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Competitive Tendering For Criminal Defence Work

4 September 2005

Aziz Rahman Asks: "Is It Best Value For The Taxpayer Or The End Of Quality Legal Work And Justice?"

Any Government seeks to ensure that Public money raised through taxation is spent wisely. Obtaining "Best Value" have been the buzzwords. Public Services have increasingly been contracted out to private companies and firms who compete on price to provide the required service.

Whilst this ensures the lowest price is paid, those companies need to make enough money to pay their staff and expenses such as equipment, office buildings, rates, training and basics such as heat and light... They also aim to make a profit for the shareholders or other owners of the business. The tighter the price the less money that is available and as these firms struggle to make a profit we all see the consequential problems of staff who are poorly paid and falling standards. Well known examples of areas where there have been problems are Prison Catering, Hospital Cleaning and School Dinners.

The same issues apply in the Legal Profession with Legal Aid.

Eight years ago the legal Services Commission (LSC), the Government Department who run Legal Aid, were driving up standards and trying to ensure that anyone who had a Legal Aid Solicitor received a high quality service. Small extra payments were made to firms who could satisfy the minimum requirements. A partnership was beginning to develop between the profession as commercial businesses and the Government to ensure high standards.

Since then there has been no increase in the payment rates for Criminal Legal Aid and Firms of Solicitors have been expected to continue to provide a high quality service with the same money whilst the costs of running the business have risen by about 22%. The pressure this has put on law firms has been increased by a number of changes to what the LSC will pay for which has reduced payments made.

Initially firms coped with the situation by increased efficiency but there is a limit to what can be achieved this way. Therefore firms have been unable to pay their lawyers salaries that compete with other types of law firms or other professions. A typical Solicitor working in Legal Aid can expect to earn just half what he or she could expect in many other types of work and has seen salaries in other professions, such as teaching, and trades, like plumbing, catch up with and go past what they earn.

Whilst I, my firm and many others undertaking Criminal work remain committed to providing the best possible service it does become increasingly difficult to sustain and some firms inevitably will let standards slip. There are already signs that the LSC are finding it difficult to continue insisting on minimum standards as an increasing number of firms and lawyers leave the work.

The Government has committed £2.1 Billion a year for Legal Aid and have indicated that if payment rates remain unchanged there will be a £130 million overspend. They are therefore determined to make savings of this amount. They point to one Barrister who is likely to earn £1 million this year from Legal Aid and, they say, 9% of Barristers earn more than £100,000.

If this is correct then, clearly, there is scope for savings here, but, The Bar Council, the governing body for Barristers, say that the vast majority of Legal Aid Barristers, like Solicitors, are earning less than other professions and some trades. The Barristers are so concerned that they intend to go on strike from the 5th September. By that they will refuse to accept new Legal Aid instructions and just continue working on the cases they have already agreed to do. If this was to go ahead the Court System is likely to progressively grind to a halt and an increasing number of prisoners will be held on remand for an excessive length of time before their defence can be put before the court.

As part of the cost cutting exercise, the Government intends to speed up the introduction of competitive tendering for work for which a pilot is being tried in London. Firms of Solicitors will have to submit the lowest price they are prepared to receive for work. The cheapest will win the contracts. Whilst there will be a specification for the standard of work to be delivered, the danger is that the firms will be forced to cut corners to survive on the money received. Further they may well not be able to recruit and keep enough quality staff for the pay rates they will be able to afford.

Research recently issued by the LSC indicates that the overspend is due to a number of Government Initiatives particularly aimed at bringing more people before the courts. In other words there is a lot more work and this needs to be paid for.

Whilst anyone should encourage the Government to obtain best value that is only satisfactory if the standards of work are maintained. The experience in other fields is that standards fall and, if that happens in Criminal Legal Aid, then justice will fail and there is a risk defendants be wrongly convicted with some losing their liberty through injustice.

Author

Aziz Rahman is a Solicitor - Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.


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