Authors:Steve Hynes
Last updated:2023-09-18
As battle over duty contracts returns to court, the agony and uncertainty for all criminal firms goes on.
With two-thirds of bidders losing out in the criminal legal aid duty tender round, some litigation was always going to be inevitable. What the government appears not to have anticipated, though, is the sheer number of cases being brought and, more importantly, the risk that the entire duty tender policy might be blown out of the water by a flawed procurement process.
Challenges under procurement law have been brought in 69 out of the 85 tender areas. There are over 100 individual cases, along with a judicial review that has been launched by a group of 44 firms. The Ministry of Justice responded last month by applying to the Technology and Construction Court for a group litigation order. The court decided instead to order that eight lead cases should be selected, five by the applicants and three by the MoJ, and that once selected the lord chancellor should enter his defence to these within 21 days.
Stuart-Smith J, the judge in the cases, also ordered disclosure of the Guidance for Assessors, along with the documents relating to the marking and moderation process for the five cases selected by the applicants. This gets to the heart of the matter. It is safe to assume that the firms will try to select five cases to demonstrate that the government has failed to follow its own procedures in arriving at the firms to which it awarded tenders and that this invalidates the whole process.
Various accusations around inconsistencies in the selection of firms for the duty contracts are swirling round the legal aid village. For example, it’s alleged that a firm in the north was marked down for not explaining how it would supervise its delivery partner. The person marking the bid, though, had failed to spot that the firm did not have a partner in the relevant bid zone.
Challenges under procurement law have been brought in 69 out of the 85 tender areas. There are over 100 individual cases, along with a judicial review that has been launched by a group of 44 firms.
There have also been dark mutterings of some firms being favoured over others that have been more vociferous in their opposition to the two-tier system of own client work and duty contracts. Of course, such rumours could just be seen as the usual grist to the mill of losers’ post-tender griping, but what gives them more credibility is the emergence of the whistle-blowers from within the Legal Aid Agency.
Freddie Hurlston is scathing in his criticism of the LAA, accusing it of using insufficiently qualified staff to assess the bids and flawed procedures, as well as not allowing sufficient time to undertake the process. Hurlston is very much the gamekeeper turned poacher in this story, as he was engaged by the LAA to help with assessing the bids, having previously worked for its predecessor organisation, the Legal Services Commission, as the head of criminal justice system initiatives. He might be open to the charge of having a conflict of interest, as he is now working with DG Legal, a firm of consultants that is assisting solicitors in bringing cases against the LAA, but his account of failings in the tender process is also supported by a second former temporary worker at the LAA, Paul Staples.
Uncertainty seems to be the only certainty in the duty tender process. The pending litigation might not be resolved in time for the delayed April start date for the new contracts (see News, page 7), leading to a further postponement of the contracts.
There are many factors in the balance, such as whether the lead case strategy will result in a definitive judgment. If flaws are found in, say, three out of eight tenders, is this sufficient evidence to show a systemic problem with the process? The three cases might all contain material errors, such as an assessor missing that the applicant did not have a delivery partner in the relevant bid zone. It might be open for the LAA to argue it got it right in over 95 per cent of cases and just needs to rerun the process in the areas in which it made errors in marking.
If the government is forced to abandon the duty tenders, the victory for firms might be short-lived. It should not be forgotten that the two-tier policy emerged after solicitors, led by the Law Society, successfully fought off plans for price-competitive tendering for duty contracts under the last government. If they were defeated in the current litigation, I wouldn’t rule out a return to PCT by the politicians. Whatever happens, it will not reverse the twin factors of falling volumes of work and fee cuts that are forcing many good firms out of criminal legal aid. Adapt and survive, page 12.