The reports, by Otterburn Legal Consulting and accountants KPMG, both question whether government plans for tenders for police station and magistrates’ court duty work are viable. The government had planned to reduce the number of firms holding duty contracts from around 1,600 to 525, but the tender process was delayed by the judicial review (R (London Criminal Courts Solicitors’ Association and Criminal Law Solicitors’ Association) v Lord Chancellor [2014] EWHC 3020 (Admin), 19 September 2014), which found that the profession should have been given the chance to comment on the findings of both reports.

The Otterburn report, which was commissioned jointly with the Law Society, suggests that the fee reductions which Lord Chancellor Chris Grayling is implementing should not take place before the market has had the chance to consolidate. KPMG is sceptical that firms can achieve the necessary investment to expand to undertake the contracts, and questions the long-term stability of the market.

Management consultant and Legal Action columnist Vicky Ling, who co-authored the Otterburn report, told LAG that she was concerned about recent comments by Legal Aid Agency (LAA) commissioning and strategy director Hugh Barrett. Speaking at the Legal Aid Practitioners Group conference in October, Barrett suggested that the LAA intends to go ahead with the tenders, and that the only issue up for consultation is the number of contracts. ‘It would be a high-risk strategy to go ahead with the tender on that basis, as there are so many problems with the underlying model,’ warns Ling.

In its response, LAG suggested the government should delay the tender until the impact of the fee cuts on the process of consolidation that has already begun in the criminal legal aid market can be assessed. Ling believes that the government needs to conduct ‘further in-depth research to identify a robust and sustainable model’ of procurement for criminal legal aid.

Rhona Friedman, of the Justice Alliance, says that the ‘criminal defence community is holding its collective breath to see if there is a belated outbreak of common sense at the Ministry of Justice (MoJ)’. Friedman, a solicitor at Bindmans, says many practitioners have used their responses to the consultation to question the viability of the proposed tender model. She hopes that the MoJ will ‘back down gracefully,’ rather than allow the ‘head banging element’ in government to ‘persist in trying to force through a scheme which is so riddled with risk, paradox, complication and illogicality, that a further judicial review is highly likely’.

■ Vicky Ling, page 17 ■ LAPG conference report, page 6