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We've just had a huge debate about the NHS. It's just a pity that it's been the wrong one.



 

 

 

 

Think of how much time we’ve just all spent, in thinking about the way in which services will be mostly put out for competitive tendering in the National Health Service. One of the first rules in law is that you fight your battles to the hilt, but, at first, you pick the right battles first. This is precisely what Labour appears not to have done. When Harriet Harman recently said on Question Time that the Conservatives are definitely not ‘to be trusted with the NHS’, Harriet curiously did not refer to the battle and war just won by the Conservatives (and Liberal Democrats) over NHS procurement. And yet the public desperately want Labour to stand up for the NHS. One member even suggested that, if Labour gave its unequivocal backing for restoring the NHS, Labour could even find itself with a massive vote winner.

 

Labour is clearly going through policy strands with a fine tooth comb, looking at, for example, the way in which multinational companies might employ workers at below the national minimum wage; effectively, controlling immigration through a wage policy. It does not appear to have worked out unequivocally whether it would reduce the rate of VAT, meaning possibly that the state borrowing requirement would temporarily increase. But do you see what they all did there? For days, weeks, or even months, we have been subjected to a relentless debate about EU immigration, when most surveys probably place the issue at number ten on the list of voters’ concerns. Unsurprisingly, the economy remains in ‘pole position’, but the ability of Labour to turn the opinion of the public, particularly in the South of England, away from the idea that Labour is ‘fiscally incontinent’ remains unconvincing. Labour is still considered to be the “tax and spend” party, for example, and Miliband appears painfully aware of that. So, when it comes to policy, there seems to be an odd combination of Labour shooting itself in the foot, or completely picking the wrong battles. And then you add in a complete inability to look at elephants in the room. Labour, to state the obvious, has no ability to implement any of its policies, if it is unable to win a General Election, and the confidence of Labour to win an election on its own is reflected accurately in Lord Adonis promoting his book that ‘if he were to form a new Lib-Lab pact, he wouldn’t start from here.

 

The NHS remains pivotal in Labour’s electoral chances, and Labour has been unable to use the resentment over the section 75 NHS regulations to maximise political capital. Why this should have happened in itself is interesting, as Andy Burnham, MP for Leigh, is a more than capable Shadow Secretary of State for Health. One of the issues is an ability to choose the right battle, possibly. Burnham, with some support from the right-wing media and thinktanks, has been banging on about integrated and whole-person care. Whether through conspiracy or cock-up, there will be short-term interest in how integrated care might be delivered. Think about a justification for State spending in the ‘mission impossible’ of implementing a NHS IT system. Why on earth would a right-wing libertarian government promote something which is national? Why on earth should you abort an ethos of ‘bonfire of the QUANGOs’ to introduce the biggest QUANGO in the country, viz NHS England? Whether you’re into conspiracy or cock-up, the integration of financial and medical information (including mental, physical and social care systems) allows for the perfect infrastructure for an insurance-based system. Insurance works on the basis of misrepresentation or non-disclosure to invalidate claims, so ‘big data’ serve a perfect storm for this. It won’t have escaped anybody’s attention that Labour (as indeed the Conservative Party) has been heading towards an insurance-based system for social care, so it does not require a massive ideological leap to think how this could be extended for all care with time. This does not involve any degree of paranoia, please note.

 

There is overwhelmingly an intellectual depravity in the bereft notion of producing policy through poll results and focus groups. New Labour clearly loved focus groups, with Philip Gould in ‘The Unfinished Revolution’ having devoted much airspace to developing a product in line with customers’ wishes. Of course, the Conservatives have a special affinity for polling organisations themselves, Nadhim Zadawi, in 2000 he co-founded YouGov and on its flotation became its CEO. YouGov is now one of the world leaders in political and business information gathering, polling and analysis. It employs over 400 staff on three continents and is listed on the London Stock Exchange. Again – it begs the question on why should Labour should wish to outdo the Conservatives on its own ability to use polling data? One of the polls which has become a toxic meme is how a high proportion of all voters would not mind who provides the NHS services, as long as it’s free at the point of use. However, this is intrinsically linked to other questions. Would you be prepared more in national insurance if it meant the NHS were able to provide a more comprehensive (universal) service?

