Legal Aid – A Pyrrhic Victory?

The High Court has declared the LSC process contracting round to be irrational. Those without family contracts breathe a collective sigh of relief. Many celebrate and within days the gloom will gather again. Why? Firstly, the spending review is likely to lead to dramatic cuts in the actual levels of family aid and Article 6 challenges aside the Profession won’t be able to do much about it.

The contract tender was largely about distribution between firms. Politicians can (and will) think of this as a battle between practitioners as to how they divide the cake up between themselves. A comment on the Gazette story suggests that quashing the tender process will reward those firms who mismanaged or misunderstood the tender process; those who were lazy, inefficient or poor quality. Others have said that that the tender process, as designed, led to very good quality firms being excluded from the contracts. For me, it was naive of firms to misunderstand the importance of domestic violence work to the LSC but equally there are signs that the LSC made significant mistakes: some of the better firms were excluded – the question is how many? Indeed, the LSC have hinted publicly that the tender round led to outcomes that even they were not expecting.

It is perfectly possible that both things have happened: the LSC did not always award the contracts to the best firms but that quashing the contracts will also reward those who simply dealt ineptly with the tender process. That the LSC sometimes got it wrong does not mean that everyone who did not get a contract should do. In particular, for those good quality firms who did get contracts this decision is a disaster. In the short term, the quality of the result yesterday is determined by how many better firms were excluded and poorer quality firms are now included (and also whether ‘advice deserts’ can be corrected).   A benefit of yesterday’s decision is that it gives a little time for a more measured consideration of that question.

In the longer term, I have to wonder at the Law Society’s strategy. They can resist change but they do not seem capable of suggesting a coherent alternative. This was true before the looming cuts started to take on more size and shape. My guess it is even more true now: understandably, they see their role as representing all their members but  it hinders their ability to provide genuine leadership. Yesterday’s result buys their members some time but it does not address the fundamentals. By making ‘reform’ difficult it may be that the Government will decide that the effort is not worth it and tread more carefully in cutting legal aid. Or they become more radical. A second anonymous poster on the Gazette story has suggested legal aid might be provided by contracts let to one national provider who will then subcontract the work out. That’s overstating it, but a much smaller number of contracts might be feasible. I am guessing that one of the difficulties faced by the LSC in dealing with the family tenders was the sheer volume of work (admin budgets having been cut significantly and political influence having been weakened further by the McGee review). A bid round which looked at very small numbers of providers would be much more manageable, the LSCs get to delegate many of their headaches to the contractor and the profession gets to negotiate with Capita or A4E. There are lots of problems with that model, and I don’t want to be read as supporting it: I don’t but a key reason why the LSC was pummelled by the McGee review is that the MoJ and politicians thought that the LSC was too independent, too resistant to change. They may decide to push harder not more gently.

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