Lord McNally, the minister with responsibility for legal aid, has announced a decision to 'accelerate' the timetable to introduce competitive tendering for criminal legal aid. The government wants to save cash, but LAG asks can it succeed where the last government failed, as designing a tender system will be complex with no guarantee of savings?

 

In a written parliamentary statement, Lord McNally has brought forward to next month the consultation on competitive tendering, which was originally scheduled for this autumn. The government is planning for the first tender round to open in the autumn. The last government was close to introducing competitive tenders for police and magistrates' court work, before deciding to abandon its plans in July 2009. It is unclear from the statement published today if the government will roll out tenders in all areas at the same time or go for a phased approach. Such is the diversity in the size and work which solicitors' firms specialise in, a consensus on what would be the best way to design the tenders is unlikely to be reached. A good many, perhaps a majority, of the solicitors LAG talks to want larger contracts which include all criminal work, as it is the Crown and higher courts work which they say is the most lucrative, but this would not be in the interests of most barristers.

 

Much of the expenditure in criminal work goes on Crown Court and other higher courts cases. In 2011/12, £700m was spent on these cases, while £240m was spent on cases in the magistrates' courts and £170m on police station advice. The volume of cases has been dropping in the police station and magistrates' courts with 541,314 cases funded for defendants who were charged last year, down from 581,487 in the previous year (2010/11). The volume of cases in the higher courts has stayed the same at around 280,000.

 

Lord Chancellor and Secretary of State for Justice, Chris Grayling, has been stepping up the rhetoric about the costs of criminal legal aid and barristers in recent weeks. This might be a sign that he is ready to introduce a single fee for legal aid in Crown and other higher court cases. This would leave barristers having to negotiate with solicitors over their fees and might mean more solicitors relying on advocates employed within their firms, cutting out the independent Bar altogether.

 

Andrew Keogh, a solicitor and well-known commentator on criminal legal aid, believes large firms desperately need the volume in criminal legal aid cases which competitive tenders would bring. He has also predicted the continued downward pressure on fees will lead to increased competition between solicitors and the independent Bar.*

 

The consultation on the government’s plans will be published next month (April) and according to Lord McNally’s statement this is scheduled to last eight weeks. It is likely that the Bar will push to separate out the different levels of work, which would be against the interests of many firms of solicitors. The size of the contracts eventually awarded both in terms of the number of cases and the geographic spread of the tenders will be important factors in determining the pattern of criminal legal services in the future.

 

Both solicitors and barristers specialising in criminal law argue that there is little left to squeeze out of the market in cost savings, as they have faced a series of fee cuts under successive governments. Some savings might be possible if the government is bold and goes for large contracts which cover all criminal law services, but this risks a potentially damaging reconfiguration of the market squeezing out many smaller solicitors' firms and a confrontation with the Bar, with no guarantee that any savings will materialise.

 

* see Steve Hynes, Austerity Justice, LAG, 2012, p90.