Legal aid at 60
11 June 2009
Legal aid at 60: Bridging the justice gap conference, London
Legal Aid Minister Lord Bach has given a speech on legal aid on its 60th anniversary.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
Lord Bach, Parliamentary Under Secretary Of State:
It’s a pleasure to be able to speak to you today. And a pleasure to be able to accept the invitation of Steve Hynes (Director of the Legal Action Group). Being legal aid minister presents its challenges. But Steve and the Legal Action Group are the best kind of critical friend – always constructive and – at the risk of destroying his reputation entirely amongst his peers – even sometimes sympathetic to what government tries to do.
And as we come up to the anniversary of legal aid, it is reassuring that we are concerned – even preoccupied – with the same. How we deliver services to some of the most vulnerable members of our society. How we ensure proper representation for the defence, without skewing legal aid spend even more. How we provide access to justice. How we help people sort out real problems – and try to turn around their lives by getting them over what might seem insurmountable hurdles. And how we do all this by keeping within a budget. And keeping the system sustainable for the future.
This may seem like a tall order. But my time as legal aid minister has shown me in abundance the continuing commitment right across the professions to legal aid and what it represents. And I can assure you that there’s the same commitment in government. And my own personal commitment is to engagement. I want to hear your ideas. How we can do things better. What we shouldn’t be doing. So that we all know where we stand.
So anniversaries are a time to celebrate. But they show us too how things have changed over time. We remain committed to the idea of public service. But how they are delivered has changed enormously since 1949 – indeed legal aid is the biggest ticket of public expenditure delivered exclusively through the private and not for profit sectors. And indeed how we think of them too. Gone is the slightly patrician approach: professional people, such as lawyers, were expected to help ‘the poor’, and ‘the poor’ in turn were expected to be very grateful for any service they received. Now we have a much greater sense of individual rights and the responsibility of the wider community whether through the state, the third sector and private providers to care for the vulnerable. And this is going to impact upon how we deliver services. We’ve seen this right across the board in recent years. In how we provide health services. In how public services treat and talk with the public.
And that means change. How we structure the system. When and whether we provide advice and representation. What we provide it for and how we focus our work on the client. How we think about what we’re doing. And it goes without saying that change can be difficult. I recognise that. And pay tribute to you for the way in which you continue to manage it. But the bottom line for me is how we can best help – but reward too – those who provide the service.
And making sure we use our resources as effectively as possible is especially true during the recession. The challenge today, and for the future, is to help as many people as possible with a large but limited budget. So we spend around £2 billion on legal aid. And spending on legal aid in the last 20 years has increased from £835 million in today's prices: an average annual real terms growth of about 5%. One of the fastest growing areas of public expenditure. And the uncomfortable truth is it’s not going to increase – whoever is in power.
And of the current budget £1.2 billion goes on crime. And the balance of £800 million on civil – mainly on family. And around £200 million on social welfare law. Issues such as debt, housing, employment. And my view is that we’ve got the balance wrong. The criminal side is compulsory spend. Of course people in court should be properly represented. But this means there’s always a squeeze on the civil side – which is not linked to demand. And in particular on social welfare law. And it’s always easiest to cut this as the discretionary spend. And for me – especially in a recession – this is the most critical part of the budget. I don’t want to cut it. And I’m determined not to do so. Indeed I’d like to put more into it. So we need to think about how we allocate the resources we’ve got across the system. And make sure it’s sustainable. So that expenditure in one area doesn’t mean we have to make cuts in areas we want to avoid. Taking money out of the social welfare spend. Or rate cuts and restrictions to eligibility.
And that means we need to take a good hard look at the criminal side. To make sure legal aid services deliver best value for money.
So last year’s increase in the Very High Cost Cases (VHCC) rates was a sensible adjustment. Acting within the current criminal legal aid budget to ensure that VHCC trials could proceed as planned. The rates for all solicitors and advocates working on VHCCs was increased by just over 5% – worth approximately £6 million to advocates and solicitors with equivalent offsetting savings from a reduction in the number of cases where two counsel are allowed.
And the announcement I made this week on crown court means testing is similarly prudent. If someone who is convicted can afford, or contribute towards their legal aid costs, they should do so. This was why introduced means testing in the Magistrates’ Courts – and has delivered net savings of over £80 million to date. And it seems obvious to do the same for the crown court – so we can recycle the savings into the fund.
Every defendant who is tried before the Crown Court will have access to publicly funded representation. Those who can afford to may have to make a contribution towards the costs of their defence. Therefore we also consulted on proposals that defendants who choose not to apply for legal aid in the Crown Court should no longer be able to claim back all their private costs from Central Funds. In other words that such costs should be capped at legal aid rates.
