Carolyn Downs, who took over as chief executive of the Legal Services Commission in March, gave an interview to the Gazette this week. It was her first media interview since taking over her role at the LSC. Here is what I asked her, and her full responses.How do you think the legal aid tender process went, and did it achieve the LSC’s aims?The LSC wanted to provide a quality and sustainable provider base, and the timescales the LSC were given to do that were for contracts starting in October 2010. So will we have achieved that by October 2010? I think the answer is yes.

Have issues arisen through the process that have provided concern to providers? Yes, there’s no denying that. Have there been some administrative issues and difficulties around the duty solicitor rotas? Yes.

What I’m aware of as a newcomer, and as someone who has come to this process late, is that all the different criteria that have been used in the various types of contract tenders were subject to consultation. My view is that the LSC bent quite considerably from its own original stated criteria to reflect the views of the provider profession. Some of the issues about which people are now expressing concerns came about as a result of the LSC bending to that pressure from the provider market in the first instance.

One of the criticisms I’ve heard is that there was not much consistency in the way the different tenders have been dealt with. That is because different approaches were taken to the individual tenders, partly because different provider markets are different, but also because we bent to pressure from the provider market.

For example, the mental health tender was not run as a competitive tender. If you enter into a process where anyone who meets the criteria is awarded a contract, and you have more people who meet the criteria than previously had contracts, then you are going to end up with a situation where there are more providers – it is the logical conclusion.

Clearly what nobody envisaged at the time – including the provider market and the Law Society, which pushed the idea in the first instance – was that providers would be prepared to diversify to the extent that they did.

Was the outcome of the family tender, where 46% of firms failed to get contracts, intended by the LSC and is it a desirable result?In many of the meetings I’ve been having with providers over the last few months, they have really been pushing the issue of quality. They’ve said the LSC needs to be injecting a higher level of quality criteria into the award of contracts.

Now the one set of contracts that did have a higher level of quality criteria in the tender process was family, and the outcome of that has been to reduce the provider base. I do not believe that was the stated intention of the LSC in going into the tender process, but that is the outcome of applying that criteria. And actually I absolutely agree with providers when they say we should be strengthening quality criteria.

When people ask the LSC to tender in a particular way, they need to be aware of the potential outcomes. What I would say is that we will have a provider market post-October 2010 that is well aware of the consequences of the criteria that have been applied this time round. And we and the Ministry of Justice will be well aware of the consequences of the different criteria that have been applied, and will be able to use that in the future.

You need to be very careful about becoming anti-competitive, and we need to abide absolutely by procurement law. Many of the things I’ve heard people say to me in the last couple of months have verged on the anti-competitive. So I would like us to really think carefully about the quality criteria we might apply in the future and the scoring we give to experience.

I understand that providers who have not got contracts will feel the result is undesirable. Any provider who feels that the criteria have not been applied properly can make an appeal. It’s very difficult for me to comment until we’ve gone through an appropriate appeals process.

What about the impact on clients – will it make it harder for some to access a solicitor?If we are assuring a higher level of quality, which is what the criteria applied sought to do; if we are assuring coverage in all areas geographically; and if we are assuring people have access to justice, then the logical answer to that is no.

We have said there must be a minimum of five providers in any procurement area, but just because there are only five providers it does not mean that there are only five people providing legal advice, or that they are doing it out of just five locations.

In family cases the telephone advice service we provide, which is available in both rural and urban communities, is as good if not better than the face-to-face advice that is given. Obviously some people will always need face-to-face advice, but the telephone advice service is very good indeed.

I’ve worked for 10 years in the most sparsely populated and most rural county in the country – Shropshire. I think we need to recognise that people in rural communities, just as they do in urban communities, largely have to travel to receive services. They travel to go to school; they travel to go to hospital; to the doctors and to court; and indeed they probably have to travel to go to see a solicitor too.

The new contracts are scheduled to start in October. Is that realistic given the reorganisation that some firms need to do before then, or will the timetable have to slip?It will be for the firms to tell you whether their timetables will slip. We have awarded contracts on the basis that people will have the staffing levels in place in time. If speculative bidders come forward, and through the verification process we do not feel they can recruit in time for the contracts to start, then we will have to deal with that accordingly. If we choose not to award a contract to them we will disperse those new matter starts.

Will the new contracts run for the full three years, or will they be terminated early following the government’s spending review?That is entirely a matter for the MoJ. We are putting contracts in place that enable amendments and for them to be terminated with six months notice, and everybody has tendered knowing that is the case.

The MoJ is doing a policy assessment of legal aid and ministers will make decisions on which they will consult. That will happen in the autumn, and for us to speculate in advance of the outcome of the consultation would be inappropriate.

What was the cost of the tender process?I don’t know accurately, but we’re assessing it and we will have to review it. It hasn’t cost resources over and above that which exists in the LSC. Our job is to undertake tender processes.

The amount incurred in undertaking such a large round of bids will not be inconsiderable. But one of the things that is very clear to me is that the LSC is actually a small organisation which administers a huge budget and it does not undertake that exercise in an extravagant fashion.

What happened with the duty solicitor rotas and what assurances can you give practitioners that it will not happen again?We were responsible for that being an entirely less than perfect piece of work. Quite frankly we are really sorry if we have caused disruption, upset and confusion for providers.

The timescale which we had for the crime tenders was extremely tight, and some of the checking and testing that we might have wished to do in advance of the rotas going out was condensed – so that’s our responsibility.

The information we were given by providers was not always correct. When we put the draft rotas together we realised the information was not correct. So we circulated it to providers on a completely open and transparent basis to try to get the right information.

