Transforming legal aid Consultation paper

Questionnaire

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Full name Job title or capacity in which you are responding (e.g. member of the public etc.) If Other, please specify Date Company name/organisation (if applicable) Address The John M Hayes Partnership Limited Other Company of costs lawyers and costs draftsmen 03/06/13 The John M Hayes Partnership Limited 28B The Grove Ilkley

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LS29 9EE

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Transforming legal aid questionnaire (04.13)

List of questions for response

We would welcome responses to the following questions set out in this consultation paper. Please email your completed form to legalaidreformmoj@justice.gsi.gov.uk or it fax to 020 3334 4295. Question 1: Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Yes No Please give reasons. The current merit tests already ensure that the only cases which receive funding are those where the internal complaints process is deemed inappropriate. By definition, the cases which will lose funding as a result of the proposed criteria are those where the proposed alternative means of dispute resolution are unsuitable, such as where the prisoner has learning difficulties or mental health issues. The proposal does not disclose how such cases are to be resolved. In many such cases, the prisoner concerned will have their grievance inadequately dealt with due to their inability to properly represent their own interests. Consequently, justice will be denied. These are cases which frequently relate to prisoners Convention rights, under Articles 3, 8 -11 and 14, and cannot therefore be said to be low priority. Alternatively, prisoners would have to seek redress via public law judicial review challenges, thereby shifting the burden to the public purse to a different part of the legal aid budget. As such proceedings are generally more costly than prison law proceedings, the expected savings of 4m per year are likely to have been considerably overestimated. Question 2: Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Yes No Please give reasons. The proposals fail to take adequate account of the burden to the 'high net worth' Defendant who is subsequently acquitted. The statistics used within the consultation indicate that the average defence costs at legal aid rates is 5000. The costs at private rates from paragraph 3.30 are substantially in excess of this. The acquitted Defendant will have to bear the burden of the difference. Given the involuntary nature of the acquitted Defendant's role in proceedings, it is unfair for the state to involve a person in criminal process, fail to prove a case, and then leave them facing a bill for potentially thousands of pounds, even if they are of 'high net worth'. This element of the proposals could only be remedied by allowing recoupment from central funds at private rates - however, the saving to the fund would then in all likelihood be negligible. Question 3: Do you agree that the proposed threshold is set an appropriate level? Yes No Please give reasons. N/A - see answer to question 2. However, by setting a threshold which is only twice the national average disposable income, this is a proposal which cannot be said to be aimed at only the genuinely wealthy.

