Monday, 25 January 2010

Civil tenders answers

Following an exchange of letters between the chief executive of the Law Society Des Hudson and Carolyn Regan, the chief executive of the Legal Services Commission (LSC), there is now more certainty around the LSC’s plans for the civil legal aid tenders. The LSC, though, is keeping social welfare law (SWL) practitioners guessing on how it will decide between them in areas where there are more bidders than it requires.

Procurement plans for social welfare law will now be published this week. The plans will set out the number of cases starts the LSC requires in each category of law for each procurement area. The details of how cases will be split between each category will also be revealed in these plans. Bid rounds for SWL and family law will now open in the week beginning 22 February and the bid round for mental health work will open in the week beginning 8 February.

It would appear that the LSC is struggling to devise fair criteria to differentiate between bidders if too many bid for SWL work in one area. The situation is complicated because it is conceivable that single providers might bid for combinations of SWL against consortia with a number of providers. Also, what happens if a single bidder is perceived to be weak in one or more categories, and is up against consortia bidders which also have weaknesses, but in a different combination of categories?

LAG understands that discussions to try and untangle these difficulties are ongoing between representatives of legal aid providers and the LSC. However, the idea of combining these categories of law has been in the air since at least October 2008 when the draft consultation on the civil bid rounds was originally published. Surely, then, someone at the LSC should have thought around the practical problems of making this work before now?

Monday, 11 January 2010

A bill of rights election

Last week saw the opening shots of what is likely to be a four-month general election campaign, assuming Gordon Brown goes for the predicted 6 May polling day. The Human Rights Act (HRA) 1998 will feature in this campaign as Conservative leader David Cameron has pledged to repeal it and replace it with a 'British Bill of Rights'. It is unclear, though, what he means by this.

The promised bill of rights could be a codification of existing rights which can be portrayed as being British in character, such as habeas corpus and trial by jury, as well as the rights under the European Convention on Human Rights (the convention) enshrined in the HRA. This would be welcome as better defining the rights that British or UK citizens enjoy (a 'United Kingdom Bill of Rights' would seem a much better title as it would fit the devolved constitutional settlement in Scotland and and Northern Ireland). It could also be seen as an opportunity to engage the public in a discussion on what they want from a bill of rights, hopefully allaying some of the misconceptions that seem to abound about the HRA.

However, in the worst-case scenario, the Conservatives, if elected, would repeal the HRA and turn the legislative clock back to 1998. Their bill of rights could be no more than legislative smoke and mirrors to provide the cover to rescind the rights enshrined in the HRA, forcing people to enforce their convention rights in the European Court of Human Rights instead of the UK courts.

In LAG's view, the rights covered in the HRA are fundamental to a civilised society and their impact should not be diluted by any replacement legislation. The Conservatives do say that they support the convention. It is important in the coming weeks that they make clear their intentions regarding the bill of rights and the HRA as the current position is ambiguous.

LAG would also urge all the political parties to come to a consensus on what should be included in a bill of rights. Labour, unfortunately, has failed so far to build a consensus around the HRA. There were some useful discussions between the parties initiated by the publication last year of a government green paper suggesting a 'Bill of Rights and Responsibilities' which should be built on. Such an important constitutional bill needs to be above party politics or we risk each new government tinkering with what should be seen as our nation's constitutional bedrock.