of (1) the
uplift payable to solicitors and counsel in successful cases (currently
limited to 100% of fees or 25% of the damages award, whichever is higher)
and (2) insurance premiums paid by claimants to insurers to buy off the
risk of adverse costs orders in case of failure (“after the event
insurance”).
- However,
the system has a number of serious inherent problems:
(i)
There is a serious risk of conflicts of interest between
solicitors and counsel on the one hand and their clients on the other; a settlement
offer that ought in the client’s best interest to be rejected as too low may
prove attractive to his or her lawyers as a way of ensuring that payment is
received.
(ii)
There is a serious risk that lawyers’ ethical approach to
litigation may be compromised by their being financially interested in the
outcome; the temptation not to disclose documents and/or authorities adverse to
a client’s case is much stronger if the result is likely to be that all work
done on the case will go unremunerated; similarly, there may be a much greater
risk of coaching witnesses.
(iii)
It is likely that lawyers’ objectivity is compromised by
their having a financial interest in the outcome of their cases.
(iv) CFAs also encourage the cherry-picking of high value cases with high chances of success and can result in lawyers refusing to take on good small claims which may be of enormous financial and personal significance to the client.
(v) There is a philosophical objection to defendants’ being obliged effectively to fund the cases which their opponents’ lawyers lose by paying double the real costs of cases brought against them. There is a similar objection to defendants being obliged to fund insurance policies to protect claimants who bring cases that fail.
(vi)
The availability of CFAs and the possibility of recovery of
uplifts and after the event premiums has led to the proliferation of businesses
– and advertising campaigns - offering to pursue claims for nothing for clients
who have had accidents “through someone else’s fault”. This has contributed greatly to the
perception, on this point somewhat justified,
that Britain is increasingly affected by a “compensation culture”.
- As against (v) above, it may be seen as fairer
that in general defendants should risk paying more in cases won by claimants
than that they should be unable to recover their costs against assisted
claimants in cases won by defendants.
This is the situation still facing litigants who succeed against
assisted parties with limited means.
However,
where a party who has lost a case is an individual who satisfies the court
that he or she will suffer hardship, the court should have discretion to
refuse to order that party to pay part or all of the uplift element of the
winner’s costs.
- The most problematic part though of the CFA
regime has been the intermediaries market. Claims management has become a
growth industry with over six hundred providers ranging from large claims
handling operations to small businesses, marketing CFA schemes. Both
Claims Direct and The Accident Group took advantage of the recoverability
of after-the-event insurance to charge absurdly high premiums in the hope
that the liability insurers would be forced to pay. In
particular doorstep selling is an area in which unfair trading practices
thrive and consumers’ rights are inadequate.
- In
addition to the concern that people are being pressured or misled into
signing up to something they do not understand, it is also apparent that
in many cases the sales staff approaching consumers are not qualified to
give advice as to whether the agreement is the best option for them, let
alone as to their chances of a successful outcome. Typically the consumers
in this market are on low incomes and vulnerable, as they have suffered
some level of personal physical injury for which compensation could be
available if elements of fault liability and causation can be established.
Interestingly though, the quick
profits gained from mass claims farming have not proved to be sustainable,
as the larger claims management companies have in fact gone insolvent
amidst allegations of fraud.
- There are wider issues also concerning the level
of costs passed onto the consumer.
Lack of proper explanation of the schemes also means lack of
explanation of the possible risks.
Many schemes are marketed on the basis that they are ‘no win, no
fee’. However, uncertainty over
whether the costs of loan agreements taken out to fund after-the-event
insurance premiums can be recovered from the other side has led to
problems for consumers. Some have
ended up funding repayment of such loans from their compensation awards,
in some cases leaving them with nothing or even with a loss.
- Nevertheless, on balance we are of the view that in principle CFAs can offer access to justice to many litigants who do not meet the criteria for public funding and that this benefit outweighs the disadvantages inherent in a conditional fee system. We are also of the view that to deny citizens the right to contract on a “no win no fee” basis would be an unwarranted interference with their freedom to contract as they please, which would require substantial justification. We are not persuaded that the problems set out above constitute such justification, given the countervailing benefit of wider access to justice afforded by the availability of CFAs.
- However,
we do insist that there should be much more careful supervision of CFAs by
the professions and by the regulatory authorities. A scheme of statutory regulation,
professional panels and a code of practice is urgently needed for
companies that provide or broker legal services under CFA
arrangements. This should be
directed at ensuring that the availability of CFA-funded litigation does
not lead to a general lowering of ethical standards and a proliferation of
unmeritorious cases, often pursued in the hope of recovering “nuisance
value” payments from insurers unwilling to meet the cost of resisting
large numbers of small claims.
- Furthermore
specific measures will be needed to tackle the practices of rogue claims
management firms. In particular,
there should be an obligation upon all claims management organisations to
ensure complete transparency, both when agreements are made as to their
terms and when claims are settled as to the net benefit to the client,
after deduction of all costs and expenses.
- We would
also make it clear that we would maintain the present limits on the level
of success fees, which strike a reasonable balance between the interests
of lawyers and parties. We would
also oppose any move towards lawyers being permitted to work for
contingency fees, calculated as a percentage of damages awarded, unrelated
to the work carried out in securing them.
A contingency fee system involves successful claimants in paying over
to their lawyers’ substantial proportions of the damages awarded to them,
often on the basis of need. Such a
system is also irreconcilable with the British arrangement that generally
a successful claimant recovers costs against the defendant, whose retention
we would support.
