The new ‘criminal legal aid contracts includes sanctions for bringing the Legal Aid Agency (LAA) into disrepute, as reported here. Jonathan Black of criminal defence solicitors BSB Solicitors on why the LAA should scrap its so-called ‘embarrassment clause’.
Legal aid contract providers have until 15 September to complete tenders for the new crime contract. Once accepted, we are bound by the terms – including the now infamous clause headed ‘embarrassment’.
Once we have signed the new contract, we must behave.
Lawyers use some interesting terminology during the course of their work, including the expression ‘professional embarrassment’. This is considered to be a polite and subtle way of saying: ‘Our client has told us he did something different to what he wants us to tell the court that he did.’ It doesn’t mean that client has said: ‘You’re not fit for purpose’; or: ‘You have just taken a huge payment for not preparing my case properly.’
Some organisations operate on the basis of ‘cabinet responsibility’, which prevents dissidents from speaking out.
Contract holders have no such choice. If they want to object publicly to LAA policy, then they risk losing their contracts and their livelihoods. One only has to look back at post-war history to see similar examples of environments where individuals or groups have feared severe sanctions for speaking out.
Contract holders are in essence franchisees of LAA. We are owners of Texaco petrol garages. Each is different. Some are still in high streets, Some are mini-supermarkets, in danger of being taken over by Tesco. Near my own home, four petrol stations that served the local neighbourhood have closed. You have to go to a large supermarket to fill up now. More people are using electric and hybrid in this new digital age.
Those fortunate enough to keep their Texaco franchise open are now incentivised to encourage every customer to take up the offer of ‘two Topic bars for a £1’.
‘Just petrol, sir? Would you like two packets of Starbursts for £1? Were told we should be selling Topic bars at this price, but who really wants a hazelnut in every bite these days?’
‘Thank you – but I am a mystery shopper from Texaco. You are not selling Topics as per the franchise requirements. I’m sorry, we have to give you a notice and next time close you down.
‘But Starbursts are more popular among our customers.’
‘Sorry, we have strict key performance indicators which measure the suitability of our providers on the basis of their Topic sales.’
If they don’t make money in the shop they will close. If they choose to push Starburst instead, are they embarrassing the franchise?
Criminal defence firms are providers of a public service. The government benefits because it’s we who take on the risk of overheads and need the business acumen to survive. To do so, we need the freedom to create our individual business models. Not one size fits all. If the government wants a national public defender service, then it should just say so; follow a nationalisation agenda and invest in infrastructure. But it should at least let us know where we stand, rather than have it both ways.
The LAA’s ’embarrassment clause’ is the proverbial ‘short and curlies’ clause. While we welcome engagement with the LAA over the last few months, we would be loathe to think that the price we pay for self expression would be a withdrawal of business. If a senior member of LAA received a pay rise that dwarfs the salary of those at the coalface, are we to remain tight lipped? Who does then hold the agency to account? If we were to lobby our MPs about about our concerns, are we then in breach of the embarrassment clause?
If we protest at the imposition of further cuts, or write blogs about the call centre phones not functioning, would we be in breach? What are we meant to do? Say to ourselves: ‘When things in life are bad, they can really make you mad. Other things just make you grin and smile …’
All together, now: ‘Always look on the bright side of life.’
- Why we need a charter for justice - 16th March 2018
- Disclosure’s ticking time bomb - 1st February 2018
- It’s not the lawyers. It’s the system - 14th September 2017
- Flexible courts and local justice - 1st June 2017
- What’s so good about pro bono? - 15th May 2017
- If defence firms are barred from holding LAA to account, who will? - 12th August 2016
- Gary Bell needs to retract his ill-informed views about ‘venal’ solicitors if he wants our confidence - 7th June 2016