Carter Legal Aid Review

The Legal Services Commission should begin from July 2006 a national roll-out of peer review assessment for all firms seeking a place in the new market so that the introduction of best value tendering can take place from April 2009 onwards. The Legal Services Commission should adopt four criteria to plan the roll-out of peer review: • greatest quality impact for clients; • greatest opportunity to restructure the local market; • ensure a level playing field for all firms until best value tendering takes place; and • assess the impact on the justice system.

The Legal Services Commission should continue to develop the design of a best value tendering process around the framework set out in paragraphs 61 to 64 of Chapter 3, with specific arrangements for each local tendering round, so that a national roll-out of best value tendering should begin in April 2009.

The Legal Services Commission should consider whether and how a small number of criminal defence practitioners could continue to provide niche services when the new General Criminal Contract arrangements are implemented in October 2007. Consideration should be given to how sub-contacting arrangements can be developed for referrals from firms who hold a General Criminal Contract as well as support for growth and consolidation.

The Legal Services Commission should explore the possibility of firms and not for profit agencies expanding into other categories of civil and family law. Depending on the area and the nature of the service, suppliers should be encouraged to develop services across a wider area of categories of civil and family law than is currently the case.

It is important that there is not one model for community legal advice centres, and the Legal Services Commission allows centres to develop in a pragmatic and flexible fashion that best suits their potential clients in the area where they are located (including sub-contracting service delivery where necessary).

It is recommended that the Legal Services Commission should carefully evaluate the impact of the transition in the first wave of community legal advice centres from 2007, so lessons can be learnt for later waves from 2008 09 onwards.

It is important that the Commission enable community legal advice networks to be developed in a pragmatic and flexible fashion that makes sense locally, as in some areas there could be informal networks that already exist and might be built upon, whereas elsewhere the networks would be a fresh development. But the Legal Services Commission should ensure that all would-be network suppliers are subject to a robust tendering process, and that the network is ultimately based on the needs of clients.

It is recommended that the Community Legal Service strategy should not simply set the way forward for the Legal Services Commission, but should also provide a good working framework for other funders of legal advice services, including local authorities and other government departments in England and Wales, that allows them to add value to their spending in this area through working together with the Legal Services Commission. This better co-ordination should lead to better overall legal services for local communities, especially the more vulnerable groups.

The Legal Services Commission should construct new General Criminal Contract boundary areas as set out in paragraphs 4 to 9 of Chapter 4 and Annex 4.1, for all of England and Wales by January 2007. This should be based on detailed maps and data covering existing police stations and duty schemes, suppliers, magistrates’ courts, and distances between suppliers and police stations. An iterative process to create the new boundaries should be based on: • developing larger areas for work where appropriate; • a combination of minimum drive times between suppliers and police stations and grouping of existing duty police station schemes, as well as travel to courts; • ensure new working areas allow performance standards to continue to be met for client access; and • provide for possible exceptions for police stations in rural areas.

Alongside the introduction of a new graduated fee scheme for magistrates’ courts work in April 2008, DCA and the Legal Services Commission should review the issue of assigned counsel in magistrates’ courts by April 2007 and should consider the following alternatives: • counsel to be paid the basic fixed fee with a 10% uplift; • solicitors to be paid a 50% uplift on the basic fee and thereafter disseminate monies as they believe to be appropriate to assigned counsel; or • the development of a graduated fee scheme for assigned counsel.

DCA and the Legal Services Commission should apply the ring fenced and capped budgets for Crown Court advocacy ancillary payments as set out in Annex 4.5. These budgets should be monitored on a quarterly basis. If the budget is exceeded in the financial year the payments will cease to be made as ancillary payments and will be automatically absorbed without further negotiation into the base fee for all following years on a cost neutral basis.

DCA and the Legal Services Commission should review the effectiveness of the October 2005 changes to the advocacy graduated fee cracks and guilties scheme in the Crown Court, and any changes proposed to this scheme, on the timing of cracked cases. This should report in January 2007 and be considered by the stakeholder mechanisms recommended in Chapter 6.

