What is so utterly maddening about this criminal contracting farce, is that the need to win or maintain political capital, the length of time it takes to do anything and the carousel of people involved, ends up undermining the goals on which the vast majority might actually agree. More frustrating still is the ease with which those that should be setting the lead get drawn into the battle at the expense of the war.
The government has one main goal. To cut costs. The government has determined it needs to deliver costs savings across the criminal justice system. This is categorically not the same thing as needing to cut the amount spent on criminal legal aid. Within the agencies under the direct control of government (CPS, LAA, HMCTS) they are spending millions of pounds investing in a single agenda that will deliver savings down the line. It is called “digital by default”. It makes bloody good sense. Today, invest in the digital infrastructure and training that you need to deliver a more efficient system in the future. It will save money.
The way that the government seeks to deliver this digital by default agenda is by a process known as “agile” development. Simply – rather than spending years designing a massive system, in a basement populated by large hairy men wearing sweat pants, which then doesn’t work because no-one has actually communicated with the users in a real world environment – “agile” development cobbles something together as quickly as possible and tests and develops it in the field. One accepts that when it comes out of the box, it ain’t great. However, it comes out of the box two years quicker than the old “waterfall” development systems and you can spend the next two years making it better collaboratively with those that use the system.
Say it loud. I understand that government has a cost-cutting goal. I believe that costs savings in the criminal justice system can be achieved through the implementation of its digital by default agenda and I embrace the iterative, agile and collaborative process of bringing digital solutions to the real world quickly – so that defence practitioners can help shape them for the betterment of the criminal justice system.
So, why, why, why and how, how, how has it come to this?
In a distinctly “waterfall” and not remotely “agile” way on 9 April 2013 the Lord Chancellor announced a consultation. He was going to change the criminal defence sector from the top down through the mechanism of price competition. In doing so, he ignored the waterfall failures of previous attempts to re-engineer the criminal defence sector, from the previous decade of consultations and discussions with Lords Bach and Carter.
Nearly two years later we are still in dispute about what the criminal defence sector should look like. Price competition has long gone. It is ironic that Grayling’s most assured political performance in the last 24 months was actually at the Select Committee in September 2013. There he announced the “success” of the consultation process by reference to him having listened to the objections to price competition in the tender process. More consultations followed. Lots. I forget how many. Now legal proceedings. Lots. I forget how many.
Even if the latest appeal against the tender process ultimately fails, no-one should be under any illusion about the difficulties the government will have in assessing the bids, followed by more litigation from disgruntled suppliers, which will further delay or derail the implementation of the proposed two tier contracts. And that assumes that there is both a Conservative administration after May’s election and that Mr Grayling will remain Lord Chancellor.
Categorically, the villain of this piece is the Lord Chancellor.
He could have and should have chosen a different path from the outset. An agile path. Even now, the Ministry of Justice should embark on a completely different course – on which more below. However, we should in all fairness reflect on the utter lunacy of how the response to government has been “organised” over the last two years. Even working on the basis that the Lord Chancellor of the day was a stand up geezer, with the best interests of the criminal justice system at heart – how on earth do you achieve a sensible outcome through a two year consultation process where the Criminal Bar Association has been led in turn by Michael Turner, Nigel Lithman & Tony Cross. At the same time, the Law Society has been led by Lucy Scott-Moncrieff tempered by Des Hudson, Nick Fluck controlled by Des Hudson and Andrew Caplen without Des Hudson.
The fundamental flaw
It would take an essay on each organisation and each individual to fully explain the impact of their individual approaches on the process – and there are many other complications besides, including those reflecting both the individual and combined effects of the (often changing) leaderships and memberships of the representative groups of the Criminal Law Solicitors Association, London Criminal Courts Solicitors Association, Legal Aid Practitioners Group, Solicitors Association of Higher Court Advocates, Big Firms’ Group and others.
All told, what I cannot understand is why the Lord Chancellor has defined a goal and embraced a methodology of guerrilla (agile) warfare as the default agenda for the delivery of projects within the MoJ, only to abandon this in favour of WW1 style trench warfare to engage the criminal defence community?
