Crime duty tender outcomes delayed for further two weeks

Bidders were to have been notified of the outcomes of their crime duty tenders “in September”. The LAA has today emailed bidding firms to say that it hopes to get the results out on October 15, saying that the delay is because of “quality assurance”.

Update: The MoJ has confirmed that the delay should not affect the contract start date.

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MoJ consults on crime advocacy

The MoJ has issued a consultation paper on advocacy in criminal cases in the Crown Court and above. It is aimed at the preservation and enhancement of quality of advocacy, though most of its practical measures appear to have been lobbied for by the Bar with the aim of protecting it from competition from solicitor advocates. The evidence base for the proposals in the paper is thin and anecdotal.

Key proposals are:

  • The introduction of a panel of defence advocates. All advocates instructed in publicly funded Crown Court cases must be on the panel, which would sit alongside rather than replace QASA.
  • There would be a statutory ban on referral fees to strengthen the current contractual and regulatory bans. This would include “disguised” referral fees, where payments described as administration and management fees are in fact payments in return for the provision of instructions.
  • Stronger measures to protect client choice and safeguard against conflicts of interest – which means in practice restricting the use of advocates employed by the litigator firm. Proposals range from a mandatory declaration of advice given to a client on choice of advocate to an outright ban on using advocates employed in the same firm.

It is interesting timing that this paper was published before the results of the crime duty tender, expected this week. If the proposals are enacted, they will – depending on which proposals and how – have an impact on bidders ranging from an additional administrative burden to a ban on an entire business model. Given that many firms will have factored a degree of in-house advocacy into their business modelling and decision making on the sustainability of the contracts, it is unfortunate that such potentially significant changes are proposed after bids were submitted and that firms will have to confirm acceptance or rejection of contract offers without knowing if the basis of their business model will fundamentally change. It is also ironic that a measure aimed at protecting client choice does so by restricting client choice.

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New civil forms from next month

The LAA has announced changes to some civil forms, which become mandatory from 1 November. The affected forms are:

  • CW3A

APP and CW3A forms cannot be used before 1 November, and any forms signed or dated from 1 November onwards must be the new ones. Forms signed before 1 November must be submitted by 30 November. The CLAIM forms can be used before 1 November. Equivalent changes to CCMS will be made before 1 November. Preview versions of the new forms can be found on the pages for each form on the LAA website.

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Latest legal aid statistics published

The MoJ has published the latest quarterly statistics bulletin showing take up of legal aid cases. The figures make for depressing reading. In summary:

  • The crime figures continue to fall year on year, with a 7% reduction in crime lower work but a 14% fall in expenditure
  • 13% fewer Crown Court representation orders were granted and 3% fewer Crown Court cases completed;
  • Civil legal aid volumes are running at one third of pre-LASPO levels, and continue to fall – matter starts were down 6% and certificates down 7% compared to the same quarter last year
  • Within that, there are variations for individual categories of law:
    • overall, family work has fallen by 6%, but family mediation is going up – starts by 19% and assessments by 33%
    • mental health starts have fallen by 4%
    • immigration work has increased by 1% and housing by 2%
    • other categories are small, but in most cases going down – most noticeably in actions against the police and public law, though community care is going up
  • Exceptional funding application numbers have fallen by 12% over the last year, and the grant rate is 8% lower than the previous quarter (though 11% higher than last year). Most grants were for family (33% of the total), immigration (41%) and inquests (13%)

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Labour to review legal aid policy

The Labour party has announced that it is to carry out a review of legal aid policy, led by Lord Bach with Karl Turner MP. The party leader, Jeremy Corbyn, said:

“I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years. This has resulted in many of our fellow citizens, often the poor and marginalised not being able to get advice or representation when they are faced with legal problems such as housing, welfare benefits, debt and employment. Many vital advice services, including Law Centres, have had to close.

“Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working. Willy Bach, who is a member of the Shadow Justice Team, will also as a part of the Review look at policy choices for Labour so that Britain can once again have the prospect of a Legal Aid system worthy of our country and our legal tradition.”

Lord Back and Karl Turner are both members of Labour’s shadow justice ministerial team, headed by the shadow Lord Chancellor Lord Falconer – his recent article for the New Statesman on justice policy is also worth reading.

Karl Turner was a legal aid lawyer before entering Parliament in 2010. Lord Bach was legal aid minister in the last Labour government – his record on legal aid is mixed; although he increased financial eligibility limits for social welfare law when the financial crisis hit and fought LASPO hard in the Lords, in office he was in favour of criminal competitive tendering and as his last act as a minister pushed through a cut in crime fees.

The review is an opportunity for a fresh look at legal aid policy and was welcomed by leading legal aid lawyers

Lord Bach and Karl Turner have said that they want to hear from the professions to address the effect of the cuts, and it will be interesting to see what emerges from the review.

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Crime fee cuts to be suspended

Just before 5pm on Friday afternoon, the LCCSA and CLSA released a statement setting out the terms of an offer from the Lord Chancellor, seemingly made in response to the suspension of the action last month.

