John Malpas looks at the stormy relationships which have dogged the LAB and talks to the institution’s main players
“A DOWNCAST institution, riven by internal dissension from the highest to the lowest levels.”
That is how the Law Society described the Legal Aid Board not long ago.
In a speech which sparked off a huge row between the two bodies, vice-president Charles Elly said the board was “gripped by a bunker mentality in which it can trust no one, haunted by the nightmare, now about to come true, that its flagship scheme upon which its entire talents, energies and spare cash have been lavished, may lie in tatters”.
Unsurprisingly the speech went down well among the anxious audience at the Legal Aid Practitioners’ Group (LAPG) conference last year as they contemplated the imminent launch of the board’s flagship franchising initiative.
Few would disagree that the speech, and the board’s furious reaction, marked the low point of an often stormy relationship between the Law Society and the board, which took over legal aid from Chancery Lane on 1 April 1989.
But the incident may come to be regarded as a turning point in the board’s history, for it survived the worst that the Law Society could throw at it and pressed ahead with a scheme which lawyers across the country are now being forced, however unwillingly, to recognise.
Looking back on the famous row, Elly believes its long term effect may force both sides to recognise that they had to forge a “closer relationship”.
He also believes the board itself has taken greater steps to be more open about its policies since then.
But that is not to say that solicitors, and barristers for that matter, are not always going to be suspicious of the board.
As LAPG chair Jon Lloyd politely puts it, a “healthy scepticism” is always likely to be maintained. The reason for this is explained in an overview which was published by the board in September.
It identifies the legal profession as just one of four of the board’s main “customers”, the other three being the “assisted person or potential assisted person, the judicial system and the taxpayer/Government”.
“Their interests are not only different, they sometimes compete,” the overview states.
Most lawyers, maintaining their healthy scepticism, will rate the taxpayer/Government as customer number one and put themselves lower down on the board’s list.
According to the overview, the board’s remit from the Lord Chancellor is “to ensure that legal advice, assistance and representation are made available to those who need it in ways which are effective and give best value for money”.
The remit is spelt out in more detail in a management statement for the board issued by Lord Mackay last year in an attempt to give the board “greater clarity of purpose”.
It formed part of a general government attempt to open itself up to greater public scrutiny – and may have also played a part in the greater openness which Elly has observed.
As a non-departmental public body, the board is vulnerable to the common charge levelled against quangos that they are unrepresentative, bureaucratic and secretive.
To his credit Orchard is not a man known for his tendency to shy away from the limelight.
The Legal Aid Act 1989, which set up the board, gives it the kind of statutory independence which departmental Next Steps agencies like the Prison Service can never enjoy.
The Act, for example, empowers the board to do anything “which it considers necessary to provide or secure the provision of advice, assistance and representation under the Act”.
Orchard’s own position can be said to be more secure and free from political interference than that of Lewis because the LAB itself appoints him.
He says he is happy with the arrangement – and notes that Derek Lewis, while speaking at the recent Criminal Law Solicitors’ Association conference, “was calling for the same sort of statutory framework which we have for legal aid”.
The independence which the board enjoys has allowed it to press ahead with initiatives like franchising, and has prompted the efforts of Orchard and the chair Sir Tim Chessells to explain the board’s policies.
Sometimes the board’s desire to promote its initiatives and defend itself from criticism have landed it in trouble.
These include a recruitment advert that said block contracts would be introduced and a crude outburst by Orchard at a conference when the board was accused of hoodwinking solicitors into accepting franchising with assurances that exclusive contracts would not follow.
Incidents like this have handed political capital to opponents of Orchard and the board who accuse it of forcing the legal aid reform agenda.
But they also make it difficult for people to accuse the board of being a distant ivory tower.