10 October 2008
Guoman Tower Hotel, London
Justice Minister Lord Bach has given a speech on the future of legal aid to the Legal Aid Practitioners' Group Annual Conference.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
The Parliamentary Under Secretary of State, Ministry of Justice (Lord Bach):
Introduction
Good morning and thank you for the opportunity to join you today here at the Tower Hotel. There are a number of things I would like to talk to you about today. I hope you will understand that I do not intend to jump straight into a question and answer session afterwards, only a couple of days into the job.
I am proud to be given the opportunity to develop further the legal aid system in England and Wales. It is the best funded in the world. We spend £38 per head of population compared to between £3 and £4 in France and Germany. And I think it worth repeating that we even dedicate more resources to legal aid than countries with similar legal systems; for example, both New Zealand and the Republic of Ireland spend around £8 per head.
First I would like to pay tribute to the work of my predecessor, Lord Hunt of Kings Heath, who took forward with such enthusiasm the programme of legal aid reform. This is an enthusiasm that I share, and I look forward to building on the work undertaken under my predecessors. Work that included implementing the new civil solicitors and Not for Profit unified contract and the new Unified Contract (Crime) for Police station, magistrates' court and Crown Court work, and introducing:
- new fixed fees and revised boundary areas for police stations
- standard fee scheme for magistrates' courts
- advocates and litigators graduated fee scheme in Crown Courts
- new graduated fee scheme for immigration and asylum cases
- care proceedings graduated fee scheme
- standard fee scheme for mental health.
I will be looking carefully at the many workstreams in play. And I will work with all our partners (providers as well as others across the justice service) to ensure that the work that is essential to our maintaining a world class system is taken forward.
Being here allows me to pick-up on the theme of your debate later today. I assure you that I am committed to ensuring ever improved access to justice over the coming years. Legal aid is a fundamental element underpinning the justice system. It enables access to justice for the vulnerable and those who cannot afford to pay for legal advice and representation. It also ensures a fair trial for defendants.
Funding and fairness
In the current extraordinary economic circumstances it is important that the taxpayer is assured that we are using their money wisely and effectively. Of course, even in less challenging times underlying everything discussed today would be the twin drivers of public need and making the most appropriate use of limited public funds. I know from my own personal experience of legal work that a lawyer's workload is not an easy one. But I cannot pretend that there is to be any increase in funding for what has been one of the fastest growing areas of public spending over the last 25 years.
Spending has increased from £536 million in 1982 (in today's prices) to around £2 billion today: an average annual real terms growth of 5.7%. Or shortening that timeframe: since 1997 we have seen spending on legal aid grow in real terms by 4% (that's 33% in cash terms). It is interesting to note that had we not introduced the measures we have since 2004/05, then the spend in 2007/08 would have been £250 million higher than it actually was. And we would have spent £600 million more in total since 2004/05, a position that the public purse could not have been expected to meet.
And now we face economic challenges not foreseen by anyone. Our focus must be on helping those most in need. How we help those with housing and debt concerns in the coming months will be a challenge that we need to rise to. We are already working with the Department for Communities and Local Government to extend free on the day advice and representation in county courts for those at risk of having their home repossessed. Our obligation to those in need of help is not diminished by the current situation, but if anything its importance is raised. We therefore need to be thinking of how we get more out of the significant commitment of resources that has been made to legal aid, both from the point of view of the taxpayer rightly expecting that we seek value for their money, and in ensuring those most in need receive legal help.
I hope that you will come to see that I am approaching the reform programme with an open mind. And before I talk about the next stage that programme I want to emphasise exactly what the key aims of the legal aid reform strategy are:
- To help as many people as possible within the resources available, focusing on those people and those issues where legal aid adds most value in terms of outcomes.
- Ensuring a fair return for providers for the work they do so that legal aid continues to be sustainable over the longer term
- Continuing to make best use of the opportunities arising from new technology and new ways of working.
Improved relationship
I know there is some feeling that in recent months there has been a sea change in the working relationship between all of those involved in legal aid reform. From what I've seen I believe that we have been getting better at listening to what practitioners are saying. It appears this has been particularly evident around our recognising the dangers of change fatigue, and in our desire to provide a more stable environment through greater predictability of change, with the flagging up further in advance of what is to happen next.