DCA and the Legal Services Commission should introduce a revised advocacy graduated fee scheme for Crown Court work (as described in paragraphs 46 to 55 of Chapter 4 and the tables in Annex 4.5) that increases base fees, introduces two new offence types, reduces the

The introduction of a revised advocacy graduated fee scheme in the Crown Court in April 2007 will require the early identification of the trial advocate. Clerks and chambers should begin revising their working practices to ensure that advocates will be identified at the commencement of a case from this date.

The Legal Services Commission should introduce a new graduated fee scheme for litigators in the Crown Court. The Legal Services Commission, during consultation and prior to implementation in April 2007, should ensure that the fees set out in Annex 4.6: • contain uplifts that appropriately reflect and remunerate differences in costs and complexity; • are not missing uplifts that might provide greater cost reflectivity; and • achieve the appropriate balance, in terms of payment, between the base fee and the uplifts described above.

DCA and the Legal Services Commission should consider harmonising the separate litigation and advocacy graduated fee schemes in to a single graduated fee for all defence services in the Crown Court, for implementation as soon as possible after 2009, when the market has stabilised and legal services reforms allow for the creation of alternative business structures.

There should be a new specialist panel of suppliers to conduct very high cost criminal cases. In advance of inviting applications and bids from potential teams the Legal Services Commission should issue by April 2007 an expression of interest document detailing the criteria for membership of the new panel. This should fulfil the requirements (set out in paragraphs 70 to 74 of Chapter 4 and the detailed wording should be consulted on with the appropriate professional bodies.

The Legal Services Commission should establish a best value tendered panel for very high cost criminal cases based on the steps sets out in paragraphs 80 to 89 of Chapter 4. Prior to doing so the issues set out in paragraph 90 of Chapter 4 should be consulted on with the professional bodies. The invitation to tender should be issued by July 2007 with tenders submitted by September 2007 to allow implementation of the panel by October 2007.

The Legal Services Commission should require all defence teams and prosecution bodies to notify all cases that would be expected to last 25 days or more at trial and/or the defence teams costs are estimated to be £100,000 or greater. The Legal Services Commission should contract all cases that would be expected to last 41 days or more. They should have the discretion to contract any case expected to last greater than 25 days costs and less than 41 days and/or the defence teams costs are estimated to be £100,000 or greater. This should take effect by April 2007. The Legal Services Commission should consider developing criteria for other ‘exceptional’ cases that do not meet the 25 days and/or financial criteria.

The Legal Services Commission should put in place a series of measures that mitigate market fragmentation and allow firms to begin the process of restructuring. The Legal Services Commission should consider the following measures: • reduce duty solicitor service requirements for duty solicitor work so that it is in line with own client requirements. This should mean that any duty solicitor, accredited representative, probationary representative (non indictable offences) and solicitor with the police station qualification may undertake all types of work. Duty solicitor slots should be allocated to firms (in proportion to the volume of work they had undertaken between July 2005 and July 2006) rather than named individual solicitors. There should be a moratorium on new duty solicitor slots other than in response to changes in local need. Where new slots are required to meet demand the Legal Services Commission should notify firms that new slots are available; • enforce the requirements that 80% of police station work and 50% of magistrates’ court work is undertaken in house; and • the duty solicitor rotas and remove those firms or individuals that have not undertaken duty solicitor work in a 12 month period.

The Legal Services Commission should design a pro forma notification document to assist in the early identification of potential very high costs criminal cases by September 2006. Annex 4.7 sets out the key points that this document should cover.

The existing High Cost Cases Review Board should develop a robust trial estimate procedure for very high cost criminal cases. The procedure would: • provide an estimate of the trial length which should be scrutinised by the court, the prosecution and the defence; • provide for a detailed timetable agreed by the prosecution, defence and the court within which the issues in the case can be fairly determined; • build a process to monitor departures from that timetable and ensure these are justified to the court; and • develop a mechanism by which the estimate set and any variations to the estimate should be reflected in the contractual terms for payments and management arrangements for both prosecution and defence teams.

The Legal Services Commission should make improvements to case management by the Complex Crime Unit (outlined in paragraph 96 of Chapter 4 and detailed in Annex 4.7) by recruiting qualified practitioners, establishing a referral and a post case audit panel and designing a very high cost criminal cases best value team protocol by October 2007.

