Terrible truth about price-competitive tendering in legal services
Updated: 2013-06-19 06:55
By Andrew Mak(HK Edition)
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Monday was a big day for the rule of law in the legal history of the UK. It also serves as a good lesson to our legal aid administration in Hong Kong.
These days it seems it is popular belief that price-competitive tendering (PCT) is a good thing for supply of goods and services. The rationale is perhaps not difficult to understand. The theory is that the market always knows best. The tenderer will not bid a price which is below his costs. The reality is of course far from the theory. We have seen enough criticisms of the tendering process in construction projects of the government. However there is another dimension to the matter.
First of all some will ask why legal services, and in particular legal aid work, is different from other types of supply of services. Some lawyers will argue that the right of access to justice is a right which is guaranteed under the Bill of Rights Ordinance. This is well understood by lawyers.
However, secondly, perhaps we can understand more from the experience of the United Kingdom in which trade unions are stronger and more influential. On Monday (June 17), it was scheduled that more than 16,000 court and Crown Prosecution Service (CPS) workers would stage a one-day strike, to campaign against the UK government's recent reforms on provision of legal services.
The scale of the campaign was quite astounding. Some 2,500 CPS employees who are members of the Public and Commercial Services Union (PCS) staged industrial action on Monday morning. In the afternoon, a further 14,000 members working for the Ministry of Justice, Cafcass, Criminal Cases Review Commission, Judicial Appointments Commission, the Parole Board and Youth Justice Board also walked out. The strike coincided with a protest planned in Manchester on the same day, jointly coordinated by local lawyers and the PCS. Campaigners met at the Civil Justice Centre to protest about plans to cut legal aid funding and restrict choice for clients needing legal representation. Last Friday, a petition obtained some 90,000 signatures for opposition to the UK government proposals for price-competitive tendering.
The context leading to the industrial action was this. According to a report entitled "Justice in Meltdown" published by the PCS there were 2 billion pounds ($3.1 billion) in cuts across the justice sector - representing 23 percent of the budget of the Ministry of Justice. On this scale of budget cuts, no one will disagree with the possibility of a devastating effect on the administration of justice. The report also expected that some 15,000 justice sector jobs would be cut by 2015.
Reports had it that the UK had one of the most expensive legal aid systems in the world and therefore the Ministry of Justice must ensure it would get the best value for every penny of taxpayers' money spent. This was well said until I read about the judges in 10-strong Judicial Executive Board's response to the consultation on legal aid reform. The judges noted that many lawyers had already ceased to act in legal aid cases. In addition, those entering the profession would seek to avoid publicly funded work "if their ability and promise permit them the choice'". Another report at a hearing at the House of Commons justice committee quoted junior barristers would be paid as little as 14 pounds a day - well below the minimum wage - under the government's proposed criminal legal aid cuts.
It is to be congratulated that in Hong Kong the rule of law is now deep rooted and jealously guarded. Our legal aid budget will suffer no budget cut ordeals under the disguise of the good for competitive tendering. This is because the right to access justice is governed by our Basic Law. This legal requirement is deeply entrenched in our citizens. However, we should not be complacent. The lesson in the UK must be carefully learned, studied and considered. The government should consider carefully its use of PCT to purchase supply of legal services in all areas, not just in legal aid.
The author is a HK barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.
(HK Edition 06/19/2013 page9)