 

It is indeed correct to state that the costs of renationalising the NHS might be overwhelming, although no accurate costings of this have ever been discussed properly. We do know, however, that the current cost of the NHS reorganisation is in the region of £3bn, but estimates of the actual cost inevitably have to be taken with a pinch of salt, as say the cost of Margaret Thatcher’s funeral. But to use this issue as a wish to stop discussion of this area is lazy, as one of the issues, as indeed as with Thatcher’s funeral, is that is this a sensible use of money compared to how it could be used elsewhere (so called “opportunity cost“)? Some people argue that the marketisation of the NHS has failed, in that any money spent on restoring a state-funded NHS would be money well spent. Restoring a state-funded service would get out of the idea of private companies being driven by maximising their profit margin, and not running a ‘more for less’ approach for delivering a service. Cynics might argue that the cost of restoring a state-run service is peanuts compared to waging a war abroad. Many remain unconvinced about the mantra that economic competition drives up quality, when it is the professional standards of healthcare staff, including doctors, nurses and allied health professionals, which appear to be at the heart of quality. The debate we have just had about the mode of procurement in the NHS was not one any of us as such elected; in other words, it has no mandate. If the Conservatives and the right-wing media appear so pre-occupied about having a referendum next parliament on our membership of the EU, many are (rightly) asking why Ed Miliband cannot ask for a mandate to take sensible decisions about the nature of the NHS. It is a given that there will always be a proportion of services which are outsourced to the private sector, but the question should be ‘how much’. Whilst a full-blown privatisation of the NHS has not happened yet, we have not even had a discussion of how much of the NHS should be outsourced.

 

And anyway Labour has to ask what really concerns all voters? In Mid Staffs and Cumbria, it is reported that there have been concerns about patient safety, and it may be mere coincidence that Labour failed to convince the voters in both places in the local elections over their offerings. However, there is certainly a ‘debate to be had’, about whether “efficiency savings” in the NHS are justified to produce surpluses in the NHS which get ploughed back into the Treasury (and therefore might be used for international overseas aid rather than frontline care.) Labour equally seems unable to look another ‘white elephant’ in the eye. That is of course the concept of a NHS hospital going bust. Should a NHS Trust which is in financial difficulty be simply allowed to go insolvent after a period of administration, or should the State pump money into it to maintain a local service to people in the community? This requires a fundamental reappraisal of how important “solidarity” and “social democracy” are, in fact, to Labour, and whether it wishes to use its extensive brand loyalty to have a mature, if sobering, discussion of the extent to which it wishes to fund a SOCIALIST National Health Service. Whilst in extremis it can be argued that a nostalgic return to ‘The Spirit of ’45” is not attainable, and is the wrong solution for the wrong times, there is a genuine perception that Labour has lost sight of its founding values. And why has this not been addressed in focus groups? It is well known that, in marketing, if you ask the wrong questions, you ubiquitously get the wrong answers.

 

Labour needs a mandate to confront these issues. And it should not be afraid to look for a resounding mandate, either. Whilst it might stick its fingers in its ears, and claim it’s nothing to do with them (arguing instead for integrated, “whole person” care), unless these ideological issues are confronted, NHS policy will continue to go down a right-wing path. For example, there is not much further to see GP ‘businesses’ being offered by the private sector, and the NHS pays for them; in this model, GP ‘businesses’ could operate under a standard 5-year contract, using NHS branding, under a ‘franchising’ model like Subway. And “The Tony Blair Dictum” is far from resolved, although currently there are issues more worthy of ‘firefighting’ in service delivery, such as the fiasco over ‘1111’. Labour’s problem is that it does not see the NHS as a ‘vote winner’, in the same way it doesn’t see the plight of disabled citizens experiencing difficulty with their benefits or people feeling genuinely threatened by ‘the bedroom tax’ as a top priority. Whilst Labour is unable to prioritise its issues in a way to align its aspirations with the concerns of the general public, there is no way on Earth it can hope to govern a convincing majority. If Labour wishes to learn a really useful trick from marketing, it could no better than to look at the ‘GAP analysis’ – looking at what the current situation is, and what the expectations of people are, and thinking how to get to a position of what people want. If people actually want a socialist universal, comprehensive NHS, paid for not in a private insurance system, Labour can be expected to work hard for a mandate to deliver this. If it doesn’t, that’s another matter, and it can witter on about whole-person care to its heart’s content.

We've just had a huge debate about the NHS. It's just a pity that it's been the wrong one.



Think of how much time we’ve just all spent, in thinking about the way in which services will be mostly put out for competitive tendering in the National Health Service. One of the first rules in law is that you fight your battles to the hilt, but, at first, you pick the right battles first. This is precisely what Labour appears not to have done. When Harriet Harman recently said on Question Time that the Conservatives are definitely not ‘to be trusted with the NHS’, Harriet curiously did not refer to the battle and war just won by the Conservatives (and Liberal Democrats) over NHS procurement. And yet the public desperately want Labour to stand up for the NHS. One member even suggested that, if Labour gave its unequivocal backing for restoring the NHS, Labour could even find itself with a massive vote winner.

