Legal Services Commission - Best Value Tendering for CDS Contracts 2010
THOMPSONS SOLICITORS’ RESPONSE - June 2009
Thompsons is the largest and most experience trade union law firm in the UK. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons, on behalf of our trade union clients, provides union members accused of work-related criminal acts with access to specialist criminal legal services. We are therefore a niche provider.
We operate specialist criminal law units from a small number of regional centres with very high success rates. The overwhelming majority (95%) of our cases are dealt with as “no further action” or our clients are acquitted.
We specialise in acting for teachers and care workers in abuse and assault cases and emergency workers accused of causing death by dangerous driving. We also specialise in health and safety investigations, inquests and the employment law consequences of criminal investigations.
Our clients are professionals without experience of criminal accusations. They are of good character and the majority are determined to clear their name. Their salaries are paid whilst they are accused. Where they are innocent it is best that they are rehabilitated back into their workplaces and able to become productive again as soon as possible.
The service provided is from arrest through to Crown Court trial. Union members are arrested all over the country in small numbers. Therefore there are too few cases in any one area for a police station or court contract and the specialist service presents no threat to local suppliers.
It is a service that is enormously appreciated by unions and their members. Those who hold positions of trust run a higher risk of being falsely accused.
If we are to have high quality public services and if we are to protect children entrusted into care (whether at school or in a care home) we need to ensure that those who represent public servants accused of inappropriate behaviour are specialists in what they do.
We agree with Lord Bach that Legal Aid expenditure must both focus on the people and issues “where Legal Aid adds most value in terms of outcomes” and “ensure a fair return for providers” so that “Legal Aid continues to be sustainable over the longer term”.
Niche providers should be allowed to specialise on a national basis. Otherwise hard-working people and families whose livelihoods and careers are at stake as a result of accusations against them will be denied access to justice through specialist criminal law representation.
Allowing niche providers to specialise on a national basis would result in no additional administrative costs for the LSC. In fact there are likely to be both administrative and delivery efficiency savings.
- Trade unions provide members accused of work-related criminal acts with access to specialist criminal legal services. These are niche providers.
- They operate specialist criminal law units from a small number of regional centres with very high success rates.
- The BVT proposals are a highly restrictive process that abandon choice and quality and will exclude niche providers and may mean the end of this specialist service.
- The proposals take an eBay approach to the purchase and supply of criminal legal services.
- Criminal lawyers working for trade union members specialise in acting for teachers and care workers in abuse and assault cases, emergency services workers accused of causing death by dangerous driving. They also specialise in health and safety investigations, inquests and the employment law consequences of criminal investigations.
- The majority of referrals are either dealt with as “no further action” or clients are acquitted.
- Specialist law representation will be denied to hard working people and families whose livelihoods and careers are at stake.
- Niche providers should be allowed to specialise on a national basis. There are no additional administrative costs for the LSC.
We are dismayed that the LSC has pressed on with denying niche practices public funding by imposing bidding criteria that they are unlikely to be able to meet or which will be economic.
The LSC’s proposals will deny hard working people and families whose livelihoods and careers are at stake due to accusations against them, access to justice through specialist law representation.
Thompsons faces unenviable choices. By limiting publicly funded police station work to firms holding a BVT contract we are likely to have to either abandon police station work or do it for nothing, a choice that would be economically unviable.
The option of becoming a Crown Court specialist practice, with trade union clients being transferred to us from local solicitors with BVT contracts would provide disconnected services to clients and represents poor value in terms of funding.
The bidding scheme, which will drive down the price of all own client and duty work within BVT areas to the lowest price bid, creates a strait jacket into which every firm, regardless of its history, client base, knowledge, skills or geographical range must fit.
This is both unreasonable and unnecessary and a dysfunctional way to organise and fund legal representation for people suspected (but not necessarily guilty) of committing a crime.
That niche providers could be dealt with so summarily in the consultation, in eighteen lines of text reflects, we believe, a failure of understanding regarding the very particular client base to which we provide a service.
Paragraph 5.83 states: “While in many cases the client will be likely to receive the same or similar service from a provider based within the scheme area they require, there may be an impact on the client if under the new model they are compelled to instruct a new solicitor even where the case or client group may have specific needs that they believe may be better met by a specialist provider.”