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Question 4: Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Yes No Please give reasons. It ought to be self-evident that a person who has a legal dispute which is to be decided in the UK has a strong connection with the UK, and therefore ought to receive legal aid if the merits and their means warrant it. Notwithstanding this, the proposals are flawed for a number of reasons: a) The proposal fails to account for the reasons behind the applicant's presence in the UK. It would exclude legal aid to those involuntarily here - including highly vulnerable people such as victims of trafficking or the children of migrants - leaving them without redress b) the impact assessment has failed to indicate what the proposed savings would be. The proposal is disproportionate if the savings are marginal. c) 'exceptional' funding determinations would still be available to those who failed the residence test. The application for such funding will represent a drain on resources, and the decision to grant or not grant exceptional funding would be judicially reviewable, which would also generate costs d) There is no sound reason why a person who is lawfully resident in the UK and has been so for 11 months should be denied access to legal aid. The reason inferred by the consultation is that such persons have not contributed to the public purse through tax for a sufficient period of time. However, legal aid has never been granted on the basis of past contributions, and denying legal aid to people who are legally resident is therefore discriminatory. e) Children under the age of 1 would automatically fail to meet the proposed provisions as formulated, even if legally resident in the UK and having spent 100% of their lives in the UK. Babies do occasionally require legal representation, and to automatically exclude them from legal aid is ludicrous. f) The proposals undermine the rule of law. An applicant may seek to challenge the decisions of a UK public body, have an exceptionally strong case, but be unable to bring the case due to an insufficiently 'strong' connection to the UK. The consequent lowering of scrutiny of UK public bodies is to the detriment of all. Question 5: Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Yes No Please give reasons. 1. Making legal aid dependent upon the grant of permission will force lawyers to take an aggressive stance and seek permission as a default option. This will reduce the chances of negotiated settlement, thereby increasing costs. 2. The consultation suggests that in cases where permission is refused but a substantive benefit has been achieved, costs could be sought from the respondent. Because of the nature of judicial review claims, the respondent will always be a public body. Furthermore, such costs will be paid at higher inter partes rates. The saving to the legal aid fund in such cases will therefore represent a burden to the public purse elsewhere. 3. The consultation draws comparisons with the Upper Tribunal appeal system. Those comparisons are inappropriate. That system presently incorporates an uplift in successful cases to compensate the provider for the risk of taking on unsuccessful cases. No similar provision is proposed. 4. Placing all of the costs risk on the provider will encourage risk avoidance behaviour. As a consequence, deserving litigants who would have had permission granted in borderline cases will lose their redress. 5. The decline in income to providers will inevitably cause many to go out of business. Judicial review is a niche area, as demonstrated by the number of legally aided applications made annually, and the small specialist providers will be unable to swallow the risk of non-payment where permission is not granted. This loss will not be adequately covered by other, generalised practices. The lack of available expertise is likely to reduce public confidence in the legal system, especially amongst users. 6. No evidence has been provided that the current system of merits assessment is unfit for purpose.

Transforming legal aid questionnaire (04.13)

Question 6: Do you agree with the proposal that legal aid should be removed for all cases assessed as having borderline prospects of success? Yes No Please give reasons. 1. The conflation of 'borderline' and 'poor' merits assessments is false. The definition of a borderline case is one where it is felt that the prospects of success cannot be placed into numerical terms. This does not mean that the applicant is 'unlikely to succeed', but may be that issues are jurisprudentially unique such that the application amounts to a test case. Limiting legal aid in such circumstances is damaging to the rule of law as it limits opportunities for the law to be clarified. There is therefore significant wider detriment contained within the proposals. 2. The consultation paper contains no assessment of the success rate of cases which were initially declared 'borderline'. Presumably, this is information which the LAA can provide. The proposal is therefore predicated on inadequate data 3. In practice, many providers will change to describing the merits as 'unclear'. This will entail an increase to the fund by way of the costs of investigating such applications. Question 7: Do you agree with the proposed scope of criminal legal aid services to be competed? Yes No Please give reasons. We note that the proposal has been presented as a fait accompli; no questions within the consultation allow the respondent to express their approval or disapproval of the idea of competitive tendering. We set out our disapproval here. As a consequence, questions 8-25 become largely redundant, as we disagree with the proposals in their entirety. However, we will continue to point out what we consider to be any specific flaws in the plans where appropriate. The proposals are, in their entirety, anti-competitive. The government recognises that there are currently 1600 providers nationally; it proposes to reduce the number of contracts to 400. Subject to existing groups demonstrating the ability to form joint ventures, this means that at least 1200 providers would find their access to the market restricted. In practice, the ability of providers to make multiple bids in different procurement areas is likely to bring the total number of contractors to significantly below 400. The consultation indicates that the average provider will need to grow by some 250% under the proposed scheme. Most firms simply do not have the capacity to sustain this kind of growth. It is therefore highly likely that all legally aided criminal work will therefore be concentrated in the hands of a small number of large firms, many of which may be new entrants to the market place with limited experience of service provision. Choice for the consumer - who is of course facing serious criminal charges - is non-existent. Consequentially, trust between client and lawyer is eroded. This makes the unpalatable advice - such as the benefit of an early guilty plea - less palatable, thereby lengtheneing cases and making the whole process more unwieldy and ultimately costly. The inevitable result will be the erosion of public confidence in the criminal system. England and Wales will no longer have a legal system which is the envy of much of the world. If providers bid too low - which is not unlikely - then they will be forced to 'cut corners' in service provision, utilising insufficently experienced members of staff or spending insufficient time on cases. The quality of legal representation will suffer. This is unacceptable when a person's liberty is at stake, and will lead to unsafe verdicts and the incarceration of the innocent. It is recognised that the Ministry of Justice budget needs to be cut. However, there must be areas other than the criminal legal aid budget which are suffiently bloated to be targeted ahead of introducing provisions which endanger the liability of innocent people; even if no other source of cuts is available, a straight cut to fees within the existing structure, whilst unpalatable, would allow the market to readjust naturally rather than suffering an enforced restructuring which is so inimical to the interests of justice.

