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Michael Gove scraps ‘ideological’ two-tier legal contracts

Lord Falconer demands government come clean on how much public money was wasted on legal aid 'fiasco'

28 January 2016

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The government is to scrap its controversial 'dual contracting' scheme for criminal legal aid - the most extensive public procurement process ever attempted - following widespread opposition from both solicitors and barristers.

In a written ministerial statement release this afternoon, the justice secretary announced that he will not introduce the two-tier contracting regime and will also suspend the second 8.75 per cent fee cut for a period of 12 months from 1 April 2016.

The start date for the contentious contracts was postponed after unsuccessful bidders mounted legal challenges and caused the tender process to be suspended in 69 of the 85 procurement areas.

'My Department currently faces 99 separate legal challenges over the procurement process, which has required us, anyway, to stay the award of new contracts at least until April,' admitted Michael Gove.

The justice secretary said the arguments against dual contracting had 'weighed heavily' on him, 'but the need to deliver rapid reductions in expenditure was 'stronger'.

However, the Lord Chancellor admitted that legal challenges against the procurement process had convinced him that there were 'real problems in pressing ahead'.

'By not pressing ahead with dual contracting, and suspending the fee cut, at this stage we will, I hope, make it easier in all circumstances for litigators to instruct the best advocates, enhancing the quality of representation in our courts,' added Gove.

Speculation had grown that the Lord Chancellor was preparing a U-turn on the two-tier contracts introduced by his predecessor, Chris Grayling. However, at justice questions earlier this week he avoided being drawn on the subject when asked by Labour's shadow justice minister Andy Slaughter.

In his statement, Gove said that his ambitious reform to the courts system required the support of Criminal legal aid solicitors who 'perform a vital role in our justice system'.

In addition the justice secretary announced his intention to appoint an advisory council of solicitors and barristers to help him explore ways to reduce 'unnecessary bureaucratic costs and end 'continuing abuses' within the legal aid system.

Gove also advised that the Legal Aid Agency will extend the current contracts to ensure continuing service until replacements come into force later this year.

Responding to the announcement, Law Society president Jonathan Smithers said he was pleased the Lord Chancellor had recognised that the situation was 'untenable'.

'It is clear that a competitive approach to the provision of criminal legal aid services is not appropriate. The assurance that there will be no competitive tendering in the future gives practitioners greater certainty for the future.'

Smithers added that a suspension of the second fee cut would help support the viability of criminal legal aid services across England and Wales.

'It is in the interests of the public, the legal profession, government and justice that high quality firms remain able to deliver the expert legal advice people need,' he continued.

'Of those who plead not guilty in the Crown Court, well over half are acquitted, which is why people accused of wrongdoing must be given access to good quality legal help, whatever their means.'

Jamie Potter, a partner in the public law and human rights team at Bindmans, said: 'This was the most extensive public procurement process ever attempted.

'It was driven by an ideological conviction that massive market manipulation could be imposed at the same time as swingeing fee cuts. It is hardly surprising it led to litigation on an unprecedented scale.'

Mark Fenhalls QC, chairman of the Criminal Bar Association, said: 'It takes courage to make such decisions. The CBA is wholly committed to working with the ministry and the solicitors' profession to build reforms to make sure the public is once more served by an efficient and world class criminal justice system.'

The Bar Council also welcomed the Lord Chancellor's announcement. Chantal-Aimée Doerries QC, chairman of the Bar, said: 'We have consistently asked the Ministry of Justice and the Legal Aid Agency to re-consider their plans.

'Today's decision to scrap the scheme is the right one. It shows that the Lord Chancellor has listened to the legal profession's concerns about access to justice and is acting upon them.'

The scrapping of two-tier contracts represents the latest embarrassment to the leader of the Commons, Chris Grayling who has already seen his replacement abolish the prisoner book ban and the criminal court charge.

Labour shadow justice secretary, Lord Falconer responded to the announcement by questioning how much public money had been spent on the 'fiasco'.

'This is a staggering admission from the Tory government and represents a final confirmation that their plans to reform criminal legal aid have descended into utter chaos.

'Labour, practitioners and experts warned from the start that this flawed policy would be a disaster but Ministers pushed ahead regardless.

'While it's welcome that they have finally listened, the government must now come clean about how much public money has been wasted on this doomed endeavour, so that ministers can be held fully accountable for this fiasco.'

A statement from the London Criminal Courts Solicitors' Association (LCCSA) said the plans had been a disaster from the outset: 'The proposed new contracting regime, launched by the MoJ under previous [Lord] Chancellor Chris Grayling, has been an absolute fiasco, as was most of what happened during his tenure.'

'We need to move on constructively with criminal legal aid reeling from the effects of more than 20 per cent cuts in the last few years against a backdrop of no rate increases since the 1990’s,' continued the statement. 

LCCSA president Greg Foxsmith added: 'We sincerely hope the MoJ learn lessons from this sorry affair, and we are ready and willing to work constructively with Mr Gove to replace "two-tier justice" with sustainable legal aid provision that provides justice for all.'

Henry Blaxland QC, joint head of Garden Court Chambers said: 'The government’s decision to abandon the fundamentally flawed dual contracting system is a crucial step towards ensuring that anyone accused of an offence in this country is able to have a full and fearless defence put forward by experienced, high-quality solicitors and barristers.

'We hope that this announcement marks the beginning of a new attitude by government to legal aid policy, recognising the importance of a properly funded defence to the fair and efficient running of the criminal justice system.

'We would like to express our gratitude to all those who campaigned against the government’s proposal, in particular the [LCCSA], the Criminal Law Solicitors Association, and the Justice Alliance.'

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