 

Labour is clearly going through policy strands with a fine tooth comb, looking at, for example, the way in which multinational companies might employ workers at below the national minimum wage; effectively, controlling immigration through a wage policy. It does not appear to have worked out unequivocally whether it would reduce the rate of VAT, meaning possibly that the state borrowing requirement would temporarily increase. But do you see what they all did there? For days, weeks, or even months, we have been subjected to a relentless debate about EU immigration, when most surveys probably place the issue at number ten on the list of voters’ concerns. Unsurprisingly, the economy remains in ‘pole position’, but the ability of Labour to turn the opinion of the public, particularly in the South of England, away from the idea that Labour is ‘fiscally incontinent’ remains unconvincing. Labour is still considered to be the “tax and spend” party, for example, and Miliband appears painfully aware of that. So, when it comes to policy, there seems to be an odd combination of Labour shooting itself in the foot, or completely picking the wrong battles. And then you add in a complete inability to look at elephants in the room. Labour, to state the obvious, has no ability to implement any of its policies, if it is unable to win a General Election, and the confidence of Labour to win an election on its own is reflected accurately in Lord Adonis promoting his book that ‘if he were to form a new Lib-Lab pact, he wouldn’t start from here.

 

The NHS remains pivotal in Labour’s electoral chances, and Labour has been unable to use the resentment over the section 75 NHS regulations to maximise political capital. Why this should have happened in itself is interesting, as Andy Burnham, MP for Leigh, is a more than capable Shadow Secretary of State for Health. One of the issues is an ability to choose the right battle, possibly. Burnham, with some support from the right-wing media and thinktanks, has been banging on about integrated and whole-person care. Whether through conspiracy or cock-up, there will be short-term interest in how integrated care might be delivered. Think about a justification for State spending in the ‘mission impossible’ of implementing a NHS IT system. Why on earth would a right-wing libertarian government promote something which is national? Why on earth should you abort an ethos of ‘bonfire of the QUANGOs’ to introduce the biggest QUANGO in the country, viz NHS England? Whether you’re into conspiracy or cock-up, the integration of financial and medical information (including mental, physical and social care systems) allows for the perfect infrastructure for an insurance-based system. Insurance works on the basis of misrepresentation or non-disclosure to invalidate claims, so ‘big data’ serve a perfect storm for this. It won’t have escaped anybody’s attention that Labour (as indeed the Conservative Party) has been heading towards an insurance-based system for social care, so it does not require a massive ideological leap to think how this could be extended for all care with time. This does not involve any degree of paranoia, please note.

 

There is overwhelmingly an intellectual depravity in the bereft notion of producing policy through poll results and focus groups. New Labour clearly loved focus groups, with Philip Gould in ‘The Unfinished Revolution’ having devoted much airspace to developing a product in line with customers’ wishes. Of course, the Conservatives have a special affinity for polling organisations themselves, Nadhim Zadawi, in 2000 he co-founded YouGov and on its flotation became its CEO. YouGov is now one of the world leaders in political and business information gathering, polling and analysis. It employs over 400 staff on three continents and is listed on the London Stock Exchange. Again – it begs the question on why should Labour should wish to outdo the Conservatives on its own ability to use polling data? One of the polls which has become a toxic meme is how a high proportion of all voters would not mind who provides the NHS services, as long as it’s free at the point of use. However, this is intrinsically linked to other questions. Would you be prepared more in national insurance if it meant the NHS were able to provide a more comprehensive (universal) service?

 

It is indeed correct to state that the costs of renationalising the NHS might be overwhelming, although no accurate costings of this have ever been discussed properly. We do know, however, that the current cost of the NHS reorganisation is in the region of £3bn, but estimates of the actual cost inevitably have to be taken with a pinch of salt, as say the cost of Margaret Thatcher’s funeral. But to use this issue as a wish to stop discussion of this area is lazy, as one of the issues, as indeed as with Thatcher’s funeral, is that is this a sensible use of money compared to how it could be used elsewhere (so called “opportunity cost“)? Some people argue that the marketisation of the NHS has failed, in that any money spent on restoring a state-funded NHS would be money well spent. Restoring a state-funded service would get out of the idea of private companies being driven by maximising their profit margin, and not running a ‘more for less’ approach for delivering a service. Cynics might argue that the cost of restoring a state-run service is peanuts compared to waging a war abroad. Many remain unconvinced about the mantra that economic competition drives up quality, when it is the professional standards of healthcare staff, including doctors, nurses and allied health professionals, which appear to be at the heart of quality. The debate we have just had about the mode of procurement in the NHS was not one any of us as such elected; in other words, it has no mandate. If the Conservatives and the right-wing media appear so pre-occupied about having a referendum next parliament on our membership of the EU, many are (rightly) asking why Ed Miliband cannot ask for a mandate to take sensible decisions about the nature of the NHS. It is a given that there will always be a proportion of services which are outsourced to the private sector, but the question should be ‘how much’. Whilst a full-blown privatisation of the NHS has not happened yet, we have not even had a discussion of how much of the NHS should be outsourced.

