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
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