Long-term planning
The future will be determined by long-term planning to ensure continued access to legal aid for the most vulnerable members of our community. A future in which I anticipate seeing continued close-working between providers, the Legal Services Commission, and the Ministry of Justice. The reforms being discussed and developed over the next few months reflect a planned continuation of the route we set out on at the beginning of the reform journey. A journey towards fairness and equality.
Civil Contracts
There is to be a full consultation over the autumn - led by the Legal Sevices Commission - that will cover how it will tender for civil legal aid contracts to apply from April 2010, in an open transparent competition that complies with EU procurement rules. The paper will set out prospective criteria that bidders should meet, and the tender will be open to new bidders who have not worked in legal aid before. One of the proposals is that lawyers are encouraged to provide a range of linked services to the public. This means that clients with multiple problems can receive all the help they need in one place. This is important because research shows that every time someone is referred on they are less likely to receive the help they so vitally need.
As part of the bid process some lawyers and advisers will need to think about how they can deliver the joined-up services that clients need; perhaps by forming consortia and making joint bids. I understand that some not for profit bodies in particular have been asking for this for some time. However, I also understand that this creates some real concerns for some small practices. The outcome of the consultation will inform the 2009 tenders for contracts, so I do hope that many from the Legal Aid Practitioners Group will give their views.
Best value tendering
You clearly asked for more time to adapt before the possible introduction of best value tendering for legal aid work. The Legal Services Commission and Ministry of Justice listened and decided that should best value tendering be taken forward it will be piloted and fully assessed before any decision is taken about any future phased implementation. I hope that this does show recognition of the need to allow more time to work with providers and representative bodies on developing our policies to make them as robust as possible.
Crown Court means testing
As with the civil contracts, I would invite Legal Aid Practitioners Group members to participate fully in the consultation on Crown Court means testing which will be published later this year. The government remains firmly committed to the principle that those who can afford to pay for, or contribute towards their legal aid costs, do so. This principle lies at the heart of our proposals for Crown Court means testing. The input of practitioners will be essential in order to make the new scheme successful.
Very high cost court cases
The Ministry of Justice and the Legal Services Commision have been working closely with the Bar Council and the Law Society to ensure that very high cost cases (VHCC) can progress. I am aware that we should be grateful to individual firms on the VHCC panel - and to the Law Society - for all the efforts they are making to let the VHCC scheme operate as intended. I am similarly aware of the debt of gratitude owed to those engaging cooperatively in the working group that is looking to design the next scheme. I should make clear that there is no question of funding any increase in advocacy payments from any decrease in solicitors payments. The Justice Secretary and my predecessor had both been clear (and I reiterate) that the new scheme - and any changes to the current scheme - must be met from within the current financial envelope.
Working together
Such working groups are a positive example of the way we work together. Even when working outside of this department I was pleased to see that a jointly chaired (Legal Services Commission and Law Society) working group has been established on wider issues of quality assurance, such as peer review. There are clearly established, and successful, quality assurance mechanisms in place, and it is important that we continue to discuss how they can be improved, both for the Legal Services Commission as the procurer of legal aid services and for you as the providers. I look forward to seeing the recommendations of this group later this year.
Civil, family
Children and adults at risk of abuse do and will continue to take the highest priority for legal services. This priority is reflected in the way that legal aid is provided for children and parents in care proceedings without reference to their financial resources.
Our new care proceedings fee scheme supports the Public Law Outline which replaced the Public Law Case Management Protocol in April 2008 for most public law children proceedings. This is intended to support parents to engage with the local authority where a notice of intention to issue care proceedings has been given, and to avoid unnecessary care proceedings where possible. This fee scheme includes a single level for legal representation, which is sufficiently adaptable to take into account developments regarding the Public Law Outline. The scheme balances complexity with a simple, flexible system, designed to be straightforward for both the Legal Services Commission and providers. Of course, particularly complex or expensive cases will be paid for outside the standard fee scheme, and will continue to be remunerated at hourly rates.
Feedback and concerns
From Lord Hunt I know that common amongst the concerns you have raised, is that we are spending too much of our limited budget on various experts and specialists. The government recognises the importance of providing timely, high-quality, expert opinion where required. However, the Legal Services Commission spends approximately £130 million a year on expert fees, making it the second largest area of expenditure after lawyers' fees. With this in mind the Legal Services Commission is working with the Department of Health to pilot arrangements to directly commission multidisciplinary teams of health professionals. Again our key aim is to improve the quality of services that we purchase on behalf of clients, while making the best use of a limited budget.