 

And anyway Labour has to ask what really concerns all voters? In Mid Staffs and Cumbria, it is reported that there have been concerns about patient safety, and it may be mere coincidence that Labour failed to convince the voters in both places in the local elections over their offerings. However, there is certainly a ‘debate to be had’, about whether “efficiency savings” in the NHS are justified to produce surpluses in the NHS which get ploughed back into the Treasury (and therefore might be used for international overseas aid rather than frontline care.) Labour equally seems unable to look another ‘white elephant’ in the eye. That is of course the concept of a NHS hospital going bust. Should a NHS Trust which is in financial difficulty be simply allowed to go insolvent after a period of administration, or should the State pump money into it to maintain a local service to people in the community? This requires a fundamental reappraisal of how important “solidarity” and “social democracy” are, in fact, to Labour, and whether it wishes to use its extensive brand loyalty to have a mature, if sobering, discussion of the extent to which it wishes to fund a SOCIALIST National Health Service. Whilst in extremis it can be argued that a nostalgic return to ‘The Spirit of ’45” is not attainable, and is the wrong solution for the wrong times, there is a genuine perception that Labour has lost sight of its founding values. And why has this not been addressed in focus groups? It is well known that, in marketing, if you ask the wrong questions, you ubiquitously get the wrong answers.

 

Labour needs a mandate to confront these issues. And it should not be afraid to look for a resounding mandate, either. Whilst it might stick its fingers in its ears, and claim it’s nothing to do with them (arguing instead for integrated, “whole person” care), unless these ideological issues are confronted, NHS policy will continue to go down a right-wing path. For example, there is not much further to see GP ‘businesses’ being offered by the private sector, and the NHS pays for them; in this model, GP ‘businesses’ could operate under a standard 5-year contract, using NHS branding, under a ‘franchising’ model like Subway. And “The Tony Blair Dictum” is far from resolved, although currently there are issues more worthy of ‘firefighting’ in service delivery, such as the fiasco over ‘1111’. Labour’s problem is that it does not see the NHS as a ‘vote winner’, in the same way it doesn’t see the plight of disabled citizens experiencing difficulty with their benefits or people feeling genuinely threatened by ‘the bedroom tax’ as a top priority. Whilst Labour is unable to prioritise its issues in a way to align its aspirations with the concerns of the general public, there is no way on Earth it can hope to govern a convincing majority. If Labour wishes to learn a really useful trick from marketing, it could no better than to look at the ‘GAP analysis’ – looking at what the current situation is, and what the expectations of people are, and thinking how to get to a position of what people want. If people actually want a socialist universal, comprehensive NHS, paid for not in a private insurance system, Labour can be expected to work hard for a mandate to deliver this. If it doesn’t, that’s another matter, and it can witter on about whole-person care to its heart’s content.

Is this where the Big Society came from?



 

 

 

 

 

 

The explanation that the Big Society was an altruistic exercise to help the disadvantaged was clearly a non-starter from the beginning.

There has historically been a lack of clear account of where the Big Society in the UK came from. Notwithstanding its precise source, it was undoubtedly a massive political mistake to attempt to launch it on numerous occasions in a background of austerity and cuts and increasing unemployment. This was bound to lead to stories in the popular press about how people had lost their job, but were being invited to apply ‘for their own job’ as an unpaid volunteer. When you consider the Coalition’s attempt to introduce workfare, you can see how the policy mix became explosive.

This Coalition doesn’t do ‘organic’. For example, in the non-top reorganisation that constitutes the NHS Act,  stakeholders were not consulted leading to the majority of the Royal Colleges, including the GPs shared by Clare Gerada, to oppose this key piece of legislation. We were introduced to the notion of the NHS Commissioning Board, and asked to learn to love the idea. In the same way, the Big Society is not about community investment where the ordinary public decides what programmes to flourish.

I believe a big mistake was for Lord Wei and his colleagues to mix and match social enterprises and venture philanthropy, and to repackage seductively as ‘The Big Society’, hoping nobody would smell a rat. The fact that this Coalition doesn’t do organic is manifest openly in the fact that the Big Society Bank will decide where to invest its money (rather, in part, our money as it comes from unclaimed account in the UK). It then decides where it wants to invest the money, and decide which metrics it wants to pursue to decide what a good outcome is. The investors will want something back for their money – doh.

