
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 Sudbury, Liberal
Democrat Peer and Solicitor
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.
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
and Criminal
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.
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 New Zealand,
the only system of its kind. Today
it is in terminal decline, the great ideals of its introduction undermined
by cuts and centralised managerialism.
Comparing total spending with the volume of bills paid suggests
that, whilst more is spent than ever before, in real terms fewer people
are being helped now than in 1996/97 for the same money. Whilst all public expenditure must be
fully justified, Liberal Democrats believe two things. The first is that real equality before
the law is an indispensable ideal of any civilized society. The second is that, given fair rewards
within a professional context, there are many lawyers ready to help
maintain that ideal.
- 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
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 Bristol
five years ago there were at least six firms who regularly practised in housing
law and other legal aid work. Each of
these firms contributed to a duty possession proceedings rota at the Bristol
County Court. Five of these firms have
now withdrawn from publicly funded work since the introduction of the Community
Legal Service.
·
In Bradford there is only
one firm of solicitors providing publicly funded housing advice.
·
There is a lack of specialist housing advice services in
Northumberland and Redcar and Cleveland, with no
solicitor contracts north of Newcastle
and no contracted supply at all for mental health and community care advice in
the North East.
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.
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.
- 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.
Yet 93% of the CLS budget of £812 million goes to solicitors, and only 7%
to nfp agencies.
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.
- 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