Law: How to bring order from chaos?: Roger Smith, director of the Legal Action Group, looks at the problems associated with the plans for franchising

The next president of the Law Society, Charles Elly, had them cheering at April's conference of the Legal Aid Practitioners' Group. A normally cautious soul, he roused himself to fury in his assault on Lord Mackay and his 'poodle', the Legal Aid Board. He was particularly concerned with the board's wish to encourage Law Society members into contracts, known as franchises, governing their provision of legal aid.

He said it was an object lesson to public sector administrators in how to bring chaos out of order, how to sow seeds of mistrust and fear, and how to create a first-class disaster area out of a modestly promising idea. The board itself was 'grim, downcast . . . riven by internal dissension . . . gripped by a bunker mentality in which it can trust no one.'

Mr Elly was pushing his luck in attacking the general competence of the Legal Aid Board. As the penultimate chairman of the Law Society committee that ran legal aid from 1950 to 1989, he knows that the society's custodianship was not without its problems.

There is universal agreement - whatever practitioners think about franchising - that the board's administration is significantly better than that of the society. This reached its nadir during Mr Elly's time when the south London office was paralysed for years by an ill-advised experiment to jump into the next century with a paperless office, based upon an inadequate microfiche machine.

In making his attack, Mr Elly was reiterating a deep concern of legal aid practitioners. From the mid-1970s to the early 1990s, solicitors specialising in legal aid - although they did not see it in such terms - were on a good thing. The contribution of legal aid to solicitors' total turnover roughly doubled - from 6 to about 12 per cent.

Lord Mackaynow wants to restrict increases in government expenditure to the level of inflation. Clients have been hit by cuts to eligibility, and solicitors by attempts to restrict their remuneration by paying them per case rather than per hour.

This was the unpromising context in which the Legal Aid Board launched its franchising initiative. It wanted more control over the quality of legal aid work. Franchised solicitors are to submit to standards on how they run their offices and checks on the quality of their cases.

The Law Society came up with the first, and the board hired academics to produce 'transaction criteria' to monitor the second. These involve lay auditors employed by the board marking solicitors' files according to the amount of information contained in them. A good score for a well- kept file is assumed to correlate with high quality.

Franchising carries the promise of better services, possibly at a cheaper price because they are delivered by more efficient providers. Unfortunately, the board has not played a faultless hand in promoting it. For instance, earlier this year, it rushed out a 'franchising manual', telling potentially franchised solicitors what they would be allowed to authorise for themselves in costs.

Such delegated power had been held out as one of a franchisee's more valuable perks. Its attraction was lessened when practitioners found that the board had taken the opportunity to restrict their discretion to the extent that its main object appeared to be making cuts, particularly in housing and immigration work.

The board had been so keen to publish this document that it ignored its own consultation machinery, and its staff began implementing the manual as if it were written in stone. Withdrawal of the offending passages with profuse apologies and the blaming of over-zealous underlings left many practitioners suspicious that the board had been seeking to deliver cuts by the back door.

Furthermore, the board failed to understand how lawyers might react when they saw a draft of the franchising contract they were expected to sign. Reflecting what the board no doubt saw as political reality, this imposed strict liability on solicitors, but allowed the board to change the terms when it saw fit.

It also required compliance with documents as yet unpublished and allowed the Lord Chancellor to step in and cancel the move at any time. Solicitors gagged at signing a document that would earn them a negligence suit if they had advised a client to agree to be bound by it.

The board has not been helped by the attitude of the Lord Chancellor. Inexplicably, he has chosen to threaten its credibility by suggesting that it has been economical in its explanation of the true purpose of franchising.

According to him, this is not simply a way of bringing a bit more control over quality and cost. The real objective is to set a standard against which competitive tendering can be introduced, not only for blocks of work but for larger individual cases.

Such an approach is consistent with the Government's general attraction to the auctioning of public services, but the Lord Chancellor has yet to explain how the defence of an alleged murderer might safely, or reasonably, be disposed of to the lowest bidder. The board's exasperation, as most recently expressed in its corporate plan, is palpable.