For providers who have been adversely impacted by the amount of duty rota coverage in the first half of the new rota, we have committed to try to resolve that in the second half.For all the disruption and difficulties we’ve caused people we really are sorry.

We’re working on it now to make sure we are in a different place in advance of issuing the next rotas. Neither I nor anyone else here wants to go through that process again – it was not our finest hour.

It should be remembered that providers, the Law Society and the LSC worked together to resolve the issues, and most importantly clients were not adversely impacted.

What has it been like for you coming into this post at such a challenging time and how have you found the relationship between providers and the LSC?This job is without a doubt the most challenging job I’ve had, and I’ve done some very big jobs in the past. It’s nothing like anything I’ve ever experienced in my life. I’ve worked in local authorities dealing with the public and dealing with private sector providers on a daily basis. So I am used to challenge, I am used to criticism and I’m used to press coverage that is usually based on things that you don’t do well rather than the things that you have done well.

I have never quite experienced anything like I experienced coming here, where it would appear to be acceptable for people to talk to each other in a really rather adversarial, aggressive and inappropriate fashion. I make no comment as to whether this is coming from one side or the other – I think it is coming a bit from both. My own view is that if that’s the basis of a relationship then neither side will benefit.

So I see the need for providers and the LSC to engage more constructively and more openly. But it is very difficult to have open and engaged discussions with people who are constantly threatening to sue you.

I think we all need to reflect on that. Providers are saying to me ‘we want open and full involvement and engagement’, with which I agree. But if at the same time as making that statement they are threatening to sue you, it makes the very thing that they’re asking for almost impossible.

I’ve never found being rude to people helpful. I’ve never got what I wanted by being rude. And, quite frankly, people won’t get what they want from me by being rude.

Practitioners feel there is a lack of understanding within the LSC about how they operate. What is your view?A lot of the passion for legal aid that many providers feel is experienced by a lot of staff at the LSC. Many of the staff here are just as passionate about helping vulnerable people and championing the needs and requirements of the vulnerable. So we have a community of providers and a community within the LSC who have the interests of the same group of people at heart.

The sadness, therefore, is that we have an adversarial relationship. It is the adversarial part of that relationship which is reported on and talked about, as opposed to the many positive relationships that also exist.

Many practitioners feel they are not listened to by the LSC. What assurance can you give that they are listened to?I do get that, but I’ll give you a couple of examples of how I operate. Where people have raised issues in meetings with me about the specifics of how many new matter starts they’ve been allocated or not allocated and why, I’ve personally gone back into the organisation and found out, and tried to communicate back to them.

I think the only way we can change that perception is by being responsive to people’s concerns. Listening doesn’t always mean saying yes, but showing a responsiveness to concerns that are raised is important. There is nothing more disempowering to an individual than if they feel they have not been listened to.

I started off my working life in the most junior position at the lowest level of a local authority – at the counter of a library. I know exactly what it feels like to think that you have got good ideas and views that might make a difference, but management doesn’t listen. So I feel I have a real empathy with people who feel they’re not heard.

Providers frequently question whether the LSC is fit for purpose – is it?My view is that there has been a lack of investment in the infrastructure of the LSC, particularly around its investment in IT. The day-to-day dealings that many of the providers have with us are based around their use and assessment of those applications.

It would be unfortunate for anyone to have the view that this organisation does not have people working for it who are committed and capable. Like any other organisation some people are more committed and more capable than others.

The real issue is a lack of investment in our infrastructure in the past. It’s going to be challenging to find any quick fix while we are having to make overhead budget cuts.

But throwing money at a problem isn’t always the best solution, and out of challenging management situations you can sometimes end up with better results. One of the things I’m keen for us to do, as an organisation, is prioritise the things that matter to clients and providers, and to cut out some of the unnecessary, overly bureaucratic, and overly ambitious projects that we have had.

My task and the task of other senior managers is to simplify and de-bureaucratise some of our systems and be realistic about what we can deliver in terms of any new IT, processing and financial systems that we need going forward. And that is about ruthless prioritisation.

What is the future of the LSC?The previous and current governments want the LSC to be an executive agency of the MoJ, so that is the way we anticipate things will happen. As an executive agency you have your own management board with non-executives on it, but the chief executive’s line management accountability is within the MoJ. My line management accountability at the moment is the chair of the LSC. The real difference is purely related to the governance structure around commissioners or ministers. Policy will rest with the MoJ and policy officials there.

Does the fact that the LSC has been stripped of any policy-making function indicate how badly it has failed?I think it’s an artificial divide to say where policy begins and ends, because we really should be operating in a system where policy is informed by delivery, and delivery is informed by policy. To make a completely artificial divide is unhelpful. Where the two issues cross over on a daily basis is not always as clear as some people would like it to be.

In relation to the current policy assessment – for policy officials to undertake it without involving colleagues who are involved in the delivery of legal aid would not be a good idea. So there is a complete overlap between the two.

I think it would be wrong to talk about the failure of the LSC. When a relationship doesn’t work, there are always two different views why that has happened. What is important is not picking over it, but moving forward, and we’re now in a really good place where we’re working tremendously constructively with the MoJ. And that’s really positive for the LSC, the MoJ and for legal aid provision. So we’re in a good place.

Biography Carolyn Downs was appointed LSC chief executive in March 2010 following the resignation of the former chief executive, Carolyn Regan, in light of Sir Ian Magee’s highly critical review of the organisation and Jack Straw’s decision to make the LSC an executive agency of the MoJ. Before that, Downs was deputy permanent secretary and director general of corporate performance at the MoJ. For the five years from 1999, Downs was chief executive for Shropshire County Council. During her tenure it became the highest performing county council in the UK.