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					Young Legal Aid Lawyers c/o Laura Janes 1 Ardleigh Rd London N1 4HS info@younglegalaidlawyers.org www.younglegalaidlawyers.org Rebecca Tinker CDS Policy Team Legal Services Commission Ground Floor 12 Roger Street London WC1N 2JL By email: cds.directorate@legalservices.gov.uk 10th April 2007 Dear Ms Tinker RE: Response of Young Legal Aid Lawyers (YLAL) on the LSC’s consultation on Police Station Reforms This letter is the formal response to the LSC‟s consultation by YLAL. Introduction YLAL was formed in April 2005 to represent the views of young lawyers, from students to junior members of the profession up to ten years call, in responding to growing concerns over the future of legal aid. Since its inception the group has engaged with the LSC on all consultations regarding the legal aid system. Whilst YLAL are concerned with the effect of any proposals on the legal aid system as a whole, our particular focus is on sustainability as regards ensuring that there is a future generation of legal aid lawyers to protect and promote access to justice. One of our key objectives is to reflect the concerns of those newly entered or about to enter into the profession. Fixed Fees (Questions 1-3) We are concerned that far from providing “a high quality service that is sustainable for the future” (Foreword), the proposed system of fixed fees will act to the detriment of quality advice and have a negative effect on the sustainability of that service. Payment for hours worked is the only fair way to remunerate solicitors for the time they are engaged with clients. A fixed fee system simply cannot account for the varying complexity of cases and levels of expertise required to deal with those cases effectively; nor the different types of clients and their vastly differing needs, including those requiring interpreters or sensitivity to mental health problems. Further the analysis of the Otterburn report by the LSC itself and the LECG report commissioned by the Law Society show that stability is more likely to be undermined, with great upheaval caused in an already over-stretched, pressured and fragile profession.

YLAL do not accept that the proposed system will provide “the right incentive for efficiency” any more than that currently in place. We are concerned that the proposals have ignored the true drivers of cost, namely regular policy changes and the inefficiencies of the police in processing matters, and aim to trim costs for the LSC even though the cost drivers are beyond the control of both the LSC and providers. Providers will continue to be vulnerable to these forces under the proposals and indeed more so if the levels of fees, escapes and also constraints on areas of work are pursued. The one real incentive offered is to cut corners in advice and to avoid taking on cases of greater difficulty or complexity. This potential negative outcome in terms of good practice and access to justice far outweighs the potential savings that could be made under the new scheme. One welcome change is the harmonisation of duty solicitor and own client rates, which we believe rightly reflects the nature of work carried out. However the abolition of standby payments and enhancements for work in unsocial hours are not justified or fair and they should be reinstated. One of the main purported efficiencies emanating from the scheme is a reduction in bureaucracy. However, if firms are required to report hours worked, as previously, there is no saving available, with the added danger that the data provided may be less reliable if there is little incentive for its accuracy with a single fixed fee paid. There will actually be additional bureaucracy if the LSC proceeds with audit of the exceptional cases, on top of their individual assessment. It is for firms to comment on the appropriateness of options in the fee schemes, however we are of the view that full remuneration for work in exceptional cases (option 2) is preferable. YLAL do not agree that the three-times-fixed-fee escape threshold is likely to be sufficient to balance income from firms‟ fixed fees, as per the LAPG and Law Society (whose draft responses we have had sight of), and agree with double the fixed fee being appropriate, if there has to be any such restriction at all. Boundary Areas (Questions 4-6) YLAL believe it is for firms in local areas to comment on the effectiveness of the proposed boundary schemes, both in and out of London. However we shall make some general comments. It seems that in rural areas the proposed boundaries are actually larger than current schemes. This contradicts the assumption that travelling times will go down in order to make fixed fees viable, particularly if a contract requires that all police stations in an area are covered, although this last point is unclear. YLAL consider that the inclusion of travel and waiting in the fixed fee should act as a natural control on these elements of cost and that the boundary area constraints are unnecessary, particularly in light of the administrative and other problems they throw up. We would like to enforce the point made by the LAPG here about competition, which we also made in our previous submissions on “Legal Aid: A sustainable future”. Boundary areas act as an artificial limit on competition by limiting numbers of providers in an area, and at the same time diminishes client choice. This problem will