The Legal Services Commission should consider the potential to generate a 5% saving on current spending through the combination of competition on rates and tighter management of very high cost criminal cases in the financial year 2008-09.

The Legal Services Commission should ensure the fixed fees for legal help with which they propose to replace tailored fixed fees in civil categories of law are sustainable within the overall legal aid budget, and consistent with maintaining a good quality supplier base.

Wherever possible, the Legal Services Commission should ensure that the dynamics, between the fixed fee for civil legal help and the payments for civil court work, act to reward early settlements where it is appropriate. The Legal Services Commission needs to look at this in more detail, and whether this means removing the current differential between legal help and representation rates, and should report with its findings by July 2008.

Where practicable, the Legal Services Commission requires firms to report success rates in civil certificated cases as one of the performance indicators in the contracts, so the Legal Services Commission is able to monitor if devolved powers for certification are being used properly.

Following the introduction of the first community legal advice networks in 2006, options for networks should be tested out in different areas by the Legal Services Commission to identify which approach works best in each of a variety of different circumstances.

Bids by suppliers to work in community legal advice networks should refer to arrangements they have together agreed for co-operation with other bidders, so that it can build on existing informal networks. This could include proposed co-location and active referral arrangements. Bidders should also be asked by the Legal Services Commission for their own proposals on how they would implement or exceed the contractual requirements. This should enable the network to be flexible and take account of local factors. The Legal Services Commission would be free to accept or refuse bids on an individual basis, and determine which arrangements are best for clients.

The process of moving to indicative budget allocations by the Legal Services Commission for legal help for social welfare law through deprivation data should be managed carefully to minimise any disruption to services. As part of this process, the funding formula should enable the Legal Services Commission to decide in which local areas to expand case starts.

The register of potential very high cost criminal cases should be developed further to include early identification of cases. The prosecution authorities should work together to notify the Complex Crime Unit of a potential very high cost case on the questioning or charge of an individual. Changes to the Complex Crime Unit should ensure that the exception to the police station scheme operates effectively. This register should be in place by December 2006.

There should be no major changes in the current civil representation ex post facto remuneration scheme for the time being, but it should be kept under close review by DCA and the Legal Services Commission, together with the profession, and DCA and the Legal Services Commission should produce a report with their findings by July 2008. As part of this, DCA and the Legal Services Commission should consider how the various alternatives, such as a “success fee”, set out in Annex 3.1, might impact upon the current scheme.

The procurement strategy in the category of mental health should be kept under close review by the Legal Services Commission, as it will need to take account of future changes in mental health legislation, and if there is a move towards more clients being cared from at home and not detained. It is important that clients cared from at home are able to have access to legal advice, if it is required, and so supply centred around hospitals may need to be expanded to cover this category of clients (and permit referrals from the community legal advice network).

The Legal Services Commission should ensure the fee levels they are proposing for private law family are sustainable within the overall legal aid budget, and consistent with maintaining a good quality supplier base.

The move to the family help procurement scheme from April 2007, should be seen as paving the way to a graduated fee scheme for solicitors in private law family that includes the final hearing stage from autumn 2007.

The Legal Services Commission should replace the current public law children ex post facto scheme with a graduated fee scheme aligned with the Judicial Case Management Protocol for Care Proceedings. Other public law children work, that is not covered by the graduated fee scheme, should be kept under review by the Legal Services Commission and DCA, and consideration given to expanding the graduated fee scheme if volumes and costs increase in other public law children work.

The Legal Services Commission should ensure the fee levels they are proposing for the new public law children scheme for solicitors is sustainable within the overall legal aid budget, and consistent with maintaining a good quality supplier base.

The Legal Services Commission should consider the possibility of tailoring family contract sizes in relation to quality. For instance, a firm with a high peer review score, who might be prepared to be subject to more stringent performance targets, could be offered an extended contract, e.g. up to five years, with a three year break clause to check their progress against targets. Equally, a firm with a low peer review score, but who are prepared to improve to meet more stringent standards, could be offered a shorter length of contract, to enable time to improve with close monitoring from the Legal Services Commission.

