Legal Aid

New deal unlawful, say solicitors

PUBLISHED March 30, 2007

On a cold, drab day in London last week, more than 500 criminal defence solicitors braved rain and sleet to hold a protest directly opposite the House of Commons.

Brian Haw, the peace campaigner who lives on a patch of grass nearby, came along to watch ? no doubt marvelling at the sight of a ?legal? protest outside Parliament.

The lawyers were demonstrating against moves to replace hourly pay rates with a system of fixed fees.

They also object to a system of best-value tendering, which solicitors claim will drive firms out of business and further reduce low pay rates.

MPs from the three main political parties denounced the proposals, as did Shami Chakrabarti, from the human rights group Liberty.

She said it had taken ?not just a Labour government, but a Labour government stuffed with lawyers, to dismantle legal aid in this country?.

Roger Peach, of the Criminal Defence Solicitors Union, said the Government?s action would create ?advice deserts?, leaving tens of thousands of people without access to justice.

Greg Powell, of the London Criminal Courts Solicitors? Association, added that the Legal Services Commission, which runs the legal aid scheme, had ?lost the confidence and trust of legal aid suppliers as well as their grip on reality?. He spoke of ?an unfolding and unprecedented crisis in legal aid supply?.

The next morning, I went to see Lord Falconer. The Lord Chancellor seemed unwilling ? possibly unable ? to do anything about the crisis.

?It is absolutely critical to me that legal aid runs properly,? he insisted. ?An ineffective legal aid system means that the justice system doesn?t function properly and that people who need help don?t get it.

?I cannot, over the long term, continue with the situation where criminal legal aid eats up larger and larger proportions of the budget.

"So the introduction of much more widespread fixed fees, and a market approach to people getting the work, is designed to bring sustainable controls to criminal legal aid.?

If the solicitors were right, he conceded, there was a risk that market forces might push up prices. But his view was that economies of scale would drive down costs, allowing more money to be spent on consumers.

So, no change in policy as a result of the protests? ?No change in policy,? the Lord Chancellor confirmed.

However, the most urgent problem facing legal aid lawyers over the next couple of days relates not to criminal cases but to civil work ? housing, debt, family cases and so on.

Lawyers who want to carry on doing civil legal aid have been told by the Legal Services Commission that they must sign and return a new three-year contract by Saturday, when their present contracts expire.

Those who fail to do so may continue with their existing cases, but only until arrangements can be made to transfer the work to other firms. They will also have to wait longer to be paid.

But the Law Society points out that the proposed contract may be amended by the commission with as little as seven weeks? notice.

?The reforms on the immediate horizon inevitably mean that the unilateral right to amend will be used extensively,? according to Andrew Holroyd, vice-president of the solicitors? representative body.

A survey of 444 legal aid firms conducted by the Law Society this week finds that only one per cent welcomed the new unified contract. But 41 per cent have, reluctantly agreed to sign, although as many as 47 per cent are considering not signing.

And 11 per cent have said they will definitely not sign, in effect giving up legal aid work. Among them are a number of large, high-profile firms, including Bindman and Partners, Fisher Meredith, Tuckers and David Gray Solicitors, the largest single-site practice specialising in publicly funded law in the North-East.

Eileen Pembridge, of Fisher Meredith, says her firm believes that the contract contains terms that are either uncertain or wrong in principle.

?We want to continue to serve the public in legal matters as we have for 32 years. This contract will make that impossible for us and for others to carry on,? she tells me.

?The only way to get better terms is for the profession to be united and to stand up for ourselves as we would for our clients when faced with such oppression and disinformation.?

Being lawyers, solicitors are planning a legal challenge to the contract.

The Law Society has sent a letter before action claiming that the commission is acting unlawfully. It says the proposed contract fails to comply with the Public Contracts Regulations 2006 and the related EU Public Sector Directive.

All a bit technical, of course, but what it boils down to is that you can?t change an agreement like this once it has been signed.

Richard Miller, of the Legal Aid Practitioners? Group, is astonished that a government body such as the Legal Services Commission could offer such a contract.

?Independent commercial lawyers instructed by the Law Society have said they would advise any client not to sign this contract, because of its uncertainty, its unprecedented right for the commission to amend it and the termination provisions,? he points out.

Over to Carolyn Regan, the commission?s chief executive. ?For me, the key point is that these standard terms are in many respects identical or very similar to your existing contract,? she told solicitors this week.

?The headline concerns about periods of notice for urgent amendments and the six-month termination clause ignore the fact that these reflect existing contractual provisions.?

The commission ?intends to continue to act in good faith?, officials insist. And solicitors will be able to pull out on three months? notice.

They can also withdraw if they don?t like the new fee structure to be introduced in October or any other amendment.

Of course, there?s a certain amount of brinkmanship going on here. As with any strike, it?s a question of whether the employers need the workers more than the workers need the money.

The Law Society has given the commission until next Thursday to respond to its threat of legal action, failing which it may issue proceedings without further notice.

Early next week, the commission will have to do its sums.

If, as seems likely, it has not signed up enough solicitors to do the work, it should extend their existing contracts until it can offer them a proper deal.

Why should solicitors be expected to sign a contract they would never advise their clients to accept?