I am very much aware of the unique insight that many individual defence practitioners across the country have on how different parts of the criminal justice system - the courts, the Crown Prosecution Service, the police and the Prison Service - interact and rub up against each other. We all have a responsibility to use this knowledge to further improve efficiency across the system, just as our reforms at the police station and magistrates' court support greater efficiency in the delivery of legal aid.
I also know that one of the most common concerns voiced by yourselves and your colleagues is about waiting time at police stations, and at court and I am aware that the Legal Services Commission is working hard to address this via its membership of Local Criminal Justice Boards (LCJBs). I would urge practitioners to make their views known where they do identify a problem. Either through local forums such as court users groups and Regional Duty Solicitor Committees, or through LCJBs, for which the Legal Services Commission is contributing more funding to ensure defence interests are represented. At national level, the Legal Services Commission and the Court Service have been asked to work together to see what more we can do to make sure court listing arrangements take proper account of the needs of the defence. I will be seeking support from National Criminal Justice Board members later in the year for further work to improve efficiency for defence practitioners.
Family Graduated Fees Scheme and advocacy fee scheme
Last month [10 September] saw the closing of the consultation on proposals to control expenditure in the area of the barrister Family Graduated Fees Scheme. This is an area where increased costs - rising from £74 million to nearly £100 million over the last five years - had started to threaten other areas of family legal aid, and it was important to act before client services were affected. Obviously at this stage I am not at the point of making decisions on the outcome of this. I am aware of the concerns and arguments, and as with the other such consultation exercises will be fully taking note of all the views expressed before a final decision is taken.
Similarly I do not propose to talk today about where we are going in respect of a family advocacy fee scheme from April 2010. The timing of this was of course set out in the route map for the development of civil legal aid contracts. Overall we are making good progress against the route map, but I know that you will understand my wish to spend some time looking at all the issues involved before commenting on this in detail. Particularly before I enter into a discussion on this with such a learned group. I am more than happy to reiterate that however we do move forward on this, we will continue with our policy to consult as much as possible, and again, before a final decision is taken the views of consultees will be given careful consideration.
Public Legal Education and Community Legal Advice Services
I hope that when you hold the debate this you do also consider the future role of public legal education. Early intervention in many forms of dispute - actual and potential - can support positive prevention. A hugely important part of our responsibility is to help citizens at risk by early intervention, making sure they get the extra support they need when it can make the most difference. As I've already mentioned, this is taking on a greater importance given current economic circumstances when additional families and individuals may be drawn into risk of debt. A point when sound legal advice can be essential. We need to provide people with an awareness, knowledge and understanding of legal issues and of their rights if we are to improve their individual capability. This, combined with the confidence and skills needed to deal with disputes, can help to make sure our citizens are able to gain access to justice. In practical terms, it helps people recognise when they may need support, what sort of advice is available, and how to go about getting it.
Of primary importance in the provision of legal information are local organisations, and the local authorities that - along with the Legal Services Commission - support them. The Ministry of Justice and the Legal Services Commission will continue to develop partnership arrangements with those with an interest in advice provision in local areas. In particular with local authorities to jointly commission and networks. Centres and networks offer integrated advice services, that include specialist legal advice on debt, employment, welfare, community care and housing as well as general advice. By being tailored to the requirements of local areas they are better placed to help tackle the common causes of local problems, and meet the needs and priorities of local communities. I know myself of the fantastic work done by the Community Legal Advice centre in Leicester. And I have become aware of how this level of community support is repeated at other centres, such as the one at Derby that has already helped around 4,500 people in the city since opening in April. It is a sign of the times that many of those helped had problems that included debt-related issues, but I am glad that at least we are able to offer such support as people feel the effect of the credit crunch.
Such centres and networks not only enable people to protect their fundamental rights and resolve legal disputes, but promote social inclusion. By tackling clients' multiple and often interrelated legal problems in one place, they minimise the need for referral and help forestall difficulties that can so often generate even more problems.
Conclusion
We are approaching the sixtieth anniversary (in 2009) of the (legislative) introduction of legal aid. Our vision for the future must build on those 60 years to maintain our reputation for being world class leaders in this field. We have much to be proud of. Legal aid is valued as a part of the wider social provision introduced in the postwar years. Legal aid provision has continuously widened, developed and improved since then. My aim is that we continue on that path of improvement and - given the widespread engagement from yourselves in this process - I am confident that we will be able to do so.