It was a decision never likely to sit well with the public defence profession and so it proved.
The ongoing saga over the reduced number of criminal legal aid contracts continues as it has emerged that the Legal Aid Agency (LAA), an executive agency of the Ministry of Justice, is facing legal challenges from around 100 firms at the High Court to prevent execution of the contracts.
However, the LAA has pledged to ‘strongly defend’ any litigation it faces.
Critics say the process of determining winning bidders for 520 Duty Provider Work contracts across England and Wales, significantly reduced from 1600, was flawed. While there were originally 527 contracts up for grabs, the LAA only awarded 520 due to ‘insufficient bids’.
Last Friday (30 October) the LAA received a letter before claim for judicial review from seven firms, which included Kaim Todner Solicitors, GT Stewart Solicitors, SJ Law, Edwards Duthie, Kyles Legal Practice and Guney, Clark and Ryan. The LAA has until today (6 December) to respond to the letter sent under the pre-action protocol for judicial review.
In a separate action, around 100 unsuccessful firms have filed a legal challenge at the High Court including O’Garra’s Solicitors, Chambers Solicitors, VHS Fletcher and Riley Hayes.
Under procurement law, if a claim is filed before a contract is signed, the LAA can be prevented from executing that contract. Consequently, the contracting entity must obtain a court order or resolve or dismiss the proceedings before the contract can be entered into. It is understood the LAA faces challenges to 69 out of 85 procurement areas in the High Court which means it could be stopped from executing the contracts.
One senior partner at a criminal defence firm said: ‘[The procurement team] had very little training, no previous knowledge of criminal legal aid or criminal practices, and the training manual that was produced had glaring errors in it. They didn’t understand the procurement areas they were dealing with. One junior member of the LAA commissioning team decided that firms which put the same answer for different procurement areas should be viewed negatively and marked down. There was no accounting for that, no understanding.’
‘I don’t know what’s going to happen – we’ve had very little disclosure, very little response. We hope they will read our complaints and commission some sort of internal investigation.’
Public policy adviser Freddie Hurlston, a bid assessor who went public about the LAA’s procurement methods, commenting there was no consistency in the process, said an external investigation of the process is needed.
The whistleblower, Hurlston, said: ‘The LAA has got its head in the sand on this one. People are crying out for a sit-down discussion between the government and solicitors about what’s gone wrong. It cannot have confidence in this process.
‘They weren’t procurement specialists, and they didn’t get enough training or time to mark it right. They were under pressure to get it done.’
Despite legal challenges from those outside the panel, 519 bidders out of 520 have accepted the contracts and the LAA intends to commence the new contracts from 11 January 2016.
On the legal challenge, a LAA spokesperson said: ‘We took this process exceptionally seriously. Assessors received comprehensive training and the entire process was subject to careful moderation and management. We will strongly defend against any litigation. This process was designed to make the best use of taxpayers’ money in times of economic challenge, while making sure high-quality legal advice and help remained available to those most in need of a lawyer.’
‘Legal aid is a vital part of our justice system. We accept there is disappointment amongst unsuccessful firms, but it was always going to be the case there would be firms who did not win the contracts they applied for.’
For more on on legal aid subscribers can read: ‘Striking out – a desperate profession and the politics of legal aid’ here.