Transforming legal aid questionnaire (04.13)

Question 8: Do you agree that, given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Yes No Please give reasons. The reduction, to rates which are already exceptionally low and compare very unfavourably to private instructions or instructions in other areas of the law, will make criminal advocacy an extremely unattractive proposition to the independent Bar. The result is likely to be a drain of the brightest talent away from the Bar, or away from publicly funded criminal advocacy, which will devestate standards at the Bar. Weakening of the independent Bar will also have the long-term effects of reducing the standard of prosecution and reducing standards in the judiciary, as the pool of talent from which each can be drawn narrows. This is against the public interest. Question 9: Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination, is an appropriate length of contract? Yes No Please give reasons.

Question 10: Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas should be set by the current criminal justice system areas? Yes No Please give reasons.

Question 11: Do you agree with the proposal under the competition model to join the following criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Yes No Please give reasons.

Transforming legal aid questionnaire (04.13)

Question 12: Do you agree with the proposal under the competition model that London should be divided into three procurement areas, aligned with the area boundaries used by the Crown Prosecution Service? Yes No Please give reasons.

Question 13: Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Yes No Please give reasons.

Question 14: Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Yes No Please give reasons.

Question 15: Do you agree with the factors that we propose to take into consideration? Yes No Are there any other factors that should to be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model?

Transforming legal aid questionnaire (04.13)

Question 16: Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Yes No Please give reasons.

Question 17: Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Yes No Please give reasons. The reasons for allowing a change from allocated provider focus to narrowly on restrictive factors - such as that the relationship between client and provider has broken down - rather than facilitative factors - such as that the client has developed a relationship with the provider. Given that most clients are not requesting representation for the first time, it would make sense for those with existing relationships with providers to be able to continue using those services.

Question 18: Which of the following police station case allocation methods should feature in the competition model? Option 1(a) cases allocated on a case by case basis Option 1(b) cases allocated based on the clients day of month of birth Option 1(c) cases allocated based on the clients surname initial Yes Yes Yes Yes Yes No No No No No

Option 2 cases allocated to the provider on duty Other Please give reasons.

Options 1 (a) and 2 could lead to one client being allocated to different providers for different offences in the same area. This is inefficient and unsettling. Options 1 (b) and 1(c) do not suffer this difficulty - but the uneven distribution of birthdays and names would mean that the allocation would have to be very complex to esnure a genuinely even spread of allocated work.

Transforming legal aid questionnaire (04.13)

Question 19: Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Yes No Please give reasons.

Question 20: Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Yes No Please give reasons.

Question 21: Do you agree with the following proposed remuneration mechanism under the competition model? Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price Fixed fee per provider per procurement area based on their bid price for magistrates court representation Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500) Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area. Yes Yes Yes No No No

Yes

No

Please give reasons.

Transforming legal aid questionnaire (04.13)

Question 22: Do you agree with the proposal under the competition model that applicants be required to include the cost of any travel and subsistence disbursements under each fixed fee and the graduated fee when submitting their bids? Yes No Please give reasons.

