LCCSA Tuesday Truth
The question was recently posed by Andrew Keogh, what is it that we want. As he pointed out it is easy for us to say what we don’t want and some believe there is a fundamental conflict of interest between owners and employed Solicitors which prevents the development of a coherent alternative to the ‘legal aid reforms’ this short article is a personal response to that question and whilst it maybe thought by many to be wishful thinking we ought not to go quietly into the night.
A National Legal Service (NLS)
This was originally a proposal of the Labour party at the time of the creation of the NHS but in the face of overwhelming opposition from a Conservative legal profession as well as the constraints of funding there was only a partial birth of a limited legal aid system.
Ironically most of us operate in a model which combines private ownership with state funding through administered prices. It was a great advantage of that model that in an important sense it operated as a free market. Solicitors found gaps in supply and located themselves near customers using their local knowledge and thereby created a very comprehensive service across England and Wales competing through quality to attract new clients and build their businesses. This is fundamentally a good model. Whilst some gains in productivity can be achieved through adopting case management software, tablets, electronic working, automated billing and perhaps sharing back office functions the amount of gain is limited. We deliver a service which is almost entirely a face to face interaction which requires considerable skills on the part of Solicitors and caseworkers in order to define the legal issues and work towards best outcomes. There are therefore real time and cost constraints which mean that a fee earner can only accomplish a finite amount of work in a day and the price paid has to have built into it a profit margin reflecting risk, the use of private capital (which saves the State an enormous amount of investment) and which also reflects local economic conditions and prices. The latter is particularly important in London where house prices and rents have increased beyond a level which is affordable to ‘ordinary’ workers who do not have the advantage of inherited wealth. London is also particularly challenging as economics of scale of volume are offset by the vast amounts of travel and waiting involved in negotiating the huge unplanned criminal justice space which stretches from Harrow to Dagenham and Wood Green to Croydon as well as reaching out to Luton, Hatfield, Crawley and Heathrow.
Whatever its faults and shortcomings what has happened to legal aid in the 21st century has been a tragedy. Civil and crime have been cleaved apart, millions have been taken out of scope and the rates of pay are now below any economic level for ordinary work. This proposal attempts to address these issues.
What client’s and communities need are local integrated services which are stable and to which they can turn to in time of legal need. The ideal is the reinvention of the local community orientated practices with as many legal aided services under one roof as possible but which include criminal defence, family and matrimonial work, welfare benefit advice, immigration and a growth in more specialist areas like mental health, education and community care.
There is vast unmet legal need which is rendered invisible by the lack of services. On those rare occasions when CAB’s open their front doors there are vast queues for advice. It is a scandal that this vast need has not given rise to any positive political response by any of the major political parties. This is about politics and not money (Why did Britain’s political class buy into the Tories’ economic fairytale?) which makes the point that in a period of recession public investment is a necessary and desirable response by a government not austerity. Society needs to have as a core value its sense of fairness and justice. It is the by-product of investment in legal services that this value is actively promoted and all of the small cases in which people believe themselves to have been well represented and have experienced just outcomes represent the warp and waft through which that value is woven into everyday life. Some people call this social cohesion. There are also direct economic benefits. If defendants are successfully rehabilitated they become economically useful, contribute tax and relieve the State of the burden of keeping them in prison. If benefit claimants are successful in getting those benefits to which they are in entitled they are potentially lifted out of dire poverty with the consequential better outcomes in health and education. In any event money spent on legal aid is recycled to the treasury through VAT, income tax, national insurance and generally expenditure is a stimulus through consumption.
With a little imagination one can conceive of a new body that is responsible for a national legal service. It could have a major training function and a similarly key role in organising peer review. Increased expenditure ought to go hand in hand with increased quality the hit and miss peer review system ought to be replaced by a comprehensive one and rates of pay linked to outcome, so that for example an area of work rated as one should receive a 10% mark up in fees and an area of work with a two perhaps a 5% mark up. This body could also integrate what was the NTT (National Taxing Team) work with its peer review function. Even more radically there should be a return to payment by time the trade-off being a much more serious assessment of costs based upon the formula of ‘actually, necessarily and reasonably’ as the criteria for assessment.
It would be possible to move to this model over time and to pilot discreet areas of work to see how the incentive of payment in return for quality worked and in particular the return to payment by time. The latter is the best guarantee that client’s will receive high quality services. Payment by formula does the very opposite.
Government can easily afford £1 billion to refund scope, a return to economic rates of pay and to build in increases for inflation. What is required is the vision for a national legal service which guarantees for all of its citizens access to justice. By political design and default millions are excluded from justice and the system sinks ever deeper into the mire of injustice and it is not acceptable that because most of the people involved are rendered invisible that political policy should be framed as if they do not exist. Whilst it depends on an individual’s value system there is surely an argument that justice is more important than the renewal of Trident, building new aircraft carriers and should carry at least equal weight with the political imperative of providing subsidies in various forms to corporations. (Cut benefits? Yes, let’s start with our £85 billion corporate welfare handout) In this context rebuilding legal aid and justice does really appear to be chicken feed.