The awesome triumph of austerity applied to UK legal aid

Takes a comedian to make the point most brutally:

First, Legal Aid will have an eligibility threshold of thirty seven and a half thousand pounds. To be fair, that doesn’t seem like the worst idea in the world. And I can be confident about that, because right there next to it, as if deliberately placed for purposes of comparison, are two of the worst ideas in the world. One. Defendants will no longer have the right to choose their own lawyer. Two. Legal Aid contracts will be awarded, on the basis of price competitive tender, ie who’s cheapest, to private companies. Like Tesco and Eddie Stobart. You know, the lorry guy. Though I’m sure he’s also an excellent lawyer.

So, instead of you picking a solicitor on the basis of how well you think they’ll represent you, the new plan is that the government will choose one for you, on the basis of how cheap they are. And they will be very cheap indeed – a minimum of 17.5% below current rates, but of course with competitive tendering, it’s all about how low can you go… the floor’s the limit! You might almost wonder whether this could affect the quality of the representation in any way at all. But the government assure us it will not, and of course they’re right. We all know from our own lives that the cheaper you go, the more the quality stays exactly the same. But just out of curiosity, how do they intend to ensure quality? Well, Chris Grayling, Minister for Justice and dispenser of none, has given a clear and simple answer- he doesn’t know. Not yet. That’s one of the things they’ll work out now they’ve had the consultation. But they’ve worked out what they want to do, and precisely how much money they know it’ll save, somehow – that’s the important thing, surely? They can fill in the boring ‘how the hell will it work’ stuff later.

And there’s more!

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27 responses to “The awesome triumph of austerity applied to UK legal aid

  1. The eligibility testing and the tendering (do people in the UK currently get to select whatever lawyer they want for legal aid? Regardless of expense? Does the government foot the entire bill?) don’t actually sound that bad.

    Its the flat fee bit (from the rest of the article, after what’s quoted) that’s really awful. That’s not representation, its just paperwork administration: “please sign this form acknowledging your guilt”. It might work in a system where full costs were automatically awarded to the winner of any criminal case, for instance, so that the firm had the financial incentive to defend cases it thought were a reasonable chance to win. But its obvious that with a competitive tender and no way to recover the cost of running a case, you pretty much won’t see any contested charges under legal aid at all unless perhaps some not profit steps in.

  2. narcoticmusing

    Jeremy, am I to take from this post that you advocate for a person seeking legal aid to choose their own legal team? That is simply an outrageous use of public dollars. How many times should a person get a QC/SC of their choice plus team for their defence? If you don’t qualify for legal aid and have to foot the bill yourself, why should you get the shitty ‘whatever i can afford’ defence while the person consuming taxes gets the very best? It isn’t like the DPP gets the best. The recent Victorian court decisions stink of bias – first they dictate to the public purse (so much for their much lauded separation of powers) and then they pretend like the guy didn’t have representation. Wrong – he had great representation, just not the person he wanted (who, mind you was a silk – how is that at all reasonable?)

    Imagine if the public health system worked like that? It would be unsustainable in a week.

    This is what we are seeing with legal aid – the costs per case are astronomical. And instead of advocating for mechanisms to reduce costs, all we see is people screaming for more money to be thrown at it. No wonder the costs are so high if everyone can get a QC and team of their choice – why would you take adequate representation when you can have better than the DPP’s guys?

    I 100% support legal representation for all defendants; however to pretend we can throw infinite funds at this is ignorant of the range of demands on the public purse. Thus, I accept that there needs to be a merit based evaluation to triage services, much like we do in health care. It would be outrageous to demand the public purse fund whatever surgeon you want. You get surgery to deal with your problem, there are standards that have to be met.

    Also, what is with your repeated demonisation of Legal Aid? Do you understand how it works? It requires funding and then based on the money it has, has to determine what cases it will fund and what it won’t. It cannot spend money it doesn’t have – so if there is a matter to consider, it is government funding of legal aid.

  3. Wisdom Like Silence

    I’ll have a McLawyer Happy Meal deal with an Amublance Chaser figurine please. And extra précis.

