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Justice Select Committee severely criticise legal aid plans

Date:16 JUL 2009

The Legal Services Commission (LSC) proposals to cut the family legal aid budget have been severely criticised in a damning report from the Justice Select Committee.

The report, published yesterday, concludes that 'proposals for reform were based on incomplete data, [and] a superficial understanding of the supply of legal services in this area'.

The LSC's approach to reform is condemned as 'flawed, weak and inflexible'. It is criticised for a 'conclusions first, evidence after' approach to policy-making, having commissioned Ernst & Young to gather data to inform its thinking after proposing dramatic cuts to the system.

The report went on to further comment on the Ernst & Young research that "the LSC has commissioned - extremely late in the process - fundamental economic research into its supplier base where hitherto it was relying on anecdote.

"These discrepancies and gaps in its evidence, which can come as no surprise to the Commission, should have been sorted out in advance of any proposals being published."

Commenting, Chairman of the Family Law Bar Association (FLBA), Lucy Theis QC said: "Surely now the LSC will wake up to reality: its plans for family legal aid are unwelcome, unworkable and unwanted.

"On reading this report, Justice Ministers will realise that the LSC has failed a basic test of competence when it comes to delivering reform.

"The Commissions determination to bulldoze through ill-considered changes without proper evidence or any analysis of the impact upon budget or diversity risks irreparable damage to the protection of vulnerable children and families."

Today the Bar Council and the FLBA published a review of the Impact Assessment carried out by Ernst & Young conducted by the independent economic consultancy Oxera.

The Oxera review concludes that the Ernst & Young conclusion regarding supply changes is a very important input for the policy decision, a view supported by the Justice Committee report. The review goes on to question the data on which Ernst & Young has based its conclusions; in particular, Ernst & Young 'is not distinguishing between the supply of advocacy services and the supply of litigation (ie non-court time) services... this surprising and fundamental error would suggest that the likely response of solicitors to a change in advocacy rates of pay identified in the Ernst & Young report is a large overestimate... the proposed changes may lead to excess demand, rather than excess supply, in the market.'

The review goes on to state that 'the report does not provide a robust basis on which to test the likely implications of the proposed changes to the family legal aid funding model'. In particular, this reflects the fact that the report does not examine the issue of how the funding proposals will affect quality of service or the longer term supply of family advocacy services.

Desmond Browne QC, the Chairman of the Bar, commented: "Oxera's review sets out the impact of the proposed legal aid cuts on the quality of representation. It is shocking that the Legal Services Commission does not consider that an Impact Assessment forms a key part of a policy decision. It is also worrying that Oxera has shown that Ernst & Young's data is based on flawed assumptions.

"The time has now come for Ministers to act on our concerns. As the Committee says: 'there needs to be fundamental change of attitude on the part of the LSC'."

To read the Justice Select Committee's full report, click here.