Richard Miller explains what may be in store when the new criminal legal aid contracts come into force next year.
The Legal Aid Agency is consulting the Law Society, Bar Council and Legal Aid Practitioners Group on the proposed new criminal legal aid contracts. The draft documents are not being made public, but it would be fair to say that for anyone who has read the proposed 2015 contracts, there are likely to be no big surprises.
The society will be making representations on a number of issues, including the allocation of duty solicitor slots, the requirements for a premises, and measures relating to advocacy. This will be an ‘iterative process’, consisting of comments from us to the Legal Aid Agency on their draft contract, and discussions in face-to-face meetings about changes we would like to see. The approach has traditionally been a collaborative one, where in many instances we are able to reach agreement with the LAA as to what the provisions should be, though in the event of disagreement, the LAA has the final say on the matter.
Duty solicitor slots
Duty slots will still be allocated on the basis of the number of duty solicitors a firm has, but we will be making representations to the LAA about the criteria for whom a firm can count as its duty solicitor.
The Law Society, along with the other practitioner groups, has long been concerned about the impact of ‘ghost’ duty solicitors – lawyers who are not currently active in criminal law, but ‘rent’ their name so firms can secure additional slots. We want to see an end to this practice.
We have had many discussions over the past few years as to how to address this problem, while not interfering with consultancy arrangements, freelance working or specialisation within firms that may be entirely legitimate.
We and the groups believe that the solution to this problem will need a mixture of refined activity requirements, revised definitions of the duty solicitor’s relationship with the firm, and declarations by Compliance Officers for Legal Practices (Colps).
Office requirements
There is an ongoing debate about whether, as technology develops, the requirement for a physical office is outdated. We have concluded that the benefits to clients in having a physical office where they know they can go to see their solicitor, and the benefits to established firms in not being driven out of business by someone with no genuine connection to the local area, outweighs the potential benefits of reducing overheads by abandoning these requirements. However, this is a debate that we consider afresh with every new contract.
The 2015 contract had enhanced requirements for an office, which we supported in the context of the much larger procurement areas then planned. However, that change in procurement areas is not now happening. We will, therefore, need to be satisfied that the office requirements are appropriate to these different circumstances, and that they do not unnecessarily increase costs on firms, particularly those operating in multiple areas.
The issue is well illustrated by the current situation in Kent. In East Kent, a single office will get you on three police station schemes, which operate as a single area; West Kent, a similar area in terms of geography and population, is divided into several areas. There is no difference in the needs of clients or of the criminal justice system. The different requirements on firms are simply the result of where the boundary lines happen to be drawn.
We can see at least three possible levers to help ensure we reach a solution that reflects the needs of both clients, lawyers and the justice system. One is to look at the office requirements in all cases. Another would be to consider the possibility that firms with multiple offices have to have one office that meets more stringent rules, but that they could have satellite offices that meet less arduous rules, as the 2015 contract with its larger procurement areas would have done. A third approach, would be to look at whether there is a case for amalgamating some schemes. We are considering the pros and cons of all these approaches.
Advocacy
We have still not had a response from the Ministry of Justice (MoJ) following their consultation on the quality of criminal advocacy. One of their proposals was for a contract term that required litigators to advise clients of their right to have an independent advocate instructed on their behalf, rather than an in-house advocate. We are readying ourselves for what we might need to say in response to any such proposed clause.
In our response to that consultation, the Law Society supported the concept of clients having a fully informed choice of advocate; but we also highlighted how the practice of late returns of briefs by barristers compromised client choice. We want to ensure that any contractual provisions relating to advocacy deliver a genuinely level playing field. We will also be concerned to ensure that bureaucracy is minimised.
Other issues
There are a number of other issues where we intend to discuss technical details with the LAA, such as the technology requirements, the rules around novating a contract where an organisation changes its legal status, and enforcement and penalties.
Next steps
The consultation closes on the morning of 4 July. We do not yet know when the LAA intends to hold the tender itself. Our best current estimate would be September or early October. The Law Society will arrange a round of roadshows to tell members about the tender rules and the terms of the new contract once the LAA’s timetable is clear.
The new contracts will commence on 1st April 2017.
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