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Lord Carter' speech to the Bar parliamentary group
Date: 17 October 2005
Thank you Dan and thank you for giving me the opportunity to be here this evening to talk to you about my Review of Legal Aid Procurement.
I say this because we are now half way through the review, as we are aiming to report in early 2006, and this session has encouraged me to marshal my thoughts and at the same time gives me the opportunity to take your views.
I would like to preface everything I am about to say with a 'health warning'. We are very much at 'the work in progress' stage and, in my experience, born of many reviews, there are always significant changes as one gathers further and better information. I would ask you to respect this and understand if I cannot answer as many questions as you may like.
I am not going to dwell too much on the terms of reference or the background to the present difficult circumstances that we are in, however I do have a strong sense from all members of the legal profession and indeed from the Government that it is time for a change.
The Review is proceeding well. We have received good co-operation from the legal professions and especially the Bar in what I know is a difficult period.
I particularly want to express my gratitude to Guy Mansfield and Geoffrey Vos who are leading the Bar response, for their positive engagement with the Review.
I hope I will continue to hold that view when I have heard Geoffrey speak in a few minutes' time.
By way of background a few figures:
In the last 8 years, the bill for legal aid has risen from £1.5bn to £2.1bn - a rise of approximately 40% or nearly 10% in real terms. Within this however, criminal legal aid has increased by 37% in real terms while civil legal aid has decreased by 13%.
It may be helpful for me to give some breakdown of the way in which legal aid is currently spent. In the last financial period, ending 2004/05 the net total legal aid bill was £2.1 billion. Criminal legal aid accounted for approximately £1.2bn (that's 57%) and for civil £920m (that's 43%).[Footer 1].
Of the criminal legal aid costs, approx. £180 million (15%) went in advice in police stations custody suites; £325 million (27%) in Magistrates courts, largely to solicitors, and £680 million (58%) in Crown Courts - of which just over half (£350m) goes on advocacy services. We are all familiar with the fact that 50% of the Crown Court legal aid budget now goes on 1% of cases - namely very high cost cases. Interestingly, the number of people brought to justice through the courts is not rising so we must take from this, as Cape and Moorhead concluded, that complexity has become a major issue.
This problem is not unique to England and Wales, as public defence costs are rising worldwide. However, on a per capita basis we have one of the most heavily publicly subsidised legal professions in the world. In England and Wales we spend approximately £34 per capita on legal aid. This compares with £27 in Scotland, £10 in New Zealand, £7 in Ireland, £4 in Germany, £3 in France and £1 in Sweden.[Footer 2].
To put legal aid in to some sort of context for lawyers' income, I've tried to work out what it is as a proportion of their total revenue. My estimate is that it is roughly less than 10% for solicitors and a third for barristers. It is difficult to get an exact fix on these numbers owing to the way the data is collected but I think this gives a rough feel for the significance of legal aid to the £19bn legal services market in England and Wales (approx. 1.5% of GDP).
At the outset, I agreed with the Bar and the Law Society that I would take an iterative approach. I believe it to be important to have the freedom to test out ideas with the profession, discarding those that are impractical but pursuing, in a spirit of confidentiality, those which look promising.
Although I am new to the legal world, I have rapidly learned the importance of an independent Bar and the quality it brings to our justice system - something Guy Mansfield expressed strongly in our first meeting.
Now to the issues:
The issue that I am seeking to reconcile is what is good value. What I am seeking to balance is quality, choice and cost.
Turning first to quality - it would seem that it is impossible to address the questions of organisation and cost if one is not certain how quality will be maintained. I am very keen that members of the public, whether state or privately funded in buying legal services, should be confident that they are receiving advice of the highest standard or at least to an agreed level.
The legal profession needs to think very hard as to how it can provide these guarantees and maintain the independence which I believe it values. This issue is especially topical today when we have seen the publication of the White Paper following the Clementi Review.
The second issue is choice - fundamental to our system is the freedom of the defendant to choose their legal advisor. This is in sharp contrast to the USA where the public defender system is the norm. How much choice is viable is something we are examining. Whether directed choice to a pool presents a way forward is too early to say as is ascertaining the success of the current pilots of public defenders.
Then onto the issue of cost. As I said, the real increase in legal aid spend is on criminal cases - 37% since 1997. There have been a number of reasons and these have met a number of responses - the Bar has seen the move from the ex-post-facto payment system to the graduated fee scheme for the vast majority of cases and individual case contracts for a tiny minority of the most complex and costly cases.
But generally the whole process, including for civil and family legal aid (with the notable exception of asylum legal aid) has become more complicated and more and more short-term fixes have been applied to cover a system which is fundamentally broken.
Looking forward, I believe some form of graduated fees, for solicitors and advocates, will have a place in any future Crown Court procurement arrangements. However, we are looking for ways to tension pricing, possibly reflecting a trade-off between volume and price.
We are also considering:
- lead advocates in costly and complex cases. One suggestion is that members of the Bar could play a more prominent role in this area, the benefit being cases conducted in a more effective manner through better direction.
- the arrangements for multi-handed trials and how much duplication occurs amongst defence teams - advocates and litigators.
These are all routes which have one aim in common: to modernise the way the state buys legal services so that the public gets the high standard of justice they have come to expect and that resources are allocated fairly, efficiently and effectively. However, if we are to use this opportunity to try to rebuild the system, we need to look at other aspects of how it works.
Within the court system there are many key factors to consider:
- Judicial case management of complex trials;
- Prosecution behaviour;
- Listing difficulties; and
- Cracked trials and late guilty pleas.
I hope I have given you a feel for some of the issues and possible routes forward. What I would say is that I am very keen that the final plan has engagement and visible support from all sides and especially the Bar. The shelves of Whitehall are full of dusty reviews which have been rapidly discarded because they did not have a practical solution and the support of the key stakeholders.
I do not intend this review to end in that way, as I believe the ideas enshrined in the 1949 Act need to be maintained and built upon for today and the long-term.
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