Like it or not, there is widespread acknowledgement that the funding of legal aid is not going to be restored to pre-Government cut levels. But knowing how to respond to this gloomy prediction is not easy. The Nuffield Foundation has recently published (February 2014) a really interesting research report which, drawing from international examples, offers many ideas for how we might deliver services effectively in this country as well. It deserves widespread attention.
The report concluded that websites, telephones, video communication and other means of digital communication can, if properly used, assist in maintaining access to justice in a time of austerity.
In their report, the researchers (Prof Alan Paterson and Roger Smith) emphasise the need to devise models of delivery that take account of the fact that not everyone can use websites and telephones. They also highlight the example of NHS Direct, an integrated telephone and internet project, unfortunately abolished just as it seemed to producing results.
However the report says that much could be done through:
- Leadership from the Ministry of Justice in maintaining access to justice despite austerity cuts – a positive commitment to helping citizens to help themselves where they can and continued free access to legislation and cases.
- The fostering of innovation through awards, recognition and, as in the US Legal Services Corporation’s Technical Innovation Grants programme, funds for strategic projects.
- Rigorous testing of channels of delivery including the use of dummy clients.
- Integrated ‘digital first’ but not ‘digital only’ delivery as happens in jurisdictions like New South Wales and New Zealand where internet advice is linked with telephones and face to face provision if required.
- Dynamic digital systems that assist a person through a process such as obtaining a divorce, for example, the rechtwijzer.nl site in The Netherlands.
These are findings that fit well with the conclusions of the Low Commission, also published in early 2014.
The text of the Paterson-Smith report is at http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons
The final report of the Low Commission is at http://www.lowcommission.org.uk/
At the end of February, the Government announced its latest plans for reforming the legal aid scheme. The focus is centrally on criminal legal aid. The main driver remains cutting public expenditure on legal aid.
The latest proposals focus on three key elements:
1 Reducing the fees paid for services provided under the criminal legal aid scheme. Under the latest proposals, the cuts will impact more severely on more established practitioners (on average a 6% reduction) with a reduced impact on junior members of the criminal bar. The Government has undertaken to review the effect of these changes in 12 months time. There will also be a further reduction in solicitors’ fees of 8.25% which takes effect in March 2014. Again the Government has undertaken to review the impact of this change in summer 2016.
2 Recognizing the business impact that these cuts will have on practitioners, the latest paper suggest that the Government is prepared to provide some assistance to firms to restructure themselves and to develop business models more viable in the new tougher economic climate. This will include providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses. It will be very interesting to see whether this initiative simply gets up the noses of practitioners and makes them even more dissatisfied; or whether there will be practitioners who can see that new ways of doing things could be more cost effective and enable them to make money as well as deliver a service to the public.
3 Potentially the most interesting aspect of the latest announcement is that there will be a review of procedure in the criminal justice system to see ho far pre-trial steps can be taken without requiring the attendance of practitioners in court. This could help to drive out some waste.
Debate about how legal aid will continue to be a battle between government and practitioners. My own view is that there is no likelihood of return to the funding levels that existed before the current cuts were introduced. Lawyers committed to delivering legal services to the public will continue to be challenged to offer those services in different and more cost-effective ways.
For the text of the Government response to consultation see:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps and click on Government Response to Consultation.
Co-operative Legal Services was the first large organisation to be authorised by the Solicitors Regulatory Authority as an Alternative Business Structure. In this podcast, I talk to Christina Blacklaws, Head of Policy of Co-operative Legal Services.
She explains how the Co-op wanted to move into the legal services market by building on advice services they had for many year provided to their members. There is still a lot of emphasis on helping people to help themselves. But they wanted to be able to offer full legal services for members (and other members of the public) on issues that affect their daily lives, for example moving house, consumer matters, employment matters, family matters, housing matters, probate issues.
The new service is based in the fundamental values of the Cooperative movement.
3 hubs – in Manchester, Bristol and London – are supported by other staff in the Co-op – e.g. in their banks. They also work with other agencies, e.g. Shelter.
She argues that they key to their service is transparent pricing: each issue brought to the service is broken down into segments and clients pay for those segments of the service that they want.
She also argues that the structure of Co-operative Legal Services is an attractive environment for staff; there are opportunities for staff to develop legal skills to enable them to develop their full potential as lawyers.
To hear what Christina has to say go to http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Blacklaws.mp3
For more information about Co-op Legal Services go to http://www.co-operativelegalservices.co.uk/
The question of the reliability of criminal statistics is currently the subject of a very important investigation by the Public Administration Committee of the House of Commons. In evidence sessions held before Christmas, evidence was received of how statistics provided by police may be distorted by the practices local police forces adopt for the recording of crime.
