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.)

Photo: Getty Images
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Meet the remarkable British woman imprisoned for fighting against Isis

The treatment of Silhan Özçelik shows how confused British policy towards the Middle East has become. 

Last week, a British court sentenced a woman to prison for attempting to join fighters in the Middle East. Silhan Özçelik, an 18-year-old from Highbury, London was sentenced to 21 months for her part in “preparing terrorist acts” under the Terrorism Act 2006. The judge called her a “stupid, feckless and deeply dishonest young woman”.  What all of this misses out is the most extraordinary fact: that Özçelik was not convicted for going to fight for the Islamic State, but for the Kurdistan Workers’ Party – better known as the PKK, one of the only effective and consistent opponents of Isis since the war began.

Volunteering to fight in foreign wars – so long as they are long ago enough – is a celebrated tradition in Britain. In the late 1930s, while the Spanish Republic battled on against a fascist coup led by General Franco, tens of thousands of volunteers from all over the world went to fight for the International Brigades, including 2,500 from the UK. They included future celebrities such as writer George Orwell and actor James Robertson Justice, and commemorative plaques and memorials can now be seen all over the country

Like the International Brigade volunteers, Özçelik allegedly volunteered to fight for an embattled state facing military defeat at the hands of a far-right insurgency. The combat units she might have joined have been the subject of moving portraits in the Guardian and even praise on Fox News. The PKK is a secular socialist organisation, with a streak of libertarianism and its own feminist movements. But because of its military opposition to the often brutal Turkish treatment of the Kurds, the western powers list the PKK as a terrorist organisation; and would-be heroes like Silhan Özçelik are detained as criminals by the British state.

On one level, what Özçelik’s conviction represents is a change in how the state relates to ordinary citizens who fight. In 1936, the rise of fascism was something on our doorstep, which was opposed most fervently not by official western governments but by ordinary folk, dangerous far left subversives and free spirited writers who sailed to Spain – often in spite of their own governments. In today’s wars in the Middle East, the state is absolutely determined to maintain its monopoly on the right to sanction violence.

What Orwell and other volunteers understood was that while western governments might promote values like liberty and deplore the rise of tyranny, they were also duplicitous and unreliable when it came to prioritising the defeat of fascism over the narrow interests of nation and profit. Then as now, western governments were  deeply uneasy about the idea of ordinary people taking up arms and intervening in global affairs, or deciding – by force – who governs them. If the Terrorism Act 2006 had applied in 1936, Orwell would surely have been arrested at Dover and sent to prison.

More pressingly for the current situation, the persecution of the PKK should make you think twice about the motivations and outcomes for military intervention in Syria. Cameron is on a march to war, and, following the Paris attacks, much of the political establishment is now lining up to support him.

At the same time, our court system is imprisoning and persecuting young women who try to take up arms against Isis. It is doing so at the behest not of our own national security, which has never been threatened by the PKK, but that of Turkey. Turkey’s military is actively targeting Kurdish forces, and has recently stepped up these attacks. There is a wealth of evidence, not least its behaviour during the recent siege of Kobane, to suggest that Turkey – Britain’s only formal NATO ally in the region – is tacitly collaborating with Isis in an attempt to defeat both Assad and the Kurds.

As the government rushes to war in Syria, much of the media attention will focus on Jeremy Corbyn’s awkward task of holding his anti-war line while persuading his party and Shadow Cabinet not to split over the issue. Others will focus, rightly, on the complexity of the situation in the region and the question of who western air-strikes are really there to support: is it Assad, the murderous dictator whose regime has itself been linked to the rise of Isis; Turkey, which is seemingly focussed entirely on defeating Assad and the Kurds; or the soup of organisations – including the Al-Qaeda franchise in Syria – which constitute the anti-regime rebels?

But Özçelik’s conviction should also raise a more fundamental concern: that the contradictions and complications that we are so used to associating with the Middle East lie at the heart of British and western policy as well. If the British state persecutes, rather than supports, the few secular and progressive organisations in the region who are fighting Isis, whose interests is it really serving? And if we don’t trust those interests, how much trust can we really place in it to act on our behalf in Syria?

You can sign a petition calling for Silhan Özçelik’s release here, and a petition calling for the decriminalisation of the PKK here.