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Legal Aid Agency to clarify 'embarrassment clause' after legal threat

The Legal Aid Agency has agreed to clarify the remit of the so-called ‘embarrassment clause’ it sought to include in one of its contracts, it has been reported.

The Public Law Project (PLP) had sent a pre-action letter to the agency, setting out its concerns. The clause was due to be implemented in April 2017 in the legal aid crime contract.

As initially drafted, it read:

2.2 You shall ensure that neither you nor any of your Affiliates embarrasses us or otherwise brings us into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in us, regardless of whether or not such act or omission is related to your obligations under this Contract. Any operation of this Clause is subject to our obligation to act as a responsible public body and any sanction must be proportionate.
'Affiliate' is defined as 'any other entity which directly or indirectly Controls, is Controlled by, or under direct or indirect common Control with [a legal aid firm]' (clause 1.1). Breach can lead to 'proportionate' sanctions or contract termination.

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According to the PLP, the agency this week conceded that it must not "seek to rely on the clause to stifle criticism of, or challenges to, the Legal Aid Agency, the Lord Chancellor, or wider government."

The agency has agreed to revise the clause and/or make a statement clarifying this point (amongst others), it said.

This is to be done in consultation with the Law Society, the Bar Council, and the Legal Aid Practitioners Group.

The agency will also invite to the consultation process clients of PLP who challenged the lawfulness of the clause.

In its response to PLP’s pre-action letter, the Legal Aid Agency sought to explain that:

a. Clause 2.2 is intended to deal with situations where a provider (or their affiliates) brings the legal aid system into disrepute because of their behaviour otherwise than when performing the services they are obliged to carry out under their legal aid contract.

b. The legitimate aim of the clause is to ensure that the public have a high level of confidence in the legal aid regime and the Lord Chancellor’s administration of it. An effective legal aid regime is also vital in maintaining access to justice and promoting the rule of law. Legal aid is frequently, and legitimately, the subject of public comment. It is therefore an entirely legitimate objective for the Lord Chancellor to take action to maintain public confidence in the legal aid regime.

c. Clause 2.2 is intended to be relied on in exceptional circumstances only.

PLP said its clients - the London Criminal Courts Solicitors' Association, Tuckers Solicitors, and Ben Hoare Bell LLP – looked forward to “a constructive dialogue with the LAA about clarifying a sensible remit for the clause, which as initially drafted was unlawfully broad and vague”.

David Oldfield, solicitor at PLP with conduct of the case, said: “This clause was clearly always going to be unlawful; it should never have made it past the first stage of consultation. A legal aid practitioner’s duty to their clients and the courts will always trump any obligation to save a third party, like the Legal Aid Agency, from embarrassment.”

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