While this does appear to acknowledge that in some cases clients will not receive the same or similar service from a BVT contract holder, it is simply untrue to assert that in general the service will be the same.
The majority of Thompsons’ clients have no previous experience of the criminal justice system. General crime solicitors are used to dealing with a population of people who generally do have previous experience. Our clients therefore are reasonably, due to the lack of previous experience, more demanding in terms of the explanations and advice they require.
The teaching union the NASUWT instructed Thompsons to act in defence of its member. As a result of our Judicial Review fewer teachers who face untrue allegations made by pupils will now suffer the trauma of being arrested and having their DNA, fingerprints and photographs taken and retained when attending a police station following such an allegation.
Mr W voluntarily attended a police station by appointment for an interview concerning an allegation of common assault on a pupil. He had himself reported to the police an assault that he had suffered at the hands of the pupil, who had then made a counterclaim.
Officers arrested him and took DNA samples, fingerprints and his photo. He was interviewed, answered all questions and was then released from custody. He was later cleared of all wrongdoing.
By law his DNA records could have been kept irrespective of the outcome of the arrest. The Police National Computer (PNC) had also been marked with “CJ arrestee” which would lead to any future employer being informed of the arrest as part of the obligatory enhanced Criminal Records Bureau (CRB) check.
Thompsons and the NASUWT challenged the legality of the arrest and sought the destruction of Mr W’s personal records. The High Court granted permission for a judicial review but a few days before the hearing the police conceded and agreed to a Consent Order declaring the arrest unlawful. The police were ordered to destroy, remove and delete the records and to amend the PNC.
Mr W was also awarded compensation.
The action by Thompsons and NASUWT clarifies the law under the Police and Criminal Evidence Act. This means that fewer innocent teachers (and other workers) will suffer the trauma of being wrongly arrested and the prospect of having a career destroyed through adverse inference on CRB disclosures.
This case study is an example of the uniqueness of the types of cases that Thompsons deals with and the vital importance of employees accused of work-related crime having expert legal representation – solicitors who understand the potential implications of going voluntarily to a police station and of the outcome for the accused’s immediate and future employment.
Like Mr W, in the police station the vast majority of our clients wish to give an explanation and this is quite different from the day to day experience of general crime solicitors.
The information and advice that we give must therefore be focussed on the risks of the outcome of the police investigation. We must for example give detailed information about the effect of prosecution, which is usually disastrous whatever the outcome, and a subsequent CRB entry.
We are frequently involved in challenges to CRB entries such as that described and it is important that where it is proper to do so a “no crime entry” is the outcome rather than a misleading record with all the prejudice it entails in relation to future employment.
Few general crime solicitors have any experience or knowledge of this work or the interrelationship between the investigation and this final outcome.
Our cases usually involve parallel employment proceedings. Our solicitors have extensive knowledge of employment law and also work with Thompsons’ national employment rights unit.
Access to such a resource is normally absent from general crime solicitors, few of whom have any employment rights background or knowledge.
Our lawyers’ skills and experience is a reflection of the fact that at Thompsons we attract high quality criminal lawyers because the work is seen to be specialist. As such we provide a training ground for lawyers in a specialist practice that enables them to be more effective if and when they move into other firms.
As stated, our success rate is 95% of cases either not proceeded with or resulting in acquittal. There is no parallel for this among general crime practices. It reflects our specialist skills and commitment.
Paragraph 5.82 correctly states that the police station work of niche practices is unlikely to be concentrated in one geographical location and that it is unlikely to be economical for us to chose an area in which to bid.
Our work is scattered across England and Wales. Because we may have a single case in Lincoln, or another in Aberystwyth or another in Southampton, our work can have no impact upon the economics of local firms.
Our clients get highly specialised help wherever they are arrested. That we provide this service at Legal Aid rates and are willing to accept local police station prices in the current arrangement is an enormous benefit to both the client and to the LSC as the purchaser of legal services. The LSC gets extremely high value for its money.
