All too often, in an unequal market, the resulting division of the payment does not properly reflect the amount of work that they perform or the quality of that work. The issue has totemic status. Because of its importance we have raised it with the Ministry of Justice and the Law Officers on many occasions. They understand the rationale and they are well aware of the Bar’s concerns.
However, the landscape is changing. In these circumstances as well as maintaining our traditional interests, it is also my duty to try to ensure that the Bar is as well informed as it can be of the ways in which the publicly funded market may develop, and what may be required of the Bar as a supplier in a radically different market. So it is essential that we discuss with the Ministry of Justice what their plans are and how we may best position the Bar to take maximum advantage. Inevitably this appears to be riding two horses. But it is not an abandonment of the Bar’s concerns. We have to prepare for all eventualities. It would be neither good nor proper leadership simply to oppose a government initiative but fail to investigate what the options are if that change happens and alert the Bar to what is learned in the process. Furthermore we will not achieve any influence over such developments if our position is simply one of opposition. This is why we continue to engage with the government.
Timing and the direction of travel
Two weeks after the close of the consultation period I had meetings first with Jonathan Djanogly, the Legal Aid Minister, and then with the Secretary of State, Ken Clarke.
The Ministry received over 4,500 responses to the consultation papers, which they are still working through. When we spoke they had looked at some key responses and were feeding themes through to ministers. The MoJ will publish its formal response in early May and they plan to produce a further consultation paper on competition in crime “shortly after that”, probably June. A three month consultation period will follow – so it promises to be a busy summer.
There will not be any further consultations on the scope of civil and family legal aid. The MoJ will conduct “desk-top” research on the impact of litigants in person, but they do not expect any significant increase and take the view that the overall reduction in numbers of cases will ensure that courts will not be adversely affected. They expect to publish a bill before the end of July. The Norgrove Report on the Family Justice Review is expected before Easter.
Clearly the MoJ’s direction of travel in criminal legal aid continues to be towards competition, with a price-based element. The MoJ themselves do not yet know the precise form that it will take. One prospect is a guide price, with an invitation to bid at levels discounted below the guide. There remains the possibility that a mechanism similar to Best Value Tendering may be employed. However, anyone with experience will tell you that a good procurement model does not rely solely on price, and recognises that the cheapest may not be chosen if it is poor quality. It is important to bear in mind that these contracts may last five years, so the consequences of an inadequate process may be disastrous.
Ken Clarke said that change could not be delayed. They are “sold on competition”. His impression is that many of the larger sets are sophisticated and could adapt well to a more business-like approach to winning work. I reminded him that the Bar is unfamiliar with tendering and developing appropriate business models, and that there is anxiety about how the Bar will fare in a world of contracting. To move from a standing start to price-based competition will be a significant challenge.
The MoJ do not want a repeat of the problems experienced in the family contracting round and we agree that there must be a workable solution. They have been urged to keep an open mind in framing the proposals in the next consultation document. The size of contracts, the scope of work to be covered and whether there will be a staged roll-out are all issues to be decided. It is by our discussions on these topics that we can continue to argue the Bar’s case. To that end, I am scheduled to meet the senior civil servants charged with drafting the paper.
I understand the frustration that the current situation causes. But there is plenty to get on with many sets still do not have any form of kitemark. Many have not fully explored the opportunities of Direct Access, we are looking at generic advertising of this aspect of the Bar’s work. I have met with the National Association of Licensed Paralegals (NALP) and the Institute of Legal Executives (ILEX) to investigate where we may work together in new business models. We continue to run seminars, most recently in Manchester, on developing practice in international work.
In between dealing with the issues arising out of legal aid, the issue of contractual terms is often raised. By way of a small but positive update: the Standards Committee finally approved the new contractual terms last month and will be asking the Bar Standards Board for its approval on the 28 April. We will keep you informed. The battle, on all fronts, continues!