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25/06/2007

An Act of Selfless Generosity

[To any non-UK readers arriving from Blawg Review, this is the latest element in the long saga of proposed reforms to legal aid funding in England. The Legal Services Commission funds legal advice and representation in some areas for the poor, undertaken by franchised private firms.]

I think the MoJ/DCA/LSC has ground me down. I’m too tired of the entire farrago to raise any righteous outrage. So it was only with a supreme effort of will that I forced myself to read the MoJ/DCA response to the report of the Consitutational Affairs Select Committe(PDF) on reforms to Legal Aid. In an act of astonishing generosity, I’ve read it, so you don’t have to (unless you are in Criminal. I don’t know enough about Criminal funding to be rude on your behalf). What Price Justice

I can’t manage fury, not after all this time, so you’ll have to make do with an exhausted exasperation.

Overall, the response says that the DCA/LSC is right about everything. It largely does so by ignoring criticism or wilfully avoiding the point. Take this astonishing example from page 39. First, the Committee’s recommendations:

Recommendation 31. The most profitable and efficient legal aid providers are not necessarily always the ones providing clients with advice and representation at the highest quality. We note with interest the fact that the LSC initially tried to present evidence of a link between efficiency and quality of legal aid providers on their peer review programme, a position they did not persist with. The LSC has a substantial peer review programme and the absence of a robust link between quality and efficiency is telling. Similarly, we would have expected the LSC to produce evidence of a link between the size of a firm and the quality of its work to support its reform proposals if such evidence were available. It has not. (Paragraph 183)

Recommendation 32. Restructuring and growing in size might be a solution for criminal legal aid firms in London and other major cities to improve their efficiency and provide services in a more localised way, thus reducing the time spent travelling to advice and represent clients in police stations and magistrates’ courts. However, the move to fewer, larger suppliers is a solution confined to geographical areas and categories of the law where there is clear over-supply. The welcome desire to reduce the LSC’s administration and transaction costs through a reduction in the number of firms it has to deal with must be balanced against the risk to the availability and quality of publicly funded legal advice and representation associated with a reduction in the number of legal aid suppliers. (Paragraph 187)

These two recommendations are a pretty devastating critique of two of the shibboleths of the reforms: efficency = quality, big = better. What is the LSC response?

103. No decision has yet been taken on the existence or level of any minimum contract size for access to police station work. We will set out our decision on the introduction of a minimum contract size, after the conclusion of the consultation on the allocation of police station and magistrates’ courts slot allocation.

Truly amazing. Utterly avoiding the point. One can only presume that the LSC had no answer and none of the evidence requested, but does this give them pause for thought? No.

Where absolutely pushed, for instance by Recommendation 20 on the ‘breathtaking risk’ of the reforms, the response is flatly ‘we don’t agree’ (para 66, p.26).

It is clear from the responses just how much of a wing and a prayer approach the LSC is taking. Take for example – competition, the goal and justification of the whole reform process.

After the flat fee period comes competitive tendering for a reduced number of contracts. What happens to firms that don’t get a contract? Why, they leave Legal Aid, of course.

So, what happens in the second round of competitive tendering? Either still fewer firms get contracts and the rest leave Legal Aid or the same firms get contracts. And the next round… You see where this is going. Very shortly, there is no competition.

The LSC has an answer to this. There will, of course, be New Entrants. (I’ve italicised these marvellous, even mythical creatures).

This begs the obvious question. Why would anyone seek to enter a market that is controlled so that it produces constant reductions in income, rather than reward new, innovative practice? The LSC argues that innovative practice will be rewarded as long as it is ever more ‘efficient’, thus increasing profits from diminishing income. This is not rewarding innovation, it is just penalising it less.

The Select Committe asked this question in various ways in Recommendations 24 -26. The LSC’s response? “We are going to consult on this later in the year”.(p36).

This means that we are heading towards a supposedly competitive market which will die on its knees without new entrants, and the LSC hasn’t got a clue how they are going to set it up yet.

Why anyone with a private practice would even consider entering Legal Aid in the future is beyond me. But the LSC is forced by its own blind logic to evade the fact that the existing supplier base is all it has got and all it is going to have.

Another example is the likely effect on BME firms. The LSC response to this issue on p.42 para 108 contains considerable obfuscation. In effect, the LSC says there won’t be an impact ‘concentrated’ on BME firms, because there are many in London and the reforms will hit all London firms, BME or white owned, equally. And as the LSC is committed to ensuring supply in London, all will be OK.

But if you have a quick think, this amounts to an admission that there will be a disproportionate impact on BME managed firms. BME firms tend to be small, and as the LSC states at para 15 , the aim for London is large providers. The Select Committee raised this issue, but receives no substantive response.

All in all, there is, I’m afraid, absolutely nothing new in there, apart from slight delays in introducing certain fee rates in Mental Health. Nor, as far as I can tell, is there any attempt to seriously address the issues and concerns raised by the Select Committee. I do hope the Committee still has the energy and opportunity for a robust reply.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. John Bolch

    Great post. I fear, however, that mere logic and reason will never win this argument.

    Reply
  2. Marcin Tustin

    Come now, if there are people chooising to use small BME firms, then they have made an inefficient choice. It is a good thing the government is there to tell these poor souls what to buy, and from whom.

    Reply

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