A consultation process forced on the government by the loss of a judicial review on the proposed tendering system for criminal legal aid duty contracts ends tomorrow (15th October 2014). LAG argues that the Lord Chancellor, Chris Grayling, can ill afford to ignore the results of this consultation or, the findings of the reports which led to the decision in the judicial review   Everyone in the criminal legal aid system seems to agree that the main problem faced by criminal legal aid firms is the reduction in the numbers of cases in both the police station and magistrate’s courts. The falling crime rate is the main reason for this and it means that there is insufficient work to go round and some consolidation in the market is necessary to ensure sufficient volumes of cases for the firms which remain to be viable.   Grayling wants to force the pace of change in criminal legal aid, which has seen a growing number of mergers and closures of businesses over recent years, by introducing a tendering process to reduce the number of firms holding duty contracts from around 1600 to 525. He could come unstuck, as the recent judicial review turned on the government’s failure to allow for a consultation on the findings of the expert reports it had commissioned on the criminal legal aid market.   Both the reports by  Otterburn and KPMG question whether the government plans are workable. The Otterburn report, which was commissioned jointly with the Law Society, among other findings, suggests that the fee reductions which the government is implementing should not take place before the market has had chance to consolidate. KPMG is sceptical that firms can achieve the necessary investment to scale-up to undertake the contracts and questions the long-term stability of the market.   The KPMG report is also based on some very broad assumptions. The most tenuous of which is the view that firms which are successful in bidding for duty contracts will give-up up to 50% of their clients to other firms, including the majority who retain own client work contracts, but who did not succeed in obtaining one of the 525 duty contracts. Anyone with any knowledge of the criminal legal aid market will confirm that solicitors simply do not work in this way, as they tend to want to retain the clients they see on the duty rotas.   Tendering for criminal legal aid work is a policy itch which successive governments have insisted on scratching. Labour had to abandon its plans for best value tenders in July 2009. Grayling would face a similarly embarrassing climb-down if he ignores the findings of these reports and the consultation, as he risks finding himself teetering into the legal definition of irrationality if he does so. This might well force a court in a further judicial review to declare his plans for duty tenders illegal under UK administrative law and/or, in breach of the principle of proportionality in European law.   LAG is suggesting that the MoJ should decide to pause the tender process in order to quantify the impact of the fee changes, which will total 17.5% by next year, on the criminal legal aid market. If this happens representatives of providers could use this an opportunity to negotiate with the government to plan a system that deals with the continuing decline in criminal legal aid work.