Tender update: further disruption likely

YLAL 12Introduction of the new criminal duty provider contracts, expected to commence on 1 April 2016, has again been postponed as over 100 procurement law challenges have been listed for May 2016. The challenges, which have been brought under Part 7 of the Civil Procedure Rules, are expected to end on 16 May. (Photo by Mary-Rachel McCabe, Voice for Justice demo).

The procurement law challenges will be heard following the judicial review brought by the Fair Crime Contracts Alliance, which is listed for April 7 2016 and is expected to last for seven days. Two former LAA contractors, including the whistleblower Freddie Hurlston are expected to give evidence at the hearing.

Hurlston’s claims that the tender assessment and moderation process was fatally flawed due to a focus on quantity over quality, with pressure placed on insufficiently trained agency staff to generate a set number of results per day in order to be paid in full, have been strengthened in light of the Legal Aid Agency’s recent admission of a transcription error in the marking of one of the bids.

This is the first admission by the LAA of fault in the tender assessment process, yet Bindman’s, representing Edward Fail, Bradshaw & Waterson, the London firm based in Tower Hamlets denied a contract it would have otherwise been awarded due to an error in transcription, criticise the LAA for failing to admit the mistake earlier. Edward Fail, Bradshaw & Waterson had repeatedly tried to engage with the LAA over the marking error, but were forced to issue proceedings when the LAA failed to respond. Instead, the LAA will waste ‘substantial public funds on an indefensible claim’ as, despite admitting fault, the LAA has refused to settle.

It remains to be seen whether other law firms will issue similar proceedings, but it is looking increasingly unlikely that the LAA will be able to implement the new duty provider contracts within its intended timescales. Instead, the ‘backstop date’ of 10 January 2017 announced previously as a contingency plan in the ‘unlikely event’ of further delay draws steadily closer.

Meanwhile, the Lord Chief Justice was optimistic in his 2015 report (available here )  that despite the unaffordability of justice for most people and the resultant rise in the number of litigants in person, implementation of the recommendations made in the Leveson Review of Efficiency in Criminal Proceedings (January 2015) and investment in improved IT systems would help to ameliorate the situation.

Referring to action taken during the summer of 2015 as the dispute over the imposition of new duty provider contracts progressed, the Lord Chief Justice said the criminal courts ‘again had to contend with action taken in relation to criminal legal aid. Court staff and the judiciary worked hard to minimise disruption to all court users’. The strain of increasing numbers of litigants in person in courts is telling on the judiciary, whose morale is low as the ‘burden on work’, which is increasingly ‘challenging and emotionally-charged’, has increased.

According to the Lord Chief Justice, while ‘no satisfactory means of funding the provision of our system of justice has yet been achieved’, there is a real need to explain publicly the central role of the justice system in maintaining a ‘just and fair society, accountable and democratic government and a strong economy’.

Leave a comment

Your email address will not be published. Required fields are marked *