Case to be made
12 Mar 18
If the independent legal aid review could not find evidence to support a general rise in fees, what should the response be?
“Good – in parts,” might sum up the reaction of legal aid solicitors to Martyn Evans’s review report, of which more in the March Journal.
Recognition of their contribution, their low morale, and of the complexity and inflexibility of the present system, along with a call for independent setting of legal aid fees and a general review of rates, with priority to criminal fees, are all there. But so is the conclusion that “I tried hard to find persuasive evidence... that there should be a general increase in all legal aid fees. I could not”.
Before writing off his findings as based on inadequate scrutiny, practitioners should note Evans’s observations that not many took part in the Society’s research exercise into profitability of legal aid firms, that background data could not be made available, and that those who do make a good income from legal aid would also benefit from a general increase. His comment about “evidence” that is more akin to “strong assertion with anecdotes” is also worth a mention.
That said, Evans recognises that the lack of an independent review mechanism for fee rates gives rise to tensions between profession and Government which affects discussions of many other issues, including wider publicly-funded legal assistance.
At time of writing the Government’s considered response is still awaited, but in the face of the report’s 67 recommendations it should have little excuse for inaction. Notwithstanding Evans’s opening line that the Scottish service compares very well internationally – something that says as much about other systems as about our own – he believes that a fundamentally new approach is needed, and a profession that has repeatedly called for change should consider seriously whether it can accept his way of thinking.
Perhaps the message to be taken in relation to fees is that it is not enough to bang on about 1992 rates, when the people who matter see these as relating to a residual and declining category of work. Or even to rely on broad-brush complaints about budget cuts, lack of fee increases or firms struggling to make ends meet. If the profession now decides to take up the challenge in the report and commit to an evidence-based review of fees – and does it have much to lose, even bearing in mind Evans’s warning that to do so carries “a very significant risk” to both sides? – it will have to think carefully about how best to pitch its case. A more nuanced and focused approach is likely to be required, both in relation to categories of work and types of provider.