Paragraph 5.83 contemplates that access to that value may be on a private or a pro bono basis according to the means of our clients or our own decision not to charge them for our services.
This is completely unrealistic. The vast majority of our clients are in work and members of hardworking families. We have already expressed our concerns with regard to the potential impact of means testing in Crown Court proceedings on the same clients and to expect them to be able to pay for services or for us to deliver them for free is not viable.
The BVT pilot
The consultation paper presents a full BVT scheme in which the only issues appear to be the nature of the auction process (sealed bids or open auction) the organisation of what is bid for (blocks of work) and the degree of restraint on the suppliers who hold BVT contracts (they are unable to do own client work outside a BVT contract area and under one of the options, no Magistrates Court work outside of an area either).
We do not understand why such a restrictive and highly developed scheme has been presented for consultation given the commitment from Sir Michael Bichard following the first consultation that:
“Rather than a ‘phased implementation’ approach to competition, BVT should be piloted in the first instance.”
“Before we make any final decision on a phased national implementation, we would propose a full assessment of the impact of the pilot to be published within six months to one year of the first BVT contracts being let. ”
We do not understand why that position appears to have been substantially altered to bring forward a national rolled out program, and especially one of such a restrictive nature. It appears to us that the Legal Aid budget is under control, that expenditure is not rising uncontrollably (and is probably falling) and that a great deal of change has happened within the system which has not yet been evaluated.
We support the general criticism of the Graduated Litigator Fee Scheme which has divorced time from value. The time that we now spend properly on our Crown Court cases has no relationship to the value of them as determined by the mathematical formula which links gravity of charge, stage reached and the pages of prosecution evidence.
Our lawyers have found this system disconcerting. Their work no longer has any relationship to what is paid. Yet we continue to provide the highest quality of defence and our success rates attest to that.
Response to the questions
1. Do you agree that the creation of ‘blocks’ will assist providers in bidding for work in more than one area?
We do not agree that the creation of “blocks” will assist providers in bidding for work in more than one area.
We do not agree with the principle of BVT for all of the reasons set out above. It is a highly artificial process and the mechanism for designing blocks for the purpose of bidding reflects that artificiality.
In most schemes there are 1095 slots available (3 x 8 hour slots per day x 365 days per year). We support the current mechanism for the distribution of that work via individual duty solicitor ownership of slots. It is transparent, based upon known geographical access and has a random distribution across the population of duty solicitors which, due to its random nature, is fair.
We do not understand why, if there must be an auction, it could not be for slots of work. As the statistics for each scheme are to be published, it would be easy to confirm the average number of cases per slot in any particular scheme. Bidders could bid on that basis.
It is simply not necessary to add layer upon layer of mathematical complexity by inventing blocks of work.
2. What comments do you have regarding the way in which we are proposing to calculate blocks?
As above, the calculation of blocks is unnecessarily arcane.
3. In your view are the block sizes proposed for Manchester and Avon & Somerset CJS areas reasonable? Please comment.
Our office providing our niche service in the North West of England is located in Manchester. Our solicitors are not members of the duty solicitor scheme. We have commented above on our disappointment at your failure to recognise the different skills and experience of niche providers.
The restriction of publicly funded work to BVT contracted solicitors means that we may be forced to enter the market to bid for duty solicitor slots which we do not want simply in order to do a handful of cases that arise within the scheme area.
This cannot be an efficient use of funds.
We do not understand why such a large area has been chosen for a pilot or why it includes all lower crime work rather than, say, duty work only.
4. Do you have any comments on the proposals for a minimum bid size?
A single block, or if tendering proceeded on a slots basis, a single slot, is a sufficient minimum bid size. However we reiterate that we do not agree with the scheme as a whole which is unnecessary and deeply flawed in its conception.
5. Which of the two options for a minimum bid size do you prefer?
- Minimum bid size is a single block
- Minimum bid is based on two or more blocks that give access to a volume of work that could generate a sustainable level of income for one fee earner.
A minimum bid size of a single block would be preferable to the aggregation of blocks as a minimum bid size. The sustainable level of income for one fee-earner is a highly artificial concept. It depends entirely upon the price which is eventually agreed per case.
