North-east: legal aid in turmoil
North-east legal aid lawyers are set to be badly hit by the current reforms. Jean-Yves Gilg reports
'Ninety-nine pounds plus VAT, that's how it's going to end,' says David Cornberg, one of the two partners at Gosforth-based firm Haswell & Cornberg, just North of Newcastle. The firm is the only legal aid practice left in the North-east specialising in just criminal law work and Cornberg is quite vocal about the gradual downgrading of legal aid contracts to a standard, one-size-fits-all product.
Haswell & Cornberg set up shop at the turn of 2000, believing '“ as many legal aid lawyers around the country do '“ that just because someone did not have the means to hire defense, did not mean they should be deprived of representation altogether. They started out offering legal aid across a few other areas, including family law, but, says Cornberg, 'the majority of our instructions tended to be from people taken to magistrates' court who didn't get a response from other firms'. The work has been growing ever since and, just over seven years later and now with two offices in Newcastle, Cornberg says the firm is still happy to fly the legal aid flag.
Legal aid chaos
The future may be very different, though, as Cornberg, a former Law Society Council member for the North-east, shares the concerns of legal aid lawyers up and down the country. 'It's truly disorganised chaos,' he says. 'No one has the faintest idea. The Legal Services Commission itself says there are too many questions and not enough answers, but they are determined to push the changes through even though the proposals have not been tested.'
'Since October last year,' continues Cornberg, 'there has been a 29 per cent drop in people eligible for legal aid after the government reintroduced means testing.' In the Newcastle area alone, the Law Society estimates that the resulting drop in income for legal aid lawyers was 7 per cent. Meanwhile, rent and other office costs are not going down.
'The prices for legal aid work that the government are talking about are not sensible, viable or practical. They have not taken into account the cost of running an office,' says Cornberg.
'The NHS budget is £75 bn, when the legal aid budget is only £2 bn,' he continues. 'The services have a different purpose, but even the NHS has troubles on its own huge budget, so what can legal aid lawyers do with a budget that is 37 times smaller? The problem is that there are no votes in crime.'
Fixed fees and peer review in rural areas
The North-east is more likely than any other region to be adversely hit by the fixed fee regime. Fewer firms and the size of the area mean that distances lawyers travel are greater, and taking on legal work becomes less and less cost-efficient.
'Fixed fees are fine if the police station is around the corner; I can go six times a day and it will still be cost-efficient,' says Cornberg. 'But if your client has to be let out for more forensics or inquiries in Tynedale 30 miles from here, it becomes unworkable. You'd have to employ somebody in a rural area, except it's unlikely there will be anyone at all. Setting up a satellite office doesn't make sense either because the work is too occasional.'
Referral agreements with rural firms could be an alternative, but there are very few of them and they tend to be so small that they do not have a legal aid contract. Which leads to the other burning issue: peer review. 'The LSC will decide who they assign contracts to based on recommendation,' Cornberg explains. 'Firms will be invited to consider whether they wish to apply to become 'preferred supplier'. If you're not invited to apply, you might as well shut the door. If you are invited to apply, you'll be peer reviewed and graded. If you are awarded a grade between 1 ('excellent') and 3 ('could do better'), that's all right, but if you only get a 5 (the lowest), you might as well pull out straight away.'
At the heart of the problem is the LSC's 'win some, lose some' approach, which works in urban areas, but not in rural ones simply because of the distances. 'In London, everyone is all together, but beyond Leeds and Manchester, there are huge expanses with no firms in between the larger centres,' says Cornberg. The Northumbria area, which spans from Newcastle and Hexham through to Carlisle to the West, and North all the way up to Hadrian's Wall is the largest police force area in England after the Metropolitan Police Area. In Northumberland, there are only two police stations along the 61 mile stretch of the A1 between Newcastle and Berwick-upon-Tweed (in addition to those in these two towns), in Alnwick and in Bedlington, but only the latter operates on a 24-hour basis. And as far as criminal legal aid work is concerned, a town like Berwick only has two legal aid firms that do some criminal law work.
Merge or die?
The government has been encouraging greater co-operation between firms, which, in practice, means integration and mergers, but Cornberg dismisses the idea as unworkable. 'As a reasonably successful firm, we intend to carry on as we are. If merging was a good idea, more firms would have merged by now, without waiting for the government to suggest it.'
Aside from the business rationale, there is also a major obstacle: the risk of conflict. It happens regularly in larger firms, and will be inevitable in an environment where there is only a handful of small firms left in a given area. 'This is Practice Rule One of the Solicitors Practice Rules,' says Cornberg, 'which states clearly that clients should be free to instruct a lawyer of their choice. If I have acted for, say, a wife in a domestic violence case, I can't act for the husband in a separate prosecution for unrelated facts '“ but his choice of firm in the area could be nil because they've all disappeared.'
The root of the problem with the Carter proposals, according to Cornberg, is that those who should have been consulted weren't. Those who were, and who are promoting the changes, do not understand how legal aid works in real life. 'Vera Baird may have been a very good barrister in her days at the Bar, but she was never at the coal face of legal aid,' he says. 'They ought to have consulted with solicitors and magistrates; you cannot have meaningful conversations with people who are not involved in the day-to-day work, who do not spend time in the
magistrates' court every day.'