Such discord provides some explanation for why Mr Elly and his members should be so incensed about the progress of franchising. Solicitors are now threatening to boycott the idea, and the Law Society will decide whether to back such a move at its next meeting later this month.

Three things are necessary to resolve the situation. First, Lord Mackay has to rule out Dutch auctions for legal aid cases. The Legal Aid Board argues that competitive tenders would have only short- term financial benefits because a situation would soon develop where effective competition would be eliminated.

Second, the board has got to slow down the pace. It could run franchising as an experiment without detailed contracts for a year or so. This would allow for the sorting out of the franchise manual and the proper testing of its transaction criteria.

Thirdly, the Law Society should cool off and ensure that its high-ranking officers evolve more thoughtful contributions to what should be a very difficult and sensitive debate about the relative balance of professional autonomy and government control.

The prize for all three could be the development of the full promise of franchising as a mechanism which is able to encourage higher standards from the legal profession, better planning by legal aid administrators and overall, an improved deal for clients.

(Photograph omitted)

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Senior Digital Marketing Consultant

£28000 - £45000 per annum: Recruitment Genius: A Senior Digital Marketing Cons...

Recruitment Genius: Assistant Stores Keeper

£16640 - £18500 per annum: Recruitment Genius: An Assistant Stores Keeper is r...

Recruitment Genius: Claims Administrator

£16000 - £18500 per annum: Recruitment Genius: This is an excellent opportunit...

Recruitment Genius: Software Developer - C# / ASP.NET / SQL

£17000 - £30000 per annum: Recruitment Genius: Developer required to join a bu...

Day In a Page

'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power
Rare and exclusive video shows the horrific price paid by activists for challenging the rule of jihadist extremists in Syria

The price to be paid for challenging the rule of extremists

A revolution now 'consuming its own children'
Welcome to the world of Megagames

Welcome to the world of Megagames

300 players take part in Watch the Skies! board game in London
'Nymphomaniac' actress reveals what it was really like to star in one of the most explicit films ever

Charlotte Gainsbourg on 'Nymphomaniac'

Starring in one of the most explicit films ever
Robert Fisk in Abu Dhabi: The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers

Robert Fisk in Abu Dhabi

The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers
Vince Cable interview: Charging fees for employment tribunals was 'a very bad move'

Vince Cable exclusive interview

Charging fees for employment tribunals was 'a very bad move'
Iwan Rheon interview: Game of Thrones star returns to his Welsh roots to record debut album

Iwan Rheon is returning to his Welsh roots

Rheon is best known for his role as the Bastard of Bolton. It's gruelling playing a sadistic torturer, he tells Craig McLean, but it hasn't stopped him recording an album of Welsh psychedelia
Russell Brand's interview with Ed Miliband has got everyone talking about The Trews

Everyone is talking about The Trews

Russell Brand's 'true news' videos attract millions of viewers. But today's 'Milibrand' interview introduced his resolutely amateurish style to a whole new crowd
Morne Hardenberg interview: Cameraman for BBC's upcoming show Shark on filming the ocean's most dangerous predator

It's time for my close-up

Meet the man who films great whites for a living
Increasing numbers of homeless people in America keep their mobile phones on the streets

Homeless people keep mobile phones

A homeless person with a smartphone is a common sight in the US. And that's creating a network where the 'hobo' community can share information - and fight stigma - like never before
'Queer saint' Peter Watson left his mark on British culture by bankrolling artworld giants

'Queer saint' who bankrolled artworld giants

British culture owes a huge debt to Peter Watson, says Michael Prodger
Pushkin Prizes: Unusual exchange programme aims to bring countries together through culture

Pushkin Prizes brings countries together

Ten Scottish schoolchildren and their Russian peers attended a creative writing workshop in the Highlands this week
14 best kids' hoodies

14 best kids' hoodies

Don't get caught out by that wind on the beach. Zip them up in a lightweight top to see them through summer to autumn
Robert Fisk in Abu Dhabi: The acceptable face of the Emirates

The acceptable face of the Emirates

Has Abu Dhabi found a way to blend petrodollars with principles, asks Robert Fisk