Curb costs with more competition
Wednesday 8th September 2010, 5:26PM BST.
A WARNING from the Bailiff that the island’s legal aid system is under pressure echoes similar concerns expressed earlier this year by the Policy Council when it released the States Accounts.
That indicated a 61% increase over the previous year to a new high of £2.1m. and the Bailiff, in his address to Chief Pleas, has said that there will be a further overspend this year.
The Policy Council in its comments says that legal aid is formula-led because the actual cost will be dependent on the number of cases the system has to deal with.
Treasury and Resources, of course, is moving away from such open-ended arrangements, as it has done with Health and Social Services over off-island placements, so the council is faced with having to manage this increasing area of expenditure from its finite budget.
It is clearly a complex area. Individuals facing criminal charges should not be denied legal advice simply because they cannot afford representation. But that, at £719,000, is a comparatively modest amount.
What is causing the difficulties is the extension of legal aid to civil matters and the fact that the courts have changed the way they deal with cases involving children and domestic violence.
That has significantly pushed up costs, which are now approaching double those of criminal matters.
Clearly, taxpayers’ obligations cannot be unlimited yet the States is looking to make the provision of aid statutory.
In 2003, the intention was that a legal aid fund would be established complete with a legal aid board and powers to enable an authorised lawyer to represent assisted individuals.
Legal advice is expensive yet, in Guernsey at least, the laws of competition appear not to have worked.
Despite more advocates than ever, costs continue to rise and access to a lawyer is out of the question to all but the rich or poor.
While senior partners might be able to command salaries between £700,000 and £900,000 a year, someone contesting custody of a child would be happy with the guidance of an appropriately qualified solicitor or paralegal.
Relaxing the rules on who can represent clients in court is the first step towards curbing runaway legal aid costs.
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Firstly, I am glad that this comment makes it clear that the increases in legal aid costs in the last few years have been primarily caused by Family cases, particularly those cases involving a parent applying for contact with a child where there are allegations that that parent applicant has been abusive (physically or emotionally) in the past to the other parent or to the child. In particular, the adoption of a new practice direction by the Domestic Proceedings Court has meant that any such case where accusations of domestic violence have been made against a parent seeking contact must lead to a so called finding of fact hearing before any contact will be allowed with the said child. By comparison, the expenditure of criminal defence cases is much less significant, at £719,000.
Now, although on one view this practice direction could be seen to be a perfectly sensible measure, the reality is that this direction has led to a dramatic increase in the number of contested cases in the Magistrate’s Court (Domestic Proceedings) and to some significant delays in the resolution of them. Almost single-handedly, this practice direction is significantly to blame for the rises in legal aid expenditure. I wonder if the States is prepared to make public the statistics for tax-payer’s expenditure in this area, before and after the introduction of the said Practice direction.
The article calls for greater competition to help reduce legal aid costs. Well, this is, in theory, a potential solution to this problem. However, it neglects the fact that 1) it is very difficult to recruit lawyers in Guernsey who actually want to do publicly-funded work, because it is seen – rightly or wrongly – and wrongly in my view – as inferior and less satisfying and / or rewarding financially than commercial and corporate work and 2) there will always be concerns about the quality of representation if you allow lawyers not fully qualified in this jurisdiction and not trained in Guernsey law to represent clients, especially para-legals who may have little or no professional qualifications anyway.
Can I just state for the record that “Senior Partners” in law firms that do legal aid cases do not earn figures anywhere near the sums of £700,000 – £900,000!
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