Legal Aid Procurement Abandoned In the Face of Challenge

If you don’t know somebody at all, and have no objective evidence as to the quality of their intellect, then it is not fair really to launch personal attacks, such as calling them “stupid”. It’s lazy journalism, as well.

So let’s just say that Chris Grayling in his time as the UK government's Justice Secretary seems to have made quite a few decisions that have proved to be “unwise”, as Sir Humphrey (in Yes Minister) might have put it. Indeed, one might imagine Sir Humphrey telling Grayling that pretty much every policy he introduced was “brave”.

That bravery, or whatever we want to call it, has left the estimable Michael Gove, the current Minister, spending his time with a dirty great metaphorical shovel, cleaning out the Augean Stables full of the justice-related rubbish dumped there by Grayling. For instance;

  • Gove has abolished a mandatory criminal courts charge that Grayling said would raise money for the department, after a bunch of magistrates resigned in protest.
  • He got the government to cancel a £5.9 million contract to advise the Saudi authorities on their prison services. Indeed, he has now scrapped the whole commercial “arm” of the Ministry of Justice, the group that was behind that rather ill-advised contract.
  • He over-turned a ban on prisoners receiving books – with a lack of literacy being an endemic problem (and causal factor, almost certainly) amongst our prison community, that Grayling idea can, I feel, be called truly “stupid” without too much fear of contradiction.
  • His first change in policy was to over-turn plans to build a secure college for teenage prisoners; to be fair, that was probably driven by budgetary constraints rather than opposition to the policy.

Now, Gove has made possibly the biggest change to policy yet. He has over-turned much of the planned re-structuring of the legal aid system, to the delight of the legal profession. We reported here on the formal opposition to the procurement, which was to have introduced a dual contracting system for duty work (in police stations largely) and “own client” work. The Legal Aid Agency was facing no less than 99 separate legal challenges to their procurement process according to Gove – we thought it was 115!

Gove has “decided not to go ahead with the introduction of the dual contracting system. I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year. As a consequence of these decisions the new fee structure linked to the new contracts will not be introduced”.

The Legal Aid Agency will “extend current contracts so as to ensure continuing service until replacement contracts come into force later this year”. (We’re not sure about these “replacement contracts” – is that just further extension or something new)? And Gove will “appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system”.

There is an irony there. I served as a Commissioner – a sort of non-executive role but with added “public representation” responsibilities – for the Legal Services Commission (LSC) from 2005-10. At that time, there were 12 Commissioners, of whom around half were lawyers and barristers, and offered some of exactly that sort of advice to Ministers.

But for various reasons, some sensible, some political and some personally vindictive, the Commission was turned into an Agency, and brought closer to the centre of the Ministry of Justice, with just three non-execs, all ageing, retired white guys incidentally, only one of whom is a lawyer. Are any of them as sparky and informed in offering advice, as some of my fellow Commissioners were? I don’t know. But it doesn’t look like the organisational neutering of the LSC has done much good, looking at the recent shambles.

Anyway, enough of that. I have also said previously that legal aid contracting is the most difficult procurerment challenge I have ever seen in my 30-year procurement life, so well done to Mr Gove for his brave decisions – and good luck to him and Hugh Barratt in their next attempt to solve this conundrum!


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