Question 23: Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Yes No Please give reasons.

Question 24: Are there any other factors to be taken into consideration in designing the criteria against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competition model? Yes No Please give reasons.

Question 25: Do you agree with the proposal under the competition model to impose a price cap for each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the graduated fee below the relevant price cap? Yes No Please give reasons.

Transforming legal aid questionnaire (04.13)

Question 26: Do you agree with the proposals to amend the Advocates Graduated Fee Scheme to: introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial; reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and taper rates so that a decreased fee would be payable for every additional day of trial? Yes No

Yes Yes

No No

Please give reasons. The proposal indicates that it is hoped that a fees structure in which lawyers are overcompensated for guilty pleas and undercompensated for trials will encourage efficiency by promoting 'early consideration of the question of plea'. The question of plea must always remain for the Defendant alone, and not his lawyers. The fees structure puts lawyers directly in conflict with the interests of their client. If the proposed fee structure does achieve such efficiencies, it would indicate that lawyers are placing their own pecuniary interests ahead of their duty to impartially advise; if lawyers continue to give impartial advice then the hoped for efficiencies will not come to fruition, and the proposals will unduly penalise those lawyers who undertake more work which has to run to trial. Question 27: Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Yes No Please give reasons. See answer to question 8.

Question 28: Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Yes No Please give reasons. One of the key features of VHCCs, mentioned in the consultation, is that they bring 'certainty of income for providers'. To reduce the rates paid on current contracts undermines this principle. What would the situation be, for example, if providers no longer felt able to provide service at the new reduced fees? Would they have the option of ceasing the contract?

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Question 29: Do you agree with the proposals: to tighten the current criteria which inform the decision on allowing the use of multiple advocates; to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges? Yes Yes No No

Yes

No

Please give reasons.

Question 30: Do you agree with the proposal that the public family law representation fee should be reduced by 10%? Yes No Please give reasons. Fees in public family law have been recently been subject to a 10% reduction in February 2012. There is no indication that this has been taken into account. Further, there is no evidence that the hoped for streamlining in family law as set out in Paragraph 6.6 of the consultation has translated into a reduction in time required by solicitors. The LAA continue to collect data in relation to the actual time spent on each case within the CLAIM1A form. The empirical evidence is therefore available to demonstrate whether these reforms are having the desired effect. This proposal should be suspended until such time as the empirical evidence has been collated. The rationale behind reducing the fixed fees is solely that the amount of work required to bring cases to completion is expected to have fallen. Even if this is true, there is no evidence that the work is becoming less complex or that overheads are falling. There is therefore no rational basis for reducing the applicable hourly rate by 10%. Question 31: Do you agree with the proposal that fees for self-employed barristers appearing in civil (non-family) proceedings in the County Court and High Court should be harmonised with those for other advocates appearing in those courts? Yes No Please give reasons.

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Question 32: Do you agree with the proposal that the higher legal aid civil fee rate, incorporating a 35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished? Yes No Please give reasons. Placing all of the financial risk upon the provider is inimical to the administration of justice: see the answer to question 5.

Question 33: Do you agree with the proposal that fees paid to experts should be reduced by 20%? Yes No Please give reasons. Lawyers' fees have been hit hard over the last few years, and the proposals contained in this paper are set to reduce them further. It is correct that some of the burden passes to publicly funded experts, whose fees will still be much nearer to private rates than those in the legal profession.

Question 34: Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Yes No Please give reasons. In all cases, the impact assessments fail to take into account the potential undermining of public confidence in the justice system if the quality of representation drops as a result of financial pressure.

Question 35: Do you agree that we have correctly identified the extent of impacts under these proposals? Yes No Please give reasons. In all cases, the financial savings to the department are optimistic and fail to take properly into account the extra costs caused by service users changes in behaviour.

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Question 36: Are there forms of mitigation in relation to impacts that we have not considered? Yes No Please give details.

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