If you have started to wander off, utterly confused by what is going on…, it is because it is so utterly confusing. So let’s return to what should have happened and what should still happen in order to achieve the goals that government has set.
Let’s remind ourselves. The primary goal of this government is to lower the overall costs of the criminal justice system, through efficiencies brought about through digital working, developed in an agile and collaborative way.
The fundamental flaw in the government’s attempt to reorganise the criminal defence sector through its contracting process – is the inherent assumption that consolidation of the sector is an end in itself. The logic seems to be that if there are fewer providers, it will be more efficient. But fewer providers is not the goal. Cost savings through efficiency is the goal. Specifically, cost savings through efficiency through digital working is the goal.
If the contracting process destroys the market competition between firms, the government’s aims could be so easily undermined. Fewer, larger providers – if they are non-digital – will create a sector that is much less well equipped to make the transition to digital working. The much higher capital costs of making the necessary investment in infrastructure and training, where a larger firm is having to make the transition from analogue to digital, will make the remaining providers even more susceptible to business failure. Non-digital, non-agile, big, failing firms are not the goal of government!
I can say all this without resiling my unashamedly held belief that the sector does need significant consolidation. My beliefs however, unlike the straight jacket of the two tier contracting proposal, acknowledge that the best business structures for the supplier base for criminal defence services will not be the same in Aberystwyth as in Andover as in Acton, not the same in Brecon as in Bridgewater as in Barking, not the same in… You get the idea.
If the Ministry of Justice had spent the same effort in the last two years working with firms of criminal defence solicitors to promote its goals, as it has seeking to implement its contracting regime which runs counter to its goals – I respectfully submit we might be in a happier place right now. I am not so naïve as to blind myself to the significant resistance within the criminal defence sector to change. However, to progress an agenda of costs savings through (digital) efficiency, has a political, financial and logical legitimacy that the two tier contracting process does not. The leaderships of the Law Society and other representative bodies, in my opinion, would have supported such a process, notwithstanding inevitable gripes from their memberships. There is categorically no doubt that they would do so now – having been faced with Mr Grayling’s alternative – if this government or the next was to take the correct course of action.
On average, once a week, I attend a meeting organised by some emanation or other of the state – the CPS (Common Platform, CJS Efficiency, Transforming Summary Justice), LAA (eCRM, online Crown Court billing), HMCTS (professional court user wifi roll out, click share in court presentation), etc, etc. Sometimes – and increasingly often – I might be the only representative of the criminal defence community attending. Invariably, the absenteeism of those much more able to represent the criminal defence community than I am, is due to the fact that they are engaged in some other meeting across town discussing the fight against the two tier contracting proposals. We are locked into a merry-go-round of people and politics. The politicians (on both sides) have lost sight of the goals. Battles are being fought without any reference to the war.
The goals of the next government will be the same as this – whether it turns out to be red, blue or hybrid in hue. We have to be realistic about the consequences of change in the criminal justice sector in terms of firm closures and job losses. The change that confronts the criminal defence sector will be highly unpleasant and there will be many individual stories of hardship and worse besides. However, there is a better way than that currently being pursued through the consultations and the courts.
It has to be led by the Lord Chancellor. The government needs to define the goals it sets for the criminal defence sector in terms of integration with the digital processes developed and being used by the police, courts, CPS and LAA. The government should expect to see the defence community adopt collaborative and agile responses to its digital agenda. Firms that invest in digital efficiency should be assured that there is a prospect of a return on that investment – which is linked to efficiency and not just size. Grayling should content himself (as I do), that if you actually think it would be better if there were fewer firms, this will be a natural consequence of driving forward the cost savings and digitalisation goals of government.
If we are wrong – and the integrity and efficiency of the criminal justice system is nevertheless preserved and improved without consolidation of the number of firms, then this should be celebrated. We need to step back from this battle based on the number of firms delivering criminal defence services and focus on the bigger issue of the overall efficiency of the criminal justice system.
Author: Adam Makepeace
Adam is practice director at the criminal defence firm Tuckers Solicitors