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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Owen Smith interview: “I’m pretty red”

The Labour leadership challenger is struggling to win over a left suspicious of his past. 

The south Wales valleys embody the history of the labour movement: its victories, its defeats, its heroes, its villains. It was this resonant location that Owen Smith chose for his speech on the morning of 22 August. Labour Party members had that day begun voting on whether the 46-year-old Pontypridd MP should replace Jeremy Corbyn as their leader.

“Our history, our party was literally hewed from the hillsides around where we sit today,” Smith told a small audience at the Ely Valley Miners Welfare Club in Tonyrefail, a short distance from his home. The Welshman cited the Taff Vale judgment of 1901, which ruled that trade unions could be sued for losses caused by industrial action. It was this decision that spurred on the establishment of a Labour Party in parliament to repeal the law (as it would do in 1906 in alliance with the Liberal government).

Smith spoke later of marching with miners from the Maerdy Colliery as a 14-year-old, on the day they returned to work at the end of the 1984-85 strike. “I saw that they were utterly unbowed,” he recalled. “But they were ultimately defeated.”

Such moments, he concluded, proved the need for Labour to win power and to maintain “a powerful voice in parliament” – something he believes Jeremy Corbyn is incapable of providing. On 28 June, less than a year after Corbyn’s landslide victory, 172 MPs (81 per cent of the Parliamentary Labour Party) endorsed a no-confidence motion in him. Sixty-five shadow ministers, including Smith (who was then the shadow work and pensions secretary), resigned from the front bench.

Yet though Smith enjoys the overwhelming backing of the PLP, few believe he will prevail among members. He achieved only 53 constituency nominations, against the leader’s 285. On social media, where internal party contests are increasingly decided, Smith’s reach is minuscule compared to that of Corbyn (who has 795,000 Facebook fans to his 14,000).

The day before Smith spoke in south Wales, he won the endorsement of Sadiq Khan, the Mayor of London and Labour’s most senior elected politician. He was subsequently also backed by the Scottish Labour leader, Kezia Dugdale. Neil Kinnock and Ed Miliband have trumpeted his cause. Yet Smith-supporting MPs fear that such declarations count for little. “It’s like the Remain campaign and the Archbishop of Canterbury,” one told me, suggesting that Labour members, like Leave voters, ”weren’t listening” to such grandees.

Corbyn’s allies and foes alike are already preparing for the aftermath of the leader’s anticipated victory. The former warn that rebel MPs put themselves at risk of deselection by members. In response, some have threatened privately to form a parliamentary breakaway group and bid for the status of the official opposition.

Smith, unsurprisingly, insists that he can win. “I think the CLP [Constituency Labour Party] nominations don’t truly reflect the views in CLPs,” he told me when we spoke after his 20-minute address. The challenger, dressed in his favoured combination of dark suit and open-necked white shirt, welcomed the black coffee proffered by his aide. “They reflect the fact that some of the people who are new members and are supportive of Jeremy were very organised . . .

“Anybody who knows the Labour Party knows that selections are very often won by the sleepers: the people who don’t go to CLP meetings and don’t necessarily shout from the rooftops.” Smith’s hopes rest on those who share Oscar Wilde’s view: “The problem with socialism is that it takes up too many spare evenings.”

Cartoon: George Leigh

Smith first publicly revealed his leadership ambitions in an interview with me back in January. “It would be an incredible honour and privilege,” he said. I wrote then of a widespread view among Labour MPs that the next leader “will at least need to be from the party’s soft left to be acceptable to the party membership”. When the rebellion against Corbyn came, it was this consideration that proved decisive. Smith was embraced as a Miliband-esque socialist and a parliamentary “clean skin”, untainted by the New Labour years, having been elected in 2010. By contrast, his initial rival, Angela Eagle, had been an MP since 1992 and voted for the Iraq War.

However, Smith proved to have a more ambiguous past than some of his backers anticipated. Corbyn’s supporters swiftly unearthed a series of interviews from 2006 in which their opponent made a notably centrist pitch. Smith, then a by-election candidate in Blaenau Gwent, south Wales, defended Tony Blair (suggesting that they differed only over the Iraq War), supported private-sector involvement in the National Health Service and praised city academies. “I’m not someone, frankly, who gets terribly wound up about some of the ideological nuances,” he told Wales Online.

Since then, he has struggled to reconcile these positions with his increasingly left-wing programme: opposing private provision in the NHS, returning academy schools to local authority control, banning zero-hours contracts and imposing a wealth tax of 1 per cent.

“To be honest, my opponents have extrapolated rather a lot in an attempt to brand me as a ‘Blairite wolf in sheep’s clothing’,” Smith told me. “Well, I’m nothing of the sort, I’ve always been a democratic socialist and I always will be. My views haven’t really changed at all, I’m someone who has been on the left of the party.

“My dad [the Welsh historian Dai Smith] is someone who’s been on the left of the Labour movement all his life. I’m someone who’s been surrounded by people who’ve been on the left of the Labour movement all their lives. It should come as no surprise that I’ve come out of that background and I’m pretty red. Because I am.”

Yet a former shadow cabinet colleague told me that Smith did not stand out as “a radical” in meetings: “The only time that I remember him becoming really animated was over further tax-raising powers for Scotland and the implications for Wales.”

What Smith believes in most, some say, is himself. The shadow chancellor, John McDonnell, described him as “one of the most ambitious career politicians I’ve met”. Others have dismissed him as a “Big Pharma lobbyist” because of his past as head of policy and government relations for Pfizer.

