Further evidence submitted by the Legal
Aid Practitioners Group (LAR 66a)
Very High Cost Case proposals
Initial thoughts from LAPG
Overall, these proposals look unworkable.
Fundamental aspects missing from the consultation:
The prices on offer
How the LSC will forecast demand.
There is comment on the latter at para 5.1,
but this appears to indicate that the LSC does not know how it
will forecast demand. The denial of liability if demand is different
from the forecast (para 5.1.2) is particularly telling.
The proposal at para 3.2 is for a series of administered
prices, not a market solution.
Panel B—para 4.3. This appears to have
insufficient safeguards in the event of the forecasts being too
low—which is very plausible given the possibility of further
mass arrests for terrorism offences in particular.
Forecasting capacity—5.1—the LSC
needs to engage with prosecuting authorities and intelligence
agencies, and needs cross-Government agreement as to how many
VHCCs it is expected to fund from within the existing budget.
Any additional VHCCs should attract additional funding from the
Treasury or from other Government departments. VHCCs cannot be
allowed to continue having an open-ended demand on the legal aid
budget.
Para 5.2—if the LSC feels unable to estimate
likely hours on VHCCs across the whole system (para 5.1.1), how
does it expect individual firms to correlate hours to number of
cases?
Membership of the panel "will not be any
guarantee of VHCC work, only the exclusive opportunity to obtain
such work". Cf (two bullet points above) that there is no
capacity limit on a firm once it is on the panel—so the
LSC cannot control expansion in the way that it is purporting
to do through the bid process, and even if its forecasts prove
correct, firms on the panel may get no work. Cf also David Howarth's
Question 279: "The Government says, `You tell me a price
and I will send you some work if Ifeel like it.' That has the
fundamental legal problem that it is not a valid contract."
The selection criteria—Section 6 and Annex
E. These criteria prioritise someone offering a merely "adequate"
bid on the desirable criteria over someone who is offering an
"excellent" bid at a slightly higher price. They give
no priority to a firm rated as competence plus or excellent at
peer review over one rated as merely threshold competent. Nor
does there appear to be scope within the bidding process for firms
to offer higher quality at higher prices, or for a judgement to
be made as to whether that is what the LSC should be buying—value
for money appears to have been equated entirely to cheapness of
the bid.
The current shortcomings of the peer review
process—and perhaps more importantly the fact that it has
not yet been fully developed and properly rolled out—are
clearly shown by paras 6.1 and 6.1.2.
Para 7.0—client choice appears non-existent
February 2007
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