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Alarming Proposals For Immigration And Criminal Legal Aid

Richard Miller. Director LAPG


Shortly before the Lord Chancellor's Department was replaced by the Department for Constitutional Affairs, it issued consultation papers giving details of a shake-up of legal aid in the fields of crime and immigration. The purpose of the papers was to save money as a result of the overspend in these fields in recent years.

Within the solicitors' profession, attention on the crime paper has focussed on a series of technical changes to the legal aid scheme that could lead to defendants being ineligible for any help or advice after charge or summons unless the case qualifies for a Representation Order. Concern has also been expressed by the plan to introduce the long-threatened scheme for a fixed fee for telephone advice in the police station. Two thirds of the profession opted out of this scheme when contracting was introduced, and it is widely believed that it would significantly reduce their income.

But not all of the changes will affect only solicitors. There is a proposal that the merits test should be tightened up, perhaps restricting representation to those cases in which a prison sentence is "likely". There is no discussion in the consultation paper of the consequences for the Courts of much greater numbers of unrepresented defendants. There is no consideration of the effect on unrepresented defendants' chances of securing justice, or of the impact on witnesses of being cross-examined by defendants personally or of the possible influence of such a test on sentencing decisions. The reasons for raising the issue are that "there has been a marked increase in the proportion of cases getting representation orders" and "there is inconclusive evidence that the interests of justice test is not working as it should be."

The paper also sets out the Government's intention that the operation of the scheme for Recovery of Defence Costs Orders should be strengthened. The Court's discretion would be significantly curtailed. An order would generally be required in any case in which the defendant was convicted and had the means to pay or failed to provide information about his means; and discretion would be retained to make an order in the event of an acquittal.

The change that will have the greatest significance for the Bar is the proposal to extent contracting for very high cost criminal cases. These are cases that are expected to last over 25 days at trial or to cost more than £150,000. The top 1% of cases consume around 50% of Crown Court expenditure on legal aid, and the proportion is rising year on year. The Government therefore wants to have greater control over the expenditure in these cases.

The consultation paper notes that the scheme has been evaluated and has proved a success in controlling costs. 141 contracts have been signed since April 2001, including contracts with Counsel in 103 of those cases.

From 1st April 2004, all eligible cases will be brought within the contracting regime. The Department estimates that this will generate savings of £73 million in 2004-5 and £89 million in 2005-6.

AThe immigration paper contains a couple of relatively uncontentious and worthwhile provisions and one devastating one. The good ideas are the introduction of a unique file number for immigration clients to ensure the system can keep track of them, and the introduction of accreditation requirements for anyone undertaking asylum work.

The proposed levels of accreditation would be "probationer," "accredited fee earner", "Supervisor/senior fee earner" and "advanced".

There will be strict rules as to the level of work fee earners at each stage of accreditation can undertake.

 

The LSC will be consulting on the details of the scheme, which the Law Society will be invited to administer. It is not clear whether this scheme will apply to Counsel instructed by solicitors under the LSC contract, but the possibility of it doing so is clearly being left open.

The proposal that could rip the heart out of the provision of good quality immigration advice is the imposition of unrealistically low time limits for all immigration work. On asylum matters the proposed limit is five hours in total for initial advice up to the initial Home Office decision. This includes any Counsel's fees. There is a separate limit for disbursements of £250, (£350 if the client cannot visit the office) although this can be extended with prior authority. There are no exceptions for more complex cases. Good quality firms respected by the LSC indicate that a more realistic figure for this stage of work is between 15 and 20 hours.

Four hours is proposed for appeal work at the adjudicator stage (plus the time for attending the hearing), including any Counsel's fees for conferences, and the time to prepare instructions to Counsel. The rates of payment to Counsel may be exceeded if a case raises an exceptionally complex or novel point of law or a matter of significant wider public interest. The disbursement limit under Controlled Legal Representation is £350 (£450 if the client cannot visit the office). As with the legal help limit, this can be extended with prior authority. Again, the feedback from good firms is unanimous that this limit is a small fraction of the time needed to do the work properly.

For non-asylum work, a three-hour limit is proposed. No limit is imposed for Tribunal appeals, but there is a maximum fee of £150 for applying for leave to appeal to the Tribunal.

These figures are not justified anywhere, and appear to have been picked at random. They are substantially lower than the time estimates in the LSC's own guidelines as to what constitutes proper professional practice in an average case. So far as can be discerned, they bear no relationship to bills submitted to the LSC.

Proposed transitional arrangements mean that these limits will apply to all work done for existing clients after 1st January 2004. The limits will apply only to work done after that date, regardless of how much work has been done by the end of 2003. This means that, under a retainer with clients taken on now, lawyers may be incurring a professional duty to undertake work for which there will be no payment.

This is a difficult time politically. Criminal defendants and asylum seekers are easy to attack. Lawyers are a popular target too. The legal profession is bearing the brunt of the failure of the LCD to stop other Government departments, and in particular the Home Office, from spending its money. More criminal justice bills are on the way. Will we see further cuts in the future as these bills increase the need for legally aided services? The number of asylum seekers is falling. Will we see these cuts restored when expenditure naturally falls as a result of the trend in migration? These measures are unashamedly proposed as cost-cutting initiatives, but since the Department seems to have little understanding of why costs are rising, the chances of these measures tackling the problem effectively appear slim.

Richard Miller

   
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