The Law Society found itself on the horns of a dilemma when the recent tender for civil and family legal aid work sparked a row with the LSC. Just over half the firms bidding for family contracts were successful, and the Society says this means businesses will close and people may find it difficult to get a lawyer, especially in rural areas. The new contracts are due to start on 14 October.

A statement by Law Society president Linda Lee states that the result of the tender would see the number of family law firms offering legal aid reduced from 2,400 to 1,300, with the loss of many highly expert lawyers from the legal aid system, and the development of significant geographical gaps and shortages of services. But she goes on to say: “This is an issue that has divided practitioners. Of those firms who have succeeded in obtaining a contract many are satisfied with the outcome, and some but by no means all, would prefer it if nothing was done to disturb the result. There are others who although they are uneasy with the impact on unsuccessful bidders take the same view because they conclude this will cause the least disruption. Many firms that have failed to obtain a contract face having to make redundancies or even close their firms. There is no one course of action that is ‘in the profession’s interests’”. The Society accepts that, whether it chooses to act or not, a proportion of its members would be unhappy with the decision, and are acutely aware of the difficulty taking action may cause those successful firms who are planning to expand their businesses either by volume, new work type or a new geographic location.

Linda Lee goes on to say: “As a profession we accept and are proud of an ethical code that is higher than pure commercial considerations. We have a duty to protect the public interest. A reduction in access to justice cannot be in the public interest particularly when it affects the most vulnerable people in society, those who are seeking to establish their basic rights.” Therefore the Society has sent a pre-action protocol letter to the  LSC, challenging the lawfulness of its decision to proceed with the allocation of family law contracts. The Society believe the contracts offered would leave many areas with a grossly inadequate supply, and consider that the family justice system will be seriously impoverished by the loss of a significant cadre of highly skilled and dedicated practitioners who are willing to provide publicly funded services to those whose need is most acute.

The President also asserts that that the LSC’s Equalities Impact Assessment was fundamentally flawed, with no account taken of the fact that the majority of applicants for domestic violence injunctions and ancillary relief are women, who are likely to suffer additional difficulties in securing the services they need because of the reduction in the number of firms available. The Society also fears that there will be significant disruption in the short term as unsuccessful firms close down their departments, either by force of economic circumstances or because their staff have migrated to successful firms. Many clients may find themselves losing their representation in the middle of their cases, and will then have to try to find a new lawyer, with no assurance that successful bidders will be willing or able to take on all of these migrating clients. The LSC has been asked to extend the existing contracts for family law for a short period in order to give it time to conduct a review addressing these issues.

Linda Lee concludes: “It is for the LSC to ensure compliance with its legal obligations, and if it does not do so, and access to justice for vulnerable clients is threatened as a result, we are ready to take all appropriate steps to secure such compliance. I hope that can be done quickly, effectively and amicably.”

Criminal Procedure Rules affect all criminal courts in England and Wales – magistrates’ courts, the Crown Court and the Court of Appeal (Criminal Division) -and provide the framework for the running of a criminal trial.
Since 2005, the Criminal Procedure Rule Committee has made these rules for the criminal courts in England and Wales. The Criminal Procedure Rules 2010 came into force in April and now they have been amended to provide for the following additions and revisions:

New procedure rules about :
  * trial timetables; and
  * applications for witnesses to give evidence by ‘live’ link.

Simplified rules about:
  * warrants for arrest, detention or imprisonment;
  * sentencing procedures in special cases;
  * breach, revocation and amendment of community and other orders;
  * enforcement of fines and other orders for payment; and
  * road traffic penalties.

The rules include cross-references to relevant legislation, in particular measures recently, or likely soon to be, brought into force.
The Statutory Instrument setting out these changes, the Criminal Procedure (Amendment) Rules 2010, was laid in Parliament on 28 July 2010. The new rules will come into force on 4 October, amending The Criminal Procedure Rules 2010. To see the full text of the Statutory Instrument, go to:
http://www.opsi.gov.uk/si/si2010/uksi_20101921_en_1
The ‘Guide for Court Users, Staff and Practitioners’ can be found at:
http://www.justice.gov.uk/news/docs/guide-criminal-procedure-amendment-rules-2010-0810.pdf

In February the Legal Services Commission (LSC) announced that, as current civil legal aid contracts come to an end on 13 October 2010, any organisation who wishes to deliver legal aid work in Family (including Family Mediation) or Social Welfare Law from 14 October 2010 would need to apply for and be awarded a new contract. The tender process for this opened on 26 February 2010, and the deadline for submitting tenders was 21 April 2010.

In a press release last week, the LSC pronounced that the tenders were carried out openly and transparently, and focused on commissioning quality legal advice and representation where people most need these services, with the aim of improving current services wherever possible. The Commission claimed that the tenders were popular among both law firms and not-for-profit organisations.  All tenders were oversubscribed which meant that it was not possible to award all bidders contracts nor, in some cases, the level of work bid for. Sir Bill Callaghan, Chair of the LSC, said: “Ensuring quality advice provision, where it is needed, is at the heart of our civil contract tenders. We are confident that we now have quality-assured advice provision across England and Wales.”

This optimistic view was not shared by everyone. Indeed, the Law Society is urging the LSC to undertake an urgent public review after it emerged the number of firms providing family legal services has been halved. The fall-out from the tender process, which, it is claimed, leaves families, children and domestic violence victims without genuine access to legal services, has prompted the Society to call for its immediate suspension while a public review of the process, its outcome and the impact of access to justice is assessed. The LSC chief executive Carolyn Downs, in an interview with the Law Society Gazette, admitted that the dramatic cull in family law suppliers was not the intended outcome of the tendering round.

Clearly the law of unintended consequences was once again in operation. Law Society President Linda Lee said: “This is sadly the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid notwithstanding the clear intent of the previous and present Governments to return policy on legal aid to the Ministry of Justice. The LSC has, we fear, lost control of the processes.” She added: “When even the LSC itself is saying the outcome was not intended, and when clients are deprived of legal advice and services and firms are seeing important contracts vanish, the Government has to take a closer look at this and make a decision. If these systemic changes were being imposed on farmers or fishermen then compensation would be paid. All businesses, not just law firms, trading in Government controlled markets will be watching very closely how the Government handles this situation. In this era of the Big Society, the rule of law and genuine access to justice for all citizens must be an underpinning element of that concept.”