Bar Council warns that Best Value Tendering scheme is flawed
3 March 2008
The Bar Council’s working group on Best Value Tendering (BVT) has warned that the Legal Services Commission’s (LSC) ideas will damage quality, reduce choice, and harm diversity. The Working Group, which is chaired by Vice-Chairman of the Bar Desmond Browne QC, has responded to the LSC Consultation Paper on BVT.
Published in December 2007, the Consultation Paper asked for responses on the future of Best Value Tendering for criminal legal aid. The BVT proposals emerged following the Carter Report (published in July 2006), which recommended a move toward a market-driven approach to legal aid procurement. However, it has proved impossible for the Working Group to comment on the merits or otherwise of the proposed scheme since no details have been published by the LSC.
The Working Group is made up of both senior members of the Bar, and eminent non-barristers including a former President of the General Medical Council, a former Court of Appeal Judge, a former President of the Law Society, and a leading professor of economics. The make-up of the Working Group has been designed to ensure its independence, and to have broad expertise.
The Working Group’s concerns have been set out in detail, and centre on the impact BVT will have on the quality of the provision of criminal legal aid. The absence of a robust mechanism for ensuring quality, and the impact that BVT has had in the United States of America – where a report published in 2000 shows that it drove down quality and lowered the quality of representation – have not been taken into account by the LSC.
The opinion of the House of Commons’ Constitutional Affairs Select Committee, which described the proposed scheme as ‘a breathtaking risk’, has also been ignored. The Working Group supports this view, particularly in light of the fact that advocacy expenditure has been controlled for over a decade by the Advocacy Graduated Fee Scheme, and also by the recent introduction of the Solicitors Graduated Fees Scheme, initiatives which have stabilised legal aid expenditure.
Chairman of the Bar Council, Tim Dutton QC, said:
‘The Bar Council is surprised that the LSC has not published any details of the proposed scheme, nor conducted any analysis of the potential impact on quality or on ethnic minority clients. This is remarkable since the LSC’s own experts MDA, as well as the Constitutional Affairs Select Committee, advised them that a full impact assessment was vital before any proposals were developed.
‘If the proposals are implemented and extended to the Crown Court, they will damage access to justice for BME clients, as well as the diversity of the Bar and, by extension, the Judiciary. Such a development would clearly not be in the public interest, and is something I am determined to resist.’
Chairman of the Working Group and Vice-Chairman of the Bar, Desmond Browne QC, said:
‘The Bar Council represents all Barristers, and quality is our watchword. The BVT proposals will harm the quality of legal aid provision, something which is in neither the public interest nor the interests of the Bar.
‘The paucity of detail provided by the LSC has made it impossible for the Working Group to comment on the proposals in a meaningful way; we remain extremely concerned that BVT will be implemented despite little or no analysis by the LSC of the impact it will have on quality and diversity.’
