The outcome of a consultation on the new 2017 criminal legal aid contract was today greeted with concern by the Law Society of England and Wales.
The Law Society's president Robert Bourns said:
'Despite our feeling that we had a positive engagement with the Legal Aid Agency (LAA) during the consultation, it seems few of our concerns were listened to.
'Given the economic constraints within the legal aid system, and radical changes to the court system requiring solicitors to be increasingly mobile and flexible in delivering advice and representation to those in need, it is disappointing that a number of our representations are not reflected in the contract terms.
'We are concerned, for example, that the LAA insists on the provision of advice from a fixed office location that cannot be changed during the term of a contract.'
With the review of the HM Courts and Tribunals Service, the closure of courts and police stations, plus digitisation, the criminal justice system is currently facing considerable upheaval.
'Firms must be allowed room to adapt. Unfortunately, in important ways, this contract fails to afford them that flexibility,' said Bourns.
More positively, the Law Society notes the contract introduces a new clause requiring a solicitor to explain to the client the choice of a particular advocate for their case. This is perfectly reasonable.
However the requirement that the process is repeated if a barrister pulls out the night before the hearing - which is a frequent occurrence - is impractical and unnecessarily bureaucratic.
'This puts a burden on the solicitor when the barrister fails to show up.'
Firms need the flexibility to move their office location when work is transferred between courts, but the LAA has insisted on a clause which could restrict firms from moving to another area for legitimate business reasons, for example, where the location of court has changed. Equally, the contract prevents them from accessing duty schemes.
'In some cases, we proposed alternative clauses to the LAA. For example, we have concerns about a clause allowing the LAA to impose sanctions for behaviour likely to cause "embarrassment" to the LAA, which we believe could cause legal problems,' said Bourns.
Other key clauses in the contract include:
- a clause requiring 14 hours per week contract work to be restricted to a specific office. We argued that this places constraints on firms that operate a flexible model with fee earners taking different parts of a case and working from different locations
- more rigorous requirements for duty solicitors
- new, more rigorous IT requirements
- the LAA has listened to some, but not all of our proposals to make the supervisor requirements more reasonable and achievable.
The Law Society welcomed new clauses in the contract aimed at tackling the problem of ‘ghost’ solicitors on the duty rotas, which has been a concern for our members for some time. The Society is committed to working with the LAA to ensure the new contract clauses are effective.
There are also indications that the LAA is willing to continue to engage on some issues such as re-drafting of forms and tackling the issue of touting.
'We hope this will result in further changes to the contract that take into account more of our suggestions,' said Bourns.
'We were pleased that the LAA took note of some of our proposals on office requirements which we felt should be less onerous for satellite offices. But the truth is the current draft contract is greatly in need of improvement.'
See our detailed summary of the key changes in the contract
The Law Society will be running roadshows on the tender process and the new contracts.
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