The Legal Aid Agency has backed down over a controversial ‘embarrassment’ clause in the terms of its new criminal legal aid contracts after solicitors threatened to issue judicial review proceedings.
Public Law Project, which was instructed by the London Criminal Courts Solicitors’ Association, and law firms Tuckers and Ben Hoare Bell, announced today that the agency will clarify the remit of the controversial clause.
PLP said the agency has this week conceded that it must not ‘seek to rely on the clause to stifle criticism of, or challenges to, the Legal Aid Agency, the lord chancellor or wider government’.
PLP says the agency has agreed to revise the clause and/or make a statement clarifying the remit. This will be done in consultation with the Law Society, Bar Council and Legal Aid Practitioners Group. The agency has also agreed to invite PLP’s clients to the consultation process.
News that PLP had sent the agency a pre-action protocol letter emerged at the LAPG’s annual conference earlier this month.
Responding to the letter, the agency said the clause is intended to deal with situations where a provider or their affiliates brings the legal aid system into disrepute ‘because of their behaviour otherwise than when performing the services they are obliged to carry out under their legal aid contract’.
The clause is also intended to be relied on ‘in exceptional circumstances only’.
The letter states that the central legal team’s client is prepared to consider revising the clause and/or making a statement to provide ‘greater clarity’ on the ambit of the clause, ‘including but not limited to the fact that as a public body the agency would not seek to rely on the clause to stifle criticism of, or challenges to, the agency, the lord chancellor, or wider government’.
The central legal team’s client ‘is hopeful that agreement can be reached through further discussion, rather than litigation’.
PLP said its clients looked forward to a constructive dialogue with the LAA about clarifying a sensible remit for the clause, ‘which as initially drafted was unlawfully broad and vague’.
Law Society president Robert Bourns said Chancery Lane would have preferred the clause to be removed entirely as it is unnecessary. But he added that the Society was looking forward to ‘engaging positively’ with the agency about changes.
LCCSA president Greg Foxsmith told the Gazette the association also welcomed the Ministry of Justice’s willingness to engage with members.
He added: ‘We are continuing to have constructive dialogue with the LAA on other contract terms and issues that affect our members.’