Why did TLS put forward an alternative proposal and why did they do it when they did?

From: Arthur Robinson [mailto:legaladvocate@icloud.com]
Sent: 22 July 2013 23:19
To: Alice Mutasa
Subject: PCT etc
1 It might make more sense to Solicitors if TLS would argue that legal aid cannot be looked at in isolation. The Justice Committee report of March 2011 makes clear what the costs drivers are. Therefore allowing the debate to be about legal aid and ignoring the justice system makes no sense.
2 many Solicitors feel let down by TLS. Announcing the alternative to PCT appears to have been done to assist Grayling before the Justice Committee. Also many Solicitors feel that they have had no part in shaping the alternative proposal.
3 please concentrate on a whole system review.
4 please make sure that owners of SME law firms feel that TLS is looking after our interests and not just those if Tuckers.
Michael
Sent from my iPhone
Michael Robinson
From: Alice Mutasa <Alice.Mutasa@lawsociety.org.uk>
Date: 24 July 2013 01:44:09 PM BST
To: ‘Arthur Robinson’ <legaladvocate@icloud.com>
Subject: RE: PCT etc

Dear Mr Robinson
Thank you for your e-mail. With regard to the points that you make:
1 and 3): The Law Society has lobbied the Government ceaselessly for a number of years to undertake a whole system review; and to consider legal aid in the context of the justice system as a whole, including dealing with waste in the system caused by other agencies. This has been a recurrent theme in almost every paper and consultation response we have submitted to the Government. To give just a couple of particularly high profile formal examples which were launched with a reasonable amount of publicity, we submitted the following to Government:
The Access to Justice Review:
Criminal Law Committee report on improving efficiency in the Criminal Justice System;
In addition we continue to make these points in consultation responses and meetings with the Ministry. We cannot however compel the Government to act on our recommendations.
2) ‘Announcing the alternative to PCT appears to have been done to assist Grayling before the Justice Committee’ The Society decided from an early stage that it was politically necessary if we wished to avoid competitive tendering to submit an alternative proposal. We could not and cannot see a realistic path from a “just say no” position to an outcome that persuades the Government not to proceed with price competition. Moreover, that alternative could not be merely what we would wish to see in an ideal world, but had to be a proposal that would deliver enough of what the Ministry is seeking to achieve to persuade them off the path of PCT.
Our alternative proposal, whilst based on the responses to our consultation with the profession, was in fact finalised at speed given the very tight Government timetable for introducing these reforms. It was clear that if the Law Society wanted to have any chance of making significant changes to the PCT proposals, it needed to deliver an alternative swiftly. This is still a work in progress, and we need to get a sense first of all of how the Government will react to these proposals.
Having made that decision, the question of timing was considered. Whenever we published, it was always going to be controversial to those who believe that no such alternative should be submitted. It was clear that Ministers would be reaching conclusions about whether to proceed with PCT before the summer, in order to be able to open a tender in the autumn, and there was therefore only a very short window within which we could submit our alternative with any prospect of it influencing the MoJ. Because of our success in persuading the Justice Committee to look at this issue now, it happened that that short window coincided with the period before Mr Grayling’s appearance at the Select Committee.
You will no doubt be aware that the Justice Committee has previously issued damning reports in respect of the LASPO cuts and the interpreters’ contracts. These reports have had negligible impact on the behaviour of the Government. The point of maximum pressure on the Minister is before the appearance in front of the committee, not after it. As a result of publishing our alternatives when we did, we won a public commitment from Mr Grayling both to concede that client choice should remain and to discuss with us an alternative to price competition, which commitment secured the endorsement of the Committee. If he were now to proceed with PCT, there would be political consequences that he would not otherwise have faced. We cannot see any advantage we would have gained by delaying publication until after the Minister’s appearance in front of the Select Committee; and had we done so, we would not have won these concessions. On the contrary, Mr Grayling’s appearance before the Select Committee might have been even easier for him had he been able to say that nobody had shown that there was any plausible alternative to PCT, and that might well have entrenched PCT as the Ministry’s way forward.
I can assure you that this document had nothing to do with ‘assisting’ the Government, and everything to do with trying to defeat PCT; it is unclear why anyone would have this misunderstanding, given the scale of the campaign that we waged against the Government’s proposals, and the clear opposition expressed in our response to PCT, and our deep concerns about the fragility of suppliers. This view has not changed.
‘many Solicitors feel that they have had no part in shaping the alternative proposal’. The Society consulted extensively for at least 6 weeks on a number of alternatives to PCT, and we asked members to submit their own ideas to us on numerous occasions via e-alerts; Professional Update; on roadshows; in meetings with practitioners. The alternative proposal that we are using as the basis for discussions with the Government is the culmination of all of these discussions, and discussions with the other practitioner representative bodies. The input we received from members has been carefully taken into account. I am at a loss as to know how much more we could have done to invite input and ideas from members.
4) please make sure that owners of SME law firms feel that TLS is looking after our interests and not just those of Tuckers.
The model proposed has been refined in light of discussions with all of the groups representing crime practitioners, including CLSA, LCCSA, SAL & LAPG, who represented the concerns of small firms. Market consolidation is, unfortunately, likely to happen whether our proposals are adopted or not. The reality is that the drop in volumes of criminal prosecutions in the past couple of years, together with a reduction in rates, has led to a widely held view that the existing number of firms is unsustainable. Our survey of the profession in December 2012 showed that well over half of respondents positively supported a degree of consolidation (respondents were from firms of all sizes, including a large number of small firms).
The aim of our alternative proposal is to ensure that any solicitor who is able to meet the quality standards is able to see a path forward by which they can continue to provide this service, in contrast to the MoJ proposal which would wipe out large numbers of good quality firms. We placed an emphasis on own client work in our proposals, and have allowed for a lengthy time frame for firms to meet the criteria, both of which will assist small firms. If you have any viable alternative to propose which would achieve this and which the Government would be likely to consider, we would be very open to hearing it.
I hope the above answers your concerns.
Regards
Alice Mutasa
Policy Adviser – criminal legal aid
Legal Aid Team
The Law Society
Tel: 020 7316 5737
Internal extension: 4240