So how would he improve the system? 'Cut the red tape, and involve people who do it every day.' Cornberg also mentions the regular occurrences of prisoners being delivered to the wrong court, or on the wrong day. Or judges going on training days and solicitors who have not been informed turning up to find the court closed. But the biggest problem is the Crown Prosecution Service, which has access to 'a bottomless pit of money' and appears to be able to secure adjournment much more readily than the defence solicitor.
'It's quite simple: we just want the government to give us the tools to do the job. The whole profession is saying this, from Fiona Woolf and Andrew Holroyd at the Law Society, to large City firms like Clifford Chance. But the government is not listening.'
Expansionist strategy
On the other side of Newcastle, at Sunderland practice Ben Hoare Bell, the sentiment may be similar, but the response to the Carter challenges is different.
The firm has a very strong slant towards legal aid, and despite a sharp decrease in legal aid work, this still represents 65 per cent of the firm's revenue. Unusually, it offers advice in publicly funded cases across a very broad spectrum of practice areas. So, while many housing lawyers are shunning housing work for private (landlord) work, Ben Hoare Bell has made a policy decision to remain active in this sector. In fact, it is the only firm in Sunderland to offer legal aid advice across most areas where legal aid is still available, such as benefits and debt advice, community care, education and public law.
'We were set up to do these things,' says managing partner Jeff Dean, 'to provide legal advice to people regardless of means.'
But unlike Haswell & Cornberg, Ben Hoare Bell's strategy has been one of expansion. It has taken over two firms in the past year, expanding its services in mental health, welfare and family law. 'One theme in the Carter reforms is 'economies of scale'; the LSC doesn't seem to want to deal with small providers,' continues Dean. 'The view is that there are too many smaller firms who dabble in legal aid and that it's inefficient. But legal aid has to be available to all who are eligible, and that is now under threat.'
In this new environment, Dean says the larger firms do have an advantage over the smaller players in that they can set up proper supervision systems and that processes are easier to maintain in larger departments. But the reforms jeopardise the concept of legal aid as an essential social service, 'the third arm of the welfare state'.
According to Dean, the real challenge is to maintain the level of expertise within a firm, particularly firms with a portfolio as wide as theirs. 'There is a real danger that the expertise will be lost,' he says. 'Firms that offer the widest range of services are the most challenged by the reform. The new peer review principles could be a real threat to their existence, so it will be tempting to give up work on the fringes, as failure at peer review in any one area of work could bring down the whole firm.'
The uncertainty of legal aid funding also makes it difficult to recruit new entrants. According to Nigel Barnes, head of crime at Ben Hoare Bell, 15 years ago, firms like theirs had sufficient funding to offer competitive remuneration packages. These days, criminal lawyers are financially better off with the CPS or as local authority solicitors. 'Legal aid firms are no longer first in the pecking order,' he says. 'Many practitioners from very senior firms have defected to the CPS.' Dean adds that the existing reputation of the firm and its commitment to legal aid are what will attract younger lawyers to legal aid work. 'It is difficult, but there is a lot of interest from younger people in their late 20s who have some life experience and then decide to try law. Many have studied at Durham or Newcastle and decide to stay in the region.'
Ticking time-bomb
But Dean warns that there is a time bomb ticking. 'At present, the LSC relies on the fact that not too many firms have their backs against the wall, but in two or three years, some will start dissolving. One or two have already stopped and a lot are on the edge.'
Barnes concurs that many of the firms that traditionally worked in family and crime are leaving the market altogether, including larger regional players like Irwin Mitchell. 'The type of advice that can be provided under legal aid has been steadily reduced over the years. Firms are either reducing their legal portfolio or getting out altogether.'
Both Dean and Barnes confess that private work has kept the firm afloat over the past four years. Family law work, as elsewhere, has been dramatically affected. 'We have very skilled practitioners who have been around a long time, and whose experience will be lost,' says Dean, 'and we are gradually increasing our private work.' Now over 25 per cent of the firm's family work is privately funded, which comes in on the back of a good reputation, as well as through good contacts with the local agencies.
On the criminal law side, Barnes would like to hope that the new changes will make crime work viable, but he has serious doubts. 'Lord Carter believes that the ultimate crime firm is a large, one-partner firm with a few assistant solicitors and lots of paralegals '“ but it's not happening. The result is more likely to be more crime experts being overworked.'
Echoing Cornberg's fears, Barnes says that the legal aid reforms are too London-centric and have not addressed the problems of regional firms. 'A client with mental health problems who lives a few miles from your office may be occasionally interned in a hospital 20 miles out; as his lawyer, you may have to see him, but you don't get paid extra for the travelling. Or the interpreter needed for a foreign prisoner doesn't show and you have spent time waiting for no return.'
A region that is still recovering from terminal industrial decline, the North-east now faces a different crisis. There is no longer any coal industry in Newcastle and after the sale of the last shipyard a few years ago, the next casualties could be legal aid lawyers, leaving the market for the greater certainty of the CPS or private work. The shadow of the'legal aid desert', dismissed a few years ago as an over-dramatic notion, has begun to envelop the whole of the North-east in the cloak of darkness.