Friday 03 May 2013 by Catherine Baksi
The Law Society has called for a complete rethink of the government's 'economically unworkable' and 'potentially unlawful' criminal legal aid proposals.
In a policy document published online yesterday, the Society said: 'No amount of tinkering with the system of procurement will solve that fundamental difficulty' with the proposals to introduce price-competitive tendering (PCT) for criminal defence work.
With a hint at what could be the foundation of a judicial review, the Society points to the 'disturbing' proposal to remove client choice, which it suggests is at odds with the Legal Aid Sentencing and Punishment of Offenders Act 2012 and assurances given by the former legal aid minister Jonathan Djanogly during the bill's passage through Parliament.
The Society says that clause 27(4) of LASPO enables an individual who qualifies for criminal legal aid to select 'any representative or representatives' willing to act for them, subject to subsection (6).
The explanatory note to the bill explains that 'the regulations may limit the choice to a specified group of providers or may limit the number of legal representatives who can act for any individual at any one time.
'They may also restrict the right of the individual to appoint a new legal representative in place of one previously chosen.'
The Society says that Djanogly gave an unequivocal assurance when questioned about possible restrictions on client choice, saying: 'In criminal cases, people will be able to select their own representative, subject to regulations in clause 26, which may limit choice in the ways referred to in subsection (6)…
'Our intention is that in criminal cases, as at the moment, an individual must select a provider with whom the lord chancellor has entered into a contract or other arrangements.'
In light of that, Chancery Lane suggests: 'It may well be that the primary statute does not permit the government to remove the client's right of choice without exception.'
It adds that throughout eight years of discussions about PCT proposals, the Ministry of Justice always accepted that client choice is one of the few effective mechanisms the government has to drive quality of service.
In addition, the Society voices concern that the proposals will disadvantage firms that seek to provide anything above a 'bare minimum' quality threshold.
The Society adds: 'Firms won't just be encouraged to offer threshold quality only, they will be economically unable to do anything else.'