There will be blood. There will also be price competition for criminal contracts. No matter that speaker after speaker lined up at yesterday’s All Party Parliamentary Group on legal aid to denounce it. Yes: the consultation period of eights weeks is short. Yes: despite five consultations on the subject since 2005 it might be prudent to revisit the principle before going for the detail. Yes: there might be alternative ways of saving money. Yes: a lot of providers are upset about it. No. Nothing that anyone says is going to change its inexorable advance. The minister has publicly said that he wants it; he cannot realistically back down; it will happen in some form. The question is how.
So, the Law Society, the Bar and the specialist practitioner associations will, no doubt, keep on making points of principle and process. There is every reason why they should because the consequence is going to be decimation of their members. But, we should know and understand what is coming. The impact will be devastating on existing providers. And no one in government cares. The only worthwhile question now is the form of contracting. Wake up, as they say, and smell the coffee.
There will be plenty of public wailing and gnashing of teeth. But, actually, we all know that a number of savvy practitioners have been arguing for this move for years: some have bet their farms on the proposition that that they will get a contract. They intend to compensate for lower prices through increased volume: they are egging the minister on to wipe out their competitors. They see themselves as reaching the sunny uplands of a regular income with no bothersome competition. For their part, ministers want to have a go at something which promises savings and, my word, looks tough and testosterone-full. After a point, you have to be careful. The more fuss the profession makes and the more it expresses its pain, the more a minister like Chris Grayling will feel vindicated and the higher his stock may rise – both among his colleagues and, rather outrageously, the public.
Much of the opposition is, frankly, bunkum. Of course, you can contract out blocks of criminal cases. Many countries – like Chile, for example – already do; many states in the US – like Oregon – already do. What you get is a state-managed, contracted public defender scheme. Setting this up is pretty contentious as those who lose their livelihoods protest. But, once you have weathered the media storm and the initial trail of litigation, the system settles down in a pretty quiet and organised way. The successful firms know how many cases they are going to get; their economic imperative is to do as little on each case as they can to maximise profit; the world moves on and nobody dies (except, regrettably, in some incorrigible southern US states that maintain the death penalty and lawyer quality remains substandard). For, at the heart of competitive tendering is a paradox. It is only competitive at the point that the contract is awarded; thereafter delivery is institutional and uncontested. There is no further competition until the next bit round.
There should be, however, a number of markers in the sand before any particular system of contracting is accepted. First, the unit of bid should not be a block of cases where it can be avoided. That is just too tempting for providers. The best unit is the lowest – the case. If practitioners are bidding for cases then they have to consider the one person usually left out of the equation – the client. Clients should have the right of choice in principle and in practice it helps to keep practitioners up to the mark in the way that no proxy will. The big practitioners who think they are going to clean up will hate and ridicule this idea: it messes with their cash flow predictions. Tough. There may be elements that have to be bid for by function rather than client, such as duty solicitor slots, but they should be dealt with separately and kept to the minimum.
Second, there is a problem about maintaining the quality of advocacy in a competitive bidding situation. The Bar is, of course, hysterical about this but it does not necessarily follow that it is wrong. Our adversarial legal system depends on good advocacy and it should be protected. Note that this is not the same as saying that the Bar should be preserved: it is advocacy that is at stake. But, there seems no reason why there should not be one case two fees (OCTF) – one for preparation and one for advocacy in Crown Court cases. The bidding process for individual cases should work on the basis of selecting the lowest bids below a predetermined level. The savings are then guaranteed: the government cannot then lose on its estimates except from some fantasy that unrestricted bidding will raise even greater savings. These things are uncertain: better to plan them. The Ministry should look at other jurisdictions that run contracted public defender schemes: they need management and cannot be run on a ‘fire adn forget’ basis. Under such a system, the winners continue to fight for the maximum revenue from the greatest number of cases that they can attract. The bid process for advocates can work in the same way as a separate pool.
Third, any system of competitive bidding carries obvious dangers of corner-cutting and reduced quality. Other contracted public defender schemes have developed various ways to hinder this undesirable consequence of contracting. One, which no one has much considered over here though it has long been argued for in the US, is maximum caseloads per practitioner. Without this, employers will exploit their employees or agents to an extent which will unavoidably impact on quality. So, the government needs to specify what are the upper workloads of different types of practitioners that it will accept in a bid. Another, rather interesting, mechanism used in Chile is the proportion of cases successfully defended by the practitioner. There are financial penalties for deviating from the expected norm to prevent public defenders being too economically rational and pumping through guilty pleas rather than time-consuming contested cases.
No one will like the safeguards suggested above and they will, alas, attract universal opprobrium. The ostriches will continue to believe that price competition can be resisted. The sharks want no competition once they have got their contracts. The Ministry of Justice will be appalled at the degree of administration required. That doesn’t mean that these vested interests are right.
