The Ministry of Justice has announced that they have abandoned controversial plans to impose price competitive tendering for Criminal Legal Aid work but has launched a new set of proposals, writes James Campbell, partner and head of criminal law at South Wales law firm, Everett Tomlin Lloyd & Pratt.

The original consultation, launched earlier in the year, caused huge concern among practitioners, the judiciary, civil rights groups and politicians from all parties. The consultation proposed that client choice should be removed and that contracts awarded to the lowest bidders with a maximum of 400 contracts being awarded countywide instead of the current 1,600.

That led to real fears that the vast majority of firms conducting this type of work would be forced out of business with the new bigger contracts potentially being awarded to large companies with no experience in the sector but with the financial muscle to undercut the competition. The governments aim was to save at least 25 per cent from the current Criminal Legal Aid budget.

Many commentators noted that this could lead to the destruction of many high street practices and create ‘advice deserts’ in many more rural areas.

Perhaps even more importantly, the Attorney General while commenting on an earlier similar scheme had suggested that a focus on price alone would only lead to a reduction in quality of representation available.

Opposition to the scheme grew with more than 100,000 people signing an online petition and rallies and events throughout the country where both the Law Society and Bar Council agreed that a bidding process that allocated the work to the firm or company who offered to charge the least, would lead to severe financial pressures on the lowest “winning” bidders resulting in cases being under prepared and badly resourced departments providing a poor service with the risk of miscarriages of justice.

The recent announcement of a fresh consultation confirmed that the government has accepted these issues were valid and the new proposals suggest as radical change in direction as it has been confirmed that client choice will remain and that contracts will not be awarded on price but on quality and capability.

However, even the new proposals pose a massive challenge to the profession and will prevent many of the people accused of a crime from being eligible for state funding of their defence.

Within that proposal is a plan to extend the means testing of defendants in Crown Court proceedings. At present Magistrates and Crown Court Legal Aid is only granted to people who pass a means test. The new proposal is to significantly tighten the Crown Court means test and will mean many people earning slightly more than the minimum wage would not automatically receive Legal Aid and may have to pay a substantial contribution and that those who have a higher disposable income will not qualify at all even if their case is likely to last many weeks and cost a significant amount to defend. There are concerns that this could lead to an increasing number of unrepresented defendants in the Crown Court. A proposal that defence costs could be ordered by the court after a finding of guilt rather than during proceedings, has been ignored.

Under the new system firms are expected to bid for a vastly reduced number of duty solicitor contracts depending on their capability to carry out high amounts of work. Firms that did not get a contract are likely to stop dealing with this area.

The Ministry of Justice has indicated that at least 600 firms will not get a contract.

The final and perhaps most challenging aspect of the proposal is a 17.5 per cent cut in the fee for all work across the board spread over two years. As fee rates for criminal work have remained entirely static without an inflationary increase since the mid 1990’s many firms currently dealing with this type of work are already doing so very efficiently. A cut of this nature will force many firms out of business especially in rural areas where volumes of work may not be as high or predictable as in bigger cities. While the government likes to trot out figures about high earning QCs these are the exception rather than the rule.

It may surprise some people that no action is taken against a relatively high percentage of people accused of a crime in the police station and a smaller but still substantial percentage of people are acquitted in the magistrates and crown court. Maintaining a high standard of representation allows us to be proud of one of the fairest justice systems in the world and many feel risking weakening that system to save money is not a price worth paying.