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Justice before cost-cutting
In a welcome move, the government delayed its plans to call for tenders for duty solicitor work in police stations and magistrates’ courts at the end of July. Practitioners will now be invited to submit tenders in October for contracts expected to commence in July next year (see page 4 of this issue). LAG believes, though, that many criminal defence firms will be forced out of business whether or not the tenders go ahead.
Criminal solicitors are split over whether or not concessions made by the government to drop price competitive tendering (PCT) and to allow own client contracts were meaningful. LAG believes that if the government had stuck to its original plans, published in April 2013, of running a competitive tender for duty rotas, many firms would not have got a contract and would have gone to the wall quickly. Own client work at least gives firms the option of running down their work gradually and the opportunity to stay in the system, albeit facing the challenge of finding new clients without access to the duty rotas.
By dropping PCT, the government has perhaps created the biggest potential pitfall for itself, as the Ministry of Justice (MoJ) tenders based on price possibly offered the most objective way of choosing between firms that otherwise might be equal on criteria such as quality and resources. Finding a fair process to differentiate between bidders may yet prove the Achilles’ heel of the tender process.
The government plans to limit the number of duty contracts in each area, but firms bidding to provide contracts might vary enormously. LAG can envisage, for example, a large firm with a relatively small criminal law department seeking to expand by applying for a duty contract. It might have a better balance sheet, as well as better IT and other resources, but it would have less of a proven track record than a smaller, specialist criminal firm. Evaluating tenders in such a situation looks like an exercise in comparing apples and oranges, and is an open invitation for losers to litigate. The judicial review pending on the tender might therefore be the first of many (see page 4 of this issue).
It is a fiendishly complicated business to design the tender process, and the delay might well be motivated by the MoJ simply buying itself more time to grapple with this problem. However, even if the plans are dropped and there is a return to the status quo in which firms try to maximise their number of duty slots, a reduction in criminal legal aid firms still seems inevitable, as the real story here is the falling levels of work and the reasons behind this.
The reduction in cases is reflected in the tender information published by the government for each bid zone. For example, in Essex, fixed fee duty solicitor cases fell from 7,248 in 2010/11 to 6,517 in 2012/13.
1See Table 1 at: www.justice.gov.uk/legal-aid/contracts-and-tenders/tenders/2015-crime-tender. Of course the criminal justice system does not exist to provide criminal lawyers with a living. Property-related crime levels are falling, and factors such as better security measures, for example, the increased use of immobilisers in cars and a reduction in drug use, have played a part in this. Although welcome, a decline in the levels of such crime is not the whole reason for falling levels of work. If it was then LAG would argue that firms closing, while unfortunate for those working in them, was the result of progress and should be welcomed without qualification. However, summary justice procedures and the trend to bring lesser charges than might be appropriate, or to not prosecute at all, seem to have contributed significantly to the falling volumes of criminal cases.
It may be inevitable that over the next few years many criminal defence firms will fold. LAG’s main concern is how much of this reduction will be caused by falling crime levels, as opposed to changes in the criminal justice system which are driven by the priority to cut costs.