Whirlwind consultation fails to placate

The Ministry of Justice’s latest legal aid consultation in response to a High Court ruling has been criticised by practitioner groups as over-hasty and tokenistic.

Mr Justice Burnett ruled that the Ministry’s previous legal aid consultation process was “so unfair as to result in illegality” and quashed its decision that 525 contracts would be available under the forthcoming tender for criminal legal aid defence services. He ordered a “relatively short” consultation on the research which informed its reduction of the number of duty provider work contracts from 1,600.


A three-week consultation appeared in the form of an online survey just five days after the ruling, and ran from 24 September to 15 October. Its stated purpose was to “seek views and evidence” on the research reports by Otterburn Legal Consulting and KPMG and the assumptions used in the course of the preparation of the KPMG financial modelling. The Ministry said it would re-consider the number of contracts that will be offered in “in light of the evidence gathered” in the consultation, but excluded the dual contracting model and the decision to limit the number of duty provider contracts from scope.

The London Criminal Courts Solicitors’ Association, which together with the Criminal Law Solicitors Association brought the High Court challenge, noted in its submission: “It is our firm view that having treated the profession with such contempt previously and lost the judicial review as a result, the Ministry should be acting now with the utmost fairness to allow the profession adequate time to respond to complex reports which apparently form the basis of the complex model chosen.”

The Criminal Bar Association said in its response: “The remarkably short time frame of this consultation does nothing to reassure the professions that the Ministry has understood the gravity of the criticisms advanced nor has any interest in a fair or meaningful consultation. “In particular we are concerned by the demand for evidence at a late stage when it required judicial review proceedings before the MOJ would disclose the reports on which it purports to rely.”

Further, Otterburn’s own response to the consultation has highlighted errors in the Ministry’s interpretation of its research. The legal consultancy said that the reference in the original reform proposals to an Otterburn finding that “bidding organisations (or their Delivery Partners) employ at least one full time fee earner with relevant experience of crime work for every £83k of the indicative contract value” was “not a finding of the Otterburn Report but a calculation made by the MOJ based on certain figures included in it”.

“We do not agree with the way the figure has been calculated” and “do not consider it to be an appropriate figure to apply to the new contracts,” said Andrew Otterburn and Vicky Ling in their response. “The £83,000 requirement is going to make it extremely difficult for good firms to create viable businesses.”

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