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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Law and policy round-up – legal aid crisis, court and tribunal fees, freedom of information

22nd July 2015

Legal Aid Crisis

MoJ and criminal legal aid solicitors to meet tomorrow (Thursday) – Monidipa Fouzder at Law Society Gazette

MoJ tries to keep a brave face amid signs of legal strike panic – Ian Dunt at Politics.co.uk

Comparison of what Michael Gove first said about teachers and what he is now saying about lawyers – A view from the North

The “Save Legal Aid” Crisis – is an end(game) in sight? – here at Jack of Kent

Courts and Tribunals

The House of Commons Justice Committee announce major inquiry into the effect of court and tribunal fees

Freedom of Information

Is this the end for the Freedom of Information Act? – Christopher Cook at Newsnight

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The current criminal legal aid crisis: a timeline

19th July 2015

Last updated 20th July 2015

 

 

 

The current crisis in criminal legal aid has many starting points; I have chosen the April 2013 consultation as the place to begin this chronology.

This chronology is a work-in-progress.  The first draft of 19 July 2015 is incomplete; but rather than heed the counsel of perfection, it has been posted and will be updated/improved on a regular basis.

Significant additions (other than tweets) added after 19th July 20015 marked with *

 

 

9 April 2013

The Ministry of Justice (“MoJ”) published its “Transforming Legal Aid” consultation paper.

This covers “reforms” to legal aid in both civil/family and criminal cases.  It includes a proposal for a 17.5% reduction for criminal legal aid solicitors’ fees, as well as reductions in barristers’ fees.  It also includes proposals (which are swiftly dropped) for price competitive tendering and limiting the rights of people to chose solicitors.

 

4 June 2013

The MoJ consultation closes on the “Transforming Legal Aid” proposals.  There were over 16,000 responses.

 

5 September 2013

The MoJ publish its response to the consultation: Transforming Legal Aid: Next Steps.

In respect of the 17.5% cut, it is stated that this will not now be in one go. There will be a 8.75% cut in 2014, and a further 8.75% cut in 2015.

The MoJ also proposed a “dual contracts” model.  Criminal legal aid lawyers can bid for “duty provider work” (DPW) contracts and “own client work” (OCW) contracts.  There is a further consultation, which ends on 1 November 2013.

 

17 December 2013

*Law Society Gazette: ‘No confidence’ motion passed at the Law Society SGM

*The Lawyer: Law Society leadership in chaos as solicitors pass no-confidence vote

 

6 January 2014

*Law Society Gazette: Half-day protest attracts hundreds of demonstrators

 

27 February 2014

The MoJ states that its final decision is that there will be 525 “duty provider work” contracts.  (There are currently about 1,600 contracts in place.)  It also announces that the 8.75% cut will be in March 2014, and a further 8.75% cut in 2015.

 

7 March 2014

The Criminal Bar starts a “no returns” policy, which quickly brings the criminal courts to a halt.  This is called off on 27 March 2014 when the government announces that the cut in advocacy fees will be postponed.

Many solicitors are angry at the “deal” and say that they have been let down by the barristers.

 

20 March 2014

The first 8.75% cut in fees takes effect.

 

June 2014

1808 OCW contracts are awarded.  This are generally regarded as commercially of little point, as most criminal legal aid lawyers rely on duty contracts as the basis of their practices.

 

19 September 2014

The High Court quashes the decision to award 525 DPW contracts, as the respondents to the consultation had been unfairly denied access to the underlying consultancy reports on which the government was relying.  This forces the MoJ to re-open the consultation.

 

27 November 2014

The MoJ announces its revised decision, increasing the number of [contracts] by only two, to 527.

The MoJ also announces that the 8.75% cut is now planned for 1 July 2015.

 

 

 

23 December 2014

The High Court suspends the tender process for letting the 527 contracts, pending the result of a new judicial review of the 27 November 2014 decision to award 527 DCW contracts under the “dual contracts” model.

 

 

18 February 2015

The High Court rules that the 27 November decision to award 527 contracts is lawful.

This decision is upheld by the Court of Appeal on  25 March 2015.