It is particularly not clear where the architects of the Big Society got “their big idea” from. In the US, there has been a history of philanthropy, and indeed organisations in the US are successful are providing such services. Maybe Lord Wei got their inspiration from abroad. Housing cooperatives are well-known about, and serve as a  a legal mechanism for ownership of housing where residents either own shares (or share capital co-op) reflecting their equity in the cooperative’s real estate, or have membership and occupancy rights in a not-for-profit cooperative (non-share capital co-op), and they underwrite their housing through paying subscriptions or rent.

However, looking at the small print of how or why we differed from the U.S. has been difficult, as we have never been given adequate explanation of how or if recipients of awards would repay their money, over what time scale, and with what rate of interest. The New York Co-operative does provide ‘some flesh on the bones’ where we are able to make some conclusions about how a co-op award may compared to a mortgage (see for example this well known article in the New York Times), but we need some detail on the operation of the Big Bank here to ensure that vulnerable people are not subject to a problem they cannot easily get out of. It is also interesting to note that further criticisms from the housing sector have already begun to emerge here in the UK. According to the Financial Times today, “Phil Shanks, director of SAF Housing, a fund for the provision of housing for those in need of extra care, said the Big Society Capital concept is flawed because it does not overcome the main concern that many institutional backers of social enterprises have: the security of funding for public services”.

The implementation of the Big Society has been a huge mess thus far, but like all its non-organic projects, unless there is better detail and more substantial support from those who do give up a lot of their time in the third sector currently, the Coalition will find a substantial failure on its hands. Hopefully, their other non-organic project, the NHS restructuring, will go better.

 

(c) Legal Aware 2012

Will opposites attract?



I am posting this following a recent tweet this afternoon. Incidentally, my article got a very hostile reception the first time around, Sundeep and Neil!

Lawyers in training often become bewildered as to how parts of their course ultimately gel together. This possibly contributes to their uncertainty in choosing which part of the law to specialise in. For example, how on earth does constitutional law, including the rule of law and human rights, relate to the different specialisms of law, such as immigration or housing? And what have they got to do with the big powerhouse corporate law firms, if anything?

A surprising fusion of these ingredients could hold the key to solving a different problem that has been vexing English and Welsh law for several decades, at least. That is, the issue of what to do about the provision of legal aid.

A community law centre, where the lawyer might examine a sensitive landlord-tenant dispute, may seem ‘worlds-apart’ from the work of a corporate lawyer, who may be advising on a multi-billion-pound, headline-grabbing deal. However, it is possible that these circles might mix more in future, due to the current circumstances.

Access to the law: back to the basic constitutional law

One of the very first things that law students focus on in their constitutional law courses is the ‘rule of law’. Indeed, the rule of law underpins the work of both ‘divisions’ of lawyers: the barristers and the solicitors.

In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the ‘rule of law’ in some (but not all) societies. Some of Raz’s principles include the fact that the courts should be accessible, i.e. no man should be denied justice, and that the principles of natural justice should be observed, particularly those concerning the right to a fair hearing.

And what of the actual reality of today, in England and Wales?

“The Government strongly believes that access to justice is a hallmark of a civilised society. The proposals set out in this consultation paper [on the reform of legal aid] represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for the most serious cases in which legal advice or representation is justified.”

 ‘A brief history of legal aid’

Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949, with the aim of providing equality of access and the right to representation before the law. The scope of legal matters covered in 1949 was very tightly drawn.

However, today legal aid in England and Wales costs the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world. It is argued that the current scheme is available for a too wide a range of issues, including some which should not require any legal expertise to resolve. The provision of legal aid is now governed by the Access to Justice Act 1999 and supplementary legislation.

 

The possible effect of the proposed legal aid reforms

Many civil cases will no longer be eligible for legal aid, and fees paid in civil and family cases will be cut by 10% across the board, according to Ministry of Justice plans set out in the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, released in November 2010.

The UK government has estimated that, under the plans, £350m will be saved from the Ministry of Justice’s budget by 2014/15, if its proposals are implemented in full.

Ken Clarke QC MP, the Secretary for State for Justice and Lord Chancellor, has said in an interview that,

‘I believe that the taxpayer should continue to provide legal aid to those who need it most and for serious issues. But the current system can encourage lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which may not always ensure the best result for those involved. The proposals I have outlined suggest clear tough choices to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in society and the efficient performance of the justice system.’

Reaction from the solicitors

The cut in legal aid may offend the rule of law. For example, the Law Society Chief Executive, Desmond Hudson, has warned that:

‘If the government persists with these proposals, it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law. Legal aid clients are some of the most vulnerable in society and good legal representation where required is essential if they are to obtain justice. The Society will now consider the green paper in detail.’

