MoJ unveils tendering plans for criminal defence

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Defendants will lose the right to choose their lawyer and instead be allocated a representative, under government plans to introduce price-competitive tendering (PCT) for criminal defence services.

Details of the proposed PCT model were published for consultation today, together with a raft of other measures designed to cut £220m from the £1bn annual budget for criminal legal aid.

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PCT will be introduced for all criminal legal aid service, except Crown court advocacy and very high-cost cases (VHCCs). The paper says there is a ‘strong argument for including Crown court advocacy in the scope of competition’, but that the Ministry of Justice is not ‘minded to do so’ currently, as the bar is not in a position to participate in the process.

The paper reveals that contracting with a single national provider was one of the four options considered by the MoJ, but this was ruled out.

Instead, the MoJ will run tenders in 42 national areas and firms will submit bids based on volumes of work for three-year contracts, though their length may be extended by a further two years. The number of providers will be reduced from 1,600 to around 400.

Providers could be individual organisations, such as partnerships or legal disciplinary practices, as well as joint ventures or alternative business structures.

Applicants will be able to deliver services in more than one procurement area and those that are successful will be awarded an equal share of work in the procurement area.

Clients will generally have no choice in the provider allocated to them at the point they request advice and will be required to stay with that provider for the duration of their case, save in exceptional circumstances.

The paper says that the proposed competitive tendering model will result in consolidation of the market, but those providers with contracts will get access to greater volumes of work, giving them increased opportunities to ‘scale up’ to achieve economies of scale and provide a more efficient service.

Other proposals include:

  • Restructuring Crown court advocacy fees by paying the same rates to advocates irrespective of whether there is an early or a late guilty plea or a short trial, and reducing the use of more than one counsel for each defendant.
  • Reducing the amount spent on very high-cost cases by 30%. The paper says the Legal Aid Agency currently pays rates of up to £150 per hour for preparation and £500 per day for advocacy.
  • Reducing certain legal aid fees paid in civil cases and to experts.
  • Removing legal aid in prison law cases other than sentencing appeals.
  • Introducing a threshold for Crown court legal aid to stop wealthy defendants with an annual household disposable income exceeding £37,500 being automatically granted legal aid.
  • Introducing a residency test so that only those with a strong connection to the UK are able to receive civil legal aid.
  • Discouraging weak judicial review cases by tightening up the payment mechanism and only paying providers for work done on bringing a claim once the judge has agreed the case is strong enough to proceed.
  • Making it harder for claimants to use civil legal aid to bring speculative cases by tightening the test so that all cases must have at least a 50% chance of success to be funded.

Justice secretary Chris Grayling (pictured) said the proposals will ensure the best value for taxpayers’ money and improve public confidence in the legal aid system.

In the foreword to the consultation, Grayling said: ‘Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.

‘Unfortunately, over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.’

Law Society president Lucy Scott Moncrieff said introducing price competition is a ‘huge risk’ and will require a ‘huge reshaping of the way justice is delivered’.

She added that the government’s timetable for introduction is ‘completely unrealistic’ and warned that it could lead to miscarriages of justice, with defendents stuck in prison far longer than they should be on remand, witnesses not turning up, and cases not being properly prepared.

Scott-Moncrieff also voiced concern about a blanket ban on all recent immigrants receiving legal aid, saying: ‘Justice shouldn't depend on your status in the country, it should depend on your need.’

The Society gave cautious support to: the introduction of a threshold for Crown court work, so long as better-off defendants who are acquitted are able to recover their costs; and the reduction in money spent on VHCCs.

But it strongly opposes the changes to judicial review and the restructuring of Crown court advocacy fees to reduce the costs due to plea changes and late pleas.

A spokesman said: ‘It is not solicitors who plead, it is clients. Moves to increase rates for the least expensive advocates, who will include many solicitor advocates, are welcome, but we must be careful not to create false incentives to under-prepare for trials.’

On the removal of client choice, head of legal aid at the Law Society Richard Miller said: ‘Client choice is widely regarded as an important driver of quality in the justice system. It is very concerning, and revealing, that the government appears prepared to sacrifice this vital principle.’

Bar Council chairman Maura McGowan QC welcomed the decision not to introduce PCT for Crown court advocacy, but said the ‘swingeing fee cuts’ will hit the criminal bar exceptionally hard, and be a ‘bitter pill’ for publicly funded barristers ‘already at breaking point’.

The consultation ends on 4 June.

Last week the Law Society published an alternative consultation seeking solicitors’ views on PCT, the results of which will be fed into the Society’s response to the government’s paper.

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