Originally published in Competition Law Insight, July 2008
In December 2007, the Legal Services Commission (LSC) launched a consultation (the Consultation) intending to introduce best value tendering (BVT) for criminal defence services. In constructing this new system, the LSC needs to take into account the rules and principles of EU public procurement and, in particular, the application of the Treaty principles of non-discrimination and transparency.
Factual Background
In the UK, legal aid is made available by the state to qualifying individuals, usually in cases where they are unable to afford specified legal services. The LSC is a statutory corporation established under the Access to Justice Act 1999 (the 1999 Act) to administer legal aid to individuals. The 1999 Act confers powers and imposes duties on the LSC in relation to the Community Legal Service (the CLS) and the Criminal Defence Service (CDS). The CDS uses criminal legal aid to help people who are under investigation or are facing criminal charges.
The Consultation
In July 2006, Lord Carter of Coles published an independent review of legal aid procurement (the Carter review). This suggested sweeping changes to the way government buys legal advice on behalf of the public. It recommended moving away from the current system of administratively setting a local market rate towards a market- based approach. The three main principles to guide the procurement of legal services were that: (1) clients should have access to good quality legal services; (2) a good quality, efficient supplier base thrives and remains sustainable; and (3) the taxpayer and government should receive value for money.
In December 2006, the Legal Services Commission published a consultation paper entitled Best Value Tendering for Criminal Defence Services. The consultation outlined the initial proposals for a possible system of best value tendering (BVT) for criminal legal aid and sought stakeholders' views on the principle of BVT and on how a scheme might be put together. The consultation is the first step of a two-stage consultation process. Following the outcome of this consultation, the LSC intends to move to a second consultation including a detailed design stage with the help of experts in this field.
Procurement Rules And Principles
Does a contract for criminal defence services fall within the procurement rules and principles?
In establishing a new system for best value tendering, a key question is whether the EU procurement rules and principles apply. The relevant EC directive is Directive 2004/18/EC of 31 March 2004 (the Directive), which has been implemented in England, Wales and Northern Ireland by the Public Contracts Regulations 2006 (the 2006 Regulations).
There are three initial questions to ask: (1) Is the awarding body (ie the LSC) a contracting authority? (2) Is a contract for works, services or supplies above the threshold? (3) Is there a general or special exemption?
On the basis of the High Court decision in R (on the application of the Law Society) v Legal Services Commission, it seems probable that the contracts for criminal defence service for a value above the threshold of £140k will be subject to the 2006 Regulations. The LSC is a public body, a "contracting authority" for the purpose of the procurement rules. Legal services are classified as "residual" or "Part B" services under the procurement rules. Finally, the court in Legal Services Commission established that a similar legal aid contract system in relation to the Community Legal Service did not fall under the exemption provided for service concessions, because the services are paid for by the government rather than the clients themselves.
The Regulatory Regime
Part B services are those that the EU considered would largely be of interest only to bidders located in the member state where the contract was to be performed. This means that they are caught by a lesser regime, with only a few of the detailed rules of the 2006 Regulations applying.
Although Part B contracts are not caught by the full extent of the rules, contracting authorities must still procure them in line with certain procedures established in the 2006 Regulations. In addition, the LSC will need to act in accordance with the general EC treaty principles of non-discrimination, equal treatment, transparency, proportionality and mutual recognition.
What these principles imply in practice is that the contract has to be "adequately" advertised and that fair competition will run thereafter. The scope and nature of the advertisement will depend on the nature of the contract in question and whether it is likely to be of purely local, regional, national or EU-wide interest. In relation to criminal defence services, in view of the national jurisdictions for criminal law and the logistics of communicating with the clients in person and attending court procedures, the interest is likely to be regional.
Comment
The deadline for comments to the consultation expired on 3 March 2008. We are currently awaiting the publication of the possible second consultation and the updated initial impact assessment, which would cover detailed options and implementation plan for BVT. It remains to be seen how the LSC will address the need to follow the procurement principles and the principles set out in the Carter review.
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