Bonfire of the quangos

Another review and another nail banged into the coffin of the Legal Services Commission (LSC). This time it is a damaging report from House of Commons’ public accounts committee which last week accused the LSC of “poor oversight” and “uncertainty and duplication” between its role and that of the Ministry of Justice (MoJ). Before Christmas another watchdog, the National Audit Office, blamed the beleaguered body for allowing lawyers to “exploit” legal aid and over-paying them £25m.

This provides the background for Sir Ian Magee’s review of the “delivery” of legal aid presently with ministers. It’s hard to resist the analysis that, if Labour doesn’t bin the LSC first, then should the Tories win the election, it will go straight on the top of their “bonfire of the quangos”.

So how should legal aid lawyers view the passing of an agency that has come to be their bête noire? “Scrapping the LSC” entails a number of possible outcomes. There is a massive bureaucratic job of administering civil and criminal schemes that still has to be done. That task could be tendered out to private contractors but a body of expertise has grown up within the Commission, especially around quality standards.

If you want evidence of the LSC’s inability to deliver, look no further than its two “flagship” policies—CLACs and CLANs (Community Legal Advice Centres and Networks) in civil and best value tendering (BVT) in crime. The CLACs experiment appears to have sprung a leak and BVT has just been torpedoed by its parent department, the MoJ.

The LSC appears to be a body in crisis, attacked by providers, hamstrung by finances, and second-guessed by ministers. “Morale is very low in light of the various reports and the ‘Sword of Damocles’ that’s the Magee review,” reckons the Law Society’s legal aid manager Richard Miller. The programme of redundancies “obviously hasn’t helped”, he adds.

Tony Edwards, senior partner of TV Edwards and a former LSC commissioner, describes the LSC as “in its death throes, and everyone knows it. I’m certain they will not be there within 18 months”. He predicts policy will return to the MoJ. Edwards left the LSC in 2007 with little love lost on either side. His experience suggests a dysfunctional approach at top levels. The solicitor was with the LSC during Lord Carter’s review of procurement. Astonishing then that Edwards, as commissioner in charge of the criminal portfolio, never met the government appointed trouble-shooter.

While it’s premature to write the LSC’s obituary, it is perhaps instructive to consider its brief life. It was born the Legal Aid Board (LAB) in 1988, undoubtedly a welcome arrival as it effectively wrested control of legal aid from lawyers and, in particular, Chancery Lane. While it is tempting to remember these formative years fondly, the LAB/LSC always had a fractious relationship with providers and was never free of controversy (remember the green form?). However, Steve Orchard, its chief executive, had a firm hand on policy for his 10 years, and fiercely protected his patch from political influence.

The LAB was rechristened the LSC under the Access to Justice Act 1999 but, without the influence of Orchard and under pressure from rising costs and a newly-capped budget, it was drawn ever closer to government. Administrative centralisation meant that it lost touch with suppliers. What looked like reform under the 1999 Act—for example, the introduction of the Community Legal Service—was just window dressing, despite Esther Rantzen and Jenni Murray turning up at the press conference as “CLS champions”.

A period of policy paralysis ended with Lord Falconer, then lord chancellor, losing patience with the LSC over spiralling criminal costs of crime. On civil, a coherent and radical strategy emerged in the wake of Pascoe Pleasance’s influential Causes of Action paper in 2004. It provided the evidential basis for an integrated approach to advice through CLACs and CLANs to tackle “problem clusters”—multiple problems being experienced simultaneously by the same problem.  Since then, however, the MoJ has pulled the plug on the Manchester and Avon and Somerset BVT pilots apparently on the grounds they didn’t accurately reflect the Carter proposals. The CLAC experiment has slowed down and prospective bidders are wondering whether it’s completely out of steam.

And would the LSC be missed? Change might well bring an end to “initiative-itis” that has exhausted lawyers, reckons Richard Miller. “There is no doubt that many of criticisms levelled at the LSC have been fair,” he adds. But they also serve to underline deeper problems, inevitably financial ones completely outside the LSC’s control.  Tony Edwards argues that taking control back into the MoJ “couldn’t be any worse—whether it’s any better depends on the ministers”.

Jon Robins is a freelance journalist & co-author with Steve Hynes of The Justice Gap: Whatever happened to Legal Aid?
 

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