I agree that the LSC are certainly in a very difficult position - if they scrape through the current JR hearing, it would appear as though they could face further hearings very shortly indeed. Alternatively, if the current tender is knocked on the head, they are likely to be the subject of many applications for compensation.
The Law Society warned that the Legal Services Commission’s family tender process will restrict access to justice for victims of domestic abuse, forced marriage and children, as its judicial review of the tender process began in the High Court today.
Outlining the Law Society’s case this morning, Dinah Rose QC said the tender would reduce the number of firms in England and Wales permitted to provide family legal aid from 2,470 to around 1,350.
The reduction of this scale in such a short timeframe, she said, gave rise to serious concerns about the effect of the tender on access to justice.
Rose said the reduction in the number of providers would lead to gaps in geographical coverage, known as ‘advice deserts’, and said there would be ‘many towns’ that will have no legal aid provision, and areas where people in desperate need will have to travel 40 miles to more to see a solicitor.
The barrister said that many of those who had lost contracts are some of the most highly regarded and specialist providers.
Further outlining the Law Society’s case, Rose told the court that the outcome would also cause conflict of interest problems in large multiparty cases; created a ‘significant risk’ that some successful firms would not have the capacity to deal with the volumes of work; and cause ‘delay, upheaval and trauma’ for clients as a result of firms closing.
She said the LSC had failed, in breach of its public law and statutory duties, to investigate or assess the potential effects of the selection criteria used in the process or to consider the impact on access to justice, women and minority ethnic groups and rural areas.
‘Throughout the whole process, the LSC proceeded on the unevidenced and uninvestigated assumption that the outcome of the tender wouldn’t significantly reduce the number of providers. For that reason they didn’t consider the impact the outcome would have on access to justice,’ she said.
Rose said the LSC was now making a ‘desperate attempt’ to remedy that ‘fundamental defect’.
She noted: ‘It’s a remarkable feature of this case that the LSC says it did not anticipate the reduction and repeatedly reassured the Law Society and practitioners that there would be no significant reduction.’
She said: ‘It is not their [the LSC’s] function to ensure a minimum safety net for legal aid provision, but to improve the quality of justice and access to it,’ adding that the LSC failed to do this.
Lord Justice Moses, hearing the case with Mr Justice Beatson, said: ‘Even firms that I’ve heard of have been up in arms about it, so that’s an indication that something has gone wrong.’
The hearing is scheduled to continue today and tomorrow.