This is the second part of my account of a meeting between the Lord Chancellor and a group of barristers and solicitors on Friday at Altrincham Town Hall. If you have not read the first part you can read it by clicking here. Since writing the first part and planning this part the Lord Chancellor seems to have made some concessions on choice in conjunction with the Law Society. Which is interesting bearing in mind he consistently told us that he could make no decisions and make no pronouncements until after the consultation process had finished. You can read about the discussions that have taken place with the Law Society here. I repeat my observations I made in Part 1 and maintain them below. The Lord Chancellor WILL cut fees and WILL introduce a tender process, of that I have no doubt. He is just trying to find a palatable version. His concession made today is to listen.
Welcome back! Now where was I? The Lord Chancellor had just dealt with the prospect of the loss of me from the profession (some might say that he dealt with it stoically, others might observe he felt it to be no great loss). He had also expressed a view that seemed to be contrary to the recruitment policy of the CPS.
The conversation now returned to matters connected with solicitors’ contracts. One of the solicitors present raised the difficulties that had been experienced by their business due to the uncertainty faced by the profession for a number of years. The Minister said that he was prepared to discuss matters relating to the contracts such as length or contractual framework as he was open to developing a contract that gave the solicitors profession the greatest certainty. He described himself as uninterested in “something cheap and untenable”. Somewhat ominously he used the question of certainty to tell us “I appreciate that you have been here twice before when the Government faced huge opposition and backed away”.
[I describe that last pronouncement as ominous because it is. For those of you reading this who believe the battle is already won in defeating PCT, think again. As you will see, the concept of the Minister not changing his mind where others have due to opposition surfaced more than once on the evening. I have no doubt that the Minister is wedded to some form of tendering and contract process.]
Joe Boyd, counsel from Lincoln House in Manchester, raised again the prospect of solicitors or alternative business structures employing advocates to try to plead as much as possible at the initial stages of the Crown Court process. This is a business model that the proposed “harmonisation” of the guilty plea fee with the trial fee encourages and the potential loss of work to the Bar had to be seen in the context that “the Bar was very close to the edge and small changes such as this could put it over the edge”. The Lord Chancellor responded by saying that he understood that the position with the CPS is that they have rules that a certain ratio of work had to be sent out to counsel [if that is correct and it is set in stone, it has passed me by]. He indicated that he would be willing to consider whether it should be part of the litigator’s contract that a certain percentage of the Crown Court work had to be sent out to counsel.
[Such an element would be of interest to the Bar. How workable it is or how attractive it would be to the solicitors is debatable. I suspect the Devil would be in the detail ie what proportion and how would it be divided? By fees? Number of cases? Number of hearings? For my own part (remember I am a barrister so please don’t shout at me you solicitor types) I have long advocated that the PCMH form and client care letter from the litigator should have sections devoted to informing the defendant of his right to instruct and choose an advocate, including from the Bar. If we are believers that client choice is important, we should be consistent. Shouldn’t we?]
The meeting then really moved on to the heart of the matter. The Lord Chancellor summarised his starting position by telling us “I am in the position of any customer of an industry turning up and saying: ‘Guys I can’t afford this any more I am going to have to pay you 17.5% less’, and because I want to know that the people who are going to deliver the product can do it, I want you to go through a process to demonstrate you can do it……There is not a magic way to avoid this being a tough process for everyone”.
[This all sounds very PCT-ish to me]
This prompted the crucial question from the floor “do you accept that setting the bar at 17.5% below the current price there will be a reduction in quality?” The Minister responded “What I know is that I have got a number of firms I have spoken to privately, and some that have said this publicly, who say ‘Yes we can redo the way that we do things and we can deliver this. Its tough but we can do it’…. I have got to do this, I have got people saying to me they can do it. I know it is a huge challenge, I know I am throwing a huge challenge at people who have operated in a particular way for a very long period of time. There is no alternative to making significant changes. I am not going back to the Treasury and asking for millions from other sectors.”
[Now the first observation to make is that the initial response does not actually refer to quality. Don’t fear, it comes later. What appears to be his first response is a reliance upon the fact that he has current practitioners telling him it that it can work and he assumes this is a guarantee of similar quality. Unfortunately that is a huge gamble to take. The gamble comes in the phrase ‘we can redo the way we do things’. Cutting costs is never very far from cutting corners. The second observation I make is to repeat – this is not the talk of someone planning a major change from the announced policy]
That final observation is not necessarily indicative of my perspicacity as the Lord Chancellor went on to say, “I can tell you, what comes out of this will not be identical to what was in the original document….. We will vary some things……[and now please pay attention, this is an important bit] Please don’t believe at the end of the process I am going to say ‘Guys, it’s been a tough conversation so we won’t do it’.”
[Please don’t believe at the end of the process I am going to say ‘Guys, it’s been a tough conversation so we won’t do it’ – those words completely reinforced the view that I had already formed up to this point. A 17.5% cut based around a competitive tendering process leading to a contract will feature in the final proposal. Undoubtedly the opposition to the proposal has had an impact. But it has not been defeated. Yet.]
After this affirmation of the Minister’s position and his declaration that he believes he can make it work he finally turned to the actual question regarding quality. He observed “It’s about getting the best balance we can in terms of quality and in terms of value for the taxpayer. Now I have said in response to the issues legitimately raised about people just turning up and providing a very low quality service, I have said to both the Bar Council and the Law Society, ‘actually if you guys want to make some recommendations to me about the quality thresholds we should set to ensure someone can’t come along with an industrial machine that’s delivering a rubbish service’ I am very open to that. The Law Society have been very interested and engaged. The Bar Council have said no.”
[Of note here is the Ministers’ view on what quality means. In striking a balance between quality and value he is prepared to sacrifice a degree of quality in return for a good price. He is not looking for the cheapest. Nor is he looking for the best. I like to think of quality in terms of excellence. It would appear the Lord Chancellor likes to think of it in terms of base level of competency.]
Questions were then raised with the Minister about the taper. One barrister present gave him an example of a case he has later this year that is listed for five weeks and by day 17 he would be earning less than £100 per day. The Minister kept repeating that the £14 per day cases simply did not happen [then why have a taper that goes that far?] but that it was his intention to make the system “meaner, leaner and faster.” [In that moment repeating the slur on advocates that we prevent mean, lean and fast.]
[That is it for this section. I shall conclude the meeting in part 3 as soon as possible. I read with interest that in the Law Gazette article printed today the Lord Chancellor is quoted as saying he would also ‘explore further’ the Law Society’s suggested alternative proposal to ‘consolidate the market in stages, using quality and capacity criteria to achieve this’. He seems to have conceded ground on client choice. He is still working on the model. I believe we have every reason to fear what the model will be. He has to guarantee volume to make a 17.5% cut sustainable. He will look to make a 17.5% cut. He will shift on client choice because he realised it was unsustainable. What comes instead may surprise everyone. Even the Law Society.]
TO BE CONTINUEDThe concluding part is available here.