Salaried Defenders and the Access to Justice Act 1999
| DOI | http://doi.org/10.1111/1468-2230.00270 |
| Date | 01 May 2000 |
| Published date | 01 May 2000 |
| Author | John Arnold Epp,Derek O'Brien |
LEGISLATION
Salaried Defenders and the Access to Justice Act 1999
Derek O’Brien* and John Arnold Epp**
The Access to Justice Act 1999 (the AJA)
1
has been described both by its champions
and by its critics as ‘the biggest shake-up in legal services for fifty years,’ and as
‘changing the legal landscape.’
2
The changes to the provision of criminal legal aid
have aroused particular controversy.
3
As a result of the AJA governance of the
criminal legal aid scheme has been reconfigured. Responsibility for the provision of
criminal legal services and the administration of criminal legal aid has been assigned to
the new Criminal Defence Service (CDS), which will operate under the auspices of the
Legal Services Commission (LSC).
4
More controversially, the system for
remunerating lawyers has been transformed. Before the AJA the majority of criminal
legal services were provided by lawyers in private practice who were, traditionally,
paid under a variety of different schemes, each of which to a greater or lesser extent
embodied the central premise that payment would be made ‘after the event’ based on
the time expended on the case.
5
Under the Act lawyers in private practice are, wherever
possible, to be paid by means of block contracts with prices for the lawyer’s services
being fixed in advance.
6
In addition to entering into block contracts with lawyers in
private practice, the CDS has been empowered to deliver criminal legal services by
using lawyers employed either directly by the LSC or indirectly through bodies or
organisations established by the LSC.
7
There will thus be a new breed of lawyer.
Individually, these lawyers will be referred to as salaried defenders and, collectively,
as the salaried defence service (‘SDS’).
8
The Government may thus be said to be
ßThe Modern Law Review Limited 2000 (MLR 63:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
394
*University of Westminster.
**Cayman Islands Law School.
1 1999, c 22. The Act received the Royal Assent on 27 July 1999.
2
Lord Goodhart and Lord Bingham, HL Deb vol 595 cols 1119 and 1123 respectively, 14 December 1998.
3 The House of Lords twice rejected the provisions relating to the introduction of a salaried defence
service.
4 AJA, s 12.
5 In 1986 this system of remuneration was replaced by a system of fixed fees in relation to certain
categories of work in the Crown Court. However, only a small percentage of the total remuneration
claimed (22–37 per cent) was paid according to this method until the introduction in 1997 of a
graduated fee scheme for barristers. In 1993, a standard fee scheme was implemented in Magistrates’
Courts, which covered 86 per cent of criminal cases. See, A. Gray, P. Fenn and N. Rickman,
‘Controlling Lawyers’ Costs through Standard Fees: An Economic Analysis’ in R. Young and D.
Wall (eds), Access to Criminal Justice (London: Blackstone, 1996) 193.
6 Legal Aid Board, Introducing Contracts for Criminal Defence Service with Lawyers in Private
Practice (London: LAB, 1999) para 4.51 (hereinafter Introducing Contracts). Contracts are likely to
state an annual fee, paid in monthly installments, for a fixed number of hours of legal service, chs 4
and 6. High cost cases will be the subject of individual contracts, ch 5.
7 AJA, ss 13(2) and 14(2).
8 In America, lawyers employed directly by the state are referred to as ‘public defenders’ and, in
Canada, as ‘staff lawyers.’ In this article the term ‘salaried lawyers’ is used to describe lawyers
employed by the state in other jurisdictions.
following the lead set by a number of other common law jurisdictions
9
and moving
from a ‘judicare model’ towards a ‘mixed delivery model,’ comprising both private
and salaried lawyers for the supply of criminal legal services.
10
The concept of block contracting had been a key feature of the previous
Government’s proposals to reform the legal aid system.11 Despite the reservations
which the Lord Chancellor expressed while the Labour party was in opposition, it
was clear from his speech to the Law Society in 1997 that he too now favoured
block contracting as the most effective means of controlling the legal aid budget.12
The introduction of the SDS, however, took many people by surprise. Preliminary
details of the scheme first appeared in the White Paper, Modernising Justice,13
which was published only two weeks before the Bill itself was introduced in the
House of Lords. The lack of consultation was much criticised both within and
outside Parliament: ‘The proposal in the Bill for a so-called public defender service
has come ... out of the blue, with no public demand, no call from the legal
professions, no recommendation or other consideration by a Royal Commission,
and certainly no prior discussion with the Bar Council, The Law Society, or other
bodies such as Liberty and JUSTICE.’14 The lack of consultation meant that many
were puzzled by the government’s decision to introduce a salaried defence service.
Lord Ackner’s reaction was typical of the response of opponents to this measure:
‘There is no demand; there is no need for a state criminal defence system. Why
therefore is it being foisted upon us?’15
The answer to Lord Ackner’s question lies in the government’s belief that the
legal aid budget is escalating out of control
16
and that the SDS will enable it to regain
control of the budget, by providing the LSC with the means to assess whether it is
obtaining value for money from contracted lawyers in the private sector, whilst at the
same time providing a competitive stimulus to lawyers in private practice.
17
The
government believes that such benefits outweigh the concerns that have been
expressed by opponents regarding the potential lack of independence of the SDS,
and the poor quality of services generally provided by salaried lawyers. Such
concerns, the government argues, are, in any event, unfounded.
The first section of this article explores the concerns which were raised in the
debate in Parliament and tests them against the background of evidence from
Canada and other jurisdictions about the performance of salaried lawyers. The
second section focuses on the benefits which it is claimed may be gained from a
mixed delivery model in terms of cost control and improving the quality of
criminal legal services. The third section considers whether a mixed delivery
9 Various jurisdictions in the United States, Canada and Australia have for a number of years used
different combinations of salaried and private lawyers to deliver criminal legal aid services.
Legislation has also been enacted to facilitate the use of salaried lawyers in Scotland, although in a
limited role: Crime and Punishment (Scotland) Act 1997, s 50. See I. Bradley, ‘Annotations’ in
Current Law Statutes (London: Sweet & Maxwell, 1997) 97.
10 This typology derives from writings of the Canadian Bar Association Standing Committee, Legal Aid
Delivery Models: a Discussion Paper (Ottawa: CBA, 1987) (hereinafter CBA Discussion Paper).
11 See Lord Chancellor’s Department, Legal Aid-Targeting Need (London: HMSO, 1995) and Striking
the Balance:The Future of Legal Aid in England and Wales (London: HMSO, 1996).
12 Lord Irvine of Lairg, Speech to the Solicitors’ Annual Conference 18 October 1997.
13 Cm 4155 (1998) ch 6.
14 HC Standing Committee E 11 May 1999. When pressed on the issue of lack of consultation, the Lord
Chancellor was obliged to concede that the only consultation that had taken place had been with
representatives of the Bar and Law Society in private in his offices, HL Deb vol 596 col 882, 26
January 1999.
15 HL Deb vol 604 col 1305 26 July 1999.
16 Modernising Justice, n 13 above, para 6.6.
17 HL Deb vol 604 col 196 26 July 1999.
May 2000] Access to Justice Act 1999
ßThe Modern Law Review Limited 2000 395
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