Legal Aid procurement changes put on hold – the toughest spend category ever? (Part 2)

We featured the delays to Legal Aid competitive tendering the other day, and made the bold claim that it was the “most difficult spend category I’ve ever seen”. Today we’ll explain why.

Let’s start with the obvious. You’re dealing with law firms, both solicitors and barristers. These are people who don’t just write to the “supplier feedback service” if they think your procurement process is non-compliant. They tend to go straight to the judicial review with the consequent costs, delays etc. That will of course be reviewed by a judge, who is a member of the same profession...

The power of the provider lobby more generally is a real issue. Even though in some sense the LSC is a monopoly purchaser, it doesn’t feel like the power balance that might suggest, given the number of lawyers in senior positions in Government! For instance I was never sure that it was appropriate to have a Minister (Lord Bach) in charge of Legal Aid in the last Government who was also a Barrister, and one at that who might well go back to the Bar at some point (I don’t think Ken Clarke falls into that category).

We then get into the tricky issue of the market structure. There are clear economies of scale for larger providers of legal aid services; but much of the best work is done by small, local or specialist firms – so we get tied up in the whole  area of supporting SMEs,  localism, minority owned firms...  Then there are charities involved, and the Citizens Advice Bureaux, much loved by citizens and MPs alike. Some are also excellent at providing services, some are not. But you try withdrawing their legal aid funding....!

Getting into the more technical procurement issues now – one real issue is the virtual impossibility to measure supplier performance. If a legal aid solicitor advises their client to plead guilty, was that a good or bad call? Did it save the accused and the taxpayer a lot of time and effort; or was it a lazy solicitor badly advising a client who might have been cleared? We’ll never know. You can ask the clients of the providers what they think of the “service” – but they’re not always best placed to judge.

Then we have the practicalities of contracting when there is no volume certainty, and no clear schedule of requirements in terms of location, volume etc.  But you must have 24/7 coverage for every police station. There are also capacity issues amongst providers, and the sheer logistics of running tenders across dozens of areas with thousands of suppliers cannot be underestimated.

In terms of the payment mechanisms – well, that’s a whole topic in its own right.  Every case is different, so a totally fixed price arrangement doesn’t work, yet time and materials is too open-ended. So hybrid mechanisms tend to be used, with fixed price at the lower end and some more negotiated / T&M approaches for complex cases. And if you just keep cutting the fixed rates you are offering, then it’s inevitable that quality will suffer. Quality that, remember, you can’t really measure or control easily anyway.

Finally, you just have the sheer sensitivity of what you’re dealing with – from helping the most disadvantaged in society, to dealing with people in situations of extreme stress (being beaten or threatened by partners, for instance), to those who tend to be demonised by sections of the press -  asylum seekers or Iraqis accusing British soldiers of brutality.

Now that’s not to say that the LSC hasn’t made some progress in certain areas, but really, this was and is the toughest procurement exam question I’ve ever faced. So it is no surprise that the move to competitive tendering has been delayed – again. Keeping every stakeholder in this incredibly complex space satisfied, and meeting all the objectives that one would like to meet through effective procurement of legal aid may just be impossible.

Ideas on a postcard please....

 

Voices (3)

  1. bitter and twisted:

    Or, go the other way completely and have state funded lawyers on a salary.

  2. Michael Robinson:

    How about abandoning “procurement”, “commissioning” and the other biz concepts and instead look at remuneration of professional services.
    The mess we are in is because the State wants to stand in the shoes of the recipient so as to control cost and assure quality. The State cannot control cost without adversely affecting quality so a paradox is created.
    The State should withdraw. If it is accepted that poor people should be able to access legal advice funded by the State then the State needs to establish a proper payment system. Wasting time on quality schemes and procurement and BVT and tendering is a waste of money.
    HMCTS should consider legal aid applications and the application process should be streamlined. Access to Justice should be a “right” just like education and health not a luxury like the Arts.
    All politicians should read the 1948 debates on legal aid and subsequent discussions in Parliament and stop meddling.

    1. Dan:

      ” The State cannot control cost without adversely affecting quality so a paradox is created.”

      I wouldn’t agree with that.

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