Home » Uncategorized » PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET

PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET

THIS IS THE TEXT OF A LETTER FROM A KENT SOLICITOR IN HIGH STREET PRACTICE IN THANET, TO HIS LOCAL CONSERVATIVE MP, AFTER A MEETING IN HER SURGERY.

IT MUST BE TYPICAL OF THE STARK ISSUES FACED BY THE SOLICITORS’ PROFESSION NATIONWIDE.

IT IS NOT JUST THE “FAT CATS” AT THE BAR WHO ARE TRYING TO DEMONSTRATE TO THIS GOVERNMENT THE NATURE AND EXTENT OF THE DISASTER THEY ARE ABOUT TO FOIST ON THE PUBLIC.

THE LETTER WAS WRITTEN BEFORE TODAY’S UNCHALLENGED ARTICLE WHICH THE TIMES HAVE PUBLISHED, SETTING OUT THE LORD CHANCELLOR’S CURRENT “ARGUMENTS.” NONETHELESS IT COVERS MANY OF THEM.

THE CRIMINAL BAR ASSOCIATION AGREES ENTIRELY WITH WHAT OLIVER KIRK HAS TO SAY. WE BELIEVE AND HOPE THAT THE VAST MAJORITY OF SOLICITORS SHARE HIS VIEWS AND FEARS. WE WELCOME SUPPORT FROM SOLICITORS WHICH WE IN TURN WILL DO OUR BEST TO RECIPROCATE.

WE ARE ONLY TOO WELL AWARE OF DIVISIONS IN THE PAST. BUT NOW, WE ARE WHERE WE ARE, AND WILL FIGHT TOGETHER WITH THEM.

PLEASE DO FEEL FREE TO RESPOND TO THIS HERE, AS WELL AS CIRCULATING IT AS WIDELY AS POSSIBLE

“Dear Laura, (Laura Sandys MP)

Thank you for taking the time to see me and discuss Legal Aid last week, following the release of the Government Consultation.

I have quite a lot to tell you, in the hope that you will understand and share my concern at the proposals, and that you will be able effectively to intercede with the Minister, in the hope that these proposals will be fundamentally reviewed before implementation, and a better, more efficient and just solution may be found.

BACKGROUND

At present, Criminal Defence Legal Aid is provided by 1400 firms across England and Wales. In Kent there are (I think) approximately 50 firms. These firms range from sole practitioners, to small to medium sized businesses. In Kent, there are no firms that cover the whole County effectively. In Thanet, there are 2 firms with offices, my own (BKRW) in Ramsgate, and Kent Defence who have an office in Cliftonville. There are another 10 or so firms who are on the local duty solicitor rotas, they have offices in East Kent also.

The Government makes much of the increase in Legal Aid spending over the last 10 years, and points to a need to be efficient. I do not disagree that efficiencies may be required, but it is worth noting that, although spending on Legal Aid has gone up, the amounts paid to lawyers to deal with criminal cases have not been increased since 1997. This indicates that the problem is not the costs of the lawyers, but the volume of work being done by those lawyers.

It is true that Prison Law advice has been a growth area, but also consider that over the last period, there have been significant new offences introduced, and new areas of evidence which can now be admitted at trial, which could not be previously (bad character and hearsay for example). These factors increase costs.

Out of a budget of £2 billion, the Government wants to save £220 million. Whist this is a significant sum, the method by which it is proposed to save this sum strikes at the heart of our Criminal Justice System, and will shake public confidence in that System. Please, bear in mind that the Rule of Law, and public confidence in the justice system is the cornerstone of a democratic society.

THE PROPOSALS

By necessity, I paraphrase, (the consultation document is over 160 pages long!).

The Government will invite tenders for Criminal Defence services for each area of the UK.

One such area is Kent. It is proposed that there should be 5 contracts awarded in this County.

The Government proposes to guarantee volume of work to these 5 “super firms” by removing the right of a legally assisted person to nominate a particular solicitor. Each detainee or person charged will have a solicitor assigned to them.

Of course none of this prevents a person choosing to pay his own lawyer privately, but if they do (assuming they can find lawyer happy to be instructed by a person in custody) their legal costs will not be refunded if they are never prosecuted, and will only be refunded in (small) part, should they be found not guilty .

RESPONSE/CONCERNS

1) In our meeting you asked how other countries manage to spend less on Legal Aid than we do.