We do not see how it is necessary to link the value of duty solicitor cases to the value of own client cases. This is a highly artificial calculation for our purposes, as fee earners deal with police station, magistrates’ court and crown court work to ensure continuity of service.
6. Do you have any comments on the proposals for a maximum bid size?
We are not a firm affected by maximum bid size. However we do have sympathy for firms who have been encouraged by LSC policy and the Carter review to believe that a large economy of scale locally was desirable and who have built their practices around that concept and who now face the loss of duty solicitor slots as a result of the 1 1/8th rule.
It appears these proposals are intended to exclude firms that are “too small”, or at least to prevent fragmentation of the market, but also to exclude firms that are too large within a local market.
Firms are also to be constrained to where they have BVT contracts.
This manipulation of firms into a very constricted, localised model is neither necessary or desirable from the point of view of client choice and quality.
7. Do you agree that the process should aim to secure a minimum of 8 providers per scheme in the majority of schemes?
We do not agree that the process should result in a minimum of eight firms. This is an artificial constraint on a sophisticated and well developed market.
8. Do you agree that different approaches to the minimum number of providers should be taken in lower volume schemes?
The reason why there are few suppliers in low volume schemes is that it is simply not economic for there to be more of them. The market has evolved in the way that it has, with limited competition, because solicitors do not seek opportunities where the volume and the prices are low. The market should be left alone.
9. Do you agree that securing a minimum of 4 providers and introducing additional back-up requirements will help ensure that conflicts are handled appropriately?
We can envisage circumstances under the proposed scheme where there are multi-defendant cases but too few existing number of providers. This will be the inevitable outcome of a scheme which constrains firms to very limited areas.
The LSC cannot impose such constraints and then expect firms to travel to other areas when local providers cannot provide the service, especially as the system does not properly remunerate travel.
10. Do you agree with the proposal to require back-up in all BVT contracts for contiguous schemes? Please explain your answer.
See response to Q9.
11. In BVT areas would you prefer that either:
- Option 1 - only those providers that secure a BVT contract in an area can undertake magistrates’ court representation in that area
- Option 2 - providers that do not secure a BVT contract, but do hold a CDS Contract 2010, have the opportunity to undertake publicly funded magistrates’ court work as they do now, ie with no restrictions?
We prefer option 2. It is an unnecessary restriction of the market to constrain firms to publicly funded magistrates’ court work only where they have a BVT contract.
12. Do you agree with the proposal to unify the escape threshold for exceptional cases across a CJS area? Please comment.
Unifying the escape threshold will make little difference across CJS area. Because the threshold is set so high in relation to grave crime it is almost impossible to reach the escape threshold, meaning that in grave crime cases, firms lose substantially on a case by case basis. There should be separate arrangements for such cases.
13. Do you agree with the proposal to unify exceptional cases and magistrates’ court fee levels? Please comment.
All Thompsons’ offices are subject to the “urban fee” system. The proposal will execute a cut to firms who receive London rates without explicitly rolling up the London saving into national rates.
No figures for that cut are given, though it is to be assumed that the LSC knows them.
Thompsons opposes further cuts in what are already historically extremely low rates of pay.
14. Are the general principles proposed for assessing how providers intend to fulfil their bids realistic and sensible?
We have in mind that this is a contractual process and therefore would expect the detail of the requirements in relation to the initial volume bid round to be very explicit.
What the general principles ignore is the link between the capacity and the price. Every firm can define capacity, probably in terms of its current capacity, but the ability to deliver depends upon the price eventually agreed.
This is a highly artificial and undesirable process.
15. Would you prefer the price-setting mechanism to be:
- Option 1 - sealed bid?
- Option 2 - online auction?
Please explain your reasons.
We prefer Option 2. Option 1, a sealed bid auction, is a lottery and bidders have no information regarding the bidding of others suppliers.
Option 2 is enormously complex but at least has some element of transparency.
16. In Option 1 - sealed bid, do you consider a three-day window to enter bids reasonable? If not what length of days would you prefer?
We do not understand the point of a window. We are disturbed by the number of questions in the consultation paper regarding the auction process which indicates that this is not a pilot of best value tendering but simply of the auction process which the LSC is attempting to legitimise by seeking answers to narrow procedural questions.
