Tuesday, 9 April 2013

Price-Competitive Tendering: Grayling Throws Down the Gauntlet

Today (April 9th 2013), Minister for Justice Chris Grayling announced the long anticipated consultation (or edict as some consider it) on the introduction of price-competitive tendering for criminal legal aid (or best-value tendering as it has been rebranded).

Below is Grayling's summary of the aims, with telling references underlined:

'We have an excellent tradition of legal aid and one of the best legal professions in the world. But we cannot close our eyes to the fact legal aid is still costing too much. It is not free money, it is paid for by hard-working taxpayers, so we must ensure we get the very best value for every penny spent.

'Some lawyers earn hundreds of thousands of pounds from just one or two cases, and these cases can themselves cost up to £15 million each. And we've all heard of wealthy criminals with stashed millions getting legal aid to pay for their defence or of prisoners given legal aid unnecessarily.

'I am clear we will continue to uphold everyone's right to a fair trial but that doesn't mean we shouldn't look again at how the system which provides this is operated.'
Although I haven't read the consultation paper yet, a few initial thoughts spring to mind relating to the above points. 'Legal aid is still costing too much' according to Grayling, yet it has been slashed continuously for years and years and the Ministry of Justice budget represents one of the smallest in Government (see the enormous burdens of health, work and pensions, social security, education). This also gives away the major push behind Grayling's reforms - 'best price' rather than 'best value'.
The idea that legal aid is 'free money' is of course nonsense - legal aid for criminal defendants is one of several hallmarks of a civilised society that the state provides because those accused very often cannot afford it themselves. Being provided with a representative in the face of accusation by the overwhelming resources of the state is hardly 'milking' the system. And there is also an implication that those accused of crimes are NOT hard-working taxpayers - is it just work-shy, benefits dependent freeloaders that come before the courts? Of course not - a large number of 'hard-working taxpayers' have paid into the pot from which they derive the benefit of legal assistance - it is the same principle as is exercised in justifying all state funded services, such the NHS or the benefits system. But the working status of defendants shouldn't preclude access to the same rights and protection as any other citizen; this sort of thinly disguised financial prejudice is no better than racism, homophobia or any other form of bigotry.
One must also question the logic that introducing 'lowest bidder' tendering for criminal contracts represents better value - it will certainly mean a better price (for the Government and for the bidders, which will likely include large corporations like Tesco, Eddie Stobart, G4S and the Cooperative Group). But for defence lawyers and their clients, quality is likely to be damaged. Less money for the same or more work is only workable if defence lawyers spend less time with clients, less time investigating and constructing a case, and encourage swifter resolution of proceedings (guilty pleas being the most dangerous example of this). Whether this is better 'value' for the taxpayer is questionable - after all, taxpayers are not simply interested money. They are interested in a fair, legitimate, good quality legal system that serves them rather than letting them down (whether they recognise it or not).
Grayling's example of 'some lawyers' earning gross amounts refers to a tiny minority - most defence lawyers earn very small fees for the level of work invested. To suggest that defence lawyers are raking it in at the state's expense is much like suggesting that mansion squatters and similar to homeless people sleeping rough every night. It is irresponsible and misleading, but is sadly familiar rhetoric. The same can be said of the 'wealthy criminals' card - once again, a minority that does not represent most defendants brought before criminal courts. What Grayling means by 'unnecessary' cases brought by prisoners is anybody's guess - cases brought for matters including racism, violence, invasion of privacy, limiting of access to legal advice, and ill treatment are presumably included within this definition simply because the claimants are prisoners. 
Finally, Grayling makes a token gesture to the Article 6 right to a fair trial, but provides little or no detail about what he means, and fails to address why massive cuts and a race to the bottom in terms of the prices paid for criminal defence work will in any way bolster the right to a fair trial. The starting gun has been fired on BVT; the Government will inevitable face off with the criminal defence profession. Who will ultimately pay the price for Chris Grayling's money-saving is not yet clear - but one imagines it will not be Chris Grayling or the Government. 

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