Get Carter

The Carter reforms have been playing on the minds of every lawyer who makes a living representing the poor. Designed to slash the cost to the taxpayer of the countrys legal aid system, in which people who need legal advice but cannot afford it get a lawyer paid for by the state, the reforms look set to change the lives of legal aid lawyers forever.

But the concern is not just among the legal aid community.
Legal aid is seen by many people as essential to justice as it ensures that everyone facing trial understands their rights, is treated fairly under the law and has the best possible chance to defend themselves. The system is seen as the only way of making sure that the law works for everybody, not just for the rich.

But as you can imagine, funding thousands of lawyers each year is not cheap and by 2005 the Government argued that the cost of the spiralling scheme to the state in other words, the taxpayer was out of control and drastic action was needed to rein it in.

But that is easier said than done. Central to ideas of justice and freedom, legal aid is usually seen by politicians as a ringfenced subject, politically too dangerous for them to meddle with. Yet in failing to tackle the cost of the system the Government would be forced to either raise taxes or divert money from other important areas both of which would be unpopular moves.

In short, the Government faced a dilemma: either find new ways of funding the ever-growing cost of legal aid solicitors, or mess around with a system seen as an essential part of a fair society.

Carters report
To try to find an idea that could save both legal aid and tax pounds at the same time, in July 2005 legal big cheese Lord Carter of Coles was charged with conducting an in-depth review of the way the entire system works.

When Carter and his team began there was already a number of proposals for them to look at. These included slashing the large number of legal aid firms in favour of a small handful of big ones, which would, in theory, be willing to handle each individual case for less if they were guaranteed a bigger total number.

Another suggestion was to bring down the cost of legal aid work by making legal aid law firms tender against each other for contracts, in the same way that other government suppliers of everything from military hardware to office cleaners already do. The competition would force firms to drop their rates for work, it was argued, as well as forcing them into beauty parades to demonstrate their abilities, thereby ensuring that the Government gets the very best lawyers for the job.

Most radically of all, it was also suggested that the Government could even take the legal aid work in-house, setting up large teams of state legal aid lawyers who would do the work for a yearly salary rather than a billable hour basis as they do at the moment.

When Carter finally published his report in July 2006 he boasted that the reforms he was recommending could save the state 100m a year. He also predicted the end of the 1m-a-year criminal defence barrister as a result of his review, and said there will be a smaller number of larger, more efficient, good-quality suppliers by 2009.

To achieve this he made 62 recommendations. These included
setting fixed fees for police station and magistrates court work; giving more work to firms that show they have increased the amount of work they are able to do; and encouraging smaller firms to merge or form consortia that can work together when it comes to legal aid.

Carter said the new system would mean an end to unreasonably large amounts of money paid to some leading barristers for complex cases and predicted a wave of mergers and the death of some 400 small criminal practices.

Opposition
Predictably, the recommendations caused uproar. As Law Society chief executive officer Desmond Hudson said at the time: Its difficult to recall any other issue generating so much strength of feeling among solicitors as the Governments legal aid reforms. Even solicitors who dont work in this sector fear the Government is overseeing the piecemeal destruction of this vital public service.

Seemingly oblivious to the fact that Carter had explicitly predicted it already, thousands of lawyers complained that the reforms would drive small practices out
of business.

Others complained about the effect the reforms would have on people needing legal help in the countryside, where there is already a shortage of legal aid solicitors, arguing that this would be made worse by concentrating suppliers into a smaller number of larger, centralised firms that would in all likelihood be based in cities.

Ethnic minority legal lobby group the Black Solicitors Network, meanwhile, accused the reforms of ignoring the impact that price-competitive tendering would have on ethnic minority firms a worry that was echoed by the Criminal Law Solicitors Association and the Solicitor Sole Practitioners Group.

But the objections did not stop there. Deciding action was needed to back up their complaints, several groups, including the Law Society, launched legal challenges against the proposals. In a statement at the time, then Law Society president Kevin Martin slammed the reforms as another example of a kneejerk legal aid policy decision.

Recognising the strength of the hostility, in 13 July 2006 the Legal Services Commission (LSC) and the Department for Constitutional Affairs (DCA) decided to launch a consultation with the legal profession to sound-out its views.

Ongoing battle
The months between then and now have seen running battles between the two sides. Flashpoints included a report commissioned by the Law Society last September, which revealed that, contrary to Carters prediction that 400 small firms would be likely to close, the reforms would in fact lead to the death of 1,300 small outfits or in other words, most of them, as first reported on www.thelawyer.com (26 September 2006).

By November the Law Society had convened a special general meeting to coordinate resistance to the reforms. The meeting followed a motion put forward by Southampton-based solicitor Roger Peach to reject Carters proposal for competitive tendering for criminal legal aid services, a motion that was supported by a further 175 solicitors, as first reported on www.thelawyer.com (13 November 2006).

Later that month 28 top UK law firms, including the worlds largest law firm Clifford Chance, signed a letter of rebuke to the Lord Chancellor, Lord Falconer, slamming the reforms set out by Carter. Short and to the point, the letter urged him to reconsider [his] plans and safeguard the future of this vital public service, as first reported on www.thelawyer.com (24 November 2006).

Even law schools got in on the act, with a survey by the College of Law revealing that 90 per cent of firms believed the reforms would threaten their ability to continue to undertake legal aid work, as reported on www.thelawyer.com (27 November 2006).

Yet, despite all the flak, the Government has pressed on with the reforms. With the issue of the DCA and LSC report on 28 November 2006, Falconer gave details of the next stage of the changes, which he said would reward efficiency and help build public confidence in the legal aid system. For all the protests, fixed fees will still be introduced for simple criminal cases, and magistrates court and Crown Court cases will feature competitive tendering.

Far from admitting defeat, opponents of the reforms are fighting on and have been joined by new forces. At the time of writing this feature, 400 solicitors at a Law Society special general meeting voted unanimously to resist the Governments proposals, as reported on www.thelawyer. com (17 January), while other recruits include charity Citizens Advice, the Legal Action Group, the Legal Aid Practitioners Group, the Sole Practitioners Group and the Legal Action Group, which represent high street firms and their clients. Place your bets.