“I’m not ashamed that I had a life outside politics before I became an MP,” Smith told me. “Yes, I worked for Pfizer and I also worked as a BBC journalist and as an adviser to the last Labour government on the peace process in Northern Ireland.

“People don’t want career politicians – they want men and women who have had experience of working in business and in the different sectors that make up our economy. Critics may use it against me, but my time in business has helped me understand what’s wrong with it and how we can make it work better.”

Corbyn’s supporters, however, allege that Smith’s left-wing pledges would not withstand contact with centrist colleagues. The degree to which the challenger has rebutted this charge shows that he recognises its potency.

He has offered to make Corbyn party president or chair if he wins, to allow Corbyn to act as “a guardian of Labour’s values”. In his speech, Smith vowed to increase member influence by making conference votes binding on the leadership.

Throughout the 1980s, another soft-left Welshman, Neil Kinnock, struggled to assert authority as the hard left retained control of vital bodies. Smith’s proposals risk replicating this conflict. But he told me that he would respect Labour’s conference even if it endorsed stances such as Trident abolition (Smith joined CND as a teenager but later renounced unilateralism). “I do think in order to reassure members that, under my leadership, we would listen hard to them and act in accordance with their views, conference does need to become sovereign once more,” he said.

Tony Benn’s dream of internal democracy appeared to be within reach. I asked Smith whether he would support other reforms such as a reduced MP nomination threshold for leadership candidates (Corbyn allies have proposed a cut from 15 per cent to 5 per cent). “All of these things can be debated,” he told me. “I’m not sure it should be 5 per cent: I need to look at it when we get closer to it. But I am convinced that the left needs to be able to put up candidates in this contest, I’ve always felt that.”

Smith’s assertion is contradicted by a colleague who described him as having been “furious”, “apoplectic” when Corbyn made the ballot last year (he supported Andy Burnham’s campaign).

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Smith is less equiovcal over the mandatory reselection of MPs. “That would be a really retrograde step for the party,” he told me. “It would be an uncomradely way for us to do business.” He is critical of the Corbyn-aligned group Momentum, some of whose members are spearheading deselection efforts. “I fear an attitude within Momentum that they are a separate organisation and they shouldn’t be,” he told me. “It’s hard to argue that they’re loyal and supportive if they’re organising a bloomin’ great really in the same town at the same time in competition to the Labour Party” (the group will hold its own four-day conference alongside Labour’s in Liverpool).

Some of those close to Corbyn, such as John McDonnell, have unhesitatingly described themselves as Marxists (in 2006, the shadow chancellor named Marx, Lenin and Trotsky as his “most significant” intellectual influences). I asked Smith whether he believed Labour could encompass such views. “Yes, I think we’ve always been a broad church and there have always been people who’ve come from that tradition,” he replied. “There are two broad traditions: the extra-parliamentary tradition, that has always seen parliament as a compromise and parliamentary socialism as a compromise, from [the trade unionist and theorist] Noah Ablett here in south Wales with The Miners’ Next Step through to Ed Miliband’s dad [Ralph, a Marxist historian] ... and the mainstream social democratic tradition that I came from.”

He added: “We’ve had this battle in the Labour Party over the ages, haven’t we? Except now I think it’s more serious because there is a very real danger, with Labour at such a low ebb and politics fragmented more broadly, and so many more parties and so many options for people and such a lesser tribal attachment to the Labour Party, that we can’t afford those fractures.

"If we splinter, there’s lot of other places for people to put their vote.”

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Though they will not say so publicly, some of Smith’s supporters believe Labour would remain unelectable under his leadership. A former shadow cabinet minister told me that he was offering a “warmed-up Ed Milibandism, which was rejected by the voters”. Smith naturally contests this analysis. “I don’t think that we lost the last election because we were too left-wing,” he said. “The proof is that the Tories have engaged in all sorts of these policies ... Theresa May’s opening speech upon becoming leader was to talk about social injustice, economic insecurity, lack of security in the workplace. Labour values, Labour words in a Tory mouth, evidence that the broad story we’re telling about Britain is right.”

Smith said that, unlike Corbyn, he would resign if he became leader and lost a confidence vote by MPs. “Yes - I would [resign]. We are a party that believes in parliamentary democracy and, as such, it is only right that the leader commands the support of his or her colleagues in the Commons.”

Should Corbyn win the contest, as expected, Smith will not return to the shadow cabinet but act as “a loyal backbencher”.  He pledges to resist any breakaway: “I'm Labour, I've always been Labour and I will never stop being Labour," he said. 

Speaking of his fear that Corbyn would seek to remain leader even if the party lost the next general election, he said: “I’m deeply worried about it. I think he’s determined to hang on come hell or high water. And what does that say about him? ... I think he is more concerned with his version of the Labour Party being sustained and being victorious than he is with the Labour Party being victorious in elections. I think he is actually prepared to sacrifice unity and victory - two great words that have traditionally been emblazoned on Labour banners through the ages - in order to secure control of the party.”

The trouble for Owen Smith is that, for all his combative talk and appeal to the left, he is trapped between his past pragmatism and his present radicalism. 

Tony Benn, Corbyn’s late mentor, divided politicians into “signposts” and “weathercocks”: those who shape opinion and those who are shaped by it. He would have branded Smith a “weathercock”. Even if he wins, Smith risks being remembered not as a politician who resolved his party’s contradictions, but as one who embodied them.

George Eaton is political editor of the New Statesman.

This article first appeared in the 25 August 2016 issue of the New Statesman, Cameron: the legacy of a loser