Parliament warned of ‘threat to profession’s independence’ over legal aid funding decisions

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16 March 2018


Parliament: warned of perception of bias

There is a “worrying trend” towards potential government interference in decisions over the grant of legal aid that threaten the independence of the profession, a leading solicitor warned parliamentarians this week.

Nicola Mackintosh QC (Hon), co-chair of the Legal Practitioners Group (LAPG) and sole principal of London-based Mackintosh Law, told MPs and peers that since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a number of “very worrying” changes had been introduced.

These enabled “interference in relation to our independence in terms of fighting for our clients”, she said.

Giving evidence to Parliament’s joint committee on human rights enquiry into attitudes to enforcement of human rights, Ms Mackintosh highlighted both the practice of referring high-profile applications for legal aid to a special unit, and the introduction of a so-called ‘embarrassment clause’ by the Legal Aid Agency (LAA) into criminal contracts.

The existence of a system of referrals of politically sensitive applications, or cases that involved appeals to the Court of Appeal or Supreme Court, to a team including government lawyers was revealed in 2016 after an LAPG freedom of information request.

The embarrassment clause binds practitioners signing current criminal contracts – at clause 2.2 – not to engage in “any unprofessional or unlawful conduct… likely to diminish the trust the public places in the the legal aid scheme”.

Referring funding applications in cases that may be politically sensitive to a unit containing the same lawyers that advised the government could create “the perception of bias” even where there was none, the solicitor said.

“It is deeply worrying because here you have a decision-making process about who gets legal aid… which is being considered partly by the Government Legal Service which may be the same… which is advising the government department [that] may be on the receiving end of that legal action.”

Scottish National Party MP Joanna Cherry said the human rights group Amnesty International had submitted written evidence that it too was “very concerned” about the high-profile case referral process.

She continued: “It’s obvious to them that there is a risk of interference in decision-making [that] lends further support to their view that the legal aid system should be administered by an independent body”.

Also giving evidence, well-known human rights solicitor Gareth Peirce said her firm, Birnberg Peirce, had “lots of cases that involve national security” that would be considered politically sensitive.

Often decisions about the grant of legal aid were “so prolonged that in effect there is no remedy for the person”, she said.

The LAA retreated after a furore over the wide-ranging embarrassment clause in autumn 2016.

Faced with the threat of judicial review by legal aid practitioners, the agency clarified that it would not “seek to rely on the clause to stifle criticism of, or challenges to [the agency], the Lord Chancellor, or wider government]”.

Ms Mackintosh told the meeting that she hoped the clause would not be introduced into civil LAA contracts later this year.

Noting that the LAA had clarified how the clause should not be used, Ms Mackintosh said: “This begs the question why it is in there at all?”

The Legal Aid Agency and the Ministry of Justice were contacted by Legal Futures for comment, but declined to respond.

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