Well, BVT sorry, PCT – Price Competitive Tendering is back on the agenda (it was confirmed after the Budget today (20th March) that there will be a further £142 million of cuts from the MoJ). Chris Grayling has announced a consultation on PCT will be open for two months in April 2013 and Once the consultation has been completed, the responses will be ignored and he hopes that the first contracts will go live in October 2014.
There is a good commentary by Ian West on the CBA Blog which has generated a lot of interest. But, won’t PCT lead to opportunities? Is PCT as bad as they say it is?
The answer is yes. If anything, it will be worse. I won’t rehearse the arguments here, because we don’t have to have a theoretical debate, we can already see in other jurisdictions what happen. Across the pond we can see what happens when costs is put above justice.
America has pioneered the ‘low-bid contract’ systems to comply with their constitutional obligations to provide representation for ‘indigent defendants’ (this is done on a county by county basis). It exists in various forms, but some places (notably in California) adopt a straight ‘lowest bid gets it’. Whichever form it comes in, this is attractive to the government – you don’t have to provide the salary costs and infrastructure of a public defenders system and you ensure that the people doing the work for you are the cheapest you can get.
The evidence is that, as one would expect, you don’t get a properly functioning justice system when it is sold off to the lowest bidder. There are numerous studies and meta studies that have been undertaken and all come pretty much to the same result – this sort of a system encourages hopelessly low bids where it should be clear that the clients cannot properly be represented, embeds conflicts of interest and places such a huge incentive on lawyers to get guilty pleas that innocent people are railroaded into pleading guilty and, when there is a trial, the representation is often poor. This website details some of the more appalling cases and NPR Radio covered the issues in a programme celebrating 50 years since Gideon, which is worth a listen.
The first major study was conducted by Norman Lefstein in 1982 – Criminal Defense Services for the Poor (not available online) in Washington. He noted that BVT lead to fewer contested cases, more people being pushed into pleading guilty as quickly as possible, less investigative and preparatory work being done on cases (which obviously places a defendant at a huge disadvantage) and a rise (from zero) in the number of complaints that defendants could not get to speak to their lawyer.
I’m not going to summarise all the papers out there, but it’s not rocket science. I’ve prepared a very short reading list for Chris Grayling. These are not necessarily the longest studies, or the most impressive, but they give a good overview and introduction (it should be noted that I am not, obviously, a US lawyer, so I don’t have any ‘hands on’ experience of any of this). I don’t think Grayling actually cares about justice, but he should note that another theme is that saving money in the short-term often leads to greater costs down the line.
- Quality Control for Indigent Defense Contracts (1988, California Law Review)
- Civil Challenges to the use of low-bid Contracts (2000, NYU Law Review)
- Contracting for Indigent Defence Services (2000, Department of Justice)
- Gideon’s Paradox (2004, Fordham Law Review)
You can see that even those produced by the Government, or in support of contracting, hardly inspire confidence. But BVT leads to a system where a lawyer can only make a living because 70% of his clients plead guilty at the first appearance after speaking to him for a grand total of 30 seconds each (on the lawyers account).
The MoJ will undoubtedly say that their model of BVT is totally different as some form of safeguards about quality will be built into it. Leaving aside whether or not QASA forms a part of this (and it will be no surprise what my views are on that) these have already been tried in the US and again, the system is hardly foolproof (hot off the press (March 2013) is the National Association of Criminal Defense Lawyers report -Gideon at 50 which gives a good overview of what is happening).
We may also be treated to the sight of Chris Grayling rely on his hated Human Rights Act to claim that this provides safeguards for defendants. Leaving aside his stated aim of repealing it, the US has both state constitutions and the Bill of Rights that offer, on paper, probably more protection (particularly with the 5th and 6th Amendments) than the ECHR gives.
We await the consultation to see what form the proposed tendering will take. But I’m willing to bet that whatever form it does will have been tried somewhere in the US previously (it’s not just that the 50 states, DC and other territories have different systems, many states have different ways of procuring legal services on a county by county basis). When we have the full details, I may well re-visit this issue to see what lessons we can learn. The consultation will not be a genuine listening exercise, it will be Grayling telling us what he is going to be doing. But at least he no-one will be able to complain that they weren’t warned.