The effect on the high street – the community law centres

Law Centres’ employ solicitors and case-workers who specialise in debt, discrimination, housing, employment, welfare benefit, community care, mental health law, and immigration and asylum law.  Their initiatives are truly inspirational.

In an open letter dated October 2010, Julie Bishop, Director of the Law Centres Federation, provides a very interesting description of the impact that the financial recession – a possible driver in the need to cut costs in legal aid services – has had on the high street legal services:

“We serve 120,000 clients every year. The recession is hitting our clients hard. Already, the Employment Tribunals Service has recorded an increase from 10,800 to 19,000 in the number of cases related to unfair dismissal over the past year [October 2009-10]. ACAS has recorded a 13% increase in enquiries for conciliation services.  Law Centres have experienced a 30% increase in clients assisted with employment and discrimination cases.”

An example of where the Law Centres have made a substantial impact is in Brent. Brent Community Law Centre stated that the cuts to legal aid will leave two options for those in poverty on Jobseeker’s Allowance: “a move from poverty to extreme poverty, or possession or eviction if they do not pay their rent.”

They cite that a single person living in a one-bed flat paying £180 per week will have to contribute £18 to the rent out of a weekly income of £65.45, leaving £47.45 for all other expenses including fuel. A separate (but linked issue) which compounds vulnerability is the proposed capping of housing benefit. It is estimated that this will cost claimants in Brent an average of £8,817,844 per year. This loss is to be shared among 1,988 claimants. If their rents are not reduced, they will have to pay £4,436 per household out of their own income. Currently, the Brent Law Centre is able to advise on this issue.

Brent Law Centre argues there will inevitably be far more possession cases in the county court because landlords, whether council or private, will bring court action for rent arrears. In addition, they believe that the impact on costs for other departments, such as social services and child protection need to be assessed.

Brent Law Centre, only through the goodwill of an army of unpaid volunteers, is currently able to provide legal advice and assistance for residents of Brent on a range of legal issues including education, employment, housing, immigration, mental health, public law and welfare benefits.

An unlikely solution?

It has not gone unnoticed that one of the effects of losing £350m from the existing £2.1bn budget may be to put corporate law firms under greater pressure to contribute to the provision of legal aid.

High profile pro-bono interventions by the household names in corporate law can become tied to big international events  – such as helping out at the Sierra Leone war crimes tribunal (Weil Gotshal & Manges), or representing wounded soldiers in compensation cases against the Ministry of Defence (Hogan Lovells).

Nonetheless, doing pro bono has become attractive to graduates in an increasingly competitive job market, where law firms are keen to attract the best graduates, and graduates are keen to demonstrate their social awareness.

However, it is true that many newly-qualified graduates do contribute much time for free to the local community, often in very deprived areas, but find the work immensely fulfilling. This is despite the fact that their Managing Associates and Partners will not tolerate any compromises in their professional ‘day job’.

Who knows where this is heading?

The ideal outcome might be for a restructuring of legal aid services, such that the public and lawyers have a clear idea where the money is going to, and which enables fair access to legal services for the public. The crunch question inevitably becomes: “where this money is coming from, if it’s not the taxpayer?

Brent Law Centre is just a single example of where professional lawyers give their skills free-of-charge for the benefit of the community, but it would be tragic to see a situation where lawyers cannot even do this because of the ‘system’.

It might be, even, that the corporate lawyers have a crucial part to play for the benefit of society, in contributing towards the maintenance of legal aid in the high street law.

The future funding of social care: the Dilnot report



This is an online seminar about the future funding of social care on the future funding of care and support. This presentation features a panel comprising Andrew Dilnot, Alison Roche, Prof Peter Beresford and Barbara Keeley MP. Launched on 20 July 2010, the Commission on Funding of Care and Support was an independent body tasked by Government with reviewing the funding system for care and support in England. The Commission was chaired by Andrew Dilnot with Lord Norman Warner and Dame Jo Williams as fellow Commissioners. It built on the extensive body of work already done in this area and carried out new analysis before providing advice and recommendations on how to reform the system to Government on 4 July 2011. The Commission Report can be found here, and the seminar can be found here.

Law centres and legal aid funding



This is not a headline you will normally see.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Firstly, I should like to acknowledge Krish, who tweets at @TheTCHawk, for providing the inspiration for this blogpost. He has recently written on his experience with the Citizens Advice Bureau for which he works.

Instead, I have been working in a famous law centre in London for the last few months. This has been an incredibly rewarding for me, as I am looking forward to studying law further in my LPC in January 2012. I have already spent four years in legal training, but one of the many things that I have learnt of some importance is that lawyers do not get emotional.