  4. “there are standards that have to be met….”.

    Jolly good show old chap, what? Hear hear; can’t have any johnny come lately cracking on for the lower orders what? I mean to say…pretty soon they’ll be demanding free lessons to read n write?? What?? Then we’ll have them wanting to vote and what not?? Best to simply chain ‘em in irons if they overstep the mark what? Or keep ‘em in the bloomin’ poor house from the start I say. Bring on the gruel. Cheerio, pip pip. What?

  5. narcoticmusing

    I will assume Eric you simply did not understand what I meant – I was referring to the analogy of the healthcare system. There, you do not choose your surgeon, one is allocated to you. However, that surgeon must adhere (so too the hospital and its staff) to standards that protect the patient. Ergo, the standards to be met in this scenario would be the legal representative of the accused.

    Are you suggesting Eric that:
    a) we should allow a person to choose their legal team at the tax payers expense (despite that the DPP will not pursue a case to trial unless they have evidence so significant it rarely ends up more than a sentencing hearing)
    b) that we should have infinite funding for legal aid despite the gross conflict of interest that the loudest voices advocating this are private law firms with big juicy contracts at stake with legal aid
    c) that we should infinitely fund the health system so you get to choose your surgeon – why not just produce league tables because that has worked so well for education (sarcasm warning there because you seem to always miss it)

    So you would prefer a legal system where it is the lawyers that determine how much it will cost rather than say, requiring a standard of care and performance form all legal representatives. You’d prefer a legal system that unless you are so so so so rich it doesn’t matter or so so so so poor you get legal aid, that you have fuck all chance of ever having a fair hearing because legal costs are so over inflated only the very rich or very poor can get it.

    Maybe you should get off your high horse Eric and consider that perhaps people profiting from a situation (ie lawyers) are not possibly the best people to advise on legal funding. I don’t see any lawyers advocating for additional assistance for victims of crime. I suppose they are in your fuck you boat as well, after all, victims have NO VOICE AT ALL in our justice system so they can’t put on a witty accent in a blog in any way.

  6. “ignorant of the range of demands on the public purse…”

    Yes I mean to say it’s not as if the public purse is bailing out us rich chaps all the time…what? I mean good lord, I don’t even pay any bloomin’ tax and quite right to, why should I fund the lower orders who can’t even pull ‘emselves up by their bootstraps what? Steady on…stand by your beds, as you were…what? A short sharp shock, that’s what the buggers need eh? Bring back the boot camps I say…jolly good show.

  7. narcoticmusing

    Why can’t you just answer the question instead of being such a coward everytime someone calls you out?

    Lawyers have a conflict of interest regarding the costs of the legal system. They should not be the ones determining its funding and costs and yet they are the only ones complaining about tendering and budgets. So answer the question: do you think legal aid should have infinite funding where the accused gets to hand pick their legal team (while teh DPP does not and victims have no representation at all)? Do you think we should do nothing to reduce the sprialling costs of legal expenses which lock out most of the community from being able to enforce their rights just so that a few lawyers can get ridiculously rich? THAT is what you advocate with your ignorance and ‘wit’

  8. narcoticmusing

    Um, Eric, what you advocate is to encourage the sprialling increase in legal costs that make legal representation out of reach for anyone who is either a) not rich already or b) not poor enough or within the criteria to be eligable for legal aid.

    By suggesting that legal costs should just be funded no matter what they cost, you are only helping lawyers get rich and the every day person is continually locked out of the legal system. That is not justice.

  9. Um, narc, no old chap, I am advocating that taxes be properly increased on the rich so that a universal legal aid scheme can be properly available to those whom can not afford their own defense. That a proper legal aid scheme would have a proper set of fees, set and fixed against the amount of work/time a particular case might involve, so that profiteering would be impossible. I believe pretty much the same thing could easily be and should be applied to health and education. Simple, and I am not interested in entering into one of your long convuluted conversations that go round and round and round.

  10. God almighty, narcotic. Did you read the link? Nobody’s advocating for a gold-plated legal aid system. But one which is adequately funded to provide proper representation to all who need it, as is absolutely fundamental to the fair functioning (ie the avoidance of convicting innocent people) of the criminal justice system.

