Criminal Assistance: Applying EU Public Procurement Rules To English Criminal Legal Aid

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...