Falconer refers the MoJ’s criminal legal aid fiasco to the National Audit Office

1st February 2016

The shadow Lord Chancellor Charles Falconer has today referred the Ministry of Justice’s aborted criminal legal aid “reforms” to the National Audit Office for investigation.

Below is a copy of the letter which was sent today.

 

Dear Sir Amyas,

I write to ask the National Audit Office, as the body responsible for scrutinising public spending on behalf of Parliament, to investigate the decision by the Ministry of Justice to pursue its policy of consolidating the criminal legal aid services market through a model known as “dual-contracting”, as well as the Legal Aid Agency’s (“LAA”) handling of the procurement process for the introduction of Own Client and Duty Provider Crime Contracts.

The Government’s proposals for legal aid were first consulted on in June 2013 in the document Transforming Legal Aid: Delivering a more credible and efficient system[1].

As a result of fierce opposition to some of the Government’s plans, the Justice Secretary came before the House of Commons on 5 September 2013 and announced that there would be a further consultation, Transforming Legal Aid: Next Steps[2], in relation to two of the original proposals, those to introduce competitive tendering and proposed reforms to criminal advocacy fees.

On 27 February 2014, the Government unveiled its final package of criminal legal aid reforms, which included staged cuts of 17.5% and the introduction of a dual contracting model[3].

There has been considerable opposition to the Government’s proposals and the decision to commence a tender process for 527 Duty Provider Work contracts was the subject of judicial review proceedings.

In March 2015, the LAA set new deadlines for crime duty tender contracts following the Court of Appeal’s decision to dismiss the Law Society and practitioner groups’ challenge.

In June 2015, the Parliamentary Under-Secretary of State for Courts and Legal Aid, Shailesh Vara MP, published a Written Statement confirming that the government would press ahead with the second 8.75% reduction to litigators’ fees and with the new duty provider contracts[4].

Shortly afterwards, practitioner groups commenced a nationwide boycott of legal aid work under what they describe as ‘derisory’ new rates.  This was suspended after 52 days of protest as a gesture of goodwill following talks with the Lord Chancellor and MoJ officials.

Criminal legal aid firms found out whether they were successful in their bids for new contracts in October 2015.

The procurement process for the new duty provider contracts has been mired in chaos and controversy from its inception.

After repeated delays in announcing the tender results and reports of errors, two separate whistle-blowers – Freddie Hurlston and Paul Staples – came forward alleging that the process had been “shambolic and unprofessional”, with bids being handled by inexperienced, temporary staff and staff being put under pressure.[5]

Despite denials by Ministers, a response from Shailesh Vara MP to questions tabled by Karl Turner MP revealed that almost twenty per cent of the assessment team were temporary staff and that staff working on the bids were not required to have procurement experience.[6]

Following these allegations, the president of the Law Society, Jonathan Smithers, wrote to the Chairs of the Justice Select Committee and the Public Accounts Committee expressing concerns that the process had not been robust and calling for an independent review[7].

 A judicial review, sought by the Fair Crime Contracts Alliance, has been launched which was due to open on 7 April and a hearing into more than a hundred individual procurement law challenges was due to begin on 3 May.

On 13 November, the LAA was forced to announce that services under the new contracts, scheduled to start on 11 January, would now start on 1 April 2016[8].

Following speculation at the start of January 2016 that the court action would cease and that the Government would drop its plans, the Law Society asked the LAA to clarify its plans. The LAA maintained that there had been no change in policy[9].   

 On 28 January, the Secretary of State for Justice, the Rt Hon Michael Gove MP, announced via a Written Ministerial Statement that the Government had decided not to go ahead with the introduction of the dual contracting system and to suspend, for a period of 12 months from 1 April 2016, the second fee cut[10].

This is a significant change in policy and one that has taken place very late in the day. Not only will many criminal law firms will have already taken decisions either to expand or to cut staff based on their success in the bidding process but much time and expenditure is likely to have already been spent by the MoJ and the LAA. In addition, the Government has so far ignored calls – by the Law Society and the Labour party – for an independent review of the procurement process.

For the reasons set out above, I hope you will agree that the NAO has an important role to play in ensuring that the interests of the taxpayers have been properly safeguarded in this case.

I copy this letter to the Chair of the House of Commons Public Accounts Committee, Meg Hillier MP.

[1] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

[2] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps

[3] https://www.gov.uk/government/news/transforming-legal-aid-government-response

[4] http://www.parliament.uk/documents/commons-vote-office/June%202015/10%20June/2.Justice-Legal%20Aid.pdf

[5] http://www.lawgazette.co.uk/law/whistleblower-claims-legal-aid-contracting-process-flawed/5051581.fullarticle; http://www.legalvoice.org.uk/2015/11/13/duty-tender-shambolic-and-unprofessional-says-second-laa-whistleblower/

[6] http://www.theyworkforyou.com/wrans/?id=2015-10-29.14001.h&s=speaker%3A24767+section%3Awrans#g14001.q0

[7] http://www.lawgazette.co.uk/practice/society-calls-for-independent-review-of-duty-contract-procurement/5052209.fullarticle

[8] https://www.gov.uk/government/news/crime-news-provision-of-criminal-legal-aid-services-from-11-january-2016

[9] http://www.solicitorsjournal.com/news/crime/funding-legal-aid/25215/law-society-seeks-clarity-legal-aid-contract-procurement-process

[10] https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting

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