Yesterday the Legal Services Commission (LSC) lost the judicial review which the Law Society had brought against it over the result of the family tender. It is important to note that the court only quashed the family contracts, ie, family, family and housing, children only and child abduction. The LSC now has to extend the existing family contracts and decide if it wishes to re-tender the contracts. It will make an announcement on 6 October about what it intends to do.

 

The judgment turned on the selection criteria for family contracts. Practitioners were not informed until the tender documentation was published in February this year that they would score more points if they held membership of both the child protection and domestic violence panels. Membership of these panels proved crucial in deciding whether to award firms contracts. In his oral judgment yesterday, Lord Justice Moses said that the LSC could '… provide no rational basis for denying a case-worker the opportunity to apply to both panels'. In his view the effect of the late notice of the criteria was to 'unfairly and arbitrarily reduce the number of family law suppliers'.

 

Linda Lee, Law Society president, deserves praise for the leadership she has offered on this issue. She and senior officials at the Law Society were under considerable pressure due to the differing opinions on whether the outcome of the tender round should be challenged. In LAG’s view they called it right, by fighting the case on access to justice grounds. While the judgment of the High Court centred on the unfairness of the tender process and not access to justice, reinstating many practitioners, especially the child protection specialists, to the legal aid system can only benefit many vulnerable families and children.

 

Hovering over the proceedings was the spectre of the comprehensive spending review. Indeed Lord Justice Moses referred to this in an aside, observing  that 'there might be no legal aid next month', while the parties were debating what order the court should make. In LAG’s view what the LSC and the government (which now calls all the shots on legal aid policy) should do is extend the family contracts for two years. Within a year they should make a decision on what they want after these two years and tell practitioners so that they have time to adapt. What has to be learnt from this debacle is to give fair notice of processes and selection criteria when designing tenders.

 

At least ten other judicial reviews are pending around the civil bid round and so it will be some time before there can be absolute certainty on the way forward. However, LAG does not believe anything can be gained from delaying the rest of the non-family civil contracts. Legal aid providers need the security of having new contracts for at least two, if not the full three, years and the public need the certainty of knowing that legal services are going to be there for them in the difficult times ahead.