A Legal Aid Board that's too eager to please

Elizabeth Davidson argues that the England and Wales LAB would do well to follow the example of its outspoken Scots counterpart.

IT WAS so obvious it hardly needed saying. But the Scottish Legal Aid Board (Slab) certainly did raise a few eyebrows when it proclaimed a few weeks ago that withdrawing legal aid from personal injury cases “would not appear to be necessary”.

In coming up with the pronouncement the SLAB was following a well-trodden path. The law societies of both Scotland and England and Wales, the Bar Council, and various legal pressure groups including the Legal Aid Practitioners Group (LAPG) and the Association of Personal Injury Lawyers have been saying the same thing for months.

What was surprising about the SLAB’s statement, however, was that the board was prepared to contradict Government policy. The stance contrasts sharply with the deafening silence that has emanated from the English Legal Aid Board (LAB) on the issue.

The SLAB did not exactly slate Lord Irvine’s policy, it merely pointed out that since legal aid is largely self-financing in personal injury cases it should not be withdrawn.

Obviously the two boards operate in very different circumstances. One is answerable to the Scottish Office, the other to the Lord Chancellor’s Department (LCD). In Scotland, civil legal aid accounts for just over a third of the legal aid fund, compared to more than two thirds of the overall budget in England and Wales. Nevertheless the LAB has been less than sabre-rattling in its response to Government policy.

“Our board has been very uncritical of both the Government’s proposals for change and the timetable for doing so,” says Vicki Chapman, head of policy at the Legal Action Group.

She for one thinks that by refusing to criticise the Government the LAB is failing to fulfil one of its key tasks. She believes it has “a broad responsibility” to advise the Lord Chancellor on legal aid issues – and that includes speaking out if it thinks the Government has got it wrong.

Michael Napier, senior partner at Irwin Mitchell and an expert in conditional fees, is another who thinks the LAB should display a bit more independence. “It is an independent body. Why else would it respond to government papers if it were not capable of expressing an independent view?”

In fact, the LAB’s constitution does not overtly state it must give independent advice to the Government. But when it was set up, there was another body whose express task was to do just that.

The Legal Aid Advisory Committee was established by the Attlee government in 1949 to advise it and future governments on how the new new legal aid scheme should be developed. But it was abolished in 1994 by the then Lord Chancellor, Lord Mackay. Why? Because he said he was getting sufficient “independent advice” from the LAB which he hoped he would continue to receive.

So why is the LAB being so mealy-mouthed in the public reports it sends to the Government on various legal aid matters? The answer to this puzzle depends on who you speak to. One board member claims the LAB has a “lot of behind-the-scenes influence” and that the LCD listens “very carefully” to its point of view.

But another senior source disagrees: “The line the chairman takes is that policy is for the Government and implementation is for the board… We do what we’re told.”

The source claims the 11-member LAB had “never seen itself as an organisation which gets involved” in decision-making, although it may advise in practical terms that a policy cannot be carried out.

LAB planning manager Richard Collins echoes this line, saying: “Our role is to advise on how to achieve an objective not to question policy.”

Many in the legal profession, however, would welcome an LAB with a mind of its own. One ex-board member is “pleased” the SLAB has taken its position and thinks the LAB ought to be “much more independent and provocative”.

The same source says the board does not criticise because of “politics with a small “p’”. “It is not that it doesn’t think it can, but that it doesn’t want to,” the source continues. The ex-board member also believes the board has little influence behind the scenes, claiming it holds little sway with the LCD.

For many the LAB’s silence on policy can be put down to the personality of chief executive Steve Orchard. According to one source, he “runs a tight ship” and “is not terribly political but broadly conservative”.

One observer feels he aligned himself so closely with the policy of the previous government that there was a question mark over whether or not he would survive the election. This observation is supported by the fact that when the board has got into trouble for being too political in the past, it has been for slavishly supporting the Government.

In 1995, for example, the then Law Society president Charles Elly accused the LAB of political bias after it placed a recruitment advertisement which assumed block contracts would be introduced. And in 1996 the LAPG claimed the board was “running the legal aid agenda”.

Ironically these flare-ups would only have encouraged Orchard to keep his head down. But at what price? There is a strong argument that a much more robust approach by the LAB towards government policy since Labour came to power could have helped the Lord Chancellor, Lord Irvine.

It could have persuaded him not to proceed with his more absurd ideas, which he is now having to drop, and not to embark on such a ludicrously unrealistic timetable for reform.