With the end of the current crime and civil legal aid contracts looming, the conversation is turning to the shape of future contracting arrangements between providers and the Legal Aid Agency (LAA). That conversation is approaching the formal stage on crime contracts. With standard terms across both contracts and over 400 providers still brave enough to do both areas of work, civil providers will be watching with interest to see what’s in store for them in a year or so. Legal aid contracts are not generally considered page-turners, but there are two very compelling reasons why the forthcoming negotiations between the LAA and representative bodies might be the most important ones for decades.
First, legal aid contracts regulate the relationship between the LAA and providers, and, to some extent, the interactions between providers and clients. While the contracts can only reflect and provide context to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the underlying regulations, they can go a long way to determining whether services are manageable or not. And with providers on their knees and so many clients unable to access services, the contracts can play an important part in enabling access to justice – if, indeed, this is the primary motivation of the party offering those contracts; if other motivations predominate, such as controlling spend or mitigating risk, then it is likely that the contracts will undermine providers and act as a barrier to clients who need help.
Second, the pandemic has foisted more changes onto legal working practices than anything else in recent history. Despite being under-resourced, the legal aid sector adjusted quickly because it comprises battle-hardened, committed lawyers who do not yield to adversity. In retrospect, some of the changes were probably overdue and some have modernised outmoded arrangements. Faced with the prospect of universal contract compliance failure, the LAA introduced contingency arrangements to reflect many of these changes at the beginning of the first lockdown. Most of these remain in place and the debate rolls on about whether they should become permanent (albeit remain temporary in name until the introduction of new contracts). The next set of contracts needs to reflect – and, indeed, promote – modern working practices, while at the same time ensuring quality and consistency of service, in so far as contracts can fulfil this function.
There is actually also a third reason, albeit one that is probably less important when viewed through the prism of horrendously low fees and scope that is so counterintuitive as to verge on the comedic (if it wasn’t ruining lives as I type). A fresh set of contracts that promote flexibility, dynamism and whatever other terms a management consultant might employ, may, just may, encourage new providers to pick up the legal aid baton or convince former providers to step back into the ring.
What do providers need from future contracts? The contracts (and, indeed, the LAA) cannot increase fees or widen scope. Answers on a postcard to the lord chancellor, chancellor of the exchequer and no doubt a shadowy spad or two on that front. The LAA could, though, introduce a raft of changes to make providers’ lives easier and ensure that more clients get the help they need. The contracts could be a step in the right direction to reset the oft-fraught relationship between providers and the LAA, and they may signal a desire from the LAA to act as facilitator of access to justice rather than fractious guardian of an ever-shrinking public purse.
When canvassing our advisory committee of practitioners about what they need from the next contracts, the same themes came up time and again: reduce the administrative burden; trust our expertise and allow us to make decisions; control risk and underperformance through better contract management rather than burdening the vast majority of compliant providers with onerous contractual obligations; and trust us to manage and supervise our staff.
Quite specific issues repeatedly arise too. Why impose matter start limits when the take-up of legal help has fallen off a cliff? Why insist on arbitrary and artificial costs limits, and the need to apply for amendments when most of them are granted anyway? With the bill assessment process in place, and the ability to recoup overpayments, why not just let providers get on with their urgent, complex casework? Why can’t we conduct supervision remotely using a video platform (do you really think the LAA supervises all its staff face to face)? Why do we need wet signatures? When fixed fees are so low, why is the administrative burden, and the compliance risk, so high?
With a monopsony in place, providers wishing to deliver legal services to vulnerable clients can’t take their expertise elsewhere. The vast majority are motivated by an innate sense of social justice; there’s no point being motivated by money. The LAA needs to ensure that its bargaining power doesn’t translate into restrictive contracts that continue to strangle legal aid practice and lock clients out of the justice system. In fact, I would argue that the LAA has both a moral and a statutory obligation to ensure this doesn’t happen.
LAPG co-chair Nicola Mackintosh QC (Hon) sums it up perfectly:
The stark reality is that there are so few legal aid practitioners left, what is needed is a root-and-branch stripping-out of unnecessary admin which serves no benefit to the taxpayer and only detracts from the time which is spent on advising clients in need. The pandemic has shown us all how things can be done differently, and this is the opportunity which should be grasped so that we can all focus on the real task in hand.