The Ministry of Justice in London. Photograph: Getty Images
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How the Ministry of Justice’s proposal for the tendering of criminal legal aid is misconceived and illiberal

This is a flawed proposal which will have highly damaging effects.

The government has a contradictory approach to the legal profession.

On one hand, there appear no limits to its extravagance when the legal work is for particular issues hotly favoured by ministers. For example, the Home Secretary used taxpayers money to fund three QCs on successive hopeless appeals in the Qatada case. And the Chancellor of the Exchequer has, without any apparent public procurement exercise, hired City law firm Slaughter and May to provide advice on a business finance project  Remarkably, it appears the Treasury is even paying Slaughter and May for tax law advice on this particular project, even though there are over 120 tax lawyers already employed by HMRC.

In respect of the legal rights of the citizen, however, the government’s approach is very different. Not only is the government seeking to reduce the amount it spends on ensuring defendants in criminal matters have access to legal advice and representation, it is not even thinking its proposals through.

Take, for example, the Ministry of Justice’s current “consultation” on a scheme of “competitive tendering” for criminal legal aid.  To a large extent, the consultation is a sham, as ministers have already blithely decided that they are in favour of such a scheme in principle and, regardless of the consultation, that “competitive tendering” will be introduced within months. However, the government says that it wishes to consult on the proposed “model” for the scheme, which is just as well as the proposed model is about as misconceived as it could be.

The starting point is that government spends just over £1 billion every year on criminal legal aid. This provides for “litigation services” ranging from advising at the police station to preparing for trial. The budget also covers representation of the defendants in the (lower) Magistrates’ Courts and the Crown Court (for more serious offences). As it stands, there are some 1,400 “providers” of litigation services: mainly High Street solicitors.

There is pressure to cut the spend on criminal legal aid. The government’s proposal for “competitive tendering” for criminal legal aid is part of a group of proposals which are supposed to save £220 million a year over the next five years. This figure is, of course, plucked out of the air. No calculations have been published to justify the figure, even though there is a public interest in understanding how the savings will come about. There certainly has been no published explanation as to how the envisaged “competitive tendering” will actually lead to any concrete savings. The supposed benefit is simply asserted.

There is similar lack of thought in the proposal itself. A sensible procurement exercise sources the market for what is available and seeks suppliers accordingly. Any other approach can mean wishful thinking and unrealistic expectations. But the Ministry of Justice has said it cannot deal with 1,400 mainly small and medium sized service providers. This is deemed “inefficient”. So the government wants to create an entirely different supplier base for these services, one which does not even exist.  This is not an example of a Tory-led government wanting to “buck the market”; it is a government which wants to bulldoze an entire market square, in the hope that something more agreeable will suddenly appear in its place.

The 1,400 current providers of litigation services for defendants in criminal cases will be cut by one thousand. This means that a thousand solicitors’ firms on High Streets throughout England and Wales will suddenly cease being able to act for defendants in criminal cases. Some of these firms may be able to join with other firms so as to carry on; but there is little doubt that most of them will close. And this is quite deliberate: the consultation paper reveals a government quite brazenly open in its intended attack on a whole sector of small and medium sized enterprises (SMEs).

One would perhaps not expect a Tory-led government, or a minister like Chris Grayling, to be so crushing of SMEs on this scale. But it is also an assault on localism and choice. High Street solicitors have unmatched experience in dealing with local criminal matters: they know the courts, the local probation services, the local barristers, and the local police. All this will be deliberately lost. 

The government is also proposing to remove the right of defendants to choose a defence solicitor from those providing legal aid. This is, of course, contrary to the reforms promoted by other social welfare departments, such as Health and Education, where the “client” is supposed to have “more choice”. The Ministry of Justice instead believes that the provision of legal services will somehow be more competitive by removing the ability of end users to choose their service provider.

Some may say that the destruction of SMEs, the abandonment of localism, and the removal of choice would all be worth it, if there could be a better system of criminal legal aid; these would be prices worth paying for better criminal justice. Unfortunately, however, the proposals do not even make sense on their terms. Here, there are four important points of concern about the proposal for “competitive tendering” for criminal legal aid.