The Legal Services Commission should encourage growth in family provision through best value based bidding on contract sizes and length of contract by 2009, but subject to the need to maintain a variety of good quality, efficient suppliers within the family justice system.

The Legal Services Commission should construct new General Criminal Contract working arrangements providing for access to own solicitor within and outside of contract areas and duty solicitor slots by January 2007 as set out in paragraphs 20 to 28 of Chapter 4. The new working arrangements should then be published for consultation prior to the implementation with associated new working arrangements in October 2007.

The duty solicitor call centre and CDS Direct should be monitored closely by the Legal Services Commission. The monitoring should be on a monthly basis and at a local scheme level, and should look at the volume of cases, and review their effectiveness and quality of service. If this fails to control any increase in volume of work being

By January 2007, the Legal Services Commission should develop a methodology for allocating work under the new working arrangements, based on a mimimum threshold that varies according to area and market conditions as described in paragraphs 29 to 35 of Chapter 4 allowing for duty slots within boundary areas, a percentage of out of area duty slots and own solicitor work within the boundary area. The Legal Services Commission should consult on the need for a minimum threshold that varies. The new working arrangements (including the need for a lower threshold) should then be published for consultation prior to implementation with associated new working arrangements in October 2007.

The Legal Services Commission should introduce a new police station procurement scheme , based on fixed fees per case that include travel and waiting, as described in paragraphs 36 to 39 of Chapter 4 and set out in Annex 4.2. The fees set out in Annex 4.2 should be subject to consultation and should be introduced in April 2007.

The Legal Services Commission should introduce a revised magistrates’ court standard fee scheme including an element of travelling and waiting (as described in paragraphs 40 to 41 of Chapter 4 and set out in Annex 4.3). The fees in Annex 4.3 should be subject to consultation and should be introduced in April 2007.

The Legal Services Commission should introduce a new magistrates graduated court fee as described in paragraph 43 of Chapter 4. The Legal Services Commission should collect data to develop proxies.The Legal Services Commission should also collect data to develop an alternative basis for pricing cases that escape. The graduated fee scheme set should be developed and subject to consultation in June 2007 and should be introduced in April 2008.

The Legal Services Commission, DCA and Law Society should agree an operational process and timetable by September 2006 for transfer of all quality assurance for solicitors by April 2009. The Legal Services Commission will need to be satisfied by the arrangements put in place for quality assurance by the Law Society before effecting a handover of responsibility.

The appropriate use of limited resources by all participants in the criminal justice system should be pursued and enforced by the judiciary in their management of all types of cases. Internal judicial training, through the Judicial Studies Board, should be expressly developed to ensure that the comments set out above become standard practice and are rigorously enforced, through for example, the quality assurance schemes. Training developments should build on the existing work of the Judicial Studies Board in the area of judicial case management and would provide a backdrop against which it should help the proposed reforms to become more effective. The relevant judicial training should be in place for all Circuit and High Court judges by April 2007.

A review of the effectiveness of judicial, prosecution and defence adherence to the principles set out in the disclosure protocol (Disclosure: A Protocol for the Control and Management of Unused Material, 20 February 2006) should be conducted by the existing High Cost Cases Review Board reporting by July 2007.

DCA and the judiciary should review the criteria and regulations that allow for the appointment of two counsel to ensure that representation orders are only granted for those cases that genuinely require two advocates and in particular what circumstances should permit the instruction of two junior counsel as opposed to a QC and junior counsel. The review should be completed by October 2006 so that guidance can be issued and necessary changes to regulations made before the revised advocacy graduated fee scheme is introduced in April 2007.

Peer review should also be assessed before transfer to the Law Society in April 2009 to ensure that a high level of client service is being delivered, resources are being correctly used, and that the needs of the rest of the justice system are being met. Such an assessment should cover both client satisfaction and justice system partners, so that quality assurance includes the quality of firms’ effective interaction with the wider justice system. The assessment should be undertaken in partnership by the Law Society, Legal Services Commission, Bar Council and judiciary by April 2009.