I am not an international jurist, but it seems to me that the reason is that our European Partners have a fundamentally different legal system. Most have inquisitorial systems, most have very few cases decided by juries. Those that do have juries, have juries that retire with Judges to assist in their deliberations. Most do not recognise, as we do, the differing roles of solicitors and barristers/advocates. The short point is that comparing our Legal Aid spend with other countries is not meaningful. It fails to take account of the differences between our legal systems.

2) The proposal to award only 5 contracts for Kent and to guarantee work by removing consumer choice.

These proposals are bad for Clients and bad for lawyers.

The effect will be that all of the 50 or so firms currently supplying legal services in Kent will need either to expand or merge with others to bid for contracts covering a wide geographical area. The proposal is that bids must be made by October 2013 and contracts start October 2014. This is an astonishing pace of change, and it seems very likely that chaos will be the result.

Winning bidders will have to centralise, and keep overheads to a minimum. This is likely to mean that there will be large areas where there are no lawyers for clients to go and see. It seems most unlikely that any winning bidder would have an office in Thanet, In fact it is more likely that there would be one centrally based office for Kent in, say, Maidstone.

It is very important that a defendant or suspect in a criminal case has confidence in his lawyers. A lack of such trust leads to delays. It takes a long time to gain a reputation. We as lawyers work hard to gain the trust both of our clients and the Courts. The Proposals to remove client choice of lawyer will remove that essential relationship between lawyer and client.

The Proposals will create inefficiency. Suppose that I represent a man arrested for his 10th offence. I have represented him for years. I represented his father too. When I go and see him in custody, he knows and trusts me. He will accept my advice more readily than that of a stranger. Given that I know him and his background fully, I can interview him far more quickly than I could if he was a new Client whom I had never met before.

Many of those passing through the system are repeat offenders. Their “own solicitors” know if they have drink/drug problems. We retain and can re-use Mental Health assessments. We know when our Clients might be a risk to themselves or others.

All of this will be lost if consumers are required to have a lawyer appointed to them. There will be significant duplication of work, and inefficiency.

The Proposals will be bad for quality. It seems inevitable that whoever gets the contracts, they will do so with a view to making money. How will they do that? Well, by removing customer choice, the Government is also removing any capacity for the firm to expand, to attract new or even repeat business.

There will, under these proposals be no choice (compare schools, health care?) and no competition between providers. The lawyers get paid the same, whether they are good, bad whether they work hard or not. They cannot lose clients, they cannot gain clients.

Furthermore, given that the winning bidder will receive a fixed and finite amount of money to provide their services, there will be a pressure to maximise profit by employing cheap, and inexperienced lawyers. This is in itself counter-productive, after all, an experienced lawyer is more likely to give a client realistic advice about his prospects, and less likely to detain the Court with poorly thought out submissions.

There must be a danger that a great number of sensible, experienced solicitors will find themselves unable to gain employment doing publicly funded work. They will either leave the profession, have to retrain, or do privately funded criminal defence, (which is a rare thing indeed in Thanet). The consequences therefore would be a loss of skill and experience resulting in inefficiency and the creation of what is likely to be perceived as a two tier service. Those who can afford to pay their lawyers (and lose their money, even if they are falsely accused) will get the best. Those most vulnerable and without the means to pay will be appointed a cheap alternative.

A fixed fee system rewards efficiency by the provider, while sacrificing quality for the consumer. Lawyer fees are currently predicated either by time spent or by a combination of page counts and matter type. If people are paid the same amount, no matter how much work they do, there is a danger that they will seek to do as little as possible. Corners will be cut, papers will not be properly considered, witnesses may not be interviewed. This is a further way in which long term costs will in fact be driven up. Poorly prepared defence cases result in delays and in convictions. Convictions result (very often) in prison sentences and Appeals.

A further insidious proposal is that Advocates should be paid more if our Clients plead guilty early. Imagine being arrested, you cannot have the lawyer of your choice, and then you are told that the one appointed will only make a reasonable living if you plead guilty! Confidence inspiring? NO.

THE WIDER IMPLICATIONS

It seems to me that if these proposals go through, there will be carnage. In the run up to the award of contracts, banks may decide to remove firms’ overdraft facilities, and businesses will fail. There are likely to be considerable numbers of redundancies of solicitors, clerks, secretaries, support staff and their suppliers. Consider that the scale of chance required is huge. Firms currently operating have leases on or even own premises. They simply cannot up sticks and leave in 18 months.