Most generous legal aid spend in the World

Divesting legal aid spend from the Justice systems is illogical. The legal aid spend is directly related to how the Justice systems are managed, run, operated and funded.

The legal aid spend is also driven by number of arrests, number of people being charged to Court, how the guilty are punished and how prisoners are processed through the Prison estate.
Some popular newspapers and some politicians blame legal aid spend on lawyers. The rise in the number of legal aid lawyers is said to have driven the purported rise in legal aid spending. That’s a bit like blaming a rise in doctors for the rise in ill health.

Luckily for us all The Justice Committee has published a report into legal aid spending (see page 12)

Legal aid is mostly paid through fixed fees. The high hourly rate and milking of cases for which lawyers are purportedly famous doesn’t therefore apply in legal aid cases. The fee is fixed. The remuneration fees are published.

Also to undertake legal aid work Solicitors have to have a contract with the Legal Aid Agency. Solicitors are audited by the LAA. Solicitors have to show expertise to be given a contract.
There has only been cuts to legal aid fees for years. This is because politicians won’t address the real costs drivers.

There is no need for nor justification for further legal aid fee cuts.

The Law Society has published an alternative to the MoJs PCT proposal. For this some (and no one can be quite sure how representative they are of the whole) have claimed betrayal.

I have read these proposals. I don’t find them abhorrent. I am in a two partner firm.

The criminal legal aid market is contracting. Fewer people are being brought to Court. Fewer being arrested. Fewer are in prison. The Law Society alternative offers a pathway through that reality.

We also have a SSJ who doesn’t care about sustainability of law firms (despite what he says) and who has the power, without reference to Parliament, to set new lower fee rates.

My view is that the Conservative Party dislikes interference with and challenge to Government. The Abu Qatada debacle is an example. Apparently the law was wrong. The Human Rights Act and The European Court were to blame for stopping the Government from doing what it wanted to do. Yet he has been deported. That’s because the Home Secretary and the Government complied with the law.

The PCT proposals also attack Judicial Review because that is how people challenge the Government.
There is soon to be a debate in the Lords on legal aid reform. The briefing Note is very informative.