    And what that link reveals the UK is doing is quite the reverse of that.

    There’s a huge difference between having defendants able to choose their lawyer funded at a fixed legal aid rate depending on the work (which in the case of legal aid is always set WELL below market rates, ie what the private client is prepared to and does pay), whether the lawyer is employed directly by legal aid or by a private firm prepared to do some legal aid work – and your fanciful suggestion of legal aid paying whatever private fees a lawyer feels like charging. Which no legal aid system would do, and nobody is advocating it should.

    Also, if you think lawyers are getting rich off legal aid in Australia then I want some of what you’re smoking. (It’s a Daily Telegraph, isn’t it?)

  11. narcoticmusing

    Jeremy, I agree with what you are saying.

    My point regarding conflict of interest is that legal fees are through the roof and lawyers should not be the ones setting this agenda. This goes far beyond Legal Aid resources – it is about accessibility of the legal system for all, not just the rich and those eligible for legal aid. I believe civil and family law cases can have as great a consequence as criminal cases in many situations. Nevertheless Jeremy you seem to be unaware of the gaming of the system – much like hospitals came the casemix activity based funding system, the fee schedules for legal aid are easily gamed which is why there was obviously pressure for a cap. I’m not convinced a cap is the right thing to do, but when you see $1m in public funds defending a guilty man where fuck all goes to his raped victims, I’m pretty sure there is some injustice going on.

    My other point re conflict of interest is that the strongest opponents of Legal Aid (as in the organisation) are firms and the LIV (which is the AMA for lawyers). These organisations increasing the rates. And the recent case in Victoria did indeed seek for the counsel of his choice, rather than the one appointed. And while most lawyers working for legal aid are funded well below market rates, there are many firms with tenders on panels that are not regularly reviewed – this means they effectively have a monopoly of those resources.

    My final point Jeremy is why the constant attacks on Legal Aid organisations and the hard decisions they have to make. They have a budget. Period. The State government is not their only funders, nor is the Federal govt. I’d like to see that amount increase – but not if it means encouraging the unsustainable increases in costs of the legal system.

    Eric – your goals are laudable but what you advocate for in your previous posts is a system that would make the legal system inaccessible to all accept those in cases eligible for legal aid and rich people. I’d like to see a system where all people can enforce their rights and be defended, not just those that meet a particular criteria. I’d like to see a system that acknowledges losing a child or your home when you are innocent is a significant penalty compared to imprisonment when guilty.

  12. narcoticmusing

    Also, if you think lawyers are getting rich off legal aid in Australia then I want some of what you’re smoking.
    If you think firms aren’t gaming the fee system (they are all pillars of honesty no doubt) and/or that legal fees/costs aren’t so high that they are inaccessible to the median wage earner, then you are smoking something even more delirious.

    I should note that my personal experience with legal aid lawyers is nothing but good – my basis for my comments is from research, not from my interactions with legal aid lawyers, particularly those that are employed by legal aid directly and duty lawyers – I tip my hat to all of them.

  13. narcoticmusing

    Why would a tendering process translate to inadequate representation?

    You have not explained why those things are so terrible.

    Why is trying to constrain costs (by this the legal system generally) a bad thing? Do you also abhor the developments of the Civil Procedure act (ie case management)?

  14. Jeremy, I brought it up on a thread long ago but I don’t remember your response, and I think its probably gone a bit under the radar here.

    What do you think of a system where both the prosecution and defence in a criminal case get paid (proportional to the gravity of the charge or maybe some other measure of the likely complexity of a case) a flat amount, plus then a larger fee that goes only to the winning side? This provides financial incentives in the right direction, if you will – for both prosecutors and defence to only charge / contest cases they think they have a good chance of winning. So costs can still be saved – fewer charges that should never be brought, more guilty pleas in cases that can’t be won – without pitting the interests of the defence directly against the interests of their client as the UK system clearly does.

