Hugh Barrett: ‘We’re expecting test cases.’

INTERVIEW: Next April represents a seismic shift in the legal aid world. It’s not only the LASPO cuts but the Legal Services Commission is going to be subsumed into the Ministry of Justice. Jon Robins speaks to Hugh Barrett, director of legal aid commissioning and contract management at the LSC.

‘The timetable is as of April 1st 2013 the LSC disappears, legal aid changes come into effect on that date and the Legal Aid Agency, which will be the body responsible for administering legal aid, comes into existence,’ says Hugh Barrett, speaking at the Ministry of Justice’s head office (the Commission has already physically made the move into the MoJ’s Petty France – famed for its brutalist architectural design). Matthew Coats, the LSC’s current chief executive, will become chief exec of the new agency and will be its first director of casework.

  • Hugh joined the LSC from the Department for Communities and Local Government. He was a commercial director with responsibility for the major IT project to improve the Fire and Rescue Service. Prior to that he was chief exec of the Office of Government Commerce buying solutions, an executive agency of HM Treasury. He has also held commercial roles in BT, Mars and British Airways.
  • Pic of MoJ, by morebyless on flickr.

 

How will the new Legal Aid Agency secure independence and prevent legal aid becoming a political football (see HERE)? ‘In the early days I wouldn’t be surprised if there were a number of test cases where a decision is made by the director and challenged in the courts,’ replies Barrett; adding that the director has an obligation under the LASPO act to produce an annual report to the Houses of Parliament. ‘We have agreed that we will have a dedicated legal team separate from the MoJ to advise the director on these issues.’

Also, he says: ‘The Lord Chancellor will be publishing guidance reflecting the constraints upon the director – in other words, he will be setting the policy. But what he cannot do is get involved in individual case decisions. That’s made clear in LASPO.’

‘We’ll make sure that the high-profile exceptional funding decisions are given senior scrutiny within the agency before recommendations go to the director. We are confident that we will have the appropriate independence as well as the resources to make the right decision.’

Wrong side of the line
But Barrett repeats: ‘It is expected in the first year to 18 months there will be quite a few cases in which those decisions are challenged. They will not be challenged because people feel that there is no independence but because the director is coming down the wrong side of the line.’ The guidance will evolve as the test cases establish the law. ‘The guidance, we hope, will be very clear to the director as to what classes of cases he can fund. If that means that an individual that society feel should not be funded does get funded, then that is the product of the system.’

‘LASPO says ministers cannot get involved in individual cases. Can they change the guidance subject to appropriate Parliamentary process? Yes, they can. But can they get involved in individual cases? No, they cannot.’

 Will life for legal aid lawyers change in relation to the creation of the agency? ‘From a practitioner perspective, they will not notice a lot of difference in areas where there aren’t changes in scope,’ he says; adding that the forms might change ‘insofar as they will say “the Legal Aid Agency” but the processes of applying for legal aid will stay the same. The merits test will stay the same.’ Management of contracts will ‘still be done by contract managers but they will be Agency staff rather than commission staff’.

The ‘biggest change’ will be introduced from June until December 2013 when ‘we will convert all our civil processes from paper-based to electronic’. ‘We have a pilot starting in the northeast and that pilot runs until March. There is a deliberate gap where the scope changes will come into effect,’ he says; adding that running the two together would be ‘potentially quite confusing’. ‘Currently over 50% of our transactions are online transactions already but there are typically low complexity, higher volume cases. The more expensive cases are very much paper-based.’

Cost-cutting
These fundamental changes come at a time of 23% administration cuts between 2011/12 to 2014/15. These savings are largely possible due to reducing the LSC staff costs by around 20% and non-staff costs by roughly 28% over the years.

These economies will be achieved through:

  • LASPO cuts ‘reducing the volumes of cases in future years and therefore reducing staffing requirements’;
  • The implementation of electronic working;
  • Transition from a non-departmental public body to an executive agency ‘resulting in sharing services with the MoJ’;
  • Savings in property ‘as we operate in fewer sites – for example, our docklands office is expected to be closed in August 2013’;
  • Savings in non-payroll costs ‘as we look to reduce spend on printing, postage, office expenditure and travel costs’.

What does Barrett make over the recent comparison of the current tender process to the West Coast Mainline franchise debacle ‘but without the rails’, by Steve Hynes, director of the Legal Action Group? ‘Actually, I do not think there is an unhappiness about this tender process,’ he replies. ‘There was around the 2010 family contract where, from an LSC perspective, we believed that we were getting a smaller higher quality of cadre of legal aid providers. The view from the Law Society was that they did not accept that was the right thing to do.’

