Last Wednesday Secretary of State for Justice, Ken Clarke, made a written statement to the Commons on Competitive Tendering. The proposed timetable has yet again slipped back.
He told the Commons: “The Government believe that tendering criminal defence work for competition, alongside regulatory changes, has the potential to significantly modernise legal aid provision, improve the service provided to legal aid clients, streamline the procurement process and deliver value for money for the taxpayer.” In a thinly veiled threat he said: “Pressure on legal aid expenditure is likely to continue, increasing the need for further reform of the current arrangements for administratively set remuneration rates in the absence of competition.”
He added: “Clearly the development of a competition strategy will be likely to have a substantial impact on the market for legally aided services, as will a number of other current developments. These changes will require significant levels of engagement between the Government and the profession. We plan to begin these discussions in early 2013 once the key components of our legal aid reform package, the regulatory changes allowing alternative business structures, and the introduction of the quality assurance scheme for advocates have had time to bed down. We will publish a full formal consultation document on the competition strategy towards the end of that year.”

The revised timetable will be:

Consultation paper published: Autumn 2013

Response to consultation paper: Spring 2014

Tender opens in first competition areas: Autumn 2014

First contracts go live: Summer 2015

In an almost throw-away last paragraph of this statement he went on to say: “I would also like to inform the House that we intend, subject to parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the Bill and the creation of the new agency in its place.” This amounts to a six-month delay to the programme.

The ‘Guardian’ reports that Labour’s shadow justice secretary, Sadiq Khan, said: “This six-month stay of execution due to government incompetence will do little to reassure the millions of people who rely of social welfare legal aid to gain access to justice. Rather than delaying the implementation of their disastrous reforms to social welfare legal aid, which supports some of the most vulnerable people in our society, this government should abandon them completely.”

The bill goes to the committee stage in the House of Lords on 20 December. At its second reading in the chamber last month, the proposed legal aid cuts were savaged by the overwhelming majority of speakers in the debate. Since then Lord Wilson, the newest appointment to the supreme court, and Sir Nicholas Wall, president of the family division, have added their voices to the opposition. Three other supreme justices – Lord Hope, Lady Hale and Lord Dyson – have also expressed concern about the effect of government proposals to save £350m a year by reducing the availability of legal aid.

The Government showed with the Public Bodies bill last month that they are prepared to jettison proposals to ensure the passage of a bill. It will be interesting to see how they react to the Lords’ amendments and what, if anything, is thrown off the sledge to escape the chasing pack.

Debbie Purdy did not ask the law lords for the right to die. She did not ask that her husband be allowed to help her die. But she did ask for clarity over whether her husband would face prosecution should he help her to take her life in Switzerland. While not able to give her that clarity, the law lords ruled last week that she was entitled to it. That is a significant move forward from the situation as reported in last October’s blog ‘Assisted suicide’.

In giving their unanimous decision the law lords emphasised that it was no part of their function to change the law in order to decriminalise assisted suicide. That was a matter for parliament. Indeed Lord Hope said that “the law, as it stands, could not be clearer. It is an offence to assist someone to travel to Switzerland or anywhere else where assisted suicide is lawful. Anyone who does that is liable to be prosecuted”. But Article 8 of the European Convention provides that everyone has the right to respect for his private and family life, with no interference by a public authority except in accordance with the law. Ms Purdy did not ask that her husband be given a guarantee of immunity from prosecution. What she sought was information so that she can take a decision that affects her private life. There have, to date, been 115 cases of people who have made the journey to countries where assisted suicide is lawful, and those who have assisted them have not been prosecuted. Of those cases only eight have been referred to the Director for a decision as to whether or not the assistants should be prosecuted. None have been prosecuted, either because there was insufficient evidence or on public interest grounds.

Lord Hope acknowledged that decisions in this area of the law are highly sensitive to the facts of each case and are also likely to be controversial. But, he said, “I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute”. In an immediate response, Keir Starmer QC, the Director of Public Prosecutions, said “the CPS has great sympathy for the personal circumstances of Ms Purdy and her family. We will endeavour to produce an interim policy as quickly as possible which outlines the principal factors for and against prosecution. To that end, I have already set up a team to work through the summer with a view to producing an interim policy for prosecutors by the end of September”. He added that once the interim policy is published, he will undertake a public consultation exercise in order to take account of the full range of views on the subject. In the “continuing absence of any legislative framework by then” he will publish his finalised policy in the Spring of 2010.

Then it will be for politicians to decide whether this as an ethical issue that can not be left to the CPS alone and revisit the 1961 Suicide Act.
The full text of the law lords’ judgement can be found at:-

http://www.bailii.org/uk/cases/UKHL/2009/45.html