Bar Council says latest MoJ legal aid consultation is flawed

17 October 2014

The Bar Council has responded to the latest Ministry of Justice consultation on criminal legal aid 'Transforming Legal  Aid: Crime duty contracts' pointing to major flaws in the consultation process.

The consultation, which only had a three week window in which to respond, was based on KPMG's report - Procurement of Criminal Legal Aid Services: Financial Modelling (March 2014), and Otterburn Legal Consulting's report - Transforming Legal Aid: Next Steps. A Report for The Law Society of England and Wales and the Ministry of Justice (February 2014).

However, the Bar Council, in its submission to the consultation, said: "The consultation process is flawed in that the consultation paper states that "The dual contracting model and the decision to limit the number of duty provider contracts are not within the scope of this consultation. In fact, both the Otterburn report and the KPMG report contain much material which is relevant to the questions: (a) whether or not to adopt the dual contracting model; and (b) whether or not to limit the number of duty provider contracts.

"In those circumstances, it is both unjustified and wrong to refuse to consult on these issues. The Otterburn and KPMG reports provide strong support for the conclusions that: (a) adopting the dual contracting model would run a substantial, but unnecessary and unjustified, risk of causing significant harm to the criminal justice system; and (b) if the dual contracting system were to be introduced, then the number of duty provider
contracts should not be limited."

The Bar Council warned that more time was needed to allow an expert assessment of the complex financial modelling undertaken by KPMG. However, in its consultation response the Bar Council pointed to fatal flaws in KPMG's modelling. It said: "Although more time is required for the study of KPMG's report, it is already apparent that that KPMG's modelling is an uncertain and unreliable basis for decision-making, because the methodology is untried and untested, because it is based on unreliable data and questionable assumptions and because it has not been consistently applied."

Nicholas Lavender QC, chairman of the Bar Council, said of the consultation: "The consultation time frame is very short for what is a complex issue. Given the risk of reducing access to justice, the Government ought not to be deciding either to implement its two-tier contracting scheme or on the details of that scheme without a robust and reliable body of evidence. It is clear from the Otterburn and KPMG reports that no such body of evidence exists."

Read the Bar Council's full response to the Transforming Legal Aid: Crime duty contracts here

                                                             ENDS

Notes to Editors 

1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

2. The  Bar Council represents barristers in England and Wales. It promotes: 

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad. 

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board