The Law Society calls for independent review into legal aid duty contract procurement process in light of widespread litigation
The Law Society is calling for an independent review of the legal aid duty contract procurement process following the widespread litigation brought by criminal legal aid practitioners who are gravely concerned that the evaluation process used by the Legal Aid Agency (LAA) was flawed.
Criminal Legal Aid practitioners have brought legal action in 69 of the 85 procurement areas which means that the LAA will have to defend its actions in over 100 challenges. The Legal Aid Agency has applied for a group litigation order to consolidate the actions.
The Law Society has gathered information on the areas of England and Wales where legal challenges have been issued and has produced a map showing where litigation is known of and the total value of the contracts that are subject to legal challenge.
Jonathan Smithers, Law Society president said:
“The Law Society is calling for an independent review of the procurement process. The cost of litigation to defend a process which is subject to such a significant number of legal challenges is a waste of public money, at a time when the Ministry of Justice (MoJ), like all Government departments, is under serious financial pressure.
“Criminal legal aid practitioners are also facing costly litigation because of the significant and widespread concerns that the process of evaluation of the criminal legal aid duty solicitor tenders was flawed. Instead of undertaking such a costly approach at this late stage, a thorough appraisal would be more cost effective than mass litigation and it would offer more certainty for all involved.
“We believe there is now a serious risk of a knock-on effect on access to justice for clients. Our members are telling us that firms are at risk of collapse as a result of continuing to operate at reduced rates without the consolidation the MoJ, wrongly in our view, claimed would make the cuts survivable. Also the uncertainty that all firms face, whether they have been offered contracts or not, is stopping them from implementation plans for the future including making key business decisions.
“The lord chancellor indicated in September that he was minded to suspend the second 8.75 per cent fee cut for three months from 11 January in order to support firms as the new contracts are introduced. The restructuring of the market will not happen before April at the very earliest assuming that the litigation is expedited, which means those firms that were relying on the new contracts to enable them to cope with the fee reductions have been unable to proceed with consolidation and are unable to plan for their future.”
The Ministry of Justice has said it will set up interim rotas based on new contracts on current terms until the end of March. This assumes that the litigation will be dealt with swiftly. The Law Society believes it may not be. Widespread litigation, coming on top of the delay in issuing results and entering into contracts, means that firms face chronic uncertainty. Depending on the outcome of litigation, and given the need for a mobilisation period to enable firms to get ready for taking on the new contract there will continue to be crippling uncertainty and on-going and significant delays. The MoJ need to intervene and review as a matter of the upmost urgency.
