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Changes to criminal legal aid

Published Thursday, May 12, 2016

On 28 January 2016 the Lord Chancellor and Secretary of State for Justice, Michael Gove, told the House of Commons that his department would no longer pursue the introduction of the ‘dual contracting’ scheme for the provision of criminal litigation services in England and Wales. He also announced the suspension of a second reduction in solicitors’ fees. The change in policy ended the long-running dispute between the Ministry of Justice (MoJ) and the legal profession over changes to criminal legal aid.

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Price competitive tendering proposed

In April 2013 the MoJ published the consultation paper Transforming Legal Aid: Delivering a More Credible and Efficient System. It set out a range of reforms to civil and criminal legal aid with the aim of saving around £220 million per year by 2018/19. Some proposals proved to be particularly controversial, not least the proposal for price competitive tendering of criminal legal aid services. Concerns were expressed that the proposals would undermine quality, lead to miscarriages of justice and put many firms out of business. The consultation closed in June 2013. Following much public debate, in July 2013 the then Lord Chancellor and Secretary of State for Justice, Chris Grayling, announced that the MoJ would hold a second consultation on revised proposals.

PCT dropped; 'dual contracts' pursued

In September 2013, the MoJ published, Transforming Legal Aid: Next Steps, setting out the proposals from its initial consultation with which it had decided to proceed and its revised proposals for the contracting of criminal legal aid services and the remuneration of Crown Court advocacy work. The revised contracting proposals no longer featured tendering based on price. Instead, contracts would be awarded based on provider capacity and quality.

The MoJ responded to the consultation in February 2014, setting out its final proposals for the contracting of criminal legal aid services and the remuneration of Crown Court advocacy work. Its final proposals featured a competition for a limited amount of contracts for Duty Provider Work (under which successful bidders would be contracted to provide a share of advice and assistance in police stations in a particular area) but would also allow qualified providers to take on an unlimited amount of Own Client Work. The MoJ said the proposals would help in achieving its aim of consolidating the criminal legal services market.

'So unfair as to be illegal'

The London Criminal Courts Solicitors Association (LCCSA) and the Criminal Law Solicitors Association (CLSA) forced a further consultation in September 2014 by successfully challenging the failure of the Lord Chancellor to publish or consult on the expert reports on which the MoJ had decided the limited number of Duty Provider Work contracts. Mr Justice Burnett upheld the claim for judicial review having found the Lord Chancellor’s decision making process ‘so unfair as to result in illegality’.

Duty provider tender and ensuing litigation

Responding to this consultation Chris Grayling announced the commencement of a tender process for 527 Duty Provider Work contracts. A further court challenge by the LCCSA and CLSA temporarily suspended the tender process but their judicial review was dismissed by the High Court, a decision upheld by the Court of Appeal.

On 15 October 2015 criminal solicitors learnt whether or not their bids had been successful. However on 14 October 2015 an assessor of the tender bids made a series of claims to the Law Gazette criticising the assessment process. The allegations were denied by the Legal Aid Agency (LAA). 99 separate legal challenges to the procurement process delayed the commencement of work under new contracts.

Abandonment of dual contracting plans

These contracts were abandoned altogether as a result of the new Lord Chancellor Michael Gove’s decision not to go ahead with the introduction of the dual contracting system. Criminal legal aid solicitors continue to work under now extended 2010 contracts. In June 2016 the Legal Aid Agency commenced a snap consultation on new criminal legal aid contracts with the Law Society, Bar Council, Legal Aid Practitioners Group and Advice Services Alliance and sought a further extension to the current ‘contingency’ contracts to 31 March 2017.

Commons Briefing papers SN06628

Author: Terry McGuinness

Topics: Criminal law, Legal aid, Legal profession

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