As you will all know the SGM is fixed for the 17th December and as a criminal practitioner I thought it would be sensible to set out my views on the forthcoming vote and what has been happening on the various criminal law websites.
I am firstly going to reiterate that our profession is coming under sustained attack from a Government with an agenda for deep cuts. This has come together in proposals from the Ministry of Justice which represent a multi-pronged attack on our legal system and poses many and various risks to practitioners up and down the country.
I will say straight out that the position of The Law Society is that the proposals put forward by the MoJ are in the interests of neither the profession nor the public, and fundamentally threaten the sustainability of the criminal justice system.
The Criminal practices cannot and will not survive a cut of 17.5%. It is unrealistic particularly in the light of the cuts that have taken place over the past 15 to 20 years. Criminal practices have been cut to the bone, and in some instances into the bone, just to survive. The majority of them are solely criminal practices; in fact my own firm in Bristol, a fairly large city, is one of only two practices that could still offer a training contract. In many parts of the country this could not happen. The effect of this means that these practices do not have slightly more profitable areas of practice to fall back on; many operate at profitability levels of below 10%. It is therefore difficult to see how they could survive a 17.5% cut, or indeed any cut, so the Society needs to put all its resources into that campaign.
The Society’s driving purpose has been – and continues to be – to fight against changes and they are fighting at the heart of Government on our behalf. All too often, we as a profession have tried to fight from the side lines but as we all know, that approach has often failed. This time we cannot afford to watch from a distance.
This brings me to my understanding of the current position: shortly before the meeting with the MOJ at the end of August, the Society learnt that the Big Firms Group ( BFG ) were to propose to the Ministry a plan which in effect asked for all the work to be split between 250 firms to deliver savings. They called for other firms to be cut out of the picture and to have instant increased volume. Had this taken place, approximately 1250 would – in my view – have gone to the wall immediately. The consequences for the profession would have been enormous:
- Run off would not have been met
- Loss of jobs would have been instantaneous
- Partners would have likely gone into Bankruptcy
- Interventions would have spiralled out of control and the cost to the Society would have been enormous.
The petitioners oppose the Societies proposal and say it will lead to the ultimate demise of firms that do not get a duty contract. That may be so, but it will at least allow for a managed withdrawal. The present suggestion proposes that all firms will be able to continue with own client work but will have to bid for Duty work, and when I say bid it will be a non-price competitive bid. At the time of the discussions in August, the Minister was allowing Consortia to be formed to enable a consortia to bid. In my area, I could form a consortia with a firm in Bath and in Bridgewater/Taunton to bid for a
contract in the Avon and Somerset area. To my mind, this proposal would allow a good proportion of firms to continue probably at least Double the BFG figure and possibly more. If consortia are allowed, a good proportion of firms may continue in business, but people cannot be forced into this quickly: they will have to do their due diligence. This type of model is probably what most commercial firms do when asked to provide national coverage for their clients. I believe that if the Minister holds good to this we could have a workable solution. This is a battle we still have to win. As I understand it, the civil servants want formal mergers which frankly cannot and will not work within the time scale set out. Subject to being able to fight and at least minimise or resist the cuts and winning the battle on consortia, we could by my reckoning save 750 to 1000 firms, which is quite an achievement compared to what the BFG propose.
There is no doubt that there is a need for consolidation. The work is less, the police and CPS are wedded to the idea of cautions, diversion and restorative justice. I hear today of people being cautioned for shining a laser into the eyes of a helicopter pilot flying over London, and someone being cautioned for simple possession of drugs when carrying 12 wraps of cocaine into a nightclub. It is of course the only way, if one is cynical, for the police and CPS to balance their diminishing budget.
So what do the petitioners propose? In short, NOTHING. No alternatives just criticism and I am afraid bile and vitriol directed to the Society. They consist of the usual suspects, those that never lend a hand to the representational work we do but materialise out of the ether when they can find something to criticise. The main petitioner this time is a practitioner from Liverpool. He is new to this party and wrongly claims the Society reached agreement with the MOJ without consulting practitioners.
Let us examine that proposition: earlier this year, The Law Society secured the abandonment of price competitive tendering, which protected 1,200 legal firms from going out of business and ensured client choice and high quality remain at the heart of our legal system. In achieving this, they sent a lucid message to the Government: the profession will not stand by as English law is sold to the lowest bidder. To agree to the concession on PCT, the Minister demanded that he be allowed to make an announcement to Parliament within 72 hours. That to my mind was a very big prize. PCT would have been the worst of all worlds with firms rushing to cut each other’s throats in the rush for survival, which would have been a recipe for disaster. We had the Minister on the verge of conceding and we had also won the argument on client choice – big wins. If the Minister made the announcement, he could not go back on it otherwise he would have made more U turns than a Tesco supermarket trolley. I just ask this question: if the Minister had offered a 5% rise in Legal Aid rates but we had to accept in 72 hours, what would the petitioners view have been?
I do not in any way diminish the fear that firms may feel. Every day, we’re working for justice on behalf of our clients at a time when our own futures are far from certain. This is a battle that is fraught with hard choices. But we must recognise that the fight goes on and now more than ever, we in the profession must stand united with The Law Society to leverage the strength of every member.
What many of you will not be aware of are the personal attacks on mainly our Chief Executive. One commentator described it as” a grubby spectacle”. I agree. Attacks on him have been unjustified and unseemly. Mr Parry started it off by doing a Directors search on Desmond Hudson’s Directorships; he set the ball rolling and has sat back and allowed people to comment on the income Des derives from such companies as QC appointments. This has caused comment on the fact that Des earns a significant extra sum from these Directorship which are Law Society related. Mr Parry is shortly going to find out that Des pays all the money from these Directorships back to the Law Society. I hope he has the grace to apologise for starting this smear campaign but I fear it may just be that: hope not expectation.
The Society of course has a way to go to show we are fighting the Government every step of the way. We of course must continue to hold out for consortia and battle against the cuts, but we must not be complacent about the forthcoming vote and do all we can to ensure it is unsuccessful. We must not allow the petitioners the oxygen of publicity by winning this round. I would therefore urge you all to get your constituents to come and vote. What we must ensure is that we get a representative turnout whatever the result.
Kelcey and Hall Solicitors