Law Society of England and Wales v Legal Services Commission

A public body conducting a competitive procurement must give participants a fair opportunity to demonstrate the qualities which its published criteria are intended to measure. Where accreditation is used to rank providers, it is unlawful to conceal its decisive importance and announce the requirement too late for capable providers to obtain it. The process must remain rationally connected to its objective of identifying the best-qualified providers. A court may extend the judicial-review time limit where the challenge concerns an unforeseen systemic impact, raises issues of public importance, is strong, and could not realistically have been brought earlier, despite prejudice to administration and third parties.

The Law Society challenged the Legal Services Commission’s procurement of publicly funded family-law services. The challenge concerned the clarity and timing of selection criteria requiring caseworker accreditation on specified panels, the adequacy of the Commission’s information-gathering and impact assessment, compliance with its statutory duties concerning access to legal services, and delay.

The procurement reduced the number of offices from about 2,470 to 1,300. The Commission had announced the decisive criteria only when the eight-week bidding period opened, although many otherwise qualified providers could have obtained accreditation if given a prior opportunity. The central questions were whether the process was unfair and irrational, and whether time should be extended.

1. Outcome. Permission to apply for judicial review was granted. Judicial review was granted and the Law Society’s application succeeded.
2. The Commission’s objective was to identify providers best equipped by knowledge, commitment and experience to deliver integrated family-law services. It was entitled to rely on expert criteria and scoring. The court nevertheless retained responsibility for assessing procedural fairness and whether the process bore a rational relation to that objective.
3. The consultation material indicated a ratio of panel members to fee earners and referred to panel membership as an essential or minimum criterion. It did not make clear that maximum points, and therefore a realistic prospect of obtaining a contract where competition was triggered, depended on one caseworker having accreditation on both specified panels. Later responses further obscured rather than clarified that requirement.
4. The Commission should have given capable providers an opportunity, before bidding began, to obtain the accreditation used as the decisive selection measure. Assessing accreditation at the time of bid could be justified in ranking bids, but it did not explain why an earlier opportunity to obtain accreditation should be denied. Withholding the information and announcing the criterion when the eight-week period made accreditation impracticable was unfair, arbitrary and irrational. It diminished the pool of providers able to demonstrate the qualities being assessed and defeated the Commission’s statutory objectives.
5. It was unnecessary to decide whether the criteria were themselves irrational, or whether the process complied with separate transparency and proportionality obligations. The impact-assessment issue was likewise consequential upon the unlawful process and was not determined in detail. The Commission remained under duties to inform itself of relevant information and, under section 4(6) of the Access to Justice Act 1999, to plan what could be done to meet need.
6. The challenge was brought after the tender results emerged. Even assuming time ran from publication of the invitation to tender, time should be extended. The impact was not previously known, the claim was strong and raised important public-interest and access-to-justice issues, and the Commission itself had suggested that concerns await the outcome. Prejudice caused by re-running the exercise and affecting successful bidders did not outweigh the need for a fair process.
7. Relief was to be focused on the absence of a fair opportunity to obtain the relevant accreditation and the consequential decisions to award or refuse contracts in four family-related fields: family law, housing and family law, children-only services and child abduction. The Commission had power to amend existing contracts. The Law Society received its costs; intervenors were to bear their own costs. Permission to appeal was granted.

First-instance judicial review decision. Permission to appeal was granted.