Letter to Chief executive of the Law Society

Desmond Hudson
Chief Executive
Law Society

16 October 2013


Dear Mr Hudson

Thank you for your letter of the 14th October 2013. I note your commitment to oppose the proposed fee cuts but I fear that if precedent is anything to go by your defence to the chancellor’s attack on our criminal justice system, and those who work within it, is unlikely to be anywhere near as robust as the one you have put up for yourself in the face of mounting criticism over the way you have handled the whole legal aid reform debate.

Your intended defence to the proposed cuts and your resignation to the two tier contract system makes me think of a football team 5–0 down who, until that point, have not mounted any defence whatsoever and then suddenly decide that a defence is what they need to implement.

The fact of the matter is that starting to defend at 5–0 down is not going to change the fact that you have lost the game. There is still enough time left to win but you are going to have to attack if you are to stand any chance.

The reality is that you have been naive and gullible. You are reluctant to admit it and so, in the face of mounting criticism you have sought to defend and justify your actions for what I can only perceive as self-effacing reasons.

This fight is not over and if you want to win it then you need to admit the mistakes of the past, regain the respect of the profession and relinquish your agreement to the two tier contract system.

Your suggestion that the two tier contract system is preferable to PCT is misguided. The reality is that whilst they both present as very different things the outcome will be the same, a cull of approximately 75% of current criminal legal aid providers.

Those firms, without duty contracts, can only survive so long and you know it, as does the MOJ which is why they agreed to it as an alternative to PCT.

You go to great lengths to concede that the cuts proposed will cause difficult times for many criminal legal aid providers but you fall short of the truth which is that all legal aid providers, as we know them, will fail following the implementation of the proposed cuts.

Those without duty contracts will die a slow death because of the lack of new work and those with duty contracts will, possibly even earlier, forced into administration when, despite increased volume, they are unable to make a profit because of the derisory rates of pay available.

Any fool can conclude that a small number of providers means an increase in volume for those remaining however I believe the Law Society is already well aware of the fact that, even with a smaller number of providers, there is simply an insufficient volume of work to enable a smaller number of larger providers to remain profitable.

Criminal legal aid firms already operate on the smallest of profit margins, already operate with the bare minimum “back room” staff and are often located where rent and rates are the lowest. The purported recognition of the need for restructuring is somewhat disingenuous to say the least.

The reality is that the larger firms, unless they already have staff working to no more than 60% of capacity will have to take on even more staff because, under the new contracts, they will be required to cover police stations and courts further away than ever before and consequently the existing staff members will be out on individual jobs, whether it be at court or police stations for longer than ever because of the additional travelling distances involved and don’t forget they will be doing all of that for between 17.5 and 40% of the rates currently available.

The MOJ has played a clever game, the Law Society has been out-bluffed.

The Law Society should be ashamed of themselves for claiming a victory over PCT and client choice. The Law Society played a limited part in any of that. It was the individual practitioner groups and the united front presented by both solicitors, and the Bar, that defeated the proposed PCT model. The government were forced to back down in the knowledge that there was not a single law firm, in the land, committed to tendering under the proposed model.

Now, due to the failures on the part of the Law Society, the government have their ideal scenario, their preferred model and alternatives from the big firm group and the so-called “250 firms” prepared to deal with the MOJ for all available work.

The Law Society has succeeded in dividing its members, undermining any proposed opposition to the planned reforms and harming the resolve of those still prepared to fight.

The reality now is that with so many firms indicating a willingness to bid there can never again be a united opposition to the government’s proposed reforms.

However the Law Society can readily win back the trust and support of its members by conceding that mistakes were made, that a naivety was demonstrated and recognising that it had no mandate to agree to this two tier contract system.

The Law Society should formally and honestly declare that even those smaller number of firms prepared to bid for greater volume at lower rates cannot survive the cuts over the short to medium term, never mind the long term (remember most of those firms will be making a simple calculation that more work, albeit with less money, will keep them profitable when in fact the Society knows, from the figures that it has available to it, that this is not the case). This will facilitate a once again united profession who can send a message to the Ministry of Justice that it can propose whatever it wants, implement whatever it wants but ultimately it will have no takers. It worked under PCT and client choice and it will work again if the Law Society approaches this in the right way.

There is no reason why the Law Society cannot relinquish its agreement now that it has this overwhelming and unprecedented response from its members, it can properly concede an error of judgment was made and move forward.

If the Law Society is not prepared to take this action then it is simply conceding defeat.

Yours sincerely

Oliver Gardner
Howards Solicitors Limited