Press notice No. 47 of Session 2008-09
14 July 2009
FAMILY LEGAL AID REFORM: FLAWED CONSULTATION, WEAK EVIDENCE BASE AND INFLEXIBLE PROPOSALS
Family legal aid provides a vital service for vulnerable children and families, safeguarding their rights and helping ensure that the best interests of such children remain paramount in all relevant proceedings (including by the appointment of guardians and the provision of independent expertise). In a report published today, Wednesday 15 July 2009, the Justice Committee reports its evidence that the Legal Services Commission’s (LSC) proposals for reform were based on incomplete data, a superficial understanding of the supply of legal services in this area and take little account of the ‘tandem model’ of social and legal support for children in court.
The LSC’s proposals were described as a case of ‘conclusions first, evidence after’, seemingly designed for a legal services supply model - envisaged by Lord Carter in 2006 and legislated for in 2007 - but not yet in existence. The Committee has recognised the need to control legal aid costs but note the Government has made little effort to address directly the reasons for rising case costs in family law. The Committee heard that the proposed fixed fees would over-reward simple cases and under-reward the more complex and serious cases (under the level at which special fees for ‘very high cost’ cases apply).
Senior experienced advocates, whether solicitors or barristers, will not be effectively deployed if required to conduct a number of relatively lucrative simple hearings to make up for lower remuneration of cases of higher complexity. This would be a serious waste of resources. The Committee’s evidence showed that what was more likely to happen - indeed was already happening - was an exodus of senior practitioners from publicly-funded family law. In addition, the LSC accept that its proposals disproportionately affect women and black and minority ethnic lawyers - who tend to specialise in this field of law - threatening significant progress in courtroom diversity. The Committee notes that the LSC’s proposals do move towards harmonisation of remuneration between solicitor advocates and barristers which is welcomed by the professions as a timely reform.
The Committee does not accept the LSC’s arguments that children’s guardians and independent social work should not be funded via legal aid because of budgetary boundaries between the MoJ and DCSF. There are valid reasons for the flexibility of existing arrangements and the system appears to work very well and, crucially, in the best interests of children, despite it cutting across departmental silos.
Rt Hon Sir Alan Beith, Committee Chairman said: “There is massive anxiety throughout the family justice system that these proposals are not based on a realistic understanding of how advocacy for children works and how important it is. We are concerned that relevant evidence has not been properly considered and we welcome the commitment from the profession to developing better proposals within existing expenditure limits.”
He added “Lord Carter proposed a series of steps for legal aid, to move from piecework payments to block contracting. We counselled against fixed fees as a transitional phase in 2007 and there is a danger that these reforms may prove to be a step too far at this stage.”
1. Committee membership is as follows: Rt Hon Sir Alan Beith MP (Chairman), Mr David Heath MP, Rt Hon Douglas Hogg MP, Siân James MP, Jessica Morden MP, Julie Morgan MP, Rt Hon Alun Michael MP, Robert Neill MP, Dr Nick Palmer MP, Linda Riordan MP, Virendra Sharma MP, Mr Andrew Turner MP, Mr Andrew Tyrie MP and Dr Alan Whitehead MP.
2. The Justice Committee is itself barred from considering the facts and merits of individual cases.
3. The report is the Committee’s Eighth Report of Session 2008-09 (HC 714) and will be published at 00.01 am on Wednesday 15 July. The oral and written evidence associated with the report will be published on Monday 20 July.
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