'Unfair and unreasonable' criminal legal aid contract shows bargaining inequality

SALARIED DEFENDERS: Society seeks advice on whether advertisements are anti-competitive

The draft criminal legal aid contract is unfair and unreasonable, legal advice obtained by the Law Society has claimed.

The Society is also taking advice on whether the advertisements for lawyers to join the pilot Salaried Defenders Service are anti-competitive in trying to lure solicitors away from firms.

Speaking at the S2K conference in London, Rodney Warren, chairman of the Society's access to justice working party, told the session on legal aid that advice from London law firm Kingsley Napley said: 'The one-sidedness of the contract is not only unfair and unreasonable but is indicative of the seeming inequality of bargaining power of the parties, certainly made worse by the absence of payment rates in the contract.'

Richard Collins, head of the Criminal Defence Service, came under attack for leaving blank the page on payment rates in the draft contract.

Mr Collins conceded that this was a mistake and revealed that rates would be published this month.

Mr Warren later said: 'I'm glad it's accepted that a mistake was made.

The mistake was so great that it damages confidence in the negotiations over the details of the contract.'

Kingsley Napley is also scrutinising clauses which may require solicitors to act in breach of the practice rules.

They relate to the circumstances in which solicitors would have to stop acting, such as if the client requires proceedings to be conducted unreasonably or refuses to accept advice not to proceed.

The advice on salaried defenders relates to the advertisements which say: 'We would also be interested to hear from applicants who would bring an existing base of clients or an established criminal defence team.'

With salaries of 50,000 plus benefits and the problems in private practice legal aid, Society President Michael Napier told conference that there would be 'a strong temptation to jump ship.

What will the competition lawyers have to say? Is this a level playing field [between private practice and salaried defence service firms], particularly when the contract is completely silent about money?'

Law Society Vice-President David McIntosh told delegates: 'We don't want to go to war, but we will.'

Neil Rose