Select Committee on Constitutional Affairs Fourth Report

Conclusions and recommendations


1.  The Criminal Defence Service budget is demand led. Increases in spending on criminal legal aid reduce the availability of money for civil help and representation. Provision for civil legal aid has been squeezed by the twin pressures of the Government's reluctance to devote more money to legal aid and the growth in criminal legal aid, as well as the cost of asylum cases. Whatever action the Government may take to reduce the financial impact of asylum cases on the legal aid system, it is likely that the growth in criminal legal aid will continue to be a burden. There may be scope for bearing down on the cost of criminal legal aid by better case management and a new criminal procedure code. The Government should ring fence the civil and criminal legal aid budgets so that the funding for civil work is protected (as immigration work is) and considered quite separately from criminal defence funding. (Paragraph 13)

2.  It is vital for the Government to ensure that part of the cost calculation of policy initiatives includes an assessment of the impact on the legal aid budget and that there is adequate liaison between the Constitutional Affairs Department and departments such as the Home Office which legislate in relevant areas. This is a key recommendation; we expect the Government to be able to demonstrate that it has significantly improved its system for ensuring that legislative changes proposed by departments are costed to take into account the full impact on the legal aid budget. (Paragraph 15)

3.  When making its forward planning for matter starts, the Legal Services Commission must take into account the need for solicitors' firms to make similar forward planning. It is entirely unreasonable to expect solicitors' firms to be able to function without making such forward business plans. (Paragraph 29)

4.  Despite the factors raised by the Legal Services Commission, we are satisfied that there is still ample evidence of unmet demand. When there is no evidence of reduced demand the number of people helped is a key indication of how successful the system is. It is unacceptable that the system is helping fewer people. (Paragraph 35)


5.  The evidence on the difficulties of recruiting solicitors and barristers to legal aid work and retaining them underlines one of the most serious threats to the provision of publicly funded legal advice. The significant trend of young lawyers away from legal aid work puts into question the future of the civil legal aid system. (Paragraph 49)

6.  There is a role that "outreach" programmes can play in adding to the range of services giving advice to the public. The details of their implementation are, however, of crucial importance. They can be an effective complement to other services if they encourage people to take advice who might be reluctant for any reason to consult a solicitor or who do not know how to go about seeing one. "Outreach" programmes can provide good cover for legal advice in a wide range of cases. If proper use is to be made of such facilities, they must not be irregular or infrequent and they must integrate properly with other legal services to enable proper referral. (Paragraph 53)

7.  We are in no doubt that the term "advice deserts" reflects the concerns which exist in some geographical areas and in some fields of law where advice is not readily accessible. (Paragraph 61)

8.  If it is the policy of the Legal Services Commission to deal with fewer firms, this creates a number of problems. For example, if fewer solicitors' firms have contracts the problems of supply in rural areas will be exacerbated, especially in family law disputes which require different solicitors' firms for each of the parties. In time, the limited sourcing of legal aid work to fewer firms may result in higher fees being charged, since the bargaining position of the Department will be weaker. Fewer contracts with firms would involve the loss of investment in resources which the current body of experienced, trained and motivated legal aid practitioners represents. Once these valuable practitioners are lost, they will be hard to replace. (Paragraph 67)

9.  At present, it is possible to take advice from a wide range of firms in which there is a good general spread of expertise. Over-specialisation in certain areas of legal aid work may tend to prevent solicitors from providing a holistic approach to the advice given, unless steps are taken to avoid this. Although specialisation can provide a concentration of expertise which allows a better service to be given, firms must be able to offer a "joined up" service, since many people turn to solicitors with a series of connected problems that require expertise in different legal areas. For example, a divorce may result in debt problems, mental health problems and, perhaps, housing problems. (Paragraph 68)

10.  There is a serious risk that if legally aided work is associated with very low fees, this may have a serious impact on the quality of people who undertake legally aided cases. The problems that are faced by clients who require legal aid support are often of the most complex variety. Many vulnerable citizens have problems which come in "clusters". It is vitally important that they have access to justice which can only be guaranteed by recourse to fully competent advisers. (Paragraph 75)