First, the proposed scheme is flatly contrary to good procurement practice. What usually should happen is that the government “sources” the market, so to see what the market can provide. It then goes to the market with an offer which suppliers can meet. Here, the Ministry of Justice fully knows that there are few potential providers currently in place to realistically bid for the envisaged bulk contracts. Given this exercise is being done at speed, and to be completed within months, the government must also be aware that it is unlikely that suppliers will be able to combine in time so as to make realistic bids. In essence, therefore, the government does not actually know whether there will be sufficient suppliers in place for there to be any genuine competition for the contracts. This is not “competitive tendering”; this is uncompetitive tendering.

Second, the proposed scheme will have no criteria as to quality of services. The basis of the procurement exercise will not even be “best value” in any general sense. The procurements will be on price alone. Again, this goes against good procurement practice. Price-only procurements are appropriate for bulk buying of goods such as envelopes, but they are not appropriate for the purchase of complex services where the provider will be expected to undertake a range of different tasks over time. The government is wrongly treating the purchase of legal services as if it were the purchase of legal stationery.

Third, there is nothing in place if the scheme does not actually work. Grayling, an ambitious minister, wants to introduce this entire scheme at a stroke; a “big bang” approach. There will be no pilots and testing. It will either have to work or it will not. Wiser heads such as the current Tory Attorney-General Dominc Grieve are ignored. Grieve warned in opposition of a milder version of the current proposal:

‘We really should be concerned about the lasting damage that could be done if we’ve got this wrong. It could permanently damage the provision of criminal legal aid.’

It seems Grayling knows better. He wants to at speed destroy the current supplier base so to replace it with one which does not yet exist, regardless of any risk of permanently damaging the provision and quality of legal aid. 

But the fourth point of concern is perhaps the most serious of all. Any procurement exercise of this nature should have clear and detailed provisions for contract management. It is not enough to “let” the contracts and appoint suppliers. That is only step two of such an exercise, and certainly not the final step. Complex service contracts have to be actively managed; suppliers have to be monitored; and outcomes have to be assessed. Unless there is proper contract management of a public services contract, they are mere cash-cows by which taxpayers’ money is re-allocated to the capital funders of the successful providers.

There is nothing – nothing whatsoever – in the consultation paper on how these lucrative three to five year contracts will be managed once awarded. Given the enormity of the change being inflicted, this is at best irresponsible. Large providers which have bid only on price will have no on-going incentive to provide any services of a certain standard. And by the time the contracts will up for renewal, they will be cosy incumbents with no surviving competitors.

There are real questions to be asked about how best to spend a £1 billion annual budget. But the proposed scheme of competitive tendering is irrelevant. There is no reason to believe it will reduce costs and every reason to believe it will reduce the quality of services. In its rejection of choice and localism, and its attack on SMEs, one cannot even give it credit as a weapon of Tory ideology. It is merely an all-round stupid proposal which will have highly damaging effects.

Our criminal justice system really deserves better than this.

 

David Allen Green is legal correspondent of the New Statesman and a solicitor. He was from 2003 to 2005 a legal adviser on procurement and commercial matters at HM Treasury’s Office of Government Commerce. 

He is author of the Jack of Kent blog.

 

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Tony Blair might be a toxic figure - but his influence endures

Politicians at home and abroad are borrowing from the former prime minister's playbook. 

On 24 May at Methodist Central Hall, Westminster, a short distance from where he once governed, Tony Blair resurfaced for a public discussion. Having arrived on an overnight flight, he looked drawn and puffy-eyed but soon warmed to his theme: a robust defence of liberal globalisation. He admitted, however, to bafflement at recent events in the world. "I thought I was pretty good at politics. But I look at politics today and I’m not sure I understand it."

Blair lost power in the summer of 2007. In the ensuing nine years, he lost reputation. His business ventures and alliances with autocrats have made him a pariah among both the public and his party. A YouGov poll published last year found that 61 per cent of voters regarded Blair as an electoral liability, while just 14 per cent viewed him as an asset. In contrast, John Major, whom he defeated by a landslide in 1997, had a neutral net rating of zero. It is ever harder to recall that Blair won not one general election (he is the only living Labour leader to have done so) but three.

