Home » Uncategorized » Why the Criminal Bar has no choice but to vote yes by James Vine

Why the Criminal Bar has no choice but to vote yes by James Vine

“Dual What?”

That was the answer i got when I asked a head of a set of chambers on the South Eastern Circuit, whether or not the question of Solicitors’ Dual Contracts had been raised at the meeting of Heads of Chambers of his Circuit.

It had not.

Currently our legal aid defence work is derived principally from small to medium High Street Solicitors firms. They, in turn attract either own client work, from previous clients or “walk-ins”, or in the alternative, work they pick up in police stations or Mags Courts as duty Solicitors.

That is to be abolished as part of the MoJ’s plans for restructuring of the CJS.

You will all be aware that Solicitors LGFS fees were to be cut by 17.5%. Initially that was to be split into two tranches, half just now, and half next year. I have heard it said, though the position is confused, that MoJ have decided to put the second cut on hold. Even if they do, it will not save small firms.

In its impact assessment, MoJ quoted results of work they themselves had commissioned from KPMG and Otterburn’s. The result was a finding that the average solicitor’s profit margin on legal aid crime was between 5 and 6%. It follows that even one 8.5% reduction will finish many of them if not all.

That I am afraid is only the beginning. The MoJ also calculated that solicitors could rely on achieving 50% Own Client work. Any solicitor will tell you that is nonsense. The figure is far lower, and bound to fall further.

The current system of individual solicitors holding their own personal duty slots is also to go.

What this means is that the existing number of Duty Solicitor slots, which I believe to be about 1800, is to be reduced to 525 spread around the country. Very similar to the PCT proposals, because it is in fact, PCT through the back door. Solicitors will be invited to tender for these contracts, to be allocated to firms rather than individuals. In addition, in areas where they operate, PDS units will be guaranteed a Duty Contract. For example in the Cheltenham area, there are four slots up for grabs, and PDS are guaranteed one.

Economists amongst us will have worked out, as the MoJ did, that economies of scale will come into play here. Small to medium firms will simply not be able to compete for the limited work available. It will be uneconomic for them even to try.

The only ones who can contemplate making it work, will be the largest conglomerates, including Stobart, who will take the work for a knock down rate, but only on the basis that it is unviable for them unless they employ HCA’s at knock down rates, to do the Crown Court Advocacy. £25,000 a year is a figure I have seen mooted.

It follows that in order to be able to run a viable business on these margins, they must take all advocacy work in house.

End result, no small to medium solicitors, and no Legal Aid Criminal Defence Bar. Our customers, and therefore our work will disappear in a year to 18 months.

None of this appears to have been explained to the Heads of Chambers meetings last week. It might be said that they were voting on a false premise.

The circuit leaders and a majority of the CBA Executive Committee are effectively saying that the Bar has won its fight and should move on. My argument for your consideration is that the Dual Contracts issue IS the Bar’s fight, as much as the solicitors.

I argued this in the CBA committee meeting last Wednesday.

Those, like me, who argued against the deal were in a minority. I cannot be certain that those in the majority fully grasped the issue.

The CBA is not rushing to publish the opposing view. By all means read what they have published, but I hope you will all take account of what I have said, and also contributions from other committee members, Dan Bunting and the irrepressible Ian West. links below.

Here is a Link to “The Deal” http://tinyurl.com/kwp47w4

Here is Ian West’s response http://www.crimeline.info/news/criminal-bar-association-resignation

Here is Dan Buntings view http://danbunting.wordpress.com/2014/03/28/deal-or-no-deal/

Dan is on the CBA Exec, and argued this as well, albeit on a telephone link, and in nothing like this much detail.

Younger members may be assisted by this blog from Max Hardy. On CBA Exec and also Chair of Young Bar Associationhttp://counselofperfection.blogspot.co.uk/2014/03/deal-or-no-deal-what-now_31.html?m=1

And a balanced View From The North. Jaime Hamilton, always well worth a read.http://jaimerhblog.wordpress.com/2014/03/31/why-i-support-the-cba-but-oppose-the-deal/

I know that there is more material to come from eminent members of the Criminal Bar.

The Circuit Leaders have published more today.

Whatever you do, before you vote, please read all of it. there is more being published very regularly on the CBA blog.