OUR JUSTICE SYSTEM IS CURRENTLY RIGHTLY REGARDED AS ONE OF THE BEST IN THE WORLD. IT WILL NO LONGER BE IF THESE PROPOSALS GO THROUGH UNALTERED.

Thank you for taking the time to read this, I have (believe it or not) tried to be succinct and not indulge in hyperbole, but instead to concentrate on real and tangible effects. I would of course be interested both to hear your views and of any progress you are able to make in your dealings with Mr Grayling.

Yours faithfully,

Oliver Kirk

Solicitor

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15 thoughts on “PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET

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  6. “In April Justice Secretary Chris Grayling is due to start consulting on introducing competitive tendering to cut the costs of legal aid for criminal cases” Isn’t it possible that barristers, solicitors and advocates can be present during Chris Grayling’s consultations or is it too late for that!
    It appears that he simply doesn’t undertand the consequence of his proposals. I am reminded of the verse,” How can I understand it if no-ones explains it to me?” As a profession recognised and respected worldwide it is the responsibility of your profession to explain in such a language that he truly understands so much so that he rethinks his proposals.
    I foresee many innocent men and women wrongly convicted of crimes..no longer will this great nation of be respected for its protection of the innocent and vulnerable..
    GJLC

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  8. This is is the time for both sides of the profession to unite. Why not strike ? What could they possibly do about it ?

  9. :Who, when the independent criminal Bar is gone, will ensure that the violent stranger rapist who drags your 15 year old daughter to the ground as she walks home from the train station after a night out is convicted?

    :Who, having inherited the brief for the first time on the Friday night before trial Monday, will work most of the weekend getting the case up to trial readiness for Monday, instead of playing with his children in the garden, so as to ensure that the victim who has been set upon in a pub fight and gratuitously beaten black and blue sees justice prevail?

    :Where will the elite team of prosecutors at the Old Bailey -Treasury Counsel- come from? Who, when Treasury Counsel have gone, will ensure that those responsible for outrages like 7.7 bombings are put away?

    The independent Bar, every day of the week, in courts up and down the land, year in year out, helps to ensure that the public can walk the streets safely because we are the ones who prosecute the most serious offenders. We are the ones who are, when the court day finishes at 4.30pm, up working until 1am, preparing for court the next day.

    Do the public imagine a Tesco lawyer is going to work after his contractual hours end every day at 5pm? I think not.
    The independent Bar provides the public with fantastic value. It’s high time it was recognised.

    Christopher Amis
    Barrister at 23,Essex St Chambers

  10. Forgive a note of flippancy in these trying times (I would be slashing my wrists with a rusty spoon if I could afford the spoon) but will Tesco Law only be defending shoplifters if they nick razors and batteries from Sainsbury’s?

    More seriously our livelihoods are under threat and our professional colleagues are under threat for ideological reasons that have no care for the quality of justice prosecuted or defended. We cannot win public sympathy for the former but we can for the latter. Everyone on the Northern Circuit, even those who only dabble in crime – other disciplines will be next – should consider attending Monday’s meeting in Manchester.

  11. Oliver has hit the nail on the head. The GP says it envisages 1600 ‘providers’ (i.e. high street solicitors’ firms) being reduced to 400. In fact, it will be a whole lot worse. I doubt that there will be more than 40 solicitors’ firms who win contracts. The 400 ‘providers’ is the aggregate of the numbers favoured with a contract in each CJS area, but overlooks the fact that, for example, Tesco, has a store in every town, never mind just in each of 43 CJSAs. So they will get one of the slots in each area. Eddie Stobart, another firm with a countrywide operations base, will get another, and so on. I suspect that if Grayling wants only five ‘suppliers’ in Kent, that not one of them will be a high street firm of solicitors. The same will happen in my manor, co. Durham, where Grayling wants six ‘providers’, and has promised one of the slots to the PDS, which presently has a miniscule market share – because clients do not choose it as their solicitor. It is likely that there will be no solicitors firms in ANY CJS area where there are fewer than eight contracts to be won: i.e. all but the large metropolitan centres. The fact is that the GP, if implemented, will wipe solicitors’ firms off the map, pretty much overnight.

