Why the change?
The system is failing because “clients and money are directed to solicitors” leading to court-based lawyer-led services. Solicitors are able to run cases the way they want which is “often not the way that either the client or the Legal Aid Board would choose”. The cost of legal aid is rising at a rate which the country cannot afford under a system which does not encourage barristers or solicitors to control their costs. Law Society president Charles Elly comments: “I am sorry that the Green Paper is riddled with inaccurate and unsupported assertions about the defects of the present legal aid system.”
Legal aid would be provided under block contracts within a fixed budget with priorities approved by Parliament. The Legal Aid Board would grant contracts for advice and assistance and/or representation in different areas of legal work with local need assessed by a network of regional committees like the existing North Western Legal Services Committee. Competition for contracts would lead to innovation and cost reductions plus a more certain income for suppliers. Fixed budgets might cause “particular problems” in the criminal legal aid sector but the “balance of argument is in favour”. Elly says: “Legal aid might be available in Nuneaton, but not in Newcastle. In some part of the country it would be available in June, but not in December.”
Only franchised firms will be able to hold long-term contracts. Non-franchised firms will be eligible for a year-long contract once they have passed a preliminary audit. The system would lead to “some further limitation of choice” but “a client's choice would be between quality assured suppliers, which is not the case at present, and therefore more worthwhile than under the current system”. The Legal Aid Practitioners Group says if the Government is determined to introduce a block contracting system between the LAB and solicitors, contracts must not be exclusive. Co-chair Jon Lloyd adds: “Any system must enable the public to go to the approved solicitor of their choice”.
Solicitors would engage barristers and agree their fees with the contract and monitoring system ensuring advocacy was not retained in-house “where better value for money would be obtained by briefing counsel”. Under individual contracts for very high cost cases there would be provision for an adequate defence but the system should “ensure that the excessive fees which have attracted criticism in the past would not be paid in future”. The Criminal Bar Association says: “Schemes to put the funding of cases in the hands of solicitors will lead to exploitation and will cause the withdrawal of many barristers from the criminal justice system. This may lead to further miscarriages of justice.”