I may well have more to say on here. Keep an eye out if you feel it will help.

Contrary to suggestions from some quarters, I am not trying to “Undermine” the CBA committee decision. now we have a debate and a vote, i am trying to ensure that both are balanced and FULLY informed

James Vine @jamespsvine

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5 thoughts on “Why the Criminal Bar has no choice but to vote yes by James Vine

  1. I fear that the criminal bar are losing their objectivity here.

    The Bar Council reports that new tenancies have fallen dramatically. Immediately the press and blogosphere is full of, otherwise sensible, people blaming the cuts in legal aid. It turns out the figures were wrong. The CBA, and many contributors to this site, maintain that the deal with the MoJ is a ‘victory’. How can it be when none of the objectives of the campaign have been met?

    Current legal aid rates, never mind how much worse they’ll be in future, are clearly insufficient to provide an acceptable income for practitioners and are pushing many chambers to the brink of oblivion.

    As legal aid rates aren’t going to increase where are the long-term plans and strategies for a sustainable criminal advocacy business model predicated on that fact? Only the bar can construct and implement these and their is little evidence that they are doing so.

  2. I would point out that there are proposed to be 4 contracts for Gloucestershire-that is Gloucester, Cheltenham, Stroud, Cirencester and the Forest of Dean-not simply the Cheltenham area. One of which is guaranteed to the PDS in Cheltenham. We also have Hines in Cheltenham who showed their support for the 7 March by sending five solicitors to Cheltenham Mags Ct ( they were duty that day). Hines keep most of their CC advocacy in house, and I have no doubt the PDS will now be doing the same. There will be two dual contracts available in the County (we have our fair share of heavy duty work) which will no doubt attract bigger players from outside. The effect of dual contracts will be that all Gloucestershire work will be kept in house. Bristol is looking at five contracts. There are some well established sets in the City-Albion, Guildhall, Queens Square, Unity Street and recently Invictus. If all Bristol work goes in house, how many will survive? I have a horrible feeling it will be a very round number.

  3. Thanks for this.

    At the time I wrote this, as I said, the position about the second tranche of cuts to LGFS was confused. It has now been resolved exactly as you describe.

    What I had to say about Own Client contracts came direct from a solicitor contact. His view was that whatever level of work they may provide now, they are a naturally diminishing asset, and that any solicitor who could not bid or secure a duty contract could not survive on Own Client alone. That was the point I was trying to make

    We will have to disagree on the Stobart point. I did not mention G4s as I too do not believe they will be interested. Tesco have also disclaimed an interest. Stobarts however are a different matter.

    • Thank you for your clarification. In terms of the first point I accept there did appear to be some confusion, though I am unclear as to why.

      In terms of the second point, again I accept that you may be getting this from a solicitor, however you present it as the MoJ’s position, which it is not. My point really is that the MoJ’s position is far more ridiculous and (if I understand correctly) it is the ridiculousness of the position, and the fact that the assumption was baked into the KPMG model, which is forming the basis of the JR that is currently being considered.

      In terms of Stobart, My view is that IF Stobarts get involved it will almost certainly be Stobarts Barristers Ltd doing it (https://www.duedil.com/company/07963220/stobart-barristers-limited) not Stobarts the massive haulage company. In any event, they are as likely to succeed in the market as any other new player with zero client base and, in their case, zero reputation both with clients and with practitioners. If they were the worst threat we had to contend with then we would be laughing.

  4. 1. The second cut has not been delayed. Why this keeps being said when it is clearly not true and has been denied by the MoJ. Stop repeating it because people believe it and it muddies the waters.
    2. The assumption made by the MoJ wasn’t that “solicitors could rely on achieving 50% Own Client work” (which by the way, may firms achieve easily – 60% is common outside of London), but rather that firms would ‘give up’ 50% of their own client work thus increasing the pool of people who would use duty, making the duty contracts seem to be worth more than they actually are. This assumption is built into the KPMG model.
    3. Stobarts (not that again) and G4S et al. are not coming for the contracts. Even if they were in a position to bid for them, it would make no economic sense to invest in a business where the profit margins are so very slim. Large firms will get larger as a result of these contacts, but you will not get large outside businesses trying their luck.

    It’s not that I particularly disagree with you, it’s just that I think you ought to base your arguments on facts and likely outcomes.

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