  15. Legal aid doesn’t fund contests that don’t have a reasonable prospect of success, so lawyers won’t run stupid defences on legal aid – in any case, legal aid funding is so much lower than private work that lawyers have little incentive to stretch the cases out. And of course clients know that they will get a discount if they plead guilty, compared with if they fight the charges and are then convicted.

    But “no win no fee” for legal aid criminal matters? I think you’d just have the situation you get in NSW now with legal aid for family law – it’s very difficult for poorer clients who rely on that system to find a lawyer who’s prepared to represent them at that rate.

    Lawyers do “no win no fee” for personal injury matters all the time – but that’s because the fee for a win can be substantial enough to make up for those matters that aren’t wins. Unlike legal aid.

    Narcotic – the tendering process is only on price, which means poorer people would be stuck with the worst lawyers cutting the most corners.

    As for legal fees – there are plenty of lawyers out there, so it’s not like there’s not strong competition already regarding what rates are appropriate in the market. But you’re mixing up private fees with legal aid, again – legal aid fees are already hitting the level where firms are going to refuse to do legal aid work. I know many in NSW, for example, that will not do family law cases funded by legal aid.

    “when you see $1m in public funds defending a guilty man where fuck all goes to his raped victims”

    Oh yes? What case was that? Link?

    And I’m not criticising legal aid for having to administer the inadequate amount it’s funded. I’m damning the government for funding it so badly.

  16. narcoticmusing

    You contradict yourself Jeremy. First you say:
    the tendering process is only on price, which means poorer people would be stuck with the worst lawyers cutting the most corners

    then you say:
    there are plenty of lawyers out there, so it’s not like there’s not strong competition already regarding what rates

    So are the people getting those ‘plenty of lawyers’ just getting the worse lawyers that cut corners?

    In medicine, it is not acceptable that there are ‘the worst doctors cutting corners’ – there are standards that must be exceeded. Why can this not apply to lawyers? Why are they permitted to be so crap? Why are they still protected from negligence as to how they handle cases?

    I will try to dig up the link for the case I reference.

    As for the data on the ridiculously ever increasing costs of legal costs, the research and evidence is overwhelming. It is what provoked the Civil Procedure Act amendments and I hope to see similar modifications regarding Criminal procedure. You only need look at Legal Aid’s annual reports to see even when they are given several times the CPI in funding, they still fund less cases – that shows that the cases are more expensive. When you look at the grants, cases with similar complexity ratings are having far more scheduled claims made against them.

    Jordan – the DPP already cannot persue cases that do not have a substanitally high chance of success. This is one of the reasons we have such appauling rates of rape cases going to trial – but at the same time it is an attempt to not waste money on a case that would be lost anyway. I also disagree with a no win no fee for criminal law/family law. Nevertheless we certainly need to be looking at how to make the legal system less expensive. Legal representation should be accessible for ALL – currently the costs are so prohibitive that no one on a median wage can get near it.

  17. Wisdom Like Silence

    Sorry Sir/Madam,
    We regret to inform you that your order of 1 McLawyer Happy Meal Deal with Ambulance Chaser figurine and extra précis has been rejected.
    We would like to offer you instead one of our fine McLawyer Cut Lunch Meal Deals, wherein you are sent to jail for a short period of time and they feed you.
    Good luck in your future endeavours, and please do not forget our services when you are next served with a summons for an unpaid parking ticket.
    Signed
    Legal Aid UK Administrator/Lead Counsel/Janitor/Valet

  18. narcoticmusing

    Every post goes into moderation lately – so not sure if this will be seen either. I could put up more references but apologies, I’m time poor atm, so just a few I know without much effort.

