The Carter Review Report has been published. Under the headline “Market-based reforms to make criminal legal aid more efficient” it proposes:
“Fixed pricing for all criminal legal aid work, including that provided in police stations, magistrates’ courts and Crown Courts;
a managed market, awarding contracts to efficient and good quality suppliers that can take on more cases, either individual firms or collection of firms formed to deliver the benefits of scale;
managed price competition between efficient, good quality suppliers with safeguards to protect standards of quality, coverage in rural areas and diversity.”
The full Press Release is here.
It is to be phased in over the next three to four years alongside the Preferred Supplier Project.
I am reading it now – updates later.
Update 1
Carter has been on the Five Live lunchtime news and our phones have gone nuts. Post thoughts or questions in the comments box and we will respond.
Update 2
The Carter team refer to the proposals as a “significant” change. On first impressions (a single read) that is a significant understatement. This goes further in scale than the previous LSC proposals for the London PCT pilot and most importantly they perceive a national roll out of a fully operational scheme by September 2009. Ultimately it will involve price competition not only for CDS work but also for Crown with fixed or graduated fees in all.
Initial tendering might be as soon as January next year (it will be a staggered process) but preparatory work towards the “quality” threshold will begin this year. The Preferred Supplier Scheme is set for a summer launch and related Peer Review will be completed by March 2007.
The scheme has three phases:
Phase 1
Preferred Supplier, prices fixed, PACE contracts tendered on a “quality” and “capacity” basis.
Phase 2
Re-tendering to reward efficient suppliers
Phase 3
Price competition for all criminal defence work.
Within this there is much more detail and plenty of food for thought (which I will be doing in the next few days). We will put together some briefing sessions in the next few weeks – these will be available for in-house delivery from the week beginning 19th February – and have a preconceived Peer Review tour planned for March.
In the meantime use the comments boxes on this thread for any questions etc.
My initial conclusion however is that this is dynamite.
Update 3
The LAPG’s initial resonse is encouraging – contesting many of the claims and quite rightly calling the timescale “wholly unrealistic”. Click on the “continue reading” link below to read the entire article.
The CLSA (and others) take an even dimmer view.
Comments on Carter report by Richard Miller, Director of the Legal Aid
Practitioners Group
General comments
It must never be forgotten that criminal defence lawyers perform a vital
constitutional function protecting the citizens of our democratic
society. They are not merely service providers in a market. Moreover,
legal cases are not widgets. The work cannot be treated as a standard
product without risking damaging the extent to which the rights of
ordinary citizens facing criminal charges are protected.
We welcome Lord Carter’s repeated recognition that the inefficiencies of
others in the system have a detrimental effect on the legal aid budget.
We fear however that the proposals do not include adequate mechanisms
for dealing with those inefficiencies, and that as a result, the quality
of service to clients would inevitably suffer.
What defence solicitors do is also determined to a very large extent by
the actions and resources of police and prosecutors, as well as by new
laws passed by the Government. Their work cannot therefore be
constrained within fixed price systems when the rest of the criminal
justice system is so fluid. Pure market solutions cannot provide the
whole answer.
It is noteworthy that while the costs of the criminal justice system
have increased by 46% since 1998-9 (paragraph 8), the costs of the
criminal legal aid budget have increased by only 37% since 1997
(paragraph 10). This refutes the claim that a change in the structure is
needed to increase the efficiency of defence lawyers. An increasing
criminal defence budget is an inevitable consequence of better resourced
police, prosecutors and Courts. A Ministry of Justice would provide
joined-up Government that was better able to manage this balance.
We have suggested on numerous occasions in the past the restructuring of
duty solicitor rotas in London. We would also be willing to discuss how
a graduated fee scheme in the Crown Court might operate. And we can see
a possible place for minimum contract volumes. But to a significant
extent, this report repeats many of the proposals in the LSC’s
competitive tendering paper from a year ago. We demonstrated in our
response to that paper, with the benefit of independent legal advice
from a City firm, that many of these measures are not just undesirable
but unworkable in the real world. It is disappointing that this report
has not addressed the problems we identified.
Specific comments:
A contract that lasts for only one to two years will lead to an undue
cost to the taxpayer as there will be administrative costs from frequent
bidding rounds, and the prices bid will be higher as suppliers have to
factor in their own costs of bidding so frequently. In no other field of
public procurement are such short contracts offered. For example, local
authority contracts for rubbish collection are for a minimum of seven
years.
There are repeated allegations that the current structure provides
incentives to lawyers to do more than the minimum amount of work
necessary. We reject that claim. The combination of standard fees for
much of the work, and audits that may result in the loss of a contract
for claiming excessive work, means that there is no such incentive.
The LSC expects its roll-out of the preferred supplier scheme to take a
significant period of time. It will not be in place in time to support
the timetable proposed in this paper. Moreover, firms will not be in a
position to absorb and respond to these proposed changes in anything
like the two to three years proposed. The timescale is wholly
unrealistic.
The report proposes at page 8 that the system must incentivise earlier
preparation work. As the Woolf reforms in the civil system demonstrated,
the effect of doing this is likely to be to increase the costs of each
individual case and of the legal aid budget overall.
LAPG is an independent membership organisation representing lawyers
working in the legal aid system, with over 600 member firms, the
majority of whom undertake criminal defence work.
As a sole practitioner should I pack up now?
No but there will be a need to become involved in some form of what they refer to as “consortia”. It will represent a fundamental change for smaller firms I think.
how would you describe a “small” provider of criminal legal aid ?
David
Initial response.
There is, perhaps not surprisingly, no definition of “small” or “smaller” firms in the document. The parallel Preferred Supplier Scheme, in pilot, had minimum legal aid turnover thresholds which were very high. This however was just a pilot and the next consultation on the national scheme has not yet been released, partly awaiting this review. I anticipate that this will probably contain this key definition.
In addition there will have to be regional consideration and they are clear that there is not a “one size fits all” solution and problems in rural and semi-rural areas.
The graph on page 23 of the paper is interesting here as it shows that about a third of suppliers have CDS contracts below ?100,000 and these firms (and possibly the next column) would seem therefore to be the target for the “consortia” proposals. This is just my guess however and we will have to wait for further flesh on these bones.