Practitioners say that they are against competitive tendering for criminal legal aid as a matter of principle. Many public services though, from running doctors’ out-of-hours services to transporting prisoners, are subject to competitive tenders. Arguing that an exception should be made for criminal defence therefore cuts no ice with the political establishment.

If the profession succeeds in fighting off this latest attempt to introduce PCT, it is easy to predict what will happen. As a starting point, fees would still be slashed. In areas in which there were too few firms to provide a service the government would offer better rates, while in areas with more suppliers it would continue nibbling away at fees, reducing them to the lowest rate the market would stand. The result would be the same, but would be strung out for a while longer than the few months in a PCT system.

For now at least the government has decided to keep advocacy in the Crown Court out of price competition. It says that this is because the Bar is not ready to tender for work. LAG suspects that in reality it is trying to buy off opposition from the Bar, which because of its size and specialist skills in complex cases is much better placed to organise a boycott or strike in Crown Court and higher court cases. One of the most disingenuous parts of the document is the government’s claim that it wants to ‘preserve an independent Bar’. Such would be the impact of the fee changes and competitive tendering in the magistrates’ court and less complex Crown Court work, that the junior ranks of the Bar would be impoverished and the trend for solicitors to provide advocacy services in-house would continue, leading to a gradual withering of the new talent which is essential for the long-term health of the criminal Bar.

What is proposed in the document is pretty much a blunt instrument to reduce a service of a diverse range of firms competing for clients to a 400-strong public defender service in which lawyers are assigned randomly to cases. Governments of all political hues are keen to promote the idea of choice in public services as an appeal to a consumerist electorate. Often the reality is that there is no real choice when it comes to picking a school, consultant surgeon or other service. The point of choice in the Criminal Defence Service is that it is the best safeguard on quality that we have. It is not perfect, but it works in ensuring that solicitors willing to stand up and defend their clients’ interests in often intimidating circumstances are successful.

The last government came close to introducing competitive tendering for criminal defence services. Its proposed system was predicated on the basis that firms would take a price cut if they were guaranteed a greater volume of work. The scheme that is being consulted on offers a reduced amount of work for many firms, for which they have to compete on price at a starting rate 17.5 per cent below what they are paid currently. Such is the hideousness of what is being suggested, no firms can see any commercial advantage in breaking ranks and bidding for contracts. This fact, combined with potential legal challenges, might act to defeat the government’s current plans (see page 4 of this issue). However, LAG believes that if a de facto price competition by successive fee cuts is to be avoided, a deal between the professions and the government has to be struck. We believe that the Lord Chancellor has no particular ideological commitment to PCT; his only priority is to save the money the Treasury demands. An agreement that keeps the present system and gives some stability to providers could be arrived at therefore so long as concessions on fees can be agreed.