We published the government response to both consultations on Monday 8 June. These set out the way ahead and a timetable for implementation. The Crown Court means testing scheme will ensure that all those convicted who can afford to, do contribute towards part or all of their publicly funded defence costs. The means testing scheme also learns the lessons from the magistrates’ court scheme, recognises the different requirements in the Crown Court, and tackles the practical difficulties sometimes faced in providing the necessary evidence to support applications. In recognition of this latter point we will be making an additional £4 million available to solicitors to reflect the role they play. We will also cap payments from central funds at the same rates as legal aid.
And we’re consulting on best value tendering at the moment. I acknowledge the concerns. But it’s not a simple cost cutting exercise. It’s aimed at securing a sustainable, effective and efficient supplier base. Competition will help providers to realise their true costs and receive fair payments from legal aid. It will also enable us to manage the legal aid budget effectively and plan for the future. And I look forward to hearing about your session on best value tendering this morning.
Taken together, these changes will begin to help put criminal legal aid spending on a sustainable and efficient footing, and ensure access to justice by supporting an efficient and effective justice system, and delivering a cost effective and professional service.
And this also means we’re looking at reforms on the civil side too. For instance, the proposed family advocacy scheme. This does not involve reductions to the family legal aid budget. It will mean that some funding previously paid to barrister advocates would be paid to solicitor advocates. For the first time, the fees will fairly reward both barristers and solicitors with the same fees for the same work.
And I’m grateful to all those who contributed to the consultation process. I’m acutely aware that family legal proceedings involve some of the most vulnerable members of society. And I know too that this publicly funded work is never likely to be as financially rewarding as that for private clients. But it is an important public service. And we acknowledge that some cases are more complex than others. So we have sought evidence about how those cases might be properly identified and remunerated. I know that the Legal Services Commission has received a number of very constructive and helpful responses throughout this consultation. We haven’t made decisions yet and we will be considering those responses as we develop our final proposals. But it is likely that the final scheme will have more graduation and complexity, and the Legal Services Commission is working with stakeholders to develop amendments to it.
So we can do things differently. But that doesn’t mean there’s any the less pressure on the budget – and especially on the social welfare part of it. And so we need to face up challenges in other areas. To keep spending sustainable. To keep providing high quality services. But to do so differently. And this means looking at the civil side too.
So we can utilise modern technology to extend our reach. Delivering advice through such as telephone helplines and websites, as well as through traditional face-to-face meetings. And a good example of such is the Community Legal Advice (CLA) telephone service, which helped around 333,000 people in 2008-09 involving over 560,000 calls received. An increase in call numbers of 30% on the previous year. From April 2009, opening hours have been extended – callers will be able to get advice on weekday evenings and Saturday mornings. And from August, when the new CLA Family service contract goes live, providers will be able to offer approximately 39,000 hours’ worth of specialist family advice in the following 12 months. Whilst it is difficult to predict demand, this equates to helping around 26,000 people a year with family law problems.
And I’ve shown too that I want to use what resources we’ve got as best we can to meet pressures created by the recession. So this year, we increased the civil eligibility limits by 5% in order help those most in need, increasing the number of people financially eligible for civil legal aid. Up to 750,000 additional people could become eligible for help and representation.
And this week I announced that I wouldn’t vary the statutory charge rate. I am clear that the statutory charge provides a fair deal for legal aid clients. Guaranteeing that eligible clients can receive funding in money or property disputes, and ensuring that vital funds are recycled to help others. If we lowered the simple interest rate by half 30,000 people per year could be denied access to civil legal aid. It is right that clients who benefit financially from legal aid are encouraged to repay that funding out of the property obtained, so resources can be used to help others.
I’ve already indicated my obvious emphasis in the social welfare element of the budget. This is the bedrock of legal aid. Helping people with the problems which can bedevil their lives. And the government’s commitment to it is self-evident – an increase in funding for the not for profit sector of £80 million of legal services delivered by the not-for-profit on civil matters, compared to around £24 million in 2000-01.
And the government has increased advice provision:
- The LSC made available a further £13 million to fund additional face to face debt, housing and employment cases at the end of 2008; and
- a further £10 million was made available through the Department for Business Enterprise and Regulatory Reform to Citizen’s Advice Bureaux to expand local face to face advice capacity in England and Wales.
And the Housing Possession Court Duty Schemes in courts helped nearly 34,000 people in 2008. I’ve seen these desks at work and know just how vital their work is.
