Lawyers found to have defrauded the legal-aid system are set to be officially “named and shamed”.
The department for constitutional affairs, which has became part of the new ministry of justice, headed by Lord Falconer, disclosed the move in response to a request under the freedom of information act (FOIA) for correspondence with the legal services commission about investigations that it has carried out into legal-aid payments.
Although the department refused disclosure of the correspondence, it said that there would be more openness in future about such investigations, saying: “The commission intends to publish shortly, details of the action taken on providers and individuals that have been shown to appropriate legal-aid monies in an inappropriate fashion.”
In response to a separate FOIA request, the commission revealed that it had carried out 30 “official investigations” into “contracted suppliers” – understood to be solicitors – in the past three years: 10 in 2005-06, nine in 2004-05 and 11 in 2003-04.
It said: “Investigations into barristers’ payments would not generally come under this heading, as normally there is no direct contractual relationship between the commission and barristers.
“However, we will look into payments made to barristers where there are equivalent concerns to those giving rise to official investigations into contracted suppliers. There were no investigations into barristers’ payments undertaken of this type during the last three financial years. However, preliminary enquiries were made concerning two barristers in 2005/06, following which no further action was required.”
The commission explained that it had several types of review that did not amount to “official investigation”.
“There are a number of ways that the commission can look into the quality and costs of contracted suppliers. These can include contract compliance audits, peer reviews, controlled audits, quality mark audits and official investigations. Each of these could be regarded as a type of ‘investigation’.
“Official investigation is a contractual term relating to contracted suppliers of legal services. This type of investigation is undertaken when there are concerns regarding possible dishonesty or serious breaches of the rules or regulations. Investigations by the police and regulators, such as the law society, would also be classed as official investigations.”
The commission, which buys legal services from solicitors and barristers on behalf of people eligible for legal aid, said that it is “responsible for ensuring value for money from all of its spending.” It spends more than £2 billion a year.
The department for constitutional affairs justified refusing to disclose the requested correspondence between it and the commission, saying: “It is in the public interest that any investigation conducted by the commission into the payment of legal aid can be taken forward discreetly and appropriately and that an open dialogue can be maintained with the department and its officials during any such investigation.
“Legal aid represents a significant proportion of the department’s budget, and of the taxpayer’s money. Ensuring that these monies are spent effectively and that the system of payment operated by the commission is not open to abuse is a crucial part of its role.
“Revealing the nature of the investigative process may prejudice the success of a future investigation by highlighting weaknesses and strengths in the approach taken by the commission, whilst flagging up to those subject to investigation in the future as to the likely lines of inquiry.”
It also claimed that disclosure of some of the correspondence would prejudice the commercial interests of specific legal firms. “Revealing the detail of an investigation into a firm or provider could lead to sensitive information regarding the nature of how that firm or provider conducts their business, which could be particularly detrimental to a provider’s ability to compete effectively under the proposals for legal aid reform.”
Another version of this article first appeared in The Sun.