No consultation on principle of criminal legal aid tendering
It was clear from the meeting of the All Party Parliamentary Group on Legal Aid yesterday evening that there is a wide gulf between legal aid practitioners and the government on the issue of competitive tendering for criminal legal aid services. Members of the audience, many of whom were solicitors and barristers specialising in criminal work, were shocked to hear Dr Elizabeth Gibby, the senior official at the Ministry of Justice responsible for the policy, declare that the consultation on competitive tendering planned for next month ‘will be on the model only and not the principle’.
The other speakers at the meeting, who were all from the legal professions, seemed implacably opposed to competitive tendering in principle. Robin Murray, vice-chair of the Criminal Law Solicitors’ Association (CLSA), argued that competitive tendering was ‘no more suitable for us than it is for medical practitioners’, but said that he was not surprised that there would be no consultation on the principle. Murray said he had no confidence that the government would get the process right and that its ‘only interest is in saving money’. Greg Powell, from the London Criminal Courts Solicitors’ Association, feared that competitive tendering would ‘destroy local legal services’ as ‘it’s a life or death bid. If you don’t succeed first time round you are out’. Stephen Hockman QC, former chair of the Bar Council, told the meeting that he believed a ‘cadre of independent advocates was important to control costs’ in the criminal justice system and this would be destroyed by competitive tendering as barristers would be forced to ‘group together and specialise in either acting for the defence or as prosecutors’.
Dr Gibby said that ministers had been making clear their intention to introduce competitive tendering for some time as they wanted to ‘move away from administrative fees’. She said they saw no reason why criminal legal aid services should not be subject to the same price competition as many other public services. She said in comments responding to the other speakers that she anticipated representatives of the legal professions would use the opportunity of the consultation to argue against the principle of competitive tendering and that ‘ministers are interested in hearing criticisms of their preferred model for competitive tendering’, which will be outlined in the consultation document.
Labour came very close to introducing competitive tendering for police station and magistrates’ court work prior to the last general election before abandoning the plans, for reasons that remain unclear, though some practitioners say they feared a legal challenge. LAG believes there is likely to be a consensus between the political parties that there is nothing wrong in principle with using competitive tendering to set a price for criminal legal aid services. It is in the detail of the government’s plans that the real pitfalls await.
Designing a tendering system that can be applied to all parts of the country presents many challenges, one of the most obvious being how to prevent the market consolidating into a few large firms in each bid area after the first round of tendering. Richard Miller, from the Law Society, told the meeting he was ‘flabbergasted that ministers wanted to accelerate the timetable for competitive tendering’ such are the complications and the risks if things go wrong.
Whatever the consultation contains next month the government can expect strong opposition from practitioner groups. Robin Murray from CLSA pledged last night that they have every intention of ‘going down fighting’.