A couple of weeks ago, the Carter Review published its first report (pdf) here
A day after that I met with some of my former colleagues at one of our regular evening get-togethers. I was surprised how few of the criminal solicitors present had read the report-even the executive summary- whose preliminary conclusions will no doubt send shock waves through many small legal practices.
Anyone who thought arrangements for Criminal Legal Aid would remain substantially unchanged must have realised what an unrealistic hope that was when the terms of reference and the members of the review commission were announced.
Paragraph 6 of the terms of reference set the scene.
The review will focus on the options for new procurement arrangements set out in A Fairer Deal for Legal Aid (block contracting, price competition, and lead supplier) but may also contain other reforms to supplement, modify or replace these options in order to produce an effective overall package.
Members appointed to create a “ Fairer Deal for Legal Aid” were:-
The Chairman, Lord Carter of Coles, had already done hatchet jobs on the Probation Service and the Criminal Records Bureau, he was supported by Guy Beringer, a partner in the city firm of Allen and Overy. I suspect if Guy found himself in a typical criminal lawyer’s office in the provinces he would think he had been beamed to another planet.
David Gregson the third member is the Chairman of The Phoenix Equity Parnership , an organisation skillful at buying into businesses and flogging them off, in whole or in part, at a profit-. Bringing up the rear is the Chartered Accountant David Ross, a member of the Home Office Audit committee and deputy Chairman of the Carphone Warehouse .
Significantly, the government appointed no one with experience of either Legal Aid or the criminal justice system.
It did not need these four luminaries to discover that the criminal legal system needed reforming. Legal aid has increased; it is expected to exceed its budget by £100 million pounds in 2006/7. But this has to be set against the mushrooming and complexity of the criminal law, the waste caused by poor organisation in custody suites at police stations, poor listing in magistrates courts and often late preparation of files by the Crown Prosecution Service. All this waste was, not surprisingly, out of Carter's remit. No mention was also made of the Public Defender Service, which less than five years ago was established at great public expense , and which appears to have been an expensive failure!
Criminal legal aid services are now largely provided by small firms doing relatively small amounts of work as part of a general practice. Nearly half of the 2500 firms involved in criminal legal aid receive under £100, 000 for that work.
Last year, many experienced lawyers working exclusively in criminal law earned less than £25,000. That seems a modest reward for the responsibility of running a practice as well as being almost constantly on call for clients. And it's certainly not what most members of the public think when the phrase "lawyer's income" is used.
The Commission suggests the only way to make criminal legal aid profitable for the solicitors and cheaper for the taxpayer is to encourage amalgamation of small practices. This, they argue would enable the larger groups to bid against each other for the work advising those requiring help in police stations and representation in magistrates courts, therefore driving down costs and increasing profitability.
Most solicitors’ practices are small- two or three partners- and I suspect few would relish the idea of creating larger groups or merging into larger organisations, even if those larger organisations were prepared to undergo the upheaval and costs involved. Many of those who are doing small amounts of criminal defence work and offering client centred work, may decide simply to stop altogether. Though where they would make up this loss of income in an ever increasingly competitive market is difficult to see.
Many small firms who are unable to dig themselves a niche in the market would have difficulty surviving.
However, the mega-firms envisaged in the Review are not free and clear either. Carter suggests that contracts will be for a 1 to 2 year period. Once they have placed their feet into the swirling waters of price competition, they will be subject to undercutting by others. I have no doubt that the government will encourage this as a method of further driving costs down.
The time scale for these reforms is a tight one. Carter envisages an almost complete change to a market driven system in less than four years. Even allowing for some slippage in that timetable the criminal legal aid system is unlikely to be recognisable using today’s signposts within five years.
…. se vogliamo che tutto rimanga com’è, bisogna che tutto cambi.
"If we want things to stay as they are, things must change!”. Guiseppe Di Lampedusa -The Leopard.