I’m keen that we work as closely as we can with the sector to support their work. So today I am pleased to announce at this major conference to mark 60 years of legal aid the publication of our study of Legal Advice at Local Level. I announced the study at the end of last year in response to concerns about the impact legal aid reform, trends in funding and the recession are having on local advice provision.
To take this work forward, we established a Steering Group so that provider voices could be heard through their representative bodies. And over the past few months, my officials have been working to gather and analyse the available evidence on local advice services. This has involved meeting with local advice providers and funders across England and Wales to hear about their issues. During these visits my officials have not only gathered a wealth of useful information and insight, but have been hugely impressed by the passion and commitment that people in all parts of the advice sector have for solving the problems of their clients.
I would like to thank the Steering Group for directing and informing the study and thank the many advice providers we have met over the last months for making time to see us and tell us about their concerns and their experience. Without the information you provided, my officials would not have been able to gain such a valuable understanding of the issues around the funding of advice services.
The report is today available on the Ministry of Justice website. Despite the help we received from Steering Group members and those working in the advice sector, it proved difficult to identify robust evidence to support or to obviate the concerns expressed to me. Nevertheless, the study has concluded that some of the difficulties being experienced by advice providers warrant further investigation, and the report makes a range of recommendations about this. So I am looking forward to working with the Steering Group to plan how the recommendations of the study should be implemented, and a full implementation plan will be published in September.
Some highlights of the report: the study found that there is an increase in the demand for advice, particularly in the social welfare categories of law, as a result of the recession. Advice providers are particularly well placed to tackle client’s debt, unemployment and housing problems at this difficult economic time. I am very pleased that we are able to show our recognition of this through the various additional streams of funding which have already been put in place.
A number of concerns have been raised about the fixed fee schemes. The Fixed Fees Scheme ensures that limited resources are effectively focused on helping people with problems in the Social Welfare categories of law (debt, housing, welfare benefits); The Fixed Fees Scheme has incentivised providers to become more efficient, and many of the providers my officials visited have benefited from the effects of this increased efficiency and a better understanding of their workload and costs. That said, we recognise that the transition period caused some serious difficulties, and that many providers are still experiencing problems, which aspects of the scheme and its administration may exacerbate. The report includes several recommendations aimed at increasing our understanding of these so that we can identify more effectively what we might do to reduce these impacts. In the meantime, the LSC has implemented some changes to the financial aspect of the scheme, following discussions with representative bodies. These are described in detail in Chapter 2 of the Study Report. They add some flexibility to monthly payments, and combined with faster processing of bill applications and payments, mean that 98% of new applications are being processed within 10 days. There is also a one-off exercise to allow private practitioners to submit disbursement claims for immigration and asylum cases outside the normal billing rules. The report also acknowledges concerns about possible perverse incentives of the fixed fee system and the effect these might have, and recommends tighter monitoring and analysis to identify whether such incentives are having an impact on services to clients.
The other major area of concern for those we spoke with is the impact which establishing Community Legal Advice Centres might have. It is, of course, very early days – there are only five CLACs in existence, and the oldest has been there for only just over two years. Insofar as any conclusions can be drawn, the impact of the current CLACs on the provision of accessible services which satisfy customers seems to be very good. However, we recognise that people are worried about the effect CLACs might have, and various recommendations in the report aim to ensure that we keep a close eye on this.
Part of the Steering Group’s role is to advise us how the recommendations flowing from the study should be taken forward. I am looking forward very much to meeting with the Steering Group – many of whose members are here today – in the near future to start talking about this. I would say clearly that any further work will need to be achieved from within our current budget. Nevertheless there is scope to improve the way that we work with advice providers. We are committed to continuing to learn and listen to opinions of those working on the frontline to deliver legal aid, and to working closely with you to achieve our shared aim of ensuring we have a sustainable advice sector.
So I hope you agree this study is an announcement of grown up government. In a vital area of legal aid when significant changes have been made, we have, working together with the professions themselves, looked in some depth at the issues these significant changes have brought. Our view is that on the whole these changes are working well, but that there have been some real concerns about the transitional arrangements and the consequences. We have made recommendations and we will come back with an implementation programme in September. We need to get the system right. Not for government. Not for the professions. But for those who need help from legal aid.
The Legal Aid and Advice Act received the Royal Assent on 30 July 1949. Legal aid has a great history. I spent a good part of my professional life working in it. So I know instinctively just how important it is. I know too the commitment shown to it by all who do legally aided work – so I pay tribute to you all. It has faced pressures throughout the last 60 years. And we need to embrace change to continue its mission. Because that is the way to use what we’ve got as well as we can. So I look forward to working with you.
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