An embarrassing episode

The embarrassment clause in the 2017 criminal legal aid contract includes sanctions for a legal aid provider who embarrasses the Legal Aid Agency or brings it into disrepute. Thankfully, the LAA has now agreed to look at it again.

The embarrassment clause also became known as the ‘gagging’ clause, because many believed it would have stifled legitimate criticism of the LAA or Ministry of Justice, restricting freedom of speech. The concern was that the providers would feel unable to criticise or challenge the agency without fear of sanctions.

Clause 2.2 states: ‘You shall ensure that neither you nor any of your affiliates embarrassesus 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.’

The Law Society and other representative organisations raised their concerns about the new contract with the LAA and suggested alternative wording, to no avail.

The London Criminal Court Solicitors Association and Tuckers Solicitors instructed Public Law Project, along with Ben Hoare Bell, to bring judicial review proceedings. David Oldfield, a solicitor 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 LAA, from embarrassment.’

A pre-action letter was sent to the LAA on 29 September, identifying grounds in which the clause was unlawful:

• ‘Saving the Lord Chancellor and/or the LAA from embarrassment (etc) is plainly not an aspect of securing that legal aid is available’;

• The contract itself allows for legal aid providers to challenge actions by the LAA or Lord Chancellor;

• The clause interferes with partners’, employees’, and other individuals’ rights to a fair trial and to their rights to freedom of expression;

• The clause would be unenforceable on the grounds of public policy; and

• The clause is also void for uncertainty given its exceptionally wide and unclear drafting.

Finally, last month, PLP announced that the LAA conceded that it must not ‘seek to rely on the clause to stifle criticism of, or challenges to, the LAA, the Lord Chancellor, or wider government.’

The agency has also agreed to revise the clause, and will do so in consultation with the Law Society, the Bar Council, and LAPG, as it did in July. It has also agreed to invite clients of PLP who challenged the lawfulness of the clause to the consultation process.

It is yet to be seen whether the agency will listen to any of the legal profession’s advice. ‘I told you so’ springs to mind.

Gemma Blythe is a case worker at the Kent Branch of Tuckers Solicitors and Young Legal Aid Lawyers Kent coordinator