Now that the epetition has exceeded 102000 signatures I would hope thee is a proper debate and vote in Parliament-the sooner the better.

Truth about TLS alternative proposal to PCT

This is an email forwarded to me.

“There has been much concern expressed in some quarters about the Law Society’s alternative proposal which has been submitted to the Ministry of Justice and I understand some of those concerns however much of what is being said is ill informed and plain wrong.

The Law Society is not selling out or sacrificing sole practitioners or indeed any other of its members.

The announcement of the Secretary of State that he is restoring client choice is good news.

The abolition of client choice was a corner stone of PCT. In my view PCT has now been dealt a fatal blow. Sadly the Ministry are yet to share that view and believe that there may still be legs in their PCT model and so the fight goes on.

To understand what has happened and where we are it is important to remember that the Government’s stated proposals were two fold. Firstly they wanted to restructure the market through PCT. Secondly they wanted to deliver £220 million of savings to the Criminal Legal Aid budget.

The Law Society’s position and that of the practitioner groups was we believed that PCT could not work and had to be withdrawn. We would not discuss savings despite the Secretary of State’s call for us to do so until PCT was taken from the table. This message was delivered to the Secretary of State in person when he attended two meetings with criminal law solicitors organised by the Law Society.

A fantastic campaign was led against PCT by the practitioner groups with the Bar and the Law Society. Who can forget the fantastic rally at Friends House organised by the CLSA, LCCSA and LAPG. The campaign that followed saw massive lobbying of MPs, ministers and officials. Regular meetings have been held at the Law Society with those groups present to maintain a unified position.

As pressure mounted on the government there became a need to look at offering an alternative to the fatally flawed PCT scheme for although we could all see the disaster the PCT would bring the government refused to move without an alternative in its place. An alternative proposal was therefore developed with all the representational bodies being kept informed and all, including the Bar and CBA, contributing to its final content. Not all agreed with the approach but none opposed the paper. The paper passed through the Law Society’s relevant committees and overseeing board and was agreed.

Following the submission of the paper to the MoJ the Secretary of State announced the re-instatement of client choice. This was no co-incidence.

The PCT proposals spelled the end for 75% or more of all firms. Small firms were out of the picture, large firms faced financial ruin as well. The Law Society proposal has to be judged against this not the status quo. The status quo, as the results of the Law Society’s survey from practitioners and the Deloitte Report showed, is not viable in the short to medium term. From the government’s perspective it was never an option.

What the Law Society have proposed, if accepted, would give practitioners certainty. For if they meet the criteria they will get a contract, no competitive element. As a rolling contract as contained in the proposal it will deliver a long term basis to attract financial support from banks for ant financing that might be need to meet the demands of any new contract.

The proposal does include a degree of market consolidation but the Law Society is working, with outside accountants and lawyers to develop new business models that will allow firms to consolidate in such a way as to maintain their independence but still meet the contracting requirements. This is not abandoning sole practitioners. Large sums of money are being spent to ensure that the impact of the new changes will not be to destroy sole practitioners and small firms. The Law Society has worked with the practitioner groups to develop a new contract that will be significantly better than that proposed under the PCT proposals. The final scheme and support packages are not complete yet but they will make survival a possibility for all who wish to adapt. PCT offered no such hope.

Finally cuts. What cuts is all I would say. The Law Society has in keeping with the original strategy had no discussions with the Ministry around figures. The new proposals have nothing to do with delivering cuts or savings. They simply seek to address market sustainability.

The discussions about money are yet to come. If we stay united we can be far more effective in those discussions than if that unity fragments. The benefits will be to all, the opportunities greater.

There has been no sell out, no betrayal, just an awful lot of hard work to get the best possible future for the profession in very difficult times.

For those that continue to have concerns I am happy to discuss matters further and to give as much information as possible. Don’t allow misinformation and wild speculation to undermine what we have achieved so far. This is a time for holding our nerve and staying united.

Regards

Richard Atkinson
Chair Criminal Law Committee
Law Society of England & Wales
Robin Murray & Co”

I trust this man.