As ever, I write this unencumbered by any wider responsibilities. The same is obviously not the case for the Law Society who today ask the challenging question Procuring criminal defence services: is there a better way?
Only time will tell if this bold, but problematic, attempt to seize the debate over PCT will have any impact. To be clear it has to be hoped that it does.
The feedback we have received is varied though predominantly skeptical. As one might anticipate the “Turkeys voting for Xmas” line has commonly been expressed, one client going further – “my preference would be to be consumed without sprouts but with cranberry sauce”.
The central problem with TLS approach is that it must implicitly accept the Governments central conceit; that this is a genuine consideration of strategic options rather than a simple cost cutting exercise. We should drop this pretence. More importantly the Government should drop it too.
Furthermore every Government should also be forcefully held to account for how any proposed change will maintain a fair*, equitable and effective Criminal Justice system. This must be the primary test not price. In this the starting point must not be ignored. Currently this includes, stable Criminal Legal aid, declining cases, recently administratively reduced fees which, in any event, are based on historically declining real-value rates of pay. Then draw the obvious conclusion; the operation of criminal legal aid is too fragile, both currently and looking ahead, to sustain any further significant change. Ministers must start taking their responsibility to justice seriously, beyond party politics and beyond the next election.
We should also stop talking about “procurement”. The LSC embraced a public sector model entirely inappropriate for the “remuneration” of Legal Aid law firms. All attempts to develop this to its inevitable “competitive” conclusion have failed. PCT, BVT and the like best operate in a public sector domain where there is, or was, no existing market. There has always been a lively and active Legal Aid market in which the administrative setting of rates provides the most effective governmental control on spending. Want more proof? The LSC’s own foray into the market, the Public Defenders Service, was a costly and predictable failure, this market does not need top down restructuring.
Lets also stop trying to reheat failed ideas. This is the third attempt at PCT/BVT in crime and lets not forget the car crash of the 2010 Family bid round. Frankly the same can be said of some others ideas. SQM is dead. That the LSC did not make Lexcel compulsory, within a reasonable timescale, some time ago is demonstrative of their inability, positively to move forward. Whilst I see why TLS are clutching at the straw of Peer Review, this too was never really the desired “gold standard” and is now probably beyond raising. Neither was it an objective assessment on which any procurement decision could reasonably be made.
As to “consolidation”, and the like, these always raise more questions than answers most importantly – is there really a one size fits all solution? But also – why if “consolidation” is so attractive has it not occurred organically? What of “consortia”? What is Plan B if/when it all goes horribly wrong? Indeed this also and ignores factors such as the sole practitioner model often being highly cost effective, and even the only viable, option in some locations.
There was always going to be a tipping point in Legal Aid provision, Macro and Micro. Civil firms, and the now discarded NfP sector, are facing the latter, post LASPO, right now, with the jury out on the global picture. Without being unduly alarmist we might be arriving at that point.
A simple, basic planning exercise often poses 3 questions:
Where are we now?
Where do we want to be?
How are we going to get there?
In this context the answer to the first is, commonly – “struggling, getting by”.
If the answer to the second is, genuinely, – “a fair*, equitable and effective Criminal Justice system” then the response to last has to be, at the very least, “doing nothing is better by far than the risk of PCT/BVT”.
The fear is that the Government has a very different answer to “where do we want to be?” or, worse still, that it doesn’t even has an answer at all.
*And before anyone says it; an effective CJS is “fair” on the taxpayer, it is the alternative which is not.
You are very right that successive governments have conspired to create a top down structure for legal aid which is far from based on market principles (unless the market principle is that a monopoly contractor can dictate price). It seems to me that the Law Society are taking the government on head to head in two key areas:
1. They are looking to encourage ideas that can produce a supplier base which is selected on quality not just price.
2. They are not dismissing out of hand that there may be some areas where savings can be made (eg VHCC tendering), so encouraging the government towards clearer thinking rather than brutal illogical cost saving.
It seems to me that whilst we all know there is no fat in general criminal defence work and that almost any bid below the current level could be considered a “suicide bid”, there is still much dialogue to be had about savings in the system, which is hardly perfect, as you mention:
– Procurement
– SQM
– Peer review
– Online working
– Litigator and advocates graduated fees
All of which have largely failed as fair mechanisms for providing a stable, reasonably remunerated supplier base. There is also a clear need to keep the channels of communication open to steer government away from strategies which are likely to fail and merely place a future burden on the Ministry and suppliers to find further savings when the savings based on current proposals do not materialise.
I know that there is real current concern and rightly so but let us not forget that this is the third time that government has tried and, as someone who was involved last time round in Manchester, I can say with some confidence that one of the ways to fight for a “fair, equitable and effective Criminal Justice system” is to debate the detail and to support the Law Society’s efforts to do the same.