 

May 2015

Conservatives win overall majority; Michael Gove replaces Chris Grayling as Lord Chancellor and Secretary of State for Justice.

 

5 May 2015

The tender exercise closes for the new 527 PCW contracts.

 

21 May 2015

The Criminal Bar Association publish a survey which shows its members are in favour of supporting criminal legal aid solicitors in combating dual contracts. (Reports: Law Society Gazette, Guardian.)

 

10 June 2015

The MoJ confirms that the 8.75% cut will take effect on 1 July 2015, and put the requisite statutory instrument before parliament.  (Report: Guardian)

The MoJ decides not to cut barristers’ fees.

Tony Cross, chairman of the Criminal Bar Association, says:

“The Criminal Bar Association regrets the decision of the Ministry of Justice to press ahead with the Duty Provider Scheme and to impose further fee cuts on hard pressed litigators.

“The Executive of the CBA will be discussing our response at the earliest opportunity, including further consultation with our membership.

“We acknowledge the Secretary of State for Justice’s welcome recognition as to the critical importance of quality advocacy in our Criminal Justice System.”

Alistair MacDonald QC, chairman of the Bar, says:

“We are pleased that the Ministry of Justice has agreed not to proceed with the cuts to the Advocates’ Graduated Fee Scheme (AGFS). We are also grateful to the Lord Chancellor for listening to, and acting upon, the Bar’s concerns about the impact cuts to the AGFS would have had.

“The Bar Council continues to have grave concerns about the effects upon solicitor colleagues of further fee cuts and the implementation of the dual contracting scheme. We remain convinced that these measures are likely seriously to damage access to justice and the provision of high quality advocacy services in England and Wales.

“We will continue to advance the case with the Ministry of Justice and the Legal Aid Agency for robust measures to be taken to protect, maintain and enhance the high quality of the advocacy market in order best to serve the public interest.”

 

22 June 2015

The CBA executive decides not to take direct action about dual contracts.  Cross says:

“The fact is that the solicitors are not currently prepared to take decisive action over two tier contracts. Many firms want them; others feel they have no option but to sign up to them. We know that over 1000 tenders have been submitted for the 527 contracts available. Save for three procurement areas, the number of tenders outweigh the number of contracts available.

“It is against this reality that the Executive felt that action on two-tier contracts would serve no purpose. We have lobbied and argued publicly and privately against the introduction of two tier contracts. We believe they will be bad for the Criminal Justice System and be bad for the Bar. But we do not believe, however, that we can fight the solicitors’ battle for them. Fighting alongside is one thing, but our considered opinion is that taking direct action on behalf of solicitors over two-tier, when the solicitors organisations will not or cannot take decisive action themselves is doomed to fail.”

 

23 June 2015

Michael Gove makes a (widely approved) first speech as Lord Chancellor.

 

24 June 2015

Criminal legal aid solicitors and barristers in Merseyside meet and agree to take direct action after 1 July 2015. (Report: Law Society Gazette)

 

25 June 2015

Criminal legal aid solicitors and barristers in Cardiff meet and agree to take direct action after 1 July 2015. (Report: Law Society Gazette)

 

26 June 2015

The “Big Firms Group”, an alliance of the large criminal legal aid firms which do around 25% of criminal legal aid work, are reported to be supporting the action. (Reports: Law Society Gazette, Solicitors Journal)

 

27 June 2015

Solicitors in East Yorkshire are reported to be supporting action.

 

29 June 2015

Criminal solicitors meeting to discuss action in London, Kent, Manchester, Leicester, Derby, Leeds:

Law Society Gazette: Bar chief speaks against “self selecting meetings”

Law Society Gazette: Legal Aid Agency denies warning solicitors against direct action

 

30 June 2015

Formal statement that London legal aid solicitors will not act in legal aid cases after 1st July

Reports: Guardian, Law Society Gazette.

Solicitors Journal: Legal aid firms set to work after 1 July ‘will run at a loss’

Law Society Gazette: Courts order protest meetings off the premises

 

1 July 2015

The 8.75% cut takes effect.

