Davies: allow consumers to punish the worst providers

The Legal Services Consumer Panel has strongly criticised the government’s plan to deny defendants the right to choose their own solicitor under price competitive tendering, with new data showing that legally aided clients are more likely to shop around than any other.

In its response to the Ministry of Justice consultation, the panel said the proposal is “unfair in principle, is not the most effective means of achieving the intended competition benefits of the proposals, goes against the grain of government policy for other public services, risks undermining quality and vulnerable clients may suffer most”.

The panel argued that consumers value choice and its data suggests they exercise choice in the legal aid market. “Consumers are better placed to make informed choices in the criminal arena due to the high incentives and as some have past experience to draw on.”

The findings of the panel’s annual tracker survey, part of which were released today, showed that 40% of legally aided clients shopped around for a solicitor, significantly more than those paying privately or backed by insurance. Those with a ‘no win, no fee’ deal were the least likely to shop around.

The panel was also worried that PCT risked reducing quality. “Consumers are not able to reward the best firms or punish the poorest ones because they cannot choose who will represent them or switch provider during their case unless in exceptional circumstances.

“Fees are being significantly cut; we do not comment on whether the proposed new rates are fair, but observe that the level of savings to be made is high and this will force providers to change the way they provide services, possibly in ways that will reduce quality.”

While any system of competitive bidding carries risks of corner-cutting, it warned that “the heavy focus on price in the tender criteria, as opposed to other factors, increases this risk”. Further, the small number of contracts being awarded in some procurement areas – in 14 areas of England and Wales, there will be just four contracts – means the Legal Aid Agency “will be under pressure not to withdraw a contract due to poor performance given the high disruption to service that might follow”.

Panel chair Elisabeth Davies said: “When a person’s liberty is at stake, they must have the freedom to choose who will defend them. The public will not have confidence in a system where the defendant’s lawyer is chosen by the very state seeking to convict them.

“Allowing consumers to punish the worst providers by exercising choice is the best way of ensuring that quality is not sacrificed in a price bidding war. Consumers need to be given the tools to make the market work on their terms and this shouldn’t be dependent on how you pay for your legal services.”

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