The Committee is examining the quality and reliability of police recorded crime data. Issues covered may include:
- the role of the Crime Statistics Advisory Committee in promoting statistical best practice among producers of crime data;
- the practical realities of police crime-recording practices and the factors which may lead these to diverge from established national standards;
- the extent to which the recorded crime data serve as a reliable indicator of national and local crime trends; and
- whether adequate procedures are in place to promote a culture of data integrity within the police.
Witnesses have already told how the ways in which data are collected may reflect the need to satisfy particular government targets for policing.
The final outcomes and comment from Government will appear later in 2014.
Two decisions from the Legal Services Board (LSB), announced in December 2013, will – if approved by Government – have the effect of enabling legal executives to compete more fully in the legal services market.
The first decision approved at application from ILEX Professional Standards’ (IPS) applications to enable it to authorise members of the Chartered Institute of Legal Executives (CILEx) to practise independently in Probate and Conveyancing. This is likely to pave the way for CILEx members to practise independently in all areas of law. The decision goes to the Lord Chancellor, Chris Grayling, and for subsequent parliamentary approval, anticipated during the course of 2014.
The second decision enables CILEX to regulate Chartered Legal Executives exercising litigation and related rights of audience independently, as well as new rules for regulating immigration advisers.
The ability for individual Chartered Legal Executives already working in a regulated entity to conduct litigation, exercise rights of audience and provide immigration services without supervision requires no further government approval. Thus IPS expects to begin accepting applications from CILEx Fellows in the Summer of 2014. This will benefit thousands of law firms who currently have unnecessary bureaucracies in place to sign-off on the work of experienced Chartered Legal Executives, including those working as fee-earners and partners.
IPS will be able to start authorising independent legal practices offering litigation and immigration services when Parliament has granted powers to set up a compensation fund and to intervene in practices. The LSB has confirmed it will approve IPS’s rules for establishing a compensation fund once Parliament has awarded the relevant powers. This is likely to be taken forward in 2015.
Competition in the legal services market will hot up even more in 2014, following the announcement that the Legal Services Board (LSB) has agreed that the Institute of Chartered Accountants in England and Wales (ICAEW) should be a regulator of probate services and also licensing authority for Alternative Business Structures (ABS), subject to approval from the Lord Chancellor.
This is an important step by the Legal Services Board in opening up the provision of legal services. In making this recommendation, the Legal Services Board has recognised that consumers can receive legal services relating to probate work from appropriately regulated ICAEW Chartered Accountants that are of equal quality to traditional legally qualified providers.
It has also recognised that ICAEW is a suitable body to licence ABSs which will facilitate the creation of new business structures between lawyers, accountants and other professionals (such as Independent Financial Advisors).
For initial information, see http://www.icaew.com/en/technical/legal-and-regulatory/legal-services-act/alternative-business-structures
Keeping track of the changes made to the Civil Justice system, in particular those which followed the reforms recommended by Lord Justice Jackson, is quite a challenge. The Ministry of Justice has provided a useful summary of the changes in the following note. There is also a link to a further website that gives more detail of the legislative basis for the changes that have been made. Links to both sites are set out below.
The main changes are:
- No win no fee Conditional Fee Agreements (CFAs)remain available in civil cases, but the additional costs involved (success fee and insurance premiums) are no longer payable by the losing side.
- No win no fee Damages Based Agreements (DBAs) are available in civil litigation for the first time.
- Referral fees are banned in personal injury cases.
- The introduction of new protocols extending the Road Traffic Act personal injury scheme to £25,000.
- A new fixed recoverable costs (FRC) regime.
- Claimants’ damages are protected: the fee that a successful claimant has to pay the lawyer – the lawyer’s ‘success fee’ in CFAs, or ‘payment’ in DBAs – is capped at 25% of the damages recovered, excluding damages for future care and loss
- General damages for non-pecuniary loss such as pain, suffering and loss of amenity are increased by 10%
- A new regime of ‘qualified one way costs shifting’ (QOCS) is introduced in personal injury cases which caps the amount that claimants may have to pay to defendants. Claimants who lose, but whose claims are conducted in accordance with the rules, are protected from having to pay the defendants costs.
- A new sanction on defendants to encourage earlier settlement of claims.
In addition, the functions of the Advisory Committee on Civil Costs, which was to provide advice to the Master of the Rolls on the Guideline Hourly Rates for solicitors, was transferred to the Civil Justice Council with effect from January 2013.
Information in this blog has been adapted from http://www.justice.gov.uk/civil-justice-reforms
More details are available at http://www.justice.gov.uk/civil-justice-reforms/main-changes