A proportionate system of quality monitoring based on the principles of peer review and a rounded appraisal system should be developed for all advocates working in the criminal, civil and family courts. This system should be developed through a process chaired by a member of the judiciary in partnership with the Bar Council, Law Society, Legal Services Commission and DCA to ensure it covers all advocates with relevant rights of audience in these courts. The new quality monitoring system should be developed in the first instance for publicly funded criminal advocates, then for publicly funded family and civil advocates, and ultimately for all advocates. The scheme for publicly funded criminal advocates should be in place by the time the new graduated fee schemes are implemented in the Crown Court in April 2007. The system should be subject to a full regulatory impact assessment before being implemented.

The Legal Services Commission and DCA should help sustain a diverse supply base for legal aid services by working closely with the legal profession to introduce the following measures: • monitoring of ethnic data throughout all stages of the transition to the market structure in 2010 and beyond; • regular monitoring of quality checks to ensure that they have no unintended discriminatory effects; and • a requirement that all suppliers have in place an equal opportunity policy, including specific measurable characteristics, which is regularly reviewed and which is followed; the policy should include the promotion of diversity in the workforce and the capacity of the firm to work effectively with the diversity of the community in its area.

The Legal Services Commission should maintain resource to monitor, assess and promote diversity within its suppliers. The Legal Services Commission together with partners, including DCA, should create a wider diversity advisory group to report to the Lord Chancellor and LSC Commissioners on the state of diversity within the suppliers of legal aid services and make recommendations for improvements where necessary. The Legal Services Commission, Law Society and the Commission for Racial Equality should jointly review the number of black and minority ethnic firms, and the number, status and integration of black and minority ethnic practitioners within firms providing legal aid services.

The Legal Services Commission should include the methods and timing of making payments to suppliers as a factor when determining the length of contracts awarded under a best value tendering process.

The Legal Services Commission should set up a financial advisory group as a regular forum in which DCA, suppliers and bankers can discuss how best to promote the availability of loan and equity finance for the sector.

There should be established a grant programme through a growth and consolidation fund, lasting from April 2007 to March 2009, totalling no more than £4 million, and administered by the Law Society to provide support for the necessary assistance that firms delivering legal aid will need to enable them to restructure in a way that will allow them to compete for new contracts under the best value tendering process from 2009 onwards.

There should be established a match-funded grant programme through an information technology modernisation challenge fund lasting from April 2007 to March 2009, totalling no more than £6 million and administered by the Law Society to provide support for all firms providing at least £50,000 of legal services in 2005–06 to invest in information technology improvements to their businesses.

The Legal Services Commission should immediately move to set up dynamic management information systems by December 2006 so that they can effectively monitor and share key performance indicators relevant to the successful delivery of new procurement schemes.

Using the new improved monitoring information, the Legal Services Commission should identify significant upward movements in unit cost and bring together all parties (using the mechanisms for stakeholder relations set out in Chapter 6) to secure shared understanding of the position and agreement to an adjustment down in price or other measures to bring unit cost back within the projected totals set out in Chapter 6 and in Annex 6.2.

DCA and its partners in the justice system should develop systems for ensuring a full understanding of volume pressures. The legal aid impact test is a good approach to ensuring that the volume implications of legislation or other deliberate changes in government policy are understood and quantified. It should be vigorously enforced through the government’s collective agreement mechanisms. But it will need to be supplemented by a programme of research to ensure that volume pressures arising from subtler changes across the public services, for example in professional practice or rules of procedure, are better understood.

Mechanisms for local information sharing and problem solving on legal aid should be established by the Legal Services Commission by April 2007 to promote opportunities for greater efficiency (or managing risks of inefficiency) which arise from practices and relationships in a particular place. For criminal legal aid the basis for such arrangements should be for the Legal Services Commission to be represented on local criminal justice boards supported by local defence practitioner feedback arrangements. Elsewhere, for example, local family justice councils may be used for family legal aid.

DCA and the Legal Services Commission should establish improved stakeholder engagement arrangements giving the precise format and timing for quarterly meetings of the senior members and officials from the key groups to update one another on dynamic management information and quarterly forecast reviews so that the first quarterly update can take place by January 2007. An annual roundtable chaired by the Lord Chancellor should also be established for the lead figures in the major representative bodies and agencies to report and discuss the major strategic issues affecting legal aid.