Carter Review of Legal Aid Procurement
Submission to the Constitutional Affairs Committee – October 2006
• We are a national firm of solicitors with offices throughout the UK providing a full range of legal services to Trades Unions and their members.
• We provide a specialist national criminal defence service which is across the UK. We have a very different profile to typical criminal defence firms.
Our clients are mainly public service workers primarily teachers and local authority employees particularly within social services who we defend in cases of alleged historic abuse and of exceeding the lawful boundaries of restraint.
We have an extremely high rate of success in defending our clients. 90% of our clients either have charges dismissed or are found not guilty.
Q: Is there a need to modernise the procurement of Legal Aid?
It depends on the analysis of the problem. There has to be a compelling case that reform will have a positive cost benefit outcome.
The Legal Aid Budget
• We are not certain that the Carter Review was able to correctly analyse or identify the “problem” or that it reached conclusions which stand up to a cost benefit analysis.
• Modernisation proposed by Carter has identified the wrong targets. Volume is to be traded for price.
• A £100 million saving over four years is (in the context of the whole budget) a very small sum.
• The budgets for police station and magistrates court work are very clearly under control. Overall expenditure has been falling since 2002/3.
• Work should be localised by restricting duty solicitor police station and court membership to two schemes per qualified solicitor.
• Contracting should be organised by firm rather than by office.
• The major restructuring envisaged by Carter in police station work should be held back pending the outcome of the other reforms.
Contracting which recognises the diversity of firms and niche suppliers should be permitted.
So What is the "Problem"?
1. 1% of cases absorb nearly 50% of the budget
There has been widespread publicity regarding spectacular failed cases such as the Jubilee Line Fraud.
We would have expected the emphasis of reform / modernisation would have been on
(a) the institutional arrangements for determining which major investigations and prosecutions should proceed in the public interest;
(b) the management of those prosecutions;
(c) the prediction of “cost” for both prosecution and defence and
(d) whether those cases should have separate budget arrangements.
The proposals to create a limited, very high cost case (VHCC) panel of solicitor firms are founded on selection by two mechanisms; peer review and lowest price.
• Peer review is welcome save the timetable for implementation does not permit the establishment of a cadre of VHCC peer reviewers.
• Limiting VHC panel membership by lowest price competition throws away current arrangements that appear to be producing significantly lower costs. Why not continue a regime of administered fixed prices? The new arrangements are unnecessarily bureaucratic and the bidding process will be expensive to administer.
• The additional 100% “mark up” on hourly rates for serious fraud was only abolished in late 2005. The impact of that and improved VHCC administration has had little time to work its way through the system.
2. The £1 Million Barrister
• There has been a lack of rigor in the assessment of counsel’s claims. Solicitors have long been required to justify work as actually, reasonably and necessarily done on a time basis with a detailed account of time.
• Put in place proper institutional arrangements regarding VHCC cases.
• Conduct rigorous cost benefit analysis from the investigation stage onwards.
• Separate the budget for VHCC cases.
• Give Judges the power to order that legal aid defence costs be paid by prosecuting agencies where the Judge concludes that there has been significant mismanagement of the case.
• Maintain an ongoing analysis of the external cost drivers of this expenditure.
• Additional resources and training for the National Taxing Team and guidance on counsel’s claims.
• A rigorous approach to counsel time recordings.
Q: Is the timetable for implentation suggested in Lord Carter's report realistic?
No. The wrong question has been addressed. The timetable itself is unrealistic.
• Firms should not be required to absorb price cuts prior to “gaining” volume.
• There is no clear mechanism for deciding how firms will be eliminated from the market.
• There are no clear mechanisms for permitting the entry of firms to the market in order to maintain and revitalise competition.
Q: What benefits might be generated for defendants and others by adopting these proposals? What impacts / disadvantages might result from the implementation?
• We can see no benefit for defendants as recipients of legal services.
• We envisage significant reductions in choice and access.
• If these proposals were implemented without allowing for niche supplier contracting, our clients who wish to access legal aid suppliers would be fragmented amongst all local contractors who would have no significant experience in dealing with teachers, carers, and other public servants.
Q: Will the measures proposed promote the provision of high quality advice and support the effective and efficient operation of the justice system?
No. The high quality advice and representation Thompsons deliver is available because we have a national dedicated team delivering a service based on specialist knowledge and above all experience.
• A system of fixed or graduated fees will not represent proportional and proper payment for the work actually done in cases.
• Fixed fees reward those whose primary purpose is to exploit the system by doing as little as possible and penalise the conscientious solicitors. We support the continuation of a strengthened ex post facto determination of costs.