Chancery Lane won its judicial review over the family legal aid tender in September 2010 after the High Court decided to quash the outcome of the tender round for new family legal aid contracts declaring it unlawful. Chancery Lane brought the challenge after the recent LSC tender round threatened to cut the number of family firms from 2,400 to 1,300. ‘The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid,’ said the Law Society president Linda Lee at the time.

‘There were about another 75 judicial reviews of that tender process – 74 out of 75 were upheld in our favour,’ recalls Barrett. ‘There was a lot of opposition to what we were trying to do. This time around we try to get as many providers who meet the minimum quality standard to be awarded contracts as possible. We are not in the game of trying to reduce the number of providers. We need to ensure that we have got good coverage across the whole of England and Wales.’

Access to justice
At the recent LAPG conference, Beverly Watkins, an education lawyer from Bristol, complained of the shortage of education lawyers. ‘That is going to be worse because you’ve decided only to award three contracts and only have three providers post-LASPO,’ she said. ‘How are parents of disabled children going to have access to justice if there are only three providers? How are parents who have dealt with one provider over a number of years who knows that child, knows their complex issues… going to get access to justice when they can no longer go to the person who has dealt with that child for ten to 12 years?’

‘Are you telling me that somebody with a disabled child stays within the justice system for 12 years needing legal advice?’ responded legal aid minister Lord McNally.

So will there really only be three providers post-LASPO? ‘What was not explained [at the LAPG conference] is that special educational needs is one of the three areas of law going through the mandatory telephone gateway,’ replies Hugh Barrett. The LSC estimates that there are ‘roughly 2000’ SEN cases a year. The consideration for the LSC is ‘what sort of volume of business’ is adequate to attract a provider to bid for a national telephone service ‘to make it economic’. It is ‘a different delivery model from the current model’, he says. ‘Our judgment is a contract of about 700 cases each per annum is about the right level.’

The move to a mandatory telephone gateway has proved to be one of the most controversial aspects. Or as Hugh Barrett sees it, there are ‘mixed views’ about telephone advice. ‘Some providers believe that you can give high quality legal advice over the telephone to most people. Everyone recognises that there is a small subset of individual who telephone advice isn’t going to work for. Then there is another group of lawyers who think in order to get good quality legal advice you have to speak to somebody face-to-face. If the gateway pilot is successful and, we hope it will because it is more cost-effective, then we will look at rolling it out to other areas of law.’

Whatever happened to CLACs?
A huge amount of money and energy was out into the LSC’s vision for CLACs and CLANs – community legal advice centres and networks. The idea behind CLACs was for ‘jointly funded, face-to-face legal and advice services’, specialising in social welfare law, and bringing together disparate services in a one-stop shop—or ‘a souped up’ law centre, as Roger Smith once put it.

‘The contracts have all been terminated coming into effect as of April next year,’ he says; adding that in certain parts of the country – for example, Leicester – the local authority has decided they will continue to fund general advice. ‘But the model of bundling together advice in a number of areas of law cannot persist given the government decision that many areas of social law are no longer going to be covered by legal aid,’ he adds.

The ‘flaw in the CLAC and CLAN model’ was the view at the time that you could ‘replicate the model across local authorities relatively easily’. ‘The reality was every local authority had a different approach and so we ended up investing a lot of time effort and resource in each one,’ he says.

What about competitive tendering for criminal defence firms? What happens next? ‘Price-based competition is the way forward for this government. The current public commitment is for consultation to be published next autumn with implementation in 2015 – that is when the new contracts will come into effect.’

Lord Carter of Coles, following his 2007 review of legal aid, made the case for a ‘market-driven economy’ in defence firms through the introduction of competitive tendering between providers as well as by moving from hourly rates to fixed fees.

What about the old Carter vision of the defence profession of larger firms providing greater value for taxpayers’ money? Has there been a move away from that? The MoJ has just started ‘an informal pre-consultation’ with the representative bodies, reports Barrett.  ‘You talk to the big firms and they say they are very concerned about small nimble operators with low overheads and then you talk to small firms who complain about the big firms and their “economies of scale”,’ he says. ‘From a very parochial LSC perspective, obviously there are economies if we are dealing with fewer clients because it is easier to manage 300 rather than 3000. But I do not think that is going to be the overriding issue. To use a defence term, the jury is out.’

Finally, any chance of any movement in relation to the concerns expressed about the feared consequences of the LASPO cuts? ‘There have been changes around the edges – for example, the government has decided not to proceed with the Supplementary Legal Aid Scheme,’ replies Barrett. ‘Ministers have made a commitment to reviewing how LASPO impacts upon the justice system. I’d guess that might be the time at which they look to potentially bring things back into scope. But as Lord McNally has said there is no political support for the sort of legal aid scheme that we have had previously. That is the reality.’

 

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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