This is the statement:

On Wednesday the CLSA, LCCSA and BFG met with the Lord Chancellor at his request. Also present were representatives from both the LAA and MoJ.  An observer from the CBA was present.

The Lord Chancellor said he acknowledged that constructive engagement has taken place over the summer, which is something that he welcomes moving forward.

The Lord Chancellor advanced the following proposal:

“A suspension of the fee cut which would mean that the new fixed and standard fees being introduced on 11 January for police station attendance, magistrates’ court representation and Crown Court representation in cases with fewer than 501 pages of prosecution evidence (PPE) would be increased to reflect only the first 8.75% reduction for the three month period.  Other fees, where the fee scheme structure remains unchanged (eg Crown Court cases with more than 501 PPE, Court of Appeal fees and fees for advice and assistance outside the police station) would revert to the fee levels that applied before the 1 July 2015 changes.  The suspension would apply to all work on cases that begin in the three month window, even if a case concluded after 10 April 2016 (i.e. for the life of the case).”

The Lord Chancellor is of the view that Two Tier will proceed as planned in the absence of any viable alternative.  Any alternative involves some form of consolidation and we are mindful of the individual business structures of our membership which renders reaching a consensus very difficult. This is however something that we are working upon in the hope that we can work towards keeping as many firms as possible in business.

We understand that announcements will be made during the week commencing the 28th September 2015.

The Lord Chancellor indicated that the suspension was a reflection of the negotiations and good will established over the summer, which he would like to see continue as a consequence of his proposal. He emphasised that if the profession choose to return to action in an attempt to derail two tier then it is likely that the offer of a suspension will be withdrawn and any constructive engagement will cease. We have not yet agreed this because it falls far short of a permanent suspension but we are aware that the suspension given in the past to the Bar remained permanently in place.

We do wish to make these points clear:

1. The suspension of the cuts (temporary or permanent) do amount to very modest financial savings for all firms whatever happens to TT. They will be lost if rejected.

2. At no time have we indicated any support for Two Tier.

We are currently reviewing the proposal and seeking clarification before we respond.  We report the situation at this stage to allow for complete transparency and to keep the profession updated. We will provide the profession with further information as and when we receive it and welcome thoughtful responses as soon as possible.  It might assist if we receive feedback via local representatives where possible.

The Guardian described this as an olive branch from the Lord Chancellor, but if it is it is a very small one.  Steven Bird, writing at the Justice Gap, has analysed the figures and says it is “marginally better than nothing at all and falls woefully short of any real compensation for the July cuts”. This is merely a short suspension of the fee cuts for three months. But it isn’t a restoration of the pre-July 2015 rates. Rather, it is an increase in the post-January 2016 rates by 8.75% – it has been cogently argued by many that the January 2016 consolidation of rates in fact represents a further substantial cut. All this offer does is mitigate that further cut for a short period of three months.

It has been made clear that there is no prospect of any movement on the principle of limited numbers of duty contracts, and that any further action will result in even this limited concession being withdrawn.  But it is also clear that, four months on from his appointment, the new Lord Chancellor is no less wedded to cuts and restructuring than was his predecessor.

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Conditional payment for JR – can you help PLP?

As we reported at the time, the MoJ re-introduced conditional payment for judicial review cases following the quashing of the old regulations by the High Court. This was done via the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 (which can be downloaded from the resources page), inserting a new Reg 5A into the Civil Legal Aid (Remuneration) Regulations 2013.

Reg 5A says:

5A.(1) Where an application for judicial review is issued, the Lord Chancellor must not pay remuneration for civil legal services consisting of making that application unless—

(a) the court gives permission to bring judicial review proceedings;

(b) the court neither refuses nor gives permission to bring judicial review proceedings and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case, taking into account, in particular—

(i) the reason why the provider did not obtain a costs order or costs agreement in favour of the legally aided person;

(ii) the extent to which, and the reason why, the legally aided person obtained the outcome sought in the proceedings, and

(iii) the strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time;

(c) the defendant withdraws the decision to which the application for judicial review relates and the withdrawal results in the court—

(i) refusing permission to bring judicial review proceedings, or

(ii) neither refusing nor giving permission;

(d) the court orders an oral hearing to consider—

(i) whether to give permission to bring judicial review proceedings;

(ii) whether to give permission to bring a relevant appeal, or

(iii) a relevant appeal, or

(e) the court orders a rolled-up hearing.

The Public Law Project would like to monitor the operation of Regulation 5A. They would like to collect examples of Legal Aid Agency decision-making, both  in relation to the exercise of discretion to pay under Regulation 5A(1)(b) and the approach taken by the LAA listed in  5A(1)(c), (d) and (e).

In addition, they are interested in payments under certificates issued whilst the quashed regulation 5A was in force, i.e. 22 April 2014 – 19 April 2015.

Please email experiences and comments to:

NB – our email subscribers received an incorrect version of this post on Thursday. Please disregard the earlier email – our apologies.


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Filed under Civil, Costs, Housing, Immigration, LASPO, Policy, Social welfare