    And barristers know that, in this mass cull, they will not be far behind. The ‘limiting’ of BVT to MC work is a transparent ploy by Grayling to divide and conquer, but the Bar is not falling for it. Solicitors are our customers, and if our customers are killed off, we will soon die of starvation. The LDPs that will replace high street solicitors will not make any money from the competitively tendered MC fees, and litigator’s fees for the CC work, so they will be forced to get their snouts into the CC trough in double quick time. They will raid barristers’ chambers from the bottom up in search of advocates to come in-house, on low salaries, in order to get their hands on the ring-fenced, administratively set (for the time being) advocacy fees. Any barrister who was tempted to raise even half a cheer at the news that BVT would not come to the CC (yet) needs to think again.

    Of course, this is where QASA comes in. If advocates – barristers and solicitor advocates in the Midlands and the West – do sign up in the window, they will be signing their own death-warrants. With its low quality thresholds, QASA badges will be as ‘cheap as chips’, and those who hold them will be the same, when the likes of Tesco come calling. If, on the other hand, we – barristers and solicitor advocates – insist on a scheme that demands HIGH standards, not low ones, with the consequence that those who get a badge will have earned it, there will be no glut of fresh-faced, newly-qualified advocates proudly sporting their QASA badge made from a box-top, but a shortage of suitably-qualified advocates. Good advocates will be expensive, not cheap, and the LDPs will find that the legal services market is, after all, not the ‘pot of gold’ that they thought it was – with hundreds of millions of pounds to be had for no effort whatever.

    So, the key to defeating BVT is to defeat QASA. If no-one signs up, the BSB and the SRA will not dare to ‘press the nuclear button’ and lock barristers (and solicitor advocates) out of the CCs in the Midlands and the West. Grayling, an ambitious wannabe Tory leader, would be ‘toast’, politically, if even a single dangerous criminal walked free because their CTL expired for the want of someone to conduct their trial. And the beauty of a boycott of QASA is that it would not be a ‘strike’ but a ‘lock-out’ by the BSB/SRA. They would no doubt be smarting that no-one signed up to their worthless scheme, but there would be nothing they could do. Grayling can’t send in the army, complete with green goddesses, to do CC trials.

    So far as the cuts in VHCC and AGFS fees are concerned, I detect that the mood is the same, countrywide. It is simply not possible to make a living on these fees. If Grayling introduces them by SI (as he can) to apply to cases in which the RO is granted after a certain date, the CBA has resolved to recommend to members that they should simply refuse to accept briefs in such cases. That is a strike, albeit a gradual one. But barristers see themselves as having no choice. Their chambers could not suffer a 30% cut in legal aid defence fees without driving up the contribution percentage to a level at which barristers, already hard-pressed, could make a living. Many chambers would implode (probably in a barrage of acrimonious litigation) as barristers attempted to cut their overheads by homeworking (or leaving chambers, and taking the Tesco shilling).

    It is a gloomy prospect, but one which has hardened resolve in both branches of the profession. Barristers and solicitors realise that, as Benjamin Franklin said, they must either hang together, or they will assuredly hang separately. The CBA, on behalf of barristers, and the CLSA, LCCSA, BFG, and LAPG for solicitors, are meeting together on 22nd May to agree upon a joint strategy for direct action for their very survival. If you are a legal aid lawyer, you should be at the Friends’ Meeting House, St Pancras, on that day, to show your support. Standing firm together, we can win. We must: failure is not an option.

    Ian West
    Fountain Chambers
    Middlesbrough.

    CBA Executive Committee member.

    • Just a quick observation on terminology. Many people seem to confuse LDPs and ABSs – it is important not to. There can be no corporate non-lawyer ownership of or investment in a Legal Disciplinary Practice, and there are limits to non-lawyer managers and owners. Alternative Business Structures are able to have substantial non-lawyer, as well as external, ownership or part ownership of law firms, and the possibility of firms providing novel combinations of legal and non-legal services. So, barristers and solicitors set up a firm and include their non-lawyer chief exec as an owner; that’s an LDP, and most people don’t have an issue with that. Multinational security and services conglomerate forms subsidiary company, installs non-lawyer chief exec and hires some lawyers and legal execs to provide legal services; that’s an ABS.

  12. Its already starting…. in a bid to restructure a leading London firm are already entering into redundancy consultations with their lawyers and staff.
    Solicitors and barristers need to unite to fight this.
    Well done on bringing this to your MP’s attention. I will be following suit.

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