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Bar joins opposition to best value tendering

11 March 2008

The Bar Council has added its voice to the chorus of opposition to the Legal Services Commission's plans to introduce “best value” tendering for criminal legal aid work in January 2009.

As part of its response, the Bar commissioned consultants MDA, who produced a report on the impact of competitive tendering on ethnic minority firms for the LSC in 2006, to comment on the latest scheme.

MDA disagreed with the LSC that BVT would have no adverse impact on ethnic minority clients.

It said that ethic minority firms were more likely to be small, and that, for whatever reason, ethnic minority clients were more likely to use a solicitor from a similar background.

“If the introduction of changes in the way in which criminal legal aid work is contracted results in significant numbers of small firms leaving the market, and therefore in some areas fewer BME (Black and Minority Ethnic ) controlled firms, then quite simply, the chances of a BME client engaging a BME duty solicitor or their own solicitor are diminished.”

Tim Dutton QC, chairman of the Bar Council, said he was surprised that the LSC had not published any details of the BVT scheme or conducted any analysis of the potential impact on quality or on ethnic minority clients.

“This is remarkable since the LSC's own experts, as well as the constitutional affairs select committee, advised them that a full impact assessment was vital before any proposals were developed,” he said.

“If the proposals are implemented and extended to the Crown Court, they will damage access to justice for ethnic minority clients, as well as the diversity of the Bar and, by extension, the judiciary. Such a development would clearly not be in the public interest, and is something I am determined to resist”.

The Bar Council working group, which drafted the formal response to the LSC’s consultation on BVT, included Sir Henry Brooke, a former Lord Justice of Appeal, Kevin Martin, former president of the Law Society and junior as well as senior criminal barristers.

The group said it would impossible for barristers to bid for the first phase of BVT work, at police stations and in the magistrates’ courts, and was disturbed by the suggestion that only those bidders who were successful in the first phase could bid for Crown Court work.

“The introduction of BVT would stifle the young Bar, preventing it from establishing a practice,” the working group said.

“This will have an overall detrimental impact on both the quality and diversity of advocates.”

Desmond Browne QC, vice chairman of the Bar Council and chairman of the working group, added: “The paucity of detail provided by the LSC has made it impossible for the working group to comment on the proposals in a meaningful way.

“We remain extremely concerned that BVT will be implemented despite little or no analysis by the LSC of the impact it will have on quality or diversity.”

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