*BBC: Legal aid work refused by law firms in cutbacks protest

Law Society Gazette: ‘Business as usual’, claims MoJ on first day of action

 

2 July 2015

Law Society Gazette: Solicitors’ ballot shows overwhelming support for action.

Legal Aid Solicitors send letter to Gove.

 

3 July 2015

 

5 July 2014 

Report about leader of the Merseyside lawyers Zoe Gascoyne at Liverpool Echo.

 

6 July 2015

Law Society Gazette: PDS lawyers move in as direct action bites

Law Society Gazette: Bar urges solicitors to withdraw legal aid tenders

Solicitors Journal: CBA chairman to vote ‘No’ in upcoming ‘no returns’ ballot

 

7 July 2015 

Law Society Gazette: MoJ ‘offers talks’ – but not about fee cuts

Solicitors Journal: CBA shown favour by Lord Chancellor over legal aid cuts

https://twitter.com/MChawlaQC/status/618497813878579200

 

8 July 2015

*BBC: Legal Aid boycott ‘causing chaos’

Gove makes speech on legal policy at Lord Mayor’s Banquet, praises the Bar.

Law Society Gazette: Gove meets big legal aid firms

 

10 July 2015

Law Society Gazette: MoJ denies manipulating legal aid figures

 

13 July 2015

Law Society Gazette: firms consider duty boycott

Law Society Gazette: 89-call hunt for solicitor as protest bites

Chair of CBA urges “no” vote for ballot on “no returns” policy.

 

14 July 2015

Law Society Gazette: judges query absence of solicitors

Manchester Evening News: Defendants charged with serious offences might not be represented by a lawyer in court, warn legal aid protesters 

 

15 July 2015

The CBA membership votes in favour of no new work and ‘no returns’ to support solicitors’ action by 982 votes to 795 votes, equating to 55% in favour and 45% against

*Transcript of Michael Gove’s appearance before the Justice select committee

Law Society Gazette: Gove: legal aid ‘concerns are legitimate’ – but no concessions

Joint statement from solicitors’ leaders Jon Black and Bill Waddington.

Yorkshire Star: Legal aid strike ‘causing chaos’ in South Yorkshire courts and police cells

Channel 4: Barristers vote to back legal aid protest

Independent: Criminal barristers vote to refuse taking work in protest against cuts to legal aid

 

16 July 2015

Criminal bar announces date for legal aid action

The Times: Barristers back strike action over legal aid cuts

 

17 July 2015

Joint statement of LLCSA, CLSA, BFG & CBA.

CBA statement

*Huffington Post: Legal Aid Cuts – ‘If Stephen Lawrence’s Mother Walked Through My Door Tomorrow, I Would Have To Turn Her Away’

 

20 July 2015

*Liverpool Echo: Michael Gove blasted by Liverpool lawyers for “refusing to engage” with legal aid strike

*Bradford Telegraph and Argus: Solicitors strike causes concern for judges over case delays

*Hull Daily Mail: Sentencing of man who tried to abduct child delayed by solicitors’ strike
*Law Society Gazette: News focus on legal aid boycott

 

Any suggestions of new links and events welcome – please use comment box below.

 

 

Law and policy round-up: Gove’s first speech, and so on

25th June 2015

Michael Gove has given his first major speech as Lord Chancellor and Secretary of State for Justice.  It is worth reading carefully and in full.

In tone and analysis it was a great improvement on his predecessor; but it was weak on practical policy.  My post on it will be up in a day or two.

The following pieces provide good and useful commentary on the speech:

John Hyde (Law Society Gazette)

Rupert Myers (Telegraph)

Robin Murray (Justice Gap)

Yesterday came the perhaps significant announcement that criminal lawyers – both barristers and solicitors – in Merseyside are going to take action in respect of the upcoming legal aid cuts.

If this protest holds and spreads, this will create a huge problem for the Ministry of Justice – the cooperation of criminal lawyers is crucial for the operation of the criminal justice system.  The statement is here (and a news report is here).

Other meetings of criminal lawyers to discuss similar action are to take place elsewhere in England and Wales over the next few days….