    Some examples of cases that fit the description I gave – the multiple proceedings:
    *Peter Dupas – who wanted to be un-triable for offences merely because he’d done so much horror before (thus lots of negative press) it would bias the court – the High Court rightly rejected his claim that he could never be given a fair trial – on his logic Charles Manson and Hitler would never be tried;
    *Delcared vexatious litigant Julian Knight – who on last count had built up over half a million in legal costs with no capacity to pay them – and that isn’t including his defence and appeals of his actual charges. Over $300k of his costs were since being delcared a vexatious litigant.

    http://www.theage.com.au/victoria/vexatious-julian-knight-prompts-law-review-20130413-2hsju.html

    *The recent agreement of Legal Aid to fund Dr Reeves appeal to the High Court despite him being guilty of harming more than 30 women (including convictions of GBH), who were only offered $12k each. It is estimated to cost all up around $1m for his total defence.

    http://www.smh.com.au/nsw/disgraced-doctors-victim-outraged-by-appeal-20130327-2gupx.html

    As for citations re costs, see (I’ve abbreviated titles):
    *Aon v ANU (2009) 239 CLR 175 (and the myriad of cases that have embraced this without need for the CPA amendments)
    *Johnson v Gore wood [2002] 2 AC 1 (per Lord Bingham)
    *ALRC, ‘Managing Justice’ Report No 89 (2000)
    *Lord Woolf, Access to Justice Report (1996, UK)
    *The 2nd reading speech by (Hulls in LA; Jennings in LC) re: the Civil Procedure Act – where he cites judicial criticism of behaviour and rates charged by lawyers.
    *Boniface & Legg, ‘cost delay and justice’ (2010) 39 CLWR 157
    *Stewart, ‘Self-represented litigants’ (2011) 20 JJA 146 (where he discusses the inaccessibility of the legal system has led to a rise in self-represented litigants)
    *Spigelman’s speech at the Compensation Court Annual Conference (May, 1999) and his article ‘Access to justice’ (2007) 29 ABR 773
    *Walsh, ‘Time and Money’ (2011) 34 ABR 325

    As for Legal Aid:
    *Wilkinson v Kenny [1993] 3 All ER 9 – noting legal aid’s budget increasign to address rising costs rather than helping more clients
    *From 2001-02 to 2010-11 there was only a 15.5% increase in grants but the case budget doubled in that time. Even taking CPI etc into account, this was a monumentous growth in costs that cannot be dismissed as a couple outlier cases.
    *In 2009-10 to 2010-11 (one year) there was a 14% budget increase (over 6 times CPI for that period) which purchased LESS GRANTS of legal aid. Ergo, costs are increasing, gaming is increasing.

    This is NOT merely Legal Aid or its funders at fault. This is a system that is gamed at every opportunity. There are good lawyers (competent and not exploitative) out there but the overwhelming costs of the legal system suggest that they may not be as common as we hope. Lawyers protested Case management because it is not in thier interests – despite it being in their client’s interests. Delaying tactics also hurt litigants and victims beyond the financial costs (see eg, Lord Griffiths dicta in Ketteman v Hansel; or Bryson J’s lament in Maronis Holdings [2007] NSWSC).

  19. narc doesn’t understand the word “universal”.

    “advocate for in your previous posts”…yes I was advocating that he has a good hard long look at himself to see whereabouts his right wing wonkery might have come from…but if he doesn’t understand simple words like “universal” I guess we are onto a hide to nothing and we’ll be going round and round and round…so that’s enough from me on this issue….i trust narc enjoys it up there alone on the wing nut ferris wheel

  20. narcoticmusing

    , I am advocating that taxes be properly increased on the rich so that a universal legal aid scheme can be properly available to those whom can not afford their own defense.
    Two questions here:
    1. why should it only be for defense? Is not losing your house or child or safety a reasonable cause for legal assistance? Why only if you are defending a criminal matter (recall, the DPP will only proceed where there is overwhelming evidence, hence the high conviction rates).
    2. Why must an accessible legal system involve increasing funds? Where would it end? I agree that legal aid could definitely use more cash, but my point is, do you think the current costs are reasonable? Could you afford your own defense? Should not the legal system be accessible for all?

    That a proper legal aid scheme would have a proper set of fees, set and fixed against the amount of work/time a particular case might involve, so that profiteering would be impossible.
    That would mean a cap – I’m not in favour of a cap as cases can differ in their complexity immensely. However, without a cap it will never be possible to eradicate profiteering. And in some circumstances, so called profiteering may actually be legitimate, thus there is no black and white here.