Most suppliers will feel compelled to answer these questions. This will enable the LSC to place an interpretation on their responses of X% preferring an open auction system or a three day window and so on.
This will appear as though suppliers were positive about the process and overwhelmingly in favour of one option or another, when in fact most suppliers are likely to also tell you that this is not a process with which they wish to engage.
17. In Option 1 - sealed bid, what sort of support do you think is necessary in order to ensure you are able to participate in the process
- face-to-face training prior to the tender
- telephone helpline
- online support
- instruction DVD/webcast
- other – please give details.
It is offensive that the LSC is proposing making significant resources available to potential participants in a tendering process involving almost 2,000 firms when it is simultaneously abandoning choice and quality assurance by excluding niche practices.
The options themselves require more information before we can comment on which would be appropriate support. This would include who would deliver the support, what is their level of expertise and how many hours of support is being proposed.
Without knowing the content of the support it is difficult to evaluate what would be effective.
18. In Option 2 - online auction, please indicate your preferred option for making bids in rounds:
- as quickly as possible with 30 minutes between bid windows
- bidding up to four times a day with at least 2 hours between bid windows
- bidding twice a day with at least 6 hours between bid windows
- bidding once a day with at least 12 hours between bid windows
- other – please give details.
These options are a recipe for chaos. It is the purchase and provision of legal services based on the model of eBay. We strongly suggest that the LSC does not go down this route.
19. When making your bids, what time windows would you prefer?
- office hours only
- other (please specify)
Our view is it should certainly be in office hours.
20. In Option 2 - online auction what type of support do you think is necessary to ensure you are able to participate in the process?
- face-to-face training prior to the auction
- telephone helpline
- online support
- instruction DVD/webcast
- access to the bidding platform at locations outside your office
- other – please give details.
See our answer to Question 17.
21. Do you have any comments on the proposed entry requirements to bid?
Measures of quality are constantly changing. We are strong supporters of peer review and we are disappointed that it has not been further developed and indeed that it now appears to be in the process of being abandoned.
We understand that you struggle with the problem of new entrants who have no historical record of quality compared with firms in operation.
We note that you have down-graded quality to threshold competence. We understand this is because you did not allow appeals against threshold competence because of your lack of resources and indeed we also understand there are firms who have never been peer reviewed.
It appears that you are falling into a default position relying upon key performance indicators and that you and suppliers will become complicit in pretending that quality has not diminished, as it will become impossible on either side to admit that it has.
We reiterate that it would be far better to divert the resources being expended on best value tendering into the peer review process and to make that process a more proactive coaching and mentoring system in order generally to raise standards.
22. Do any of the proposals set out in this consultation document create an unreasonable restriction on new market entrants?
We are in favour of a strong link between price and quality and would have expected to see a scheme that incorporated that link by having a matrix or point score system that linked bids to quality.
Such a tendering system would allow a more detailed and objective analysis of all bidders and new entrants.
23. To what extent do you consider that the principles set out for the scheme rules for BVT are appropriate?
We have not understood the relationship between office location, post code and the ability to bid for a BVT contract. We consider the principles for the scheme rules to be entirely inappropriate.
24. Do you have any comments on the proposals to abolish panels in BVT areas?
It appears that the proposals are intended only to enable the creation of the block bidding scheme. Historically evolved arrangements that are working successfully are being scrapped to make way for the proposed scheme.
25. What are your views on the additional requirements to ensure providers must deliver services at the magistrates’ court where they have previously provided the police station element of the case?
Assuming that this means subject to a representation order for legal aid being granted in the magistrates’ court then Thompsons has no problem with this obligation.
26. Do you think that removing the requirement to report profit costs, travel and waiting on the majority of police station and magistrates’ court cases under BVT would be of benefit to providers? Please comment.
Claims for police station work and magistrates court standard fees do not contain any claim for remuneration for travel and waiting. Therefore there should be no requirement to provide that information.
27. Do you agree with the following proposals on risk sharing:
- the ability for providers to request a re-tender in the circumstances set out?
- the introduction of change provisions when police stations close?
