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.
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.
Alice Mutasa
Policy Adviser – criminal legal aid
Legal Aid Team
The Law Society
Tel: 020 7316 5737
Internal extension: 4240

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