His standing is likely to diminish further when the Iraq inquiry report is published on 6 July. Advance leaks to the Sunday Times suggest that he will be censured for allegedly guaranteeing British military support to the US a year before the invasion. Few minds on either side will be changed by the 2.6 million-word document. Yet its publication will help enshrine Iraq as the defining feature of a legacy that also includes the minimum wage, tax credits, Sure Start, devolution and civil partnerships.

Former leaders can ordinarily rely on their parties to act as a last line of defence. In Blair’s case, however, much of the greatest opprobrium comes from his own side. Jeremy Corbyn inclines to the view that Iraq was not merely a blunder but a crime. In last year’s Labour leadership election, Liz Kendall, the most Blair-esque candidate, was rewarded with 4.5 per cent of the vote. The former prime minister’s imprimatur has become the political equivalent of the black spot.

Yet outside of the Labour leadership, Blairism endures in notable and often surprising forms. Sadiq Khan won the party’s London mayoral selection by running to the left of Tessa Jowell, one of Tony Blair’s closest allies. But his successful campaign against Zac Goldsmith drew lessons from Blair’s election triumphs. Khan relentlessly presented himself as “pro-business” and reached out beyond Labour’s core vote. After his victory, he was liberated to use the B-word, contrasting what “Tony Blair did [in opposition]” with Corbyn’s approach.

In their defence of the UK’s EU membership, David Cameron and George Osborne have deployed arguments once advanced by New Labour. The strategically minded Chancellor has forged an unlikely friendship with his former nemesis Peter Mandelson. In the domestic sphere, through equal marriage, the National Living Wage and the 0.7 per cent overseas aid target, the Conservatives have built on, rather than dismantled, significant Labour achievements."They just swallowed the entire manual," Mandelson declared at a recent King’s College seminar. "They didn’t just read the executive summary, they are following the whole thing to the letter."

Among SNP supporters, "Blairite" is the pejorative of choice. But the parallels between their party and New Labour are more suggestive than they would wish. Like Blair, Alex Salmond and Nicola Sturgeon have avoided income tax rises in order to retain the support of middle-class Scottish conservatives. In a speech last August on education, Sturgeon echoed the Blairite mantra that "what matters is what works".

Beyond British shores, political leaders are similarly inspired by Blair – and less reticent about acknowledging as much. Matteo Renzi, the 41-year-old centre-left Italian prime minister, is a long-standing admirer. "I adore one of his sayings,” he remarked in 2013. “I love all the traditions of my party, except one: that of losing elections."

In France, the reform-minded prime minister, Manuel Valls, and the minister of economy, Emmanuel Macron, are also self-described Blairites. Macron, who in April launched his own political movement, En Marche!, will shortly decide whether to challenge for the presidency next year. When he was compared to Blair by the TV presenter Andrew Marr, his response reflected the former prime minister’s diminished domestic reputation: “I don’t know if, in your mouth, that is a promise or a threat.”

The continuing attraction of Blair’s “third way” to European politicians reflects the failure of the project’s social-democratic critics to construct an alternative. Those who have sought to do so have struggled both in office (François Hollande) and out of it (Ed Miliband). The left is increasingly polarised between reformers and radicals (Corbyn, Syriza, Podemos), with those in between straining for relevance.

Despite his long absences from Britain, Blair’s friends say that he remains immersed in the intricacies of Labour politics. He has privately warned MPs that any attempt to keep Corbyn off the ballot in the event of a leadership challenge would be overruled by the National Executive Committee. At Methodist Central Hall, he said of Corbyn’s supporters: “It’s clear they can take over a political party. What’s not clear to me is whether they can take over a country.”

It was Blair’s insufficient devotion to the former task that enabled the revival of the left. As Alastair Campbell recently acknowledged: “We failed to develop talent, failed to cement organisational and cultural change in the party and failed to secure our legacy.” Rather than effecting a permanent realignment, as the right of the party hoped and the left feared, New Labour failed to outlive its creators.

It instead endures in a fragmented form as politicians at home and abroad co-opt its defining features: its pro-business pragmatism, its big-tent electoralism, its presentational nous. Some of Corbyn’s ­allies privately fear that Labour will one day re-embrace Blairism. But its new adherents would never dare to use that name.

George Eaton is political editor of the New Statesman.

This article first appeared in the 26 May 2016 issue of the New Statesman, The Brexit odd squad