    I believe pretty much the same thing could easily be and should be applied to health and education.
    Then you do not understand the health or education systems in Australia. In health, for example, we are moving as an entire nation to activity based funding. This is a very good thing as it is output based and far more efficient and accountable than input funding. However, it is also really easy to game and many hospitals (particularly in SA and Vic who have had this funding type for a while now) have got good at gaming it. I’m not terribly against that per se, but to suggest we make it ‘impossible to profiteer’ is just foolish and naive.

    Simple, and I am not interested in entering into one of your long convuluted conversations that go round and round and round.
    I just wanted you to answer some questions rather than making assumptions about me that as always are not true. You assume that because I want a less expensive legal system I am anti-legal representation. Couldn’t be further from the truth – i want a less expensive legal system because i want a legal system accessible for all.

  21. “Where would it end?”

    It wouldn’t.

  22. narcoticmusing

    While I hate to over-simplify the national budget as such, but seriously Eric, infinite funding to health, education and legal aid? Do you manage your household budget that way?

    You realise these are all bottom-less pits with massive corporate interests involved right? That it isn’t as simple as everyone holding hands and rainbows sprouting out of their asses. But you’d happily fund that beast huh? Fund the AMA’s every whim. LIV’s every whim?

    Let’s use health as an example – everyone knows we need healthcare right? Right we can agree on that. Now, given that health spending will consume all GDP on its current trajectory if something is not done to reign it in, your suggestion is just to successively increase taxes on the rich? You don’t think anything should be done, say, to make health cost less (ie so we buy more for each dollar we spend). You are happy then for the Royal Colleges to limit supply in order to artificially inflate prices (as is the current practice)? I am advocating for mechanisms to reduce the costs of these things.

    80% of the health budget is wages. Nurses wages are not the problem, they are more that reasonable (in that they get no where near their slice of the pie, by more than reasonable I mean it is not from nurses that we should get our cost reductions). However, doctors salaries and specialists (eg anyone controlled by the Royal Colleges and/or represented by the AMA) their wages are growing exponentially. So I’d just we deal with that. We don’t have a chronic shortage of any of these categories at the training side, we have a shortage due to the supply being squeezed by the Colleges who are required to register them and simply choose not to because it is not in their interests to increase supply.

    Input costs could also be reduced – this would require some initial seed funding for many jurisdictions, such as Victoria where the system is already operating at a high efficiency (relative to other jursidictions) For example, it is widely understood that community based settings cost less and have better outcomes for patients – but we’d need to initially duplicate funding to transition this. .

    Do you really think what I’m suggesting – reducing costs to make each dollar we spend more effective is so terrible? I’m not suggesting a cost cutting, I’m suggesting there are many in these systems getting very fat and we need to look at those so that we can re-direct existing funds to more worthy causes.

  23. narcoticmusing

    So then Eric you advocate for a system where costs would increase exponentially without any limits and be completely inaccesible to all bar the very rich and those that qualify for legal aid? Too bad for all those people who don’t fit into either of those extremes (which is the majority of the population).

  24. “Should not the legal system be accessible for all?”

    Suggest you look up the meaning of the word “universal”.

  25. narcoticmusing

    I suggest you consider ‘infinite funding’ and what that would mean. Do you really just think we should pay lawyers infinite costs? Really? Should we pay legal fees for the rich too via legal aid? Seeing you suggest it is universal.

  26. round and round and round we go…..

  27. A good example of a total waste of the limited funds legal aid has:

    http://www.abc.net.au/news/2013-09-27/jill-meagher27s-husband-blasts-use-of-legal-aid-funding-for-mu/4984234

    It isn’t that he is a scum bag that makes it a waste. It isn’t that it is Jill Meagher that makes it a waste. It is that it fails the basic test for a sentence appeal. Namely that there first must be an error of law (or equiv) – the basis put forward in this was pretty flimsy. But even if it was rock solid, that error must have caused a SIGNIFICANT miscarriage of justice such that the outcome was MANIFESTLY unfair. To suggest that 32yrs instead of 35 yrs is significant and/or manifestly unfair is idiotic.

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