You have been consulted

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  :

Barrister’s Wife in the New Statesman

Criminal Bar Association Blog

Merseyside Family Justice Council

50 Shades of Affray

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.

FAMILY LEGAL AID PLANS TORN APART IN DAMNING JUSTICE SELECT COMMITTEE REPORT

Ah, it’s just a roller coaster in this job. You never know what to expect – at court, or in your bank account. Don’t you just love it? Today the Justice Select Committee has blown a great big hole in the bow of the LSC proposals to cut our fees (I’d like to say it was all my doing as a result of my eloquent whining at the House of Lords the other day, but I suppose we must give credit to others who have been continuously banging their collective heads against the walls of the LSC trying to get through to them for the longest time).

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As much as I did enjoy reading the press release below, I’d much rather forfeit all the PR noise to know if I’m going to be able to pay my mortgage next year. Who knows what lies in store on this endless voyage? I am feeling pretty seasick (it’s probably all the mixed metaphors I had for lunch). One more consultation and I’m going to walk the plank! So without further ado follows the Bar Council Press Release, which needs no editing:

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Legal Services Commission proposals to cut legal support for vulnerable children and families have been savaged in a damning report from the all-party Justice Select Committee.

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The report, published today, concludes that ‘proposals for reform were based on incomplete data, [and] a superficial understanding of the supply of legal services in this area’.

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The LSC’s approach to reform is condemned as ‘flawed, weak and inflexible’. It is criticised for a ‘conclusions first, evidence after’ approach to policy-making, having commissioned Ernst & Young to gather data to inform its thinking after proposing swingeing cuts to the system.

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Commenting today, Chairman of the Family Law Bar Association (FLBA), Lucy Theis QC said:
‘Surely now the LSC will wake up to reality: its plans for family legal aid are unwelcome, unworkable and unwanted.

‘On reading this report, Justice Ministers will realise that the LSC has failed a basic test of competence when it comes to delivering reform.

‘The Commissions determination to bulldoze through ill-considered changes without proper evidence or any analysis of the impact upon budget or diversity risks irreparable damage to the protection of vulnerable children and families.

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Desmond Browne QC, Chairman of the Bar Council added:
‘This is a simply devastating condemnation of the LSC’s hapless efforts at reform. It shows that it is not practitioners who have pushed up the cost of legal aid. The LSC’s proposals were based on flawed data and were introduced without any prior assessment of the economic impact or the consequences for women and BME practitioners.

 

‘As the Committee says, without qualification, this is discriminatory. It is wholly inconsistent with the Government’s desire to see a more diverse pool of advocates from which in time a more diverse judiciary can be appointed.

 

He added:
‘The Committee has endorsed every single one of the concerns of the FLBA and the Bar Council.

 

‘The Committee has confirmed our warning that there is a serious risk of an exodus of experienced practitioners from publicly-funded family law practice.

‘The time has now come for Ministers to act on our concerns. As the Committee says: “there needs to be fundamental change of attitude on the part of the LSC”.

You don’t say! (that bit wasn’t part of the press release).

POSTSCRIPT: Read the report here.

Family Legal Aid – A Glimmer of Hope

Spring has sprung, the grass is riz, and I am feeling optimistic. Maybe its just the heady scent of daffodils and the twirting of blackbirds from my ever so soggy garden, but yes, things seem to be looking up. Perhaps I spy the ‘green shoots of recovery’ to steal a trendy pseudo-economics buzzphrase.

The LSC has acknowledged that its proposals were ‘too simple’. Understatement of the year so far.

The Family Justice Council, Association of Lawyers for Children, Law Society, Legal Aid Practitioners’ Group and the Family Law Bar Association all chorused harmoniously in opposition to the proposed scheme in their various consultation responses, like a chorus of mouthy blackbirds. And of a remarkable 1500 responses received, over 70% were from the family bar. Glad to see we are finally fearlessly defending our own corner instead of someone else’s for a change. Plucky little blackbirds we.

It is likely that by May reworked proposals will be emerging for all to see and gaze at in wonderment. You know how things pop up in the border at this time of year and you’ve no idea what they are at first, until all of a sudden – WHAM – and that little shoot tip poking up is a giant something or other. You hope not a giant weed that will strangle everything else. I have that sense of expectant trepidation. What is this green shoot of hope going to turn into?

And, the ‘Best Value Tendering’ Consultation scheduled for Spring 2009 is shelved. Who could have managed another consultation just yet? No thanks, I’m full.

So, all in all looking up. But there may yet be some late frosts. And the temperature is sure to rise again in the coming months.

Strained metaphor ENDS.