It is a fundamental problem of the scheme and this process that there is no guarantee of work. In other contexts when bids are made for work, the work to be done is clearly defined in a service level agreement.
In the proposed contractual arrangements there is no guarantee of volume and there are many external factors in play which include government policies which will impact on the work, including the closure of courts and police stations on a temporary or permanent basis and “reforms” which effect other key and linked elements of the business, namely such as the abolition of committal, the extension of magistrates court powers, changes to the graduated litigator fee scheme and a new VHCC scheme.
For businesses trying to plan, the relationship between these elements of volume, resource and remuneration are key but outside of the supplier’s control.
We do not understand how the providers will be able to organise themselves in practical terms in order to cross the necessary threshold to ask for a re-tender and in particular how they would collectively and individually provide the information necessary to make the case for a re-tender.
It surely cannot be on the basis of financial information because the effect of a police station closure or court move or some other major development would take a period of time to be reflected in any accounting system, by which time the damage would have already been done to the business.
The fundamental problem is that suppliers are being asked to bid in a system over which the contracting body does not have control of major elements.
Risk cannot be reflected in a supplier’s bid as they have no way of estimating what the risk is or what the effect would be.
28. Do you agree that the contract length should be 2 years (+ ability to extend by up to 2 years)? What would the ideal contract length be for you?
An ideal contract link would be an indefinite contract. However we would prefer a far more radical approach which is the abolition of contract.
It would be perfectly possible to set standards for suppliers and have a regulatory framework which ensured quality without the necessity of the endless periodic termination and bidding for new contracts.
It is a fragile market in which the contractual regime is simply a burden and not a benefit.
29. Do you agree with the way in which we propose to reallocate work should providers exit the market part way through a contract?
30. Do you agree with the proposal that under BVT contracts solicitors may only qualify as supervisors through CLAS accreditation?
No. Our experienced solicitors are not duty solicitors but are perfectly capable of supervising the work. This proposal is another artificial extension of a particularly bureaucratic rule into a business process.
31. Do you agree that the requirement for the supervisor to fee earner ratio should be not lower than 1:4? If not, what would the appropriate ratio be, and why?
We have no difficulty with such a ratio as almost all of our work is completed by solicitors. Our difficulty lies in the redefinition of what is a supervisor. See above.
32. Do you agree that the individual continuous qualifying requirements for duty solicitors should be amended as proposed?
It is not clear what re-accreditation process solicitors would have to undertake. We do not have any difficulty with the idea that solicitors should undertake 24 police stations a year but the micro regulation of this into one attendance per month is a step too far, as is the micro management of one attendance in the Magistrates court per rolling quarter.
A rule that requires some reporting of these attendances by every solicitor in the country will create yet another layer of bureaucracy. If there is to be such a rule then it must be monitored through the coding in the claims process.
33. What are your views on the area prospectus? Specifically:
- the classifications of data used
- whether there is unnecessary information within the prospectus
- whether there are other types of information you would like to see incorporated
The prospectus must contain accurate and up to date information. If a proper tendering scheme was being proposed that allowed weighting of bids around value added and related services and specialist knowledge then any prospectus would contain an analysis of those market requirements. Instead the prospectus is narrowly drawn around volume issues.
34. Do you have any comments on the proposals for the scope of the pilot review?
The review must consider impact on supply over a period of time and we would suggest two years. It takes that long for cases to pass through a firm and for the transition from one system to another to be measured.
35. Do you have any comments on the proposals for the roll-out timetable?
Given the above answer both timetables are unrealistic. Firms must have longer to reorganise themselves particularly in the event if a failure to secure a contract.
36. Do you agree with the methodology and conclusions of the initial impact assessment that accompanies this consultation? If not, please give details of the aspects of the assessment you disagree with. Do you have any suggestions as to how the impact of the proposals should be assessed?
37. Do you agree with the methodology and conclusions of the initial equality impact assessment, which sets out our assessment of the potential impact of the proposals on people because of race, gender, disability and age?
If not, please explain your objection. Can you suggest any other factors that should be taken into account and do you have any information that might assist the Commission in assessing whether the proposals in this consultation paper might impact disproportionately on particular groups?