By Lucy Welsh
You may or may not be aware that 
15th October 2015 marked another step towards the end of an approximate two year battle between criminal defence service providers and the Ministry of Justice’s Legal Aid Agency. It is a day that many practitioners are likely to remember as effecting a huge blow on the ability of people to access justice if they are unfortunate enough ever to be caught up in the criminal justice process – be it as a victim, witness or defendant.
In May 2013, I wrote a blog piece for Human Rights in Ireland which set out the government’s initial proposals for transforming the provision of publicly funded criminal defence representation. Since that time, the initial proposals have been amended to remove a price competition element, there have been numerous protests against the funding cuts and lawyers participated in a ‘work to rule’ protest to try and highlight how proposed changes have the effect of eroding access to justice. Criminal defence practitioners even went so far as judicially reviewing the new contracting procedures, and did so with some success as the High Court announced that the consultation process had been flawed (The Queen on the application of London Criminal Courts Solicitors Association and Criminal Law Solicitors Association -v -The Lord Chancellor [2014] EWHC 3020 (Admin)).
Despite the many concerns raised by many groups, the Ministry of Justice remained committed to the new contracting procedure, which saw firms being invited to bid for two different types of contract to continue providing publicly funded criminal defence services. ‘Own client’ work is conducted when an accused person requests the services of a particular lawyer or firm of lawyers. Duty solicitor work is conducted when people do not know a specific solicitor they would like to instruct but need (often urgent) access to a lawyer; for example, if arrested and detained at a police station or if at court without a solicitor. Both types of work were previously conducted under a single contract granted to a firm who met the required standard of competency. The new regime required firms to make separate bids for contracts to provide their services; an ‘own client contract’ and a ‘duty provider contract’.
No restrictions have been placed on the number of own client contracts awarded, and many firms made successful bids. However, significant restrictions have been placed on the ‘award’ of duty contracts. Those restrictions will reduce the number of firms able to provide such services from approximately 1600 to approximately 500 – a reduction of just under 75%. In Kent, 43 bids were made for just seven available duty contracts.
The bidding process has been onerous and drawn out. Any firm who made even a technical error or submitted their bid just out of time was automatically disqualified. The bidding process required firms to provide both short and long form answers to a number of questions and points were awarded to firms on the basis of those answers. The top scoring firms were awarded contracts. The questions largely related to capacity to deliver services and some recognition that firms had at least some experience of providing a range of criminal defence services. Beyond requiring firms to obtain an externally awarded accreditation of management procedures (at the firm’s own cost), there seemed to be very little focus on the quality of service provision in the questions asked.
In return for their diligence in completing detailed and extensive applications on time, firms have been subject to delayed and piecemeal disclosure of results. As if that was not stressful enough for the parties involved, a whistle-blower from the Legal Aid Agency has raised concerns about the way in which the applications were assessed. In an article in the Law Society Gazette, a former bid assessor has made a number of claims which amount to an allegation that the assessment process has been far from fair. The allegations include reports that the assessors were not suitably qualified or trained, that there was an insufficient number of staff available to conduct the assessment of answers with quality, and that the timetable for the bidding and assessment process did not allow sufficient time for proper consideration to be given to all of the answers submitted. He further alleges that practices were so poor that the Cabinet Office became involved. The Legal Aid Agency denies the allegations and pursued its decision to announce the successful bidders on 15th October, already later than the original planned release date at the end of September.
So, on Thursday 15th October 2015, as hundreds of firms across England and Wales nervously awaited news from the Legal Aid Agency, further reports of problems began to emerge. Firstly, there was the incredibly slow release of information to firms. Everyone was supposed to receive their notifications by 5.30pm but results were still trickling in late into the evening. Kent received its results at about 9pm. Additionally, social media was awash with reports of at least one firm being offered contracts in areas where they had not bid for work, of contradictory feedback that seemed to be ‘cut and paste’, and of another firm being scored down because they had not mentioned delivery partnerships arrangements (more than one firm combining to provide services) when such arrangements were non-existent because the firm had made an application in its own right. Understandably, solicitors have increasingly lost faith in the fairness of the procedure.
As I write this just one week later I see solicitors commenting on social media that there have been no winners, and that further strain and uncertainty is yet to hit the already creaking criminal justice system. The Law Society has called for the Ministry of Justice to formally address the concerns raised by the whistle-blower. Bindmans (specialists in human rights law and public authorities’ powers) are offering advice on the crime contracting procedure, which their website describes as ‘mired in controversy from the outset’.
I don’t yet know whether 15th October really did mark the end of the battle or whether further challenges to the procedure will follow. The Law Society has advised firms that any applications for injunctions need to be lodged by Friday 23rd October. What I do know is that many intelligent, well respected and hardworking lawyers feel frustrated and under acknowledged by the very government agency which is supposed to be conscious of rule of law.