A
Contingency Legal Aid Fund
- The
Liberal Democrat Lawyers Association have in the past recommended the
establishment of a contingency legal aid fund (“CLAF”), which would be
funded by the retention of a small proportion of the damages awarded to
assisted litigants in successful cases to meet the unrecovered costs of
assisted litigants in unsuccessful or less successful cases. However, in
view of our conclusion that we should not withdraw the right to pursue
litigation funded by conditional fees, we do not feel able any longer to
press for the establishment of a contingency legal aid fund. Such a fund can only succeed if large
numbers of cases with a substantial prospect of success are likely to be
funded by it. This is necessary in
order that a small proportion of the damages recovered in successful cases
will be sufficient to fund those cases for which the fund ends up paying,
because they do not succeed. With a
CFA system is in place, it is inevitable that many of the cases with a
very high prospect of success are funded by CFAs. That would mean that a CLAF would be
left to fund only the more difficult cases, so that the proportion of
damages secured in successful cases needed to cover the costs of
unsuccessful cases would be unacceptably high.
- In
addition, the start-up costs of establishing a CLAF would be high, because
all cases accepted by the fund would require expenditure before any money
could be recouped from the damages awarded in those cases that were
ultimately successful. This would
make the establishment of a CLAF a difficult option to pursue in the face
of the competition from CFAs and the consequences outlined above.
Conclusion
- It is
vital that the civil justice system is fit to deal with the complex legal
problems of twenty first century Britain. However, there are no quick
fixes to the challenges facing the civil justice system today – within the
modern state structure, civil justice has always been treated as the
‘’poor relation’’of other public services such
as health and education. Yet access to the civil justice system can
properly be called the fourth right of citizenship. Liberal Democrats must
be prepared to commit resources both locally and nationally to making this
right a reality.
- Abolishing
crude case rationing and the ‘’one size fits all’’ contracting system, and
allowing for more flexible commissioning arrangements, would be important
first steps to achieving a better range of services and increasing
capacity.
- The issue
of appropriate remuneration also needs to be urgently addressed in the
context of the services that legal practitioners provide to their clients
and communities. An independent review would be able to address all the
issues concerning pay scales and renumeration,
including public sector equivalence and competitive pressures.
- To
support a system that is better funded and more responsive to demand, a
strategic approach to funding should be developed across Government,
involving local government also. Liberal Democrats are challenging
Government at both local and national level to address shortcomings in the
public funding policy under the Community Legal Service, which can leave
the most vulnerable people in society without hope of achieving change,
independence or improved quality of life.
- The
proposals in this paper for increasing the capacity of publicly funded
legal services to meet demand, improving the role of the civil justice and
courts system and devolving greater responsibility from central government
agencies to the front line legal services, will make a significant impact
on the quality of justice and the culture of rights in our society.
Appendix –
Costing LDLA's proposal on civil justice
- A ‘whole
system’ model of advice and legal services is required, to enable
government and the public to understand the net social, health and
productivity gains of good quality advice and legal help, its added value
in a consumer economy, and its essential contribution to the functioning
of civil society. Costings must reflect the whole systems model by
looking at the savings ’downstream’ (resolution of justiciable disputes,
social and business gains) of investing in civil justice ‘upstream,’
(investment in infrastructure of advice and legal services and improving
Court based services.)
- The ‘whole
systems‘ model is adapted from the work of Sir Derek Wanless. The Wanless
Report, commissioned by the Treasury, undertook a detailed review of
long-term requirements in NHS funding: the number of people to be trained,
the skills they will require, the types of buildings likely to be needed
and the information and communication technologies upon which the
efficient operation of the system will depend.[14]
The whole system, including prevention, diagnosis and treatment,
rehabilitation and long-term care is seen from the perspective of the
individual patient, with appropriate structures recommended to produce
sensible incentives and to direct resources efficiently. The review
concluded that social care is inextricably linked to health care and must
be considered together as part of the same system. The Review identified
and drew out the key relationships between the two and set out
illustrative projections of resource requirements for social care for
adults (especially older people) based on the present position adjusted
for changes in the population and in the level of ill health.
- A direct
analogy can be made with the legal aid system: early prevention and ADR
can save legal costs, just as social care can save health costs. It is
only through this type of comprehensive model that we can establish an
overall picture of the costs of civil justice. The LSC’s survey of legal
needs acts as a good starting point for mapping legal needs experience,
and matching funding and structures to the appropriate indices of demand
within the context of eligibility criteria. The ‘advice impact’ of
government policy also need to be factored in. A separate budgetary
process is required for infrastructure costs, including upgrading IT and
facilities in courts and legal advice centres. Efficiency gains also need
to be factored in.
A whole systems costings model - Example
|
Costs |
Savings |
|
|
|
|
Infrastructure costs -
Courts -
Advice Centres -
Call Centres -
|
Administrative
savings |
|
Cost of
new commissioning arrangements |
Efficiency
Savings |
|
Development
and support costs -
Outreach services |
Dispute
Resolution Savings - Economic and productivity gains - Health Gains - Public Administration gains |
|
Cost of
bringing tribunals into scope |
Savings
from increased statutory contributions |
|
Remuneration
and pay board |
Local Authority
Contribution |
|
Advice
and Legislative Impacts |
|
|
Public
Legal Education |
Prevention
savings |
|
|
|
|
|
|
|
|
|
|
|
|
(Figures to be completed as
part of costings process)