11.  Those who receive public money for providing a public service need to maintain proper professional standards. However, the current system of auditing solicitors costs is arbitrary, inaccurate and bureaucratic. Furthermore, it is not linked to quality of advice given. It is clearly punishing competent and honest solicitors and is operated in a way which completely fails to attract the support of the profession. This is the most serious criticism of the current system for managing legal aid work that we have found. A solution is urgently needed. (Paragraph 87)

12.  The principle that two successive category "3" marks means automatic loss of contract—"two strikes and you are out"—is unnecessarily draconian. Even if it were based on a recognisably fair system it would be harsh, but the combination of this rule with the arbitrary application of the LSC's rules make it unacceptable. A similar mark should begin a process of consultation and assistance which would help solicitors, who may be providing a perfectly good service to the community, to improve their management systems. Simply eliminating them from the list of contract holders is wasteful and counter-productive. (Paragraph 89)

13.  Peer review has been accepted by all parties as providing an appropriate means of audit for practitioners. If properly implemented it should reduce bureaucracy and provide a much clearer picture of the value of the service provided. (Paragraph 94)

14.  We were impressed with the strong commitment of many of the solicitors and advice sector workers whom we met. The public service which they carry out deserves wider recognition, as they are often the only barrier between a citizen and complete denial of legal rights. A proper system of access to justice for all the community depends entirely on such professionals. (Paragraph 95)

15.  We think that the idea of financial support for those newly qualified entrants into the legal profession who will provide publicly funded legal services is a good one. Initiatives of this kind will become a necessity in order to ensure the public service provided by legal aid solicitors is maintained. We commend the work by the Legal Services Commission in developing policy in this area. (Paragraph 101)


16.  At present, the legal aid system is increasingly being restricted to those with no means at all. There is a substantial risk that many people of modest means but who are homeowners effectively will fall out of the ambit of legal aid. In many cases this may amount to a serious denial of access to justice. (Paragraph 105)

17.  It is not acceptable that in employment cases employees can be forced to represent themselves in circumstances where private employers are able to employ lawyers to represent them. If proceedings are to be fair, there needs to be equality of arms. Legal aid should not automatically be excluded from such tribunal hearings. (Paragraph 111)

18.  Any system of civil legal aid must cater for the most vulnerable in society. These are the people whose problems may often to come in "clusters". They also include some of the people who are most likely to suffer from "referral fatigue". We believe that the current system of referring people results in many people giving up on legitimate claims. (Paragraph 114)


19.  There is considerable scope for employing knowledgeable advisers who are not solicitors to give advice in specific areas. Often such advisers are at least as good as or better than solicitors in providing for the needs of clients in their area of specialism, for example, welfare benefits or debt. Law Centres provide an established example of how such advice can successfully be provided. (Paragraph 118)

20.  Non-independent sources of advice can only be a complement to and never a replacement for services available from solicitors and independent advice agencies. Ideally, they should be independent of the organization against which the citizen is claiming and they should not be the only avenue of advice. (Paragraph 121)

21.  More research on the viability of a salaried service should be undertaken, following assessment of the LSC's Public Defender Scheme. If any salaried system is introduced it must be properly funded. (Paragraph 131)

22.  Legal Expenses Insurance can be useful as a supplement to the Legal Aid system. It has the advantage of already being available for some areas of law or for specific purposes. If it were to be relied on as an important addition to the general system of civil legal cover it could to be part of the usual household insurance contract. This might require an element of compulsion. (Paragraph 134)

23.  We support the view that telephone advice could be made more widely available as a cost-effective source of first-stage advice. It is possible that, in urban areas, face-to-face services would need to be expanded to keep pace with the demand generated by referrals from telephone services. (Paragraph 141)

24.  New and alternative technologies can complement services provided under the legal aid system, especially when dealing with hard to reach groups. They provide an important way forward for combining an affordable system with quality advice. If their use is to be successful they must integrate with the rest of the system to enable ease of access for clients and transfer of files between advisers. They must also receive adequate funding. Further research is needed on improving electronic means of access to advice, in particular to enable less literate groups to use information technology. (Paragraph 143)

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