On a Quick First Read

Most noticeably the proposals seem more evolutionary in comparison to the interim report. That said there is clearly a timetable for fundamental restructuring leading to “best value” contracting beginning in 2009. In terms of imminence, our near obsession with Peer Review has proven prescient with a dynamic, profession wide, 2-3 year “managed roll out” of the scheme starting now. (Training on this in Hull next Wednesday and we will be offering a 9 month development service from next week).
Next up will be a range of standard and graduated fees across civil and criminal work. “Competition” will then follow first in Crime (2009) and then in Civil (2010) which will be on a “best value” basis.
I will fill this out either later today or tomorrow so I you could resist the urge to call until then I would be very grateful.
Most practitioners however should breath a small sigh of relief.
LAPG’s initial response is below – Click on the blue “continue reading” link.
Further Update
The CLSA’s initial take, and a booking form for two briefing meetings next week, can be found here.

The Legal Aid Practitioners Group today expressed concern that Lord Carter’s
proposals for reform of criminal legal aid will lead to a reduction in the
quality of service available to clients.
Director Richard Miller said, “Lord Carter has probably done as well as
anyone could have done with this brief, and has clearly listened and
responded to concerns expressed about his interim report. The analysis that
has been undertaken is also very informative. Nonetheless the result is
disappointing, and depends on mechanisms that are untested and carry a
significant risk of not working.
“Lord Carter has spelt out that delivering criminal legal aid within a fixed
budget cannot work if increasing demands are placed on the budget by changes
in the wider criminal justice system (see note 3 below). But we do not think
it is either possible or desirable to constrain the system in such a way. We
hope the police will continue to bring more offenders to justice. We hope
they will continue to use more sophisticated techniques to detect crime. And
we know the Government has announced a major review of the working of the
criminal justice system. Fixed fees might work in a ‘steady state’
environment. The criminal justice system is not, and should not be, in a
steady state. We believe that Lord Carter’s premise underpinning his
proposals for the criminal legal aid system is dependent on a precondition
that cannot be met. The probable outcome of using fixed fees within a wider
system that is not fixed is a serious reduction in the quality of service to
The Group pointed to independent research carried out for Lord Carter, which
demonstrated the economic problems at the heart of the criminal legal aid
system. Miller said, “The Otterburn Consulting research demonstrated that
even in the best-run firms, it is difficult to make a viable business of
criminal defence work. The contrast between the ?50 per hour paid for this
service and the ?300 per hour or more paid out of taxpayers’ money to
lawyers working for other public bodies is stark. The increase in the
overall legal aid budget hides the fact that rates have not been increased
in cash terms, let alone in real terms, for over a decade. For routine
cases, the payments are now less than the cost of providing the service,
which frequently has to be cross-subsidised from other work. Lord Carter’s
proposals do nothing to address these problems.”
He continued, “We are disappointed that there has been no research into why
there are so many small firms when the theoretical economic modelling
indicates that this business structure is not viable at current rates. What
are the other forces at work that have stopped firms from organising
themselves in what the economists claim is a more economically rational way?
Criminal defence services are personal services that must be delivered
locally, which prevents firms outside the largest urban areas from
structuring themselves in the way the economists recommend. This doesn’t
seem to have been understood, which makes it unlikely that these proposals
will enable a viable criminal defence profession to emerge.”
Comments on specific issues
Impact on black and minority ethnic firms
Lord Carter highlights how the changes he proposes are likely to have the
effect of removing from the system many of the smallest firms, and
acknowledges that black and minority ethnic firms in London are likely to be
particularly under threat. It is vital that quality is not compromised, but
subject to that proviso, there is an onus on the Government to ensure that
the solicitors who are allowed to provide these services reflect the ethnic
diversity of the client groups they serve.
Quality assurance
LAPG believes that a fixed price system will inevitably lead to a driving
down of standards. We are concerned that if responsibility is transferred to
the Law Society, the Society will oversee the first impact of these changes
in reducing quality, and may be wrongly blamed for it. We welcome in
principle the proposal for a quality assurance scheme for advocacy, but do
not believe it is practical to develop the scheme for criminal advocates by
April 2007, and have concerns about the likely cost.
Police station
LAPG believes that the complex new system proposed in order to issue block
contracts for police station work will deliver no significant benefits over
the existing system. It is inappropriate to use fixed fees for work that can
amount to anything from thirty minutes’ work in an afternoon to several
hours’ work in the middle of the night to many hours’ work spread over
several weeks. Would Lord Levy be happy with a solicitor who was being paid
just a fixed fee based on an average case? It is wrong to abolish higher
payments for work in unsocial hours. The fees could be rendered inadequate
by changes in the law, developments in the gathering of evidence, or in
policing priorities. For example, the new CPS charging initiative means that
many police station cases now need two separate attendances instead of just
one. It is unreasonable to expect the lawyer to bear the cost of this. It is
inappropriate to use fixed fees when a series of terrorist raids, or a
single case such as the Soham or Sion Jenkins cases, can disproportionately
impact on the cost to the lawyer of delivering their service.
Magistrates Court
LAPG sees no benefit to the taxpayer, the LSC, to clients or to firms in
changing the current system of standard fees in the Magistrates Court. The
current system has controlled costs to the satisfaction of the LSC and is
understood by firms. We are glad that Lord Carter has moved away from
recommending an immediate move to a different system of fixed fees. We
accept the rolling up of travelling costs, but would urge that the fee is
recalculated where Courts are closed, requiring solicitors to travel
further. However, waiting time is driven by the inefficiencies of Courts,
prosecutors and police and is not within the control of firms. Therefore
removing payments for waiting only serves to penalise firms for the
inefficiency of others under the control of the Home Office.
Crown Court
LAPG believes that there is merit in exploring a graduated fee scheme for
Crown Court work. However, there is a major difference between a scheme
covering a few hours work over a few days, and one covering many weeks of
work over a few months. The scope for variation in the litigation aspect, as
opposed to the advocacy element, is huge. We will need to consider the
proposals very carefully to see whether the proposed triggers for uplifts
are adequate to make the system fair and workable. The idea that the scheme
could be ready to be introduced by April 2007 appears unrealistic.
Very High Cost Criminal Cases
The proposals for very high cost cases depend on a degree of forecasting of
demand and supply that is in our view impossible. Demand for these services
depends on decisions made by the Serious Fraud Office (and in future the
Serious and Organised Crime Agency). This is not something over which the
LSC has the remotest degree of control. Other aspects of the proposal merit
further consideration.
Civil and family work
Lord Carter’s proposals for civil and family work show a welcome recognition
that there are limits to the circumstances in which fixed fees are workable.
While we may well have concerns about the detail of these proposals, they do
not give rise to the same objections on principle that the criminal
provisions do.

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