By hiring people with no legal expertise to put its new post-cuts framework in place, the Ministry of Justice has left itself exposed
Angry legal aid lawyers have declared war on the government’s bungled legal aid procurement process — which basically decides which firms survive the cuts — and it looks like the Ministry of Justice (MoJ) has a fight on its hands.
The MoJ-backed Legal Aid Agency (LAA) recently awarded 520 key government contracts to law firms across England and Wales. But in deciding who got the contracts — which are the lifeblood of legal aid law firms — the lawyers think that the MoJ made a serious mistake.
Last month, the legal profession was rocked by allegations from LAA whistleblower Freddie Hurlston that the staff in charge of handling the 1,000 bids made for contracts had no legal expertise, and a second whistleblower has bolstered these claims while adding that the process was “shambolic and unprofessional”.
It has since been confirmed that 19% of the staff in charge of assessing the tenders were recruited by Brook Street temping agency using a criteria that did not make a legal background an essential requirement.
Criminal legal aid practitioners have seized on this point to hit the government with a wave of legal challenges questioning the lawfulness of the tendering process. As top legal commentator David Allen Green has pointed out on Twitter, this was rather predictable.
Only @MoJGovUK would have have made the assumption that hundreds of aggrieved lawyers would not sue over a botched procurement exercise.
— David Allen Green (@DavidAllenGreen) November 13, 2015
Legal action has been brought in 69 of the so-called “procurement areas” (80%) used by the government to divvy up the contracts. This means that the LAA will have to defend over 100 challenges. The LAA has applied for a group litigation order to consolidate this raft of claims.
And while the LAA has defiantly responded to these challenges, stating that it will “robustly” contest the claims, for now its awarding of contracts has been put on hold.
Owing to the Public Contracts Regulations 2006 — which stops public bodies proceeding when a judicial review has been brought against them — the government will have to abandon the proposed January start date for its new post-cuts framework. A spokesperson for the LAA said:
There are now automatic injunctions on us proceeding with the new contracts in a number of procurement areas until those legal challenges are resolved… We have therefore taken the difficult but necessary decision to delay the implementation of the new contracts. The Legal Aid Agency now intends that services under the new contracts will start on 1 April 2016 rather than 11 January, as previously planned.
All of this has left the LAA and its parent body the MoJ looking like, well, a bunch of plodding civil servants — around whom lawyers have been able to run rings. It’s not a good advert for a government legal career.
Any students who want a career in a "safe space" where daft ideas are not challenged, and reality is kept out, should think of @MoJGovUK.
— David Allen Green (@DavidAllenGreen) November 13, 2015
In the meantime, there is chaos. And the Law Society — which has called for an independent review into the procurement process — has issued this statement calling for the government to get its act to together:
Widespread litigation, coming on top of the delay in issuing results and entering into contracts, means that firms face chronic uncertainty. Depending on the outcome of litigation, and given the need for a mobilisation period to enable firms to get ready for taking on the new contract, there will continue to be crippling uncertainty and on-going and significant delays. The MoJ need to intervene and review as a matter of the upmost urgency.
While the fuss won’t reverse the cuts, it’s yet another chapter in the story of effective legal profession versus ineffective government that is seeing the policies of the Ministry of Justice questioned with increasing frequency.