Select Committee on Merits of Statutory Instruments Thirty-Third Report


Thirty-third Report


Instrument drawn to the special attention of the house

The Committee has considered the following instrument and has determined that the special attention of the House should be drawn to it on the ground specified.

Criminal Defence Service (Funding) (Amendment No. 2) Order 2008 (SI 2008/2930)

Summary: The review by Lord Carter of Coles recommended that to reduce legal aid costs a competitively-tendered panel of legal professionals be introduced to handle long and complex cases, known as Very High Cost Cases. This Order makes the second adjustment to the scheme this year; it increases the fees by approximately 5% in the hope of maintaining a sufficient supply of advocates to prevent delays to a number of current cases. We note that the measure had to be brought into effect overnight and that negotiations for a more enduring solution continue. In view of this the House may wish to examine the robustness of the current assumption that an adequate supply of advocates will come forward; and that the result will be cost neutral.

This Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

1.  The Ministry of Justice (MoJ) have laid this Order under section 14(3) of the Access to Justice Act 1999 together with an Explanatory Memorandum (EM) and an Impact Assessment (IA).

2.  Lord Carter of Coles' review of legal aid[1] recommended that a competitively-tendered panel of legal professionals be introduced to handle long and complex cases, known as Very High Cost Cases (VHCC). Legal professionals wishing to bid for such work have to show a track record of experience on such cases to demonstrate that they could handle it efficiently. Although sufficient solicitors came forward, there was a significant shortfall in the number of advocates applying to the panel. To meet the needs of the judicial system, SI 2008/957 was brought in on 24 April 2008 to vary the regulations to allow the use of advocates who had not signed a contract with the panel, providing they are subcontracted to an approved solicitor. Such advocates would need to meet the same standards and were to be paid the same rate as those directly contracted to the panel.

3.  The current Order varies the VHCC scheme once again to raise the fees paid to advocates who are not members of the panel by a further 5% (the same increase will be applied to panel advocates by means of their contracts). This is because advocates from either source are continuing to refuse to accept instructions in VHCC to the extent that the progress of trials scheduled for January 2009 onwards are being jeopardised (see paragraph 3.3 of the EM). The Impact Assessment provided with the instrument states that the additional £6m required to fund this increase will be off-set by a corresponding reduction in the number of cases where permission for two counsel is given, but it is not clear how this target is to be enforced. Nor is it clear whether the additional 5% incentive is sufficient to overcome advocates' current reluctance to act in such cases. In view of this the House may wish to examine the robustness of the current assumption that an adequate supply of advocates will come forward; and that the result will be cost neutral.

4.  These arrangements are only an interim measure as the current contractual arrangements with the VHCC panel end in July 2009. Meanwhile negotiations for a more enduring solution continue between all interested parties, and MoJ hope to be able to put forward proposals for wider consultation in the New Year.



1   Legal Aid: a market-based approach to reform (July 2006) http://www.legalaidprocurementreview.gov.uk/publications.htm  Back


 
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