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It seems Justice Secretary, Chris Grayling, has managed to unite every lawyer and firm working in the criminal justice system against his proposals for competitive tendering for criminal cases. The suggested tendering system, which includes giving clients no choice of solicitor and which seeks to reduce the number of firms providing criminal legal aid from 1,600 to 400, we believe, is both unworkable and unjust.
Currently, most solicitors build up their businesses through own client work and referrals based on their reputation. Robin Murray, vice-chair of the Criminal Law Solicitors' Association, describes the proposed system as an 'appalling attack on client choice' which will lead to poor quality work as the proposed new system has 'no incentive in it for anyone to do a good job'. Many lawyers readily agree that client choice is the most effective quality control in the system and also point out that undertaking work for regular clients means that time and money is saved, for example, by knowing if a client has a pre-existing mental health or other problem.
The government plans to split the country into 42 procurement areas, with London divided into three areas and the other areas roughly following county boundaries. Firms will be invited to tender for a share of the cases available in each area. Police station, magistrates' court and Crown Court work (but excluding advocacy in more complex cases) will be subject to price competition based on an average case cost for the work in the procurement area less 17.5%. Murray describes the system as 'totally unworkable' and believes that many firms will be unable to bid, as the price is too low with 17.5% lopped off.
LAG believes that the formula which sets the number of contracts for an area is flawed. For example, in Greater Manchester the proposed division of the area into 37 contracts will not provide enough work for the larger firms already working in the area and many smaller firms will not have sufficient time to expand to bid for contracts.
The Bar has avoided being forced to bid for advocacy work as the government acknowledges that few barristers and their chambers have the arrangements in place to bid for contracts. However, advocates are facing swinging fee cuts - for example, 30% will be shaved from fees in very high cost cases. The government argues that by re-balancing fees in less complex cases 53% of advocates will be better off or at least see no change in their fee income. It seems from the paper that it has the controversial high-earning advocates in its sights as it estimates that a barrister currently receiving £550,000 would see his/her fee income reduced to £370,000 per year under one of the proposed fee schemes.
Such is the incompetence of the proposals, LAG wonders whether they are in fact designed to create a market for private criminal defence services for innocent people who have assets to cover the costs of their case and career criminals who will pay for the best defence money can buy in order to try and evade justice. We fear the poorest and most vulnerable defendants will be left at the mercy of a sink system staffed by overworked lawyers with little incentive to provide a good quality service.
There are big variations in the number of firms serving different areas of the country. This suggests that some savings of scale and efficiency could be introduced into the market for criminal legal aid services, but the government’s proposals are hopelessly inadequate. Chris Grayling risks a humiliating climbdown, as firms are unlikely to co-operate in the bidding system unless there are substantial alterations to the proposals. Putting back own client work into the equation and allowing more flexibility on the number of firms permitted in procurement areas will be two prerequisites to a workable system.