Law Society makes plea for understanding on legal aid strategy in bid to ward off EGM

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10 October 2013

Hudson: open letter to the profession

A passionate defence of strategic engagement with a government implacably determined to slash criminal legal aid practitioners’ income has been made by the Law Society, in an attempt to defuse rebellion in its ranks.

But James Parry, the Liverpool practitioner who is attempting to obtain a vote of no confidence in the society’s leadership, said he would push on, despite wavering among some of his supporters.

In an open letter to the membership, chief executive Des Hudson explained the society’s stance, “to correct any false impressions”. He stressed that engaging with the government had yielded dividends for Law Society members, whereas “just saying no” would not have produced results.

He said the agreement with the government was partial and did not include the detail of the fee structure: “I wish to restate unequivocally that the Law Society opposes fee cuts.”

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On Tuesday the justice secretary, Chris Grayling, reassured MPs at justice questions in the House of Commons that the criminal contracting scheme had secured the society’s agreement, saying: “All of these proposals have been worked through and agreed with the Law Society.”

The Law Society has taken considerable flak from solicitors and others – such as the Criminal Bar Association – for its position. Mr Parry, a partner at Parry Welch Lacey, told Legal Futures he had been put under pressure by senior Law Society officials to drop his pursuit of a no confidence motion. He reported he was warned it would be his “fault” if the government revived its plans for price competitive tendering (PCT) and that City solicitors were unhappy with the potential fallout for the profession if the motion was successful.

He said he was “not very far away” from obtaining the 100 signatures of Law Society members that he needed to seek an extraordinary general meeting. But he conceded that many members, while unhappy with the society, were “not sure they want an EGM at the moment”.

If there was a significant change in the Law Society’s approach, such as a very public campaign to oppose the government on legal aid cuts, he would consult his signatories by e-mail on whether to proceed, he said, adding: “The bottom line is that firms are fighting for their very survival.”

The two issues of greatest concern were the proposed fee cuts – which he said in reality would be far higher than 17.5% – and duty work, which accounted “for most people in this area for a lot more than 40%”, which is the proportion assumed by the government’s consultation in relation to own client contracts, he said.

According to Bill Waddington, chairman of the Criminal Law Solicitors Association, the legal aid fee cuts of 17.5% proposed by the government would in fact amount to much more under the scheme of ‘national averaging’ – which would bring all police station fees down to a national figure of £160.45 in spring 2015. He pointed out this would be a reduction of approximately 47% in the Heathrow area and, for example, 35% in Hertfordshire.

Explaining the Law Society’s strategy, Mr Hudson said: “Many of our members would have preferred us to take a much more oppositional stance, refusing to engage, standing firm, just saying no, and supporting direct action. We understand that viewpoint, and did not dismiss it lightly.

“There is no doubt that the society could have made itself much more popular by taking such an approach. However, we cannot see any path by which that strategy could lead to a better outcome for our members.”

He continued: “It is important to remember that the ministry is free to set the both strategic direction and the detailed arrangements for criminal legal aid and the procurement of criminal law services, subject to the law and any substantive political challenge. Assessments of the bargaining power of the profession must be set in that context – as the MoJ [Ministry of Justice] does not require our agreement.

“Setting administrative rates of pay requires no vote in Parliament, but our assessment, based on regular contact across the parties and reinforced after our meetings during conference season, is that Parliament would not find a majority to maintain current levels of criminal legal aid….

“The profession has been admirably united in opposing price-competitive tendering. It has not been unified around any positive alternative agenda. The Lord Chancellor is perfectly able to ignore opposition in the absence of a well-evidenced alternative. Without an alternative as proposed by the Law Society, I am sure that the MoJ would still be pursuing a PCT-based approach.

“The MoJ received more than one alternative proposal in response to its initial consultation but it was the Law Society’s well-researched material which eventually secured the crucial breakthrough – of persuading the MoJ to put aside its own price-competition plan.”

Mr Hudson said the society would be making representations, among other things, over the “disproportionate impact” of the proposed fixed fee regime on certain parts of the country.

He concluded: “The concerns being clearly expressed by the profession have been a necessary backdrop to making the progress that has been made to date, but it is engagement that has secured the changes. The combination of that backdrop and our engagement has achieved the restoration of client choice, the removal of price tendering, and the right of any firm meeting the standards to have an own client contract.”

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