Once I was aghast when a law student tweeted at a friend of mine, “Is there a difference between a law centre and a CAB?” However, it was a perfectly reasonable question.  As members of law centres, we must confront this issue of what we’re (=law centres) doing that’s different from CABs. Marketing professionals must have an understanding of the awareness of any particular brand, for example the CAB or the law centre, before proceeding to develop a marketing strategy. I feel that law centres will need to develop a professional marketing strategy to raise their awareness amongst the community and investors. In my belief, whilst the CABx brand is very strong indeed, perhaps for historical reasons, the ‘Law Centre brand’ is virtually non-existent in comparison. I would be interested to know whether this is borne out by any hard data.

I have been thinking about how my law centre, especially my area of welfare benefits advice for disabled citizens like me, can benefit from alternative sources of funding, like the Big Lottery Fund, but this fundamentally depends on what pitch I should make. Is it that we are any more central to the communiy than the CAB? Or is it that we have more specialist qualified legal advisors than the CAB who can act as advocates? Are any generalisations possible or warranted? Furthermore, legal aid funding affects private practice stakeholders, as well as legal centres and CABs, and market forces affect all three. For all stakeholders to benefit the public the most, which is their ultimate aim after all, they need to have a clear idea of their values and which services they’re providing, so that all stakeholders can achieve optimal market and strategic positioning in a crowded, funding-challenged, market, perhaps.

Whatever – I personally think all legal practitioners should be given support, acknowledging that funds are limited. but funding bodies will have to prioritise unfortunately. In fact, a focus on funding may have the beneficial effect of providing better precision to all stakeholders in their strategy and core competences of their legal services, whatever sector they are in. However, fundamentally, I most agree with the observation that, at this late stage, arguing over a sense of entitlement is totally unhelpful. It is desperately important that we fight until the end for our common purpose in protecting legal aid. I would find it very hard to support law centres if they wished to campaign at the expense of CABx or other stakeholders, but they should think about how they differ from other stakeholders when applying for London Borough grants for community investment or structural upkeep, I feel.

Immediately this throws you into the territory that, as a lawyer to-be one day hopefully, I am getting emotional. Worse than that, I am getting political. Of course, central to the whole debate, is access-to-law and the rule of law. The Law Society and Bar Council provide that the legal aid cuts offend this fundamental right, and indeed many blogposts and the Guardianistas have thus far pressed home this  vital point. However, an issue that my colleagues in the Law Centre I work at feel enormous frustration at the fact we are simply unable to get our message across.

We have, as citizens of society, to acknowledge that no political party will be in power forever, and it is not impossible that this Bill will become repealed in time or amended drastically. I feel that all employees in all legal institutions should not feel frightened in giving a voice to the opinions of citizens wishing to protect legal aid, and should be allowed to express such opinions in this organisational change.  As part of my MBA, I studied in enormous detail critical success factors for relatively-rapid organisational change like this in the public sector, and by far the most important issues are trust and openness in the followers (including legal professionals) in ensuring the change goes smoothly. This is in addition to the demanding structural changes which are necessitated in this reform.

An issue is that the Legal Aid and Sentencing Bill, as proposed, could have a selectively detrimental effect on certain groups of society, including the disabled. Many of us have been prone to defend our own patch, and there is somewhat an element of ‘divide-and-rule’ in the debate which has ensued. Yet again, whilst I find repugnant that welfare benefits legal advice is being cut at the expense of some other fields of law, I feel that we all should be pulling in the same direction of protecting all areas of law (but especially for the socially disadvantaged.)  In other words, lawyers and bloggers appear to the outside world to be not “in it together“,  talking at cross-purposes, and becoming constituted by tribalistic vocal subgroups which are easy to ‘defeat’ as a whole. Secondly, I believe, that there is an element of where looking forward to the holiday has become more exciting than the holiday itself. I had a feeling of this in our opposition to the Health and Social Care Bill, where Labour loved opposing, but were completely incompetent in articulating arguments about competition, quality, value and cost in the NHS. Indeed, further, like perhaps #OccupyLSX, the opposition for the left has become more exciting than the substantive points of the opposition itself; I do not deny the inspiring success of @SoundOffJustice, and others. In fact, I met them at the DODS meeting in September, and was overawed personally about how much passion they had put into their campaign.

Thirdly, some elements of the ‘progressive left’, for example the Liberal Democrats, perhaps could have been more articulate about the effects of the legal aid policy on children, families, and wellbeing, which are now central planks of Liberal Democrat policy. Fourthly, whatever the reasons for it, the Legal Services Commission has been criticised, and there is a huge amount which could be done to improve the legal aid funding mess which has developed for a number of decades, including the last Labour governments? Whilst I do not feel the need to be perjorative in quoting the “most expensive service in Europe” statistic, which is actually untrue, we do need to address how best to develop legal aid funding. Fifthly, and this is an economic and quasi-political argument, I am a Keynesian and I do not agree with the ‘maxing out the credit card analogy’, but likewise, albeit as an utilitarian, I do believe we have to prioritise given the deficit which has come around in a large part through recapitalising the banks in #gfc1 (a policy which I am still uncertain about).