grow with consolidation of firms. So it seems that the aim of increasing volume runs directly contrary to the aim of sustainability. YLAL would also like to reiterate the point made earlier that changes beyond the control of the LSC and providers may render these boundary areas defunct if any of the numerous examples the LAPG cite occur. Closures, temporary or permanent, to a particular police station could completely undermine a firm‟s forecast overheads in relation to travel or capacity for work. New working arrangements (Questions 7-12) YLAL believe that minimum thresholds for criminal work are neither viable nor desirable and undermine the Commission‟s commitment to a quality based scheme by forcing the Commission to fetter its own discretion by the establishment of a minimum threshold. However, if such a threshold is to be introduced, YLAL agree with the LAPG‟s detailed analysis regarding the minimum thresholds for work. Even where a minimum threshold for a contract could work effectively (perhaps in urban areas), the susceptibility of the forecasted volumes to upturns and downturns makes them valueless over short terms. Far greater flexibility than that suggested for excess and under supply by individual firms would be necessary to deal with general ebb and flow. Likewise YLAL have nothing to add to the LAPG‟s analysis regarding slot allocation, save to note our grave concern that the figures that have been sent out to firms have already been shown to have serious flaws, as acknowledged by Derek Hill in his letter to providers of 5th April. We have noted our concern about the lack of meaningful consultation in other responses and repeat here we feel there is far too great a rush to push these proposals through on the basis of inadequate consultation. As much of the data that underlies the proposals has not been made clear and not been provided for wider analysis by providers, such flaws only strengthen scepticism as to the process by which „reforms‟ have been proposed. The danger of this hurrying is the risk of a complete breakdown in what was previously recognised as a world leading legal aid system. YLAL cannot emphasise enough our fear that these proposals, carried through in this manner, ignore this risk. In relation to out of area work, YLAL believe that this rule would act as an unnecessary constraint on firms and client choice and should be abandoned. Exceptions (Questions 13-16) YLAL are anxious that „niche‟ providers are preserved. However we believe that exceptions to the general provisions are highly likely to be unfair to many providers who nonetheless consider themselves specialist. We would like to see a system based on promotion of quality, such that debates over special measures to protect certain types of firms are redundant. Where suppliers can provide quality advice within reasonable parameters of cost, there should be a place for them in the market. YLAL do not consider that the current proposals are reasonable. A cull on the basis of high standards of quality is the only cull that would be acceptable. We have nothing further to add to the LAPG‟s analysis regarding market entry and take the same position regarding BME diversity, save to add that we feel insufficient time has been taken to consider this dimension and full assessment is required.

Option 1 of the VHCC police station options is the only one that preserves sufficient flexibility and choice for clients. Conclusion Overall YLAL consider that these proposals are poorly devised, contain contradictory and paradoxical aims and will be ineffective in creating a sustainable system based on quality. We believe that control of costs cannot come at the expense of quality and that this is the only certain outcome. The timetable for the proposals and the consultation is far too short and, combined with the doubtfulness of some of the data on which the proposals are based, YLAL believe that these shortcomings require the LSC to withdraw from the current schedule. This would give time for more thoroughly considered ideas, as well as proper consultation, and also subsequent increased confidence of providers in a genuine approach and ability to deliver. YLAL‟s chief concern as a representative group, however, is how any drop in quality and provision of services will further lead to drops in quality of and investment in training of the future generation of legal aid lawyers. The next generation are crucial to the sustainability of services and immediate negative effects on the supplier base will have negative effects in the long-term on entry into the profession. YLAL believe that proposed cutting of costs for police station work will likely lead to growth in the use of less qualified representatives. Already we have seen a lowering of the standards for accreditation and we believe this will continue. We also foresee a drop in the level of investment in training and a greater focus within training on lowlevel work, leading to lower standards and less diversity of work for trainees. YLAL are also concerned that many of the arguments made herein in respect these proposals have been made on previous occasions, as we have engaged with the LSC at every available opportunity since our inception. We are grateful for this opportunity, as previously, to engage and hope that our repeated concerns may help in finding the best way forward for legal aid. Should we be able to assist you further, please do not hesitate to contact the writer, Charlie Bagnall, at the above address, who has co-ordinated and led on this response on behalf of YLAL. Yours faithfully Young Legal Aid Lawyers


				
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