The NLJ Column

Labour’s forthcoming Bill of Rights is likely to be a bit short of teeth. For example, “we would have to look very carefully before making any further economic and social rights justiciable”. So, we might get some form of declaration rather than anything you can enforce in a court. This, Straw assures us, “would not make the exercise worthless”. Bills of rights can be “a combination of law, symbolism and aspiration”. The government is clearly thinking more towards the aspirational end, as Straw put it, of the “continuum… between a fully justiciable text on the one hand and a purely symbolic text on the other”. Straw was speaking on the same day that the foreign secretary, David Miliband, was outlining how the European Charter of Fundamental Rights and Freedoms was sacrificed as one of the four red lines that obviated the need for a referendum on the EU reform treaty. The charter is actually good—though, alas, European and thereby doomed. However, Miliband cooed with satisfaction that: “A new legally binding protocol guarantees that nothing in the charter extends the ability of any court to strike down UK law.” It looks as if Straw is attracted to much the same approach.

FIT FOR PURPOSE?

Straw has told the Legal Services Commission (LSC) to clamp down on criminal legal aid. Practitioners are understandably looking to counter-attack. The LSC has been only too happy to oblige. First, the courts slung out its contract with solicitors as oppressive. Then, its establishment of a Duty Solicitor Call Centre has proved a nightmare. Finally, it has now produced a pretty unimpressive consultation on Best Value Tendering for Criminal Defence Services.

The paper even gets the costs of the Criminal Defence Service wrong and displays a regrettable inability to handle decimals securely. The paper advances three options. In a document of nearly 100 pages, all but one concern the LSC’s favoured option (three). One of the alternatives merits only eight lines. This is a somewhat startling proposal to nationalise existing private practices. It is usual to load the dice in this sort of document but not quite as crudely. The really damning thing is that the paper gives no working model for the contracting of legal aid. It canvasses a range of possibilities, none of which seems to work and all of which depend on a competent LSC to manage a market where, except for some duty work, it does not control the demand for services. Don’t worry, says an introduction from the LSC’s chief executive, because this sort of contracting is “common throughout the world”. It is not. The main example is the US. Its Department of Justice has published a rather good paper on the lessons, Contracting for Indigent Defense Services 2000, which includes preventing contractors underbidding then raising the price in the second and consequent bidding rounds. If the LSC knows of the paper or the problems, it shows no sign.

JUDICIAL INDEPENDENCE TRIUMPHS—JUST

Departmental press offices went into full defence mode as a firestorm enveloped the hapless Judge John Bevan. He gave bail to Gary Weddell, who subsequently murdered his mother-in-law and then killed himself.

“The attorney general’s office said [Baroness] Scotland had requested the case notes relating to the bail decision, adding that a thorough investigation was under way. The Ministry of Justice (MoJ) said it would review its guidance to judges after the inquests into the two deaths,” reported The Guardian.

However, the next day Lady Scotland denied any inquiry into the judge’s action. Straw’s MoJ also went off air. The judiciary website quietly announced that transcripts of the bail applications would be posted when the coroner began his inquest. The decision was, of course, for the judge under the Bail Act 1976. There could be no meaningful ministerial guidance—or accountability.