Finally, we need to get people interested in this subject in the media. I don’t mean the Guardianistas necessarily, otherwise we’re preaching to the converted. Whilst Sepp Blatter and racism, superinjunctions, anonymised injunctions and Andy Marr, and the BBC’s Children in Need are very important issues, we could do with much more focused coverage and debate of the Legal Aid and Sentencing Bill. I think this is essential, as I bet my life that this will obtain Royal Assent without any difficulty in due course.

Read the Browne Report and executive summary.



Here is the full report.

Here is the executive summary.

England has an internationally respected system of higher education. There are now a record number of people enrolled, studying an increasingly varied range of subjects at a diverse set of higher education institutions (‘HEIs’). Graduates go on to higher paid jobs and add to the nation’s strength in the global knowledge based economy. For a nation of our scale, we possess a disproportionate number of the best performing HEIs in the world, including three of the top ten.

However, our competitive edge is being challenged by advances made elsewhere. Other countries are increasing investment in their HEIs and educating more people to higher standards.

In November 2009, I was asked to lead an independent Panel to review the funding of higher education and make recommendations to ensure that teaching at our HEIs is sustainably financed, that the quality of that teaching is world class and that our HEIs remain accessible to anyone who has the talent to succeed. Over the last year, we have consulted widely and intensively. Our recommendations are based on written and oral evidence drawn from students, teachers, academics, employers and regulators. We have looked at a variety of different systems and at every aspect of implementing them – financial, practical and educational – to ensure that the recommendations we are making are realistic for the long term. I would like to thank all those who have contributed their
knowledge, experience and time to this review. Our findings are contained in our full report and summarised here.

• Great advances have been made in making it possible for more people from all backgrounds to enter an HEI. Currently 45% of people between the ages of 18 and 30 enter an HEI, up from 39% a decade ago. Improvements have been made to ensure that students from disadvantaged schools or backgrounds are given a fair chance to study for a degree. Our recommendations build on this success. Support by way of cash for living (‘maintenance’) will be increased. Those studying for a degree part time will be given proportionate access to funding to those studying full time.
• The quality of teaching and of the awarded degrees is the foundation upon which the reputation and value of our higher education system rests. Our recommendations in this area are based on giving students the ability to make an informed choice of where and what to study. Competition generally raises quality. The interests of students will be protected by minimum levels of quality enforced through regulation.
• England’s HEIs are very varied, in the type of student they attract, the standards of attainment they require for entry, the courses taught and so on. While most of higher education takes place in an HEI called a university this one word does not capture the reality of their diversity. Our recommendations reinforce this diversity. And since one size does not fit all, we would expect the result to be that HEIs will set varied charges for courses.
• A degree is of benefit both to the holder, through higher levels of social contribution and higher lifetime earnings, and to the nation, through higher economic growth rates and the improved health of society. Getting the balance of funding appropriate to reflect these benefits is essential if funding is to be sustainable. Our recommendations place more of the burden of funding on graduates, but they contribute only when they can afford to repay the costs financed. Students do not pay charges, only graduates do; and then only if they are successful. The system of payments is highly progressive. No one earning under £21,000 will pay anything.

We estimate that only the top 40% of earners on average will pay back all the charges paid on their behalf by the Government upfront; and the 20% of lowest earners will pay less than today. For all students, studying for a degree will be a risk free activity. The return to graduates for studying will be on average around 400%.
In formulating our recommendations we had to balance the level of participation, the quality of teaching and the sustainability of funding; changing one component has an impact on the others. What we recommend is a radical departure from the existing way in which HEIs are financed. Rather than the Government providing a block grant for teaching to HEIs, their finance now follows the student who has chosen and been admitted to study. Choice is in the hands of the student. HEIs can charge different and higher fees provided that they can show improvements
in the student experience and demonstrate progress in providing fair access and, of course, students are prepared to entertain such charges.

Our recommendations will lead to a significant change; we do not underestimate the work that will be required. Since this review was commissioned the pressure on public spending has increased significantly. This will add urgency to make funding sustainable. We hope that, as these recommendations are debated, no one loses sight of the powerful role that higher education will play in continuing to build the greatness of this nation.
Respectfully submitted on behalf of the Review Panel, by

Lord Browne of Madingley, FRS, Feng Chairman

12 October 2010

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