Legal Aid

Nick Green QC reflects on the issues that surround the implementation of the Legal Services Act 2007 

The main issues on the Bar Council agenda include several matters of enduring concern: legal aid fees (and the judicial review proceedings brought against the MoJ and LSC), the government’s decision to abolish the LSC and bring it into the MoJ as an executive agency, the implications of the Jackson Review of Costs, referral fees generally, and new business structures. I have continued to travel the country to speak at length to the Bar. So far I have visited about 50 chambers and given speeches to nearly 2,000 people. A very great deal of what I find myself doing is affected by the work being undertaken to implement the Legal Services Act 2007 (“the 2007 Act”). So, a few ongoing reflections. 

THE Bar Council has welcomed the Ministry of Justice’s decision to create a new executive agency to replace the Legal Services Commission (LSC) to administer legal aid. The Government’s announcement follows the publication of the Review of Legal Aid Delivery and Governance by Sir Ian Magee, which had been commissioned by the Ministry of Justice (MoJ), and a highly critical report of the Public Accounts Committee published in February (9th Report, HC 322) which accepted the findings of a review of the procurement of criminal legal aid by the National Audit Office in 2009. 

Changes to legal aid system in England and Wales are incompatible with rule of law. 

SPEAKINGin Vienna at the 38th Annual Conference of European Bar Leaders, the Chairman of the Bar, Nicholas Green QC said the latest round of proposed cuts in criminal legal aid in England and Wales, coupled with the absence of a clear strategic vision for the future of legal aid were placing the country’s justice system at risk. Echoing the concerns of the recent report of the Public Accounts Committee, The procurement of legal aid in England and Wales by the Legal Services Commission (HC 322), Nick Green drew attention to the chaotic way in which legal aid policy and administration is being conducted, and the way that this is endangering the rule of law. The Public Accounts Committee criticised the LSC, amongst other things, for failing to get a grip of its financial management, for weak internal controls (leading to its accounts for 2008-09 being qualified) and for threatening the long-term future of the junior criminal Bar and placing the quality of advocacy in the Crown Court at risk. The Committee criticised the LSC for the lack of a clear strategic direction (reflected in its poor management of changes initiated following Lord Carter’s review of legal aid in 2006). Significantly, the Committee found that the LSC’s failings were such that it was not able to demonstrate that its management of the legal aid funds was delivering value for money. The Government is proposing to cut criminal legal aid fees in order to “safeguard” civil legal aid. However, instead of transferring any savings from criminal legal aid to civil legal aid, the total funds for legal aid will be reduced as part of the Government’s plans to cut public expenditure. 

On the eve of the Conference, Nick Green QC said: 

‘This conference has the rule of law as one of its key themes, something which every democracy has at its centre. However, reform of public funding for the legal aid system in England and Wales has become so chaotic that access to justice is being seriously weakened. The Bar cannot stand by and allow the legal aid system to face further arbitrarycuts. The Bar Council and the Criminal Bar Association have worked hard to put forward realistic and practical solutions to the Ministry of Justice and the Legal Services Commission in these difficult economic times. But the way in which the most recent consultations on Very High Costs Cases and the Advocates’ Graduated Fee Scheme have been conducted has left us no option but to take the first step towards a judicial review of the legality of their consultations, in the public interest.’ 

THE Bar Council has taken the first step toward a judicial review (JR) of two consultations on Advocates Graduated Fees and Very High Cost Cases (VHCCs) which are being conducted by the Ministry of Justice (MoJ) and the Legal Services Commission (LSC) respectively. 

The Bar Council has instructed solicitors to write to the MoJ and the LSC, in accordance with the pre-action protocol for judicial review claims. The principal basis for the Bar Council’s claim is that the consultation exercise is inadequate and unfair. The Bar Council’s decision to proceed with an application for JR has not been taken lightly. It has been more than twenty years since the Bar Council last instituted JR proceedings against the Government, despite a series of poorly handled reviews and efforts to reform the legal aid system. 

Nick Green QC explains why the Bar Council is preparing to commence judicial review proceedings against the government 

Throughout January and early February I visited a number of cities in England and Wales (Cardiff, Winchester, Leeds, York, Birmingham and Manchester) and spoke to nearly 1,000 members of the Bar at the road shows. I have also visited over 30 sets of chambers and had conversations with numerous clerks and practice managers. The process is ongoing and I am planning further visits to chambers over the next few months. I am very grateful for the warm welcome that I have received. The exercise has been extraordinarily informative in enabling me to obtain a more precise and educated view of the day-to-day problems of the Bar. 

The Legal Aid Practitioners Group is seeking nominations for the 2010 Legal Aid Lawyer of the Year Awards (“LALYs”). The ten award categories include legal aid barrister (sponsored by the Bar Council) and outstanding achievement (sponsored by Manches). The closing date for nominations is 12 April and the award ceremony will be held on 26 May in London. Forms are available at www.lapg.co.uk/legalaidlawyer.cfm 

Many of Lord Justice Jackson’s recommendations will have a direct impact on the Bar’s way of life, warns Stuart Sime 

Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report (“the Review”) was published on 14 January 2010. It will have profound effects on the conduct of litigation and the remuneration of lawyers. Without doubt it is the most important report in the area of civil law since Lord Woolf’s report on Access to Justice in 1996. Like the best reports in recent years (Lord Neuberger’s report on Entry to the Bar, 2007, is another example), Sir Rupert recognises that systemic problems cannot be cured by single big point remedies. 

The Ministry of Justice is refusing Bar Council requests to extend the deadline for “inadequate and unfair” consultations on Very High Cost Cases (“VHCCs”) and advocates’ graduated fees despite threats of judicial review. 

Solicitors acting for the Bar Council have now written, in accordance with the Pre-Action Protocol for Judicial Review Claims, to the Legal Aid Minister, Lord Bach, and to the Chairman of the Legal Services Commission (“LSC”), Sir Bill Callaghan, in order to advance proceedings for judicial review. 

ON 2 February 2010, the influential House of Commons Public Accounts Committee (PAC) published a damning report on the Legal Services Commission’s handling of legal aid reform. The report on criminal legal aid procurement also warns that the increased use of solicitors to conduct work in the Crown Court is threatening the long-term future of the junior criminal Bar and may be affecting the quality of advocacy provided in those courts. The procurement of legal aid in England and Wales by the Legal Services Commission (HC 322) echoes many of the deeply held concerns of the Bar Council. 

It criticises the LSC for ‘poor financial management and internal controls and deficient management information’. It says the Commission does not know whether its reforms are working or what they are doing to the sustainability of providers. 

MPs have warned legal aid reforms are threatening the future of the junior Bar, in a damning report on the Legal Services Commission (“LSC”). 

The Committee of Public Accounts (“PAC”) report into legal aid procurement, published in February, criticised the LSC for having “lax” financial controls and management information which, for example, led it to overpay solicitors by £25 million in 2008-09 resulting in it having its accounts qualified. It attacked the LSC over its “poor financial management” and lack of knowledge about the costs and profitability of legal aid law firms.