Monday, 22 December 2014

The Tuesday Truth

The final Tuesday Truth of the year is written by Bill Waddington Chairman of the Criminal Law Solicitors Association.

It is hard to imagine that it is well over two years since the MOJ told the profession that it intended to change the system under which we operate.  No one could have ever foreseen all this time later   we would be where we are now with the situation still unresolved and fighting the Lord Chancellor’s proposals to completely change the landscape in what we consider to be a very dangerous way.

We would say   that all he had to do was to sit down with us and listen to what we had to say.  He would say that he has sat down with us – the problem is that nobody has been listening.

It seems like only yesterday, but in fact it is precisely 12 months ago, December 2013, when we were in much the same position as we are now.  For a quick trip down Memory Lane does everyone recall that we had worked during the course of that year on two full Consultation responses, the first to rid ourselves of the ridiculous and unworkable plan of PCT and the second to oppose the equally ridiculous and unworkable plan of two tiers?

We had done so under the strict time limits imposed upon us by the MOJ in order to respond.

 Their timetable you may recall was to respond in full by December 19th 2013. But they didn't and Christmas therefore was relatively enjoyable, but there was still the worry about what proposals would be when eventually  issued.

Their problem was that they could not  respond by the date they set themselves and it was over more than two months later when the belated response was published.  The simple reason for that delay, although this would never be conceded by the MOJ is that they had created a two tier monster which even their own loyal experts were not able to control.  When published the profession was stunned at what appeared to be and has subsequently been shown to be a wholly unworkable scheme .

Again, our invitations to the MOJ to sit down and talk to us went unanswered and they ploughed on regardless.

They ploughed on in a way which Burnett LJ described as being “so unfair as to be illegal.”

Do you remember it was December last year when a small group of solicitors from all over the country met on the windiest day since records began in Birmingham to agree to support the Bar’s half day of action on January 6th with our own training day?

Those were the days.

Do you remember it was March when the equivalent of 750 contract holders attended a meeting at very short notice in Manchester ?  That meeting was just 24 hours or so before the first 8.75% cut was made. We had  been given less than three week’s notice of this. 

It was a bitter sweet day.  I recall two solicitors approaching me after the meeting, both owners of small firms who had been going about their business for many decades and confirming to me that they were returning to their offices the following day to begin the process of closing down. They simply could not operate their business on fees of 8.75% less.  Many have since followed that route.  Many others have done so involuntarily.

But most suppliers are still here – clinging on by their finger nails to keep this system going and to keep their businesses going. That is what we people do .

I’m sure the profession will agree but we should not after all this time still be talking about two tier, a system conceived and developed by the MOJ in conjunction with just one ,perhaps  two of the old school from The Law Society who really had no business agreeing two tier as a way forward when all the Practitioner Groups had unanimously rejected the concept.  They should never have allowed themselves to be placed in that position .

We are so very grateful for the change of attitude and thinking by the new  Law Society leadership .

All the evidence points to the fact that the two tier system will not succeed.  Even the MOJ’s own experts have approached it with more caveats than the Lord Chancellor has had hot lunches. Well you would wouldn't you, if you were seeking to impose a completely new untried untested system and had no expertise in this particular market when trying to  replace one that has worked very well for decades?

Following  the most recent Consultation  (clearly prepared prior to and in anticipation of  the victorious Judicial Review), more than 4,000 responses confirmed to the MOJ yet again  that their conclusions in the response were flawed, unsustainable, unworkable, unnecessary and yet again our invitations to them to sit down and discuss a managed way forward were rejected.

There was no other choice but to issue this further Judicial Review . Our members require it . Our legal team was scrambled together once again to set the wheels in motion.  We very much welcome not only the financial contribution from The Law Society but also the fact that The Law Society itself challenges the Government’s latest decision by way of JR.

There was a brief setback on Friday when our application for interim relief was considered on the papers and rejected. 

I can now reveal that following a weekend of discussions with our legal team and consultation with our committees, instructions were delivered on Sunday night to our legal team to pursue an application for interim relief to a full hearing prior to Christmas.

Notice was given on Monday 22nd December in the morning. The hearing will be tomorrow at 10.30am. We wish the legal team every success.

Again, it is something that absolutely MUST be done.  We could not as representative organisations sit back and let the opportunity for an application for interim relief pass once we knew it was possible that such an application could be heard before Christmas.

The advice we can give to the profession for now is twofold:-

 1.       Hang fire on your contract renewal notice.  The time limit for this is 12pm 23rd January 15   and there is no need to rush.
2.       Hang fire on your tender application if you are making one.  We predict that many will for the simple reason that you have to in order to survive.  There is no other choice.  However, whether the application for interim relief succeeds or not, the full claim is to be heard on the 15th and 16th and there is certainly no need for any tender application to be lodged prior to that day.  The deadline is of course 29th January 2015.        .

For now, most of you will be preparing for a Christmas break.  Unlike many walks of life however, there will be one/two people from each office up and down the land who will be on call on Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day and the holiday days in-between.  We do this because we consider it  our duty to do it.  It is part of our job, the job we chose to do and the job we would all like to keep on doing if only the MOJ will stop interfering .

Those far less fortunate than us , need us . The people we represent. If we did not do it the system would grind to a halt.  If we were not here the system would grind to a halt.  That is something the Lord Chancellor ought to bear in mind.

On a personal note , I would like to say this .

Thank you for the considerable support you have provided to both organisations and your own profession in continuing this fight. 

Thank you to The Law Society for its financial support and legal support with this latest JR.

We will need more financial support, that is for sure and I ask you to consider digging deep and donating through to the JR fund.

It is the festive season and the season of goodwill and peace to all.

With those thoughts in mind , I would like to conclude with three suggestions.

I would like to invite the Lord Chancellor to take seriously the suggestions we have made for months now about alternative ways forward.  Ways which will not mean two thirds of the profession disappearing.  Ways which will not mean the creation of advice deserts.  Ways which will not mean that this profession follows what has happened in the world of civil legal aid and the backlash that we now see flowing from the ill-conceived LASPO cuts.  The Govt ignored all the warnings about those cuts before they were made. They pressed on regardless and now look at the mess, the injustices and the broken system.

To ignore those warning was foolhardy. To press on with the ill conceived and unworkable reforms for the criminal justice system would nothing short of  reckless.  No Govt department should behave in that way .

It is perhaps appropriate as well to call upon the Labour Party and perhaps even the Liberals  if they feel secure expressing an opinion which is contrary to the Govt's

Now is the time for them to condemn the two tier system and for them to understand that if they inherit this then they will have a dog’s breakfast for a criminal justice system. 

I would like this profession and the Bar to support the fund in any possible way they can. We know many have and thank you for that. But more is needed. The Bar has  to wake up to the dangers posed to the professions and the Criminal Justice system if these proposals become reality and the MOJ succeed in the plan kill off  two thirds of the solicitors firms by introducing what is effectively PCT by the back door .

Happy Christmas to you all and the very best for 2015 (and fingers crossed for an Christmas present  on Tuesday ).

I wonder what the message will be in the build up to Christmas next year. We know what it should be.






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