McNally: LASPO was ‘bruising for all’


LAPG CONFERENCE REPORT:
‘LASPO was bruising for everyone concerned, but I hope – whatever the disagreements of the past – we can all agree that the priority now is to look to the future.’ Lord McNally, the new minister for legal aid, told delegates at the Legal Aid Practitioners Group annual conference last Friday at the School of Oriental and African Studies in London. In his first speech as legal aid minister, the Lib Dem peer warned campaigners: ‘If you think you can re-run the LASPO-debate, I think you are going to go down a cul-de-sac.’

Lord McNally was one of only two Ministry of Justice ministers to survive the recent reshuffle – the other being attorney general Dominic Grieve. In a mostly polite but occasionally tetchy exchange with legal aid lawyers, the minister said he was ‘very willing, as somebody starting this afresh, to looking at how £1.7bn of tax-payers’ money is spent – and to consider whether there are efficiency savings or technology savings. ‘But there is no use pretending somehow you are going to get some massive change in the direction of travel.’

 

No longer sustainable
‘Reforming an area that touches the lives of many vulnerable people is not an easy thing to do,’ Lord McNally said. ‘I won’t labour the arguments about cost except to say. I don’t believe that the system the Coalition inherited was sustainable and we had no choice but to begin addressing it.’

The minister identified three areas where he planned make ‘further progress’: administering the legal aid system; introducing more competition into publicly-funded legal service; and providing alternatives to court to resolve disputes.

‘The Government remains keen to explore the use of competition in public services as a means of increasing efficiency and quality. I remain keen to look at what could be achieved in the legal aid market,’ McNally said. Criminal legal aid represented ‘a significant proportion of the Ministry of Justice’s annual expenditure’ – £1.1bn out of £8.7bn last year. ‘So we need to ensure long-term sustainability, quality and value for money for the taxpayer in its provision,’ he argued. ‘I’m not starry-eyed about price competition but I do believe that it will make a real contribution to achieving this. I recognise that such a systemic change to the way criminal legal aid services are procured is a cause for significant anxiety for providers.’

 

Access to justice
An education law specialist made the point that a legal aid lawyer could deal with the same child’s educational needs for over a period of 10 years. ‘Why should a child, even a disabled child, need a lifetime of legal advice?’ challenged Lord McNally.

‘Everybody trips off the tongue [the phrase] “access to justice” or that “we have had 800 years of access to justice…”. We have not had 800 years of taxpayer financed lawyer advice, never have had and never will.  There has never been a national legal services like the NHS and nor is there the electorate will to have that kind of fully comprehensive access to legal advice.’
Lord McNally

 

Domestic violence
A continuing theme for the day was mounting concern over LASPO as it relates to domestic violence – which was the subject of a major campaign in the run up to the passing of the Act (see HERE). In the morning session, Wendy Hewstone, managing partner of access law llp in Southampton, said she was ‘really pleased that Ken Clarke had expanded the definition of domestic abuse’. ‘But how is it going to work in practice?’ she asked. Hugh Barrett, of the Legal Services Commission, confirmed that the it would not pay for the medical report (or other proof required) so a client could qualify through the domestic violence gateway – as Hewstone explains HERE effectively leaving the whole policy ‘in tatters’

Later in the day a legal aid lawyer spoke of ‘the huge gap between where we are and where you are coming from’. ‘I have the impression that you do not quite understand what our jobs are like or what our clients lives are like. The fact that no one has thought who pays for the medical report is a very good example of that.’

Off the rails
Steve Hynes, director of the Legal Action Group, likened legal aid tendering to the West Coast Mainline franchise debacle ‘but without the rails’. ‘You never know what is going to happen,’ he said. ‘Lawyers get rather upset when they lose. They crawl over the process and the legalities of it.’

‘What has happened with LASPO is that the government has done away with the buffer between politicians and the legal aid system. There’s going to be nowhere to hide. When things go wrong it’s going to be the ministers and the officials at the Ministry of Justice who will be accountable. I don’t accept that civil servants will always carry the can for administrative errors.’
Steve Hynes

Sir Bill Callaghan, the chair of the Legal Services Commission, reflected on what he called some ‘eternal truths’ garnered from his time in post including that ‘people always seem to look back to a golden age’. There had been ‘endless comments about the Legal Aid Board or the Law Society doing a much better job’ he said. ‘There are dangers of always looking back. It encourages a mindset that moves away from dealing with the present and engaging with issues constructively and finding common ground.’

Another ‘eternal truth’ was the need to maintain good relationships. ‘It is inevitable that tensions should exist between the LSC and legal aid providers… . But I think it is important to remain positive and to make sure that the rhetoric matches the reality. Comparisons between the LSC tendering process and the West Coast mainline rail franchising process were ‘inappropriate’. ‘And I do not think that the changes in LASPO are putting us back 40 years  – indeed legal aid practitioners in 1972 would probably not recognise the system that we have now.’

End of an era
Both Lord McNally and Sir Bill addressed the huge transformational process that the LSC is involved in as it becomes part of the Ministry of Justice. ‘As you know, the LSC is the commissioner of around two and a half million acts of assistance under the legal aid scheme. It delivers services through more than 3,000 legal organisations and indirectly through around 6,500 barristers. It is currently undertaking a major change programme, part of which will see it become an Executive Agency of the Ministry of Justice – the Legal Aid Agency,’ explained McNally.

‘By this time next year the Legal Aid Agency will be in operation and the LSC will be no more,’ said Sir Bill. ‘But legal aid will continue to play a key role in our society. I want to make sure that the transition is as smooth as possible.’

The next six months were going to be ‘an intense period for the staff at the legal LSC. It’s also going to be a busy commissioning period for the Commission. We are restructuring the organisation; establishing new ways of working; downsizing and reducing administration costs by 23% over a three-year period.’

 

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About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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