The Ministry of Justice in London. Photograph: Getty Images
Show Hide image

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.)

Getty
Show Hide image

How to end the Gulf stand off? The West should tell Qatar to reform its foreign policy

Former defence secretary Geoff Hoon on the unfolding crisis in the Gulf. 

Only one group stands to benefit from a continuation of the crisis in Gulf: The Quartet, as they are now being called. Last week, The United Arab Emirates foreign minister tweeted that Qatar and its Gulf Cooperation Council neighbours are heading for a "long estrangement". We should take him at his word.

The European political establishment has been quick to dismiss the boycott by Saudi Arabia, the UAE, Bahrain and Egypt as naïve, and a strategic mistake. The received wisdom now is that they have acted impulsively, and that any payoff will be inescapably pyrrhic. I’m not so sure.

Another view: Qatar is determined to stand up to its Gulf neighbours

Jean-Yves Le Drian, France's foreign minister, was in the region over the weekend to see if he could relay some of his boss’s diplomatic momentum. He has offered to help mediate with Kuwait, clearly in the belief that this is the perfect opportunity to elevate France back to the top table. But if President Emmanuel Macron thinks this one will be as straightforward as a Donald Trump handshake, he should know that European charm doesn’t function as well in the 45 degree desert heat (even if some people call him the Sun King).

Western mediation has so far proceeded on the assumption that both sides privately know they will suffer if this conflict drags on. The US secretary of state Rex Tillerson judged that a Qatari commitment to further counter-terrorism measures might provide sufficient justification for a noble reversal. But he perhaps underestimates the seriousness of the challenge being made to Qatar. This is not some poorly-judged attempt to steal a quick diplomatic win over an inferior neighbour.

Qatar’s foreign policy is of direct and existential concern to the other governments in the Gulf. They will not let Qatar off the hook. And even more than that, why should they? Qatar has enormous diplomatic and commercial clout for its size, but that would evaporate in an instant if companies and governments were forced to choose between Doha and the Quartet, whose combined GDP is almost ten times that of their former ally. Iran, Turkey and Russia might stay on side. But Qatar would lose the US and Europe, where most of its soft power has been developed. Qatar’s success has been dependent on its ability to play both sides. If it loses that privilege, as it would in the event of an interminable cold war in the Gulf, then the curtains could come down.

Which is why, if they wanted to badly enough, Le Drian and Tillerson could end this conflict tomorrow. Qatar’s foreign policy has been concerning for the past decade. It has backed virtually every losing side in the Arab world, and caused a significant amount of destruction in the process. In Syria, Libya, Egypt and Yemen, Qatar has turned a blind eye to the funding of Islamic revolutionaries with the financial muscle to topple incumbent regimes. Its motives are clear; influence over the emergent republics, as it had in Egypt for a year under Mohamed Morsi. But as we review the success of this policy from the perspective of 2017, it seems clear that all that has been achieved is a combination of civil unrest and civil war. The experiment has failed.

Moreover, the Coalition is not going to lift sanctions until Doha suspends its support for the Muslim Brotherhood. When Western leaders survey the Gulf and consider who they should support, they observe two things: firstly, that the foreign policy of the Quartet is much more aligned with their own (it doesn’t seem likely to me that any European or American company would prefer to see a revolution in Dubai instead of a continuation of the present arrangement), and secondly, that Qatar would fold immediately if they applied any significant pressure. The Al Thani ruling family has bet its fortune and power on trans-Atlantic support; it is simply not credible that they would turn to the West’s enemies in the event that an ultimatum was issued. Doha might even welcome an excuse to pause its costly and ineffective programmes. Even if that involves some short term embarrassment. It is hardly going to lose support at home, with the highest GDP per capita in the world.

It would be necessary to make sure that the Coalition understands that it will have to pay a price for decisive Western intervention. The world will be a more dangerous place if our allies get the impression they can freely bully any smaller rival, knowing that the West will always come down on their side. That is however no great hurdle to action; it might even be a positive thing if we can at the same time negotiate greater contributions to counter-terrorism or refugee funding.

Unfortunately the reason why none of this is likely to happen is partly that the West has lost a lot of confidence in its ability to resolve issues in the Middle East since 2003, and partly because it fears for its interests in Doha and the handsome Qatari contributions in Western capitals. This cautious assessment is wrong and will be more harmful to Qatar and the aforementioned interests. The Quartet has no incentive to relent, it can’t afford to and will profit from commercial uncertainty in Doha the longer this drags on. If the West really wants this to end now, it must tell Qatar to reform its foreign policy or face sanctions from a more threatening ally.

Geoffrey Hoon was the UK defence secretary from 1999 to 2005.  

0800 7318496