In January 2005 the Legal Services Commission (“LSC”) published a controversial consultation paper which proposed introducing competitive tendering for contracts in publicly funded criminal defence work in Magistrates’ Courts in London. The Young Barristers’ Committee (“YBC”) prepared a detailed response on behalf of the Bar Council and the Criminal Bar Association; our total opposition to this pernicious and high-risk proposal found almost unanimous support from other stakeholders in the criminal justice system.

Whilst the proposed scheme now awaits the outcome of the Carter Review in early 2006, barristers should be aware that it is a key issue for the Carter Review to consider, as the Lord Chancellor stated to the Chairman of the Bar in his letter of 5th July 2005 announcing “A Fairer Deal for Legal Aid”. It would be most unfortunate if tendering and block contracting reflected Government thinking on remuneration in the criminal justice system as a whole.

Barristers should also be under no illusions that such a scheme would seriously and irreversibly damage the current method of supply of legal services in London, and the LSC apparently intends to roll it out across the country in future years. As fixed payments for unit items for work provide a strong incentive for solicitors to maximise profits by retaining the bulk of their advocacy work in-house, young barristers who already receive very low rates of pay for Magistrates’ Court appearances will inevitably be squeezed out of this area of work.

The tendering process

For the uninitiated, the scheme suggests a two-stage process of competitive tendering: bidders for contracts will bid firstly on quality, then on price. The YBC fears that the scheme will pay lip-service to quality are based not least on the LSC’s expectancy that 90-95% of solicitors’ firms would automatically pass the quality threshold.

As a result, the YBC believes that the true driver behind the scheme is price. The LSC considers that remuneration of suppliers would be better based upon fixed amounts for “outputs” (completed cases) rather than paying for “inputs” (such as time spent and letters). Accordingly, all bidding firms that pass the quality threshold will be invited to tender a price for outputs a part of a contract for work in a catchment area of London. Given the focus on geographical catchment areas, the bid price must include all travel and waiting time; there will no longer be an “extra” fee to the solicitor for travel and waiting. The LSC makes no secret of the fact that contracts will be awarded to the lowest bids first.

Shortcomings of the scheme

The LSC professes a desire to ensure quality, promote optimum outcome for the client, provide effective competition and set a sustainable price for legal aid through this scheme. The YBC profoundly disagrees, arguing instead that it shows a desire to reduce remuneration, make inadequate provision relating to quality standards, and disregard the interests of the consumer, including client choice, by reducing access to justice.

The YBC believes that any perception of a need to cut costs is fallacious: the LSC has already acknowledged that the legal aid budget for this area of work is under control.

Furthermore, the YBC suggests that a “one-price-fits-all” mechanism fails to take account of the differing interests of clients and the variation in complexity of individual cases, making it impossible to predict the precise work needed on a case and in contrast to giving a quotation for building work where a builder knows the nature, size, layout, detail and length of the contract for which he is bidding and where, should any changes to those factors occur, the builder will have the opportunity to amend his bid for the work.

Whatever may be the position in relation to litigation services, the only way of maintaining quality in advocacy is to develop an appropriate fixed or graduated fees scheme for the advocacy element of litigation. A fixed-price graduated fee system has already been proved to keep control over unit costs; the average cost of a case under the criminal graduated fee scheme fell by 6% between 2002-2004 on a like for like basis.

A fixed price for the whole of each case will inhibit the geographical work spread of solicitors, making it increasingly difficult for clients to obtain the services of their own solicitors if they have appearances in courts which are not local.

In addition, the drive to reduce cost will make it likely that many solicitors’ firms will be discouraged from bidding at all, thereby reducing rather than providing effective competition. New firms are unlikely to be encouraged to enter the market when the economic outcome for them is so uncertain.

It will lead instead to a concentration of larger solicitors' firms with in-house advocates, driving out local high street firms and the independent Bar; this is bad for choice and quality of service. Firms may be under financial pressure to employ as in-house advocates at low cost those who are not specialists and who have not been properly trained. Whilst litigation services can be monitored more easily, and rectified without lasting damage, poor quality advocacy is irremediable once it has happened.

The implications for Black and Minority Ethnic firms are grave: it is those firms which tend to be the smaller firms, and if they survive the tendering exercise will be unlikely to take on the financial burden of training new lawyers.

Impact upon the Bar

The impact upon the Bar is potentially enormous. Young barristers currently provide a flexible and cost-effective pool of expert advocates, who make a real contribution to the smooth operation of the criminal justice system and the courts in London. It is clear that the LSC grossly underestimated the scale of this contribution when it drew up the consultation paper; it erroneously believed that barristers only appear in “assigned counsel” cases (also known as “certificate for counsel” cases, which guarantee adequate payment to the Bar for work properly done), less than 1% of cases heard in the Magistrates’ Courts in London each year. On the contrary, the YBC conservatively estimates that barristers appear in at least half of all cases. Clients have greater choice in litigation services, and solicitors and the courts benefit from the existence and flexibility of a large pool of specialist advocates.

If the proposed scheme is implemented, solicitors will be anxious to keep travel time and disbursements to the minimum. Where existing clients are charged in more distant courts it is inevitable that this will discourage the use of in-house advocates. It is those few cases which will be sent to the Bar, at rates of payment which are entirely uneconomic.
Impact upon the public interest
It is in the public interest that the best and brightest from every social and ethnic background are attracted to practise in this key area of publicly funded work. The YBC has serious concerns that squeezing the Bar out of publicly funded work in Magistrates’ Courts will have the effect of driving specialist and quality advocates from diverse ethnic and social backgrounds out of practice because they find it impossible to sustain themselves during early years in practice, which will reduce public confidence in the justice system in London because it will be less representative of the society it serves.

If meagre defence rates drive junior barristers away from publicly funded work then the pool of barristers who undertake prosecution work inevitably also decreases, with long-term ramifications for the criminal justice system and for the interests of justice in ensuring that advocates of experience and ability offer representation in the more serious cases. Victims are also entitled to have cases dealt with by experienced advocates.

Conclusions

The Bar Council intends to use its submissions to the Carter Review to emphasise these points on the issue of competitive tendering. The proposed scheme in its present state does not achieve the LSC’s objectives, recognise the vital role played by the Bar in the representation of defendants in Magistrates’ Courts in London, and
address the inherent risk to the supplier base of solicitors and barristers.

In the meantime the LSC should focus instead on key areas of continuing concern for the Bar in relation to publicly funded work in the Magistrates’ Court, namely a return to payment of all fees directly to the Bar, increasing levels of remuneration and enforcement of unpaid fees.

Fiona Jackson
Furnival Chambers
Elected member of the Bar Council; member of the YBC and CBA