Scarcely a month goes by when there is not some consultation that touches on some aspect of legal aid or justice. But this one is a biggie (Transforming Legal Aid: Delivering a more credible and efficient system).
It's not for lack of interest that I have not so far blogged about it, I've just been a bit overwhelmed with work, trying to snatch a moment here and there to digest the consultation document and ponder its ramifications for family law. There are an astonishing array of other excellent blogs and articles which will tell you about the ramifications of the consultation for criminal law - none so far as I can tell saying "Yay! These really are truly excellent proposals, which I wholeheartedly support", and plenty along the lines of "this will result in a catastrophic collapse of the criminal justice system - what ARE the government thinking?". I'm not going to bother with a ham fisted attempt to articulate the concerns raised by the criminal legal community - but suggest you try the following examples :
Try looking at the hashtag #saveukjustice on twitter for more. There is a constant stream of them.
So. To family. There is obvious impact on the family justice system arising from the proposal to cut solicitors base costs by a further 10% on the basis that the new regime of 26 weeks in public law cases will mean 10% less work for solicitors. This conveniently overlooks of course the facts that
a) the 26 weeks is not yet enshrined in law (although in both guidance and practice it is here it is a
target deadline we are travelling towards but have yet to reach)
b) the new Public Law Outline that will underpin and make possible the 26 week deadline has yet to be finalised or published OR IMPLEMENTED
c) based on the information that IS available it will be essential part of the new system that lawyers do their job thoroughly, swiftly and more precisely than has hitherto been expected. Compliance with PD25 to the letter as is now expected is onerous indeed, especially if it is to be done by day 12 in conjunction with a tardy or difficult to reach client and a full caseload of other clients and court appointments.
d) in the event that any single agency or cog in the system does not perform as expected in the PLO, pre-proceedings protocols, expectations documents or practice guidance there will be EVEN MORE work for lawyers to do. Saying that all agencies must pull their weight, cooperate, collaborate, comply etc will not necessarily make that happen.
e) for 10% less pay for 10% more work a fair few solicitors might pack up and go sell knock of dvds at the local car boot. What then of the holy grail of 26 weeks?
Similarly, the 20% cut in experts fees will have a direct effect upon family proceedings, and particuarly on the ability of vulnerable parents to demonstrate their capacity to change or the extent of change already made, and for those accused of injuring a child with suspicious injuries to demonstrate that there is in fact an innocent explanation. There are already experts who no longer accept instructions, it seems inevitable that the pool will shrink further, although it is difficult to quantify the extent of any contraction or the to assess the likely quality of the experts who will remain.
But it's not just that. Even if there were not direct cuts in the field of family law the proposals in other areas have a knock on effect on our clients :
A residence test for eligibility will exclude many who have, for whatever reason, irregular immigration status or who are homeless.
Restrictions on judicial review will affect the most vulnerable - where Parliament is currently considering draft legislation that will restrict judicial scrutiny through care proceedings of care plans for children in care, and where IROs rarely if ever take proactive action on behalf of children, judicial review is an important option of last resort.
Fundamentally though, if the criminal bar are right, the proposals will cause a massive collapse of the criminal bar and of high street solicitors firms. That, if it were to happen, would impact upon the viability of those firms which undertake family work (even ignoring the 10% proposed cuts to family fees) - for many high street firms undertake both types of work. With less family work being briefed out to counsel there will already be a scramble for the work at the bar, and if the market were flooded with many criminal barristers trying their hand at family law to try and stay afloat there would be disaster for not just the criminal but family bar. It may not in those circumstances be the best who would survive.
... I began this post a week ago. It is now urgent, but I have been trying to assist with the preparation of consultation responses myself alongside working and family commitments. When I will find time to do my own response I do not know. It is a mad enough scramble with a traditional 12 week consultation. This has been impossible.
Please find time to read about the proposals and to respond. Please do it before 4 June. Each individual response counts. If you feel strongly, do not rely upon your colleagues, friends or professional body / association to respond on your behalf. The MoJ have asked for your views - let them have them.