Monday, 8 December 2014

The Tuesday Truth

Carry on Doctor

On the 31 October 2014, Fiona Woolf resigned as Chair of the Government’s child abuse inquiry.  Her resignation was due to her previous links with the Westminster political establishment, and more specifically to a Home Secretary who may come in for criticism and further scrutiny.   In other words perhaps belatedly for many , Fiona Woolf realised that  the  public is  entitled to expect that the person appointed to this role is entirely independent and cannot have her impartiality undermined by previous associations and links.
At the end of last month it was announced that former Law Society Corporate Affairs chief, Dr Patricia Greer, has been employed by the Lord Chancellor to conduct a review of access to legal services.   It appears that her role is to investigate ways to improve the affordability of legal services’ Greer was part of the small Law Society team who worked with  the Ministry of Justice during last year’s discussions over the two tier  own solicitor/duty solicitor contract scheme. The Law Society’s approach to the Consultation process and their public pronouncements regarding the model adopted triggered the vote of no confidence in the Law Society.

Much of the economic evidence available suggests that firms not securing a duty contract (likely to be in the region of two thirds) will go out of business, thus effectively removing client choice by the back door.

One of the raison d’ etre of The Law Society as reaffirmed with rather more vigour under its new President is to promote access to justice and preserve client choice. The Law Society under its new stewardship has very clearly come out against the final model of the two tier contract because it will reduce access to justice and constrain client choice,

Therefore, we now have a situation in which an official very much at the centre of a much derided restructuring of the criminal justice system has now taken herself off to the other half of the two tier equation.  

Presumably there is potential for Ms Greer to actually be working on access to legal services issues arising out of representations and arguments which may be the reverse of arguments put forward whilst she was at the Law Society.  It  is also possible that whilst working at the Law Society Ms Greer may well have gleaned confidential information from and about practitioners and about The Law Society that were pertinent to negotiations with the Ministry, material which she takes with her to the Ministry. This is not about casting imputations on her integrity as to whether she would deploy that information, rather that there appears to be a strong possibility of a conflict of interest. .

For those who have forgotten, the Judicial Review was about the non-disclosure of reports including one by KPMG who were tasked by the MOJ to address crucial questions of modelling.

The contents of the KPMG report and its key assumptions have come in for sustained criticism with some of the kinder comments describing it as economically illiterate and displaying a critical lack of knowledge of the market.

During the course of the Judicial Review, through disclosure, we discovered that P A Consulting had also prepared a report for the MOJ stating in summary that it was not really possible to achieve the economies of scale that would make the MOJ’s preferred restructuring approach sustainable.

Throughout the period leading up to the announcement and disclosure of the proposal and the disclosure of these reports the Law Society was forced to sign up to various confidentiality undertakings which meant that they were unable to disclose them to the very people they represent.

It is no doubt a coincidence but the MOJ blurb released to mark her new position revealed that Ms Greer had previously held positions with KPMG and PA Consulting Group. It’s a small world , the world of revolving doors.

Her appointment will strike many as entirely inappropriate because of the kind of professional associations that lead to accusations of conflict of interest.

This appears to have become standard operating procedure for the political class. We learnt recently that, Stephen Dorrell MP has just taken up a post at KPMG. The firm is considering bidding for a one billion pound deal to manage the medical records of all patients.  He only recently quit as Chairman of the powerful House of Commons Health Select Committee.  Although he will step down at the next general election as MP, he will be employed by KMPG and be in the House for the next 6 months.
Two Tier Fee Cut

In March of this year the Ministry of Justice announced that prior to any further fee reductions for litigators and advocates the MOJ would consider a number of criteria. Bill Waddington chairman of the Criminal Law Solicitors Association has pushed the MOJ for disclosure of these and has discovered amazingly that the criteria for litigators and advocates although similar is different in two very significant ways

For litigators the criteria are the Leveson reviews, CJS reforms (eg digitisation) and the impact from earlier remuneration changes. For advocates, there is also the Leveson review and CJS reforms, but in addition there is the Jeffrey Review, any impacts on legal aid spend from falling crime rates, and an analysis of income and earnings of criminal advocates including effects from changes in recent years.

There seems no reasonable explanation for the difference which is clearly important. Litigators are obviously equally affected by falling crime rates and must be equally entitled to have their income and earnings considered in light of recent changes. Des Hudson, Chief Executive of the Law Society informed practitioner groups in March 14 that the review would be based on the same criteria. Have the bar secured these additional favourable terms as part of a deal? To be honest, I have no idea and no evidence to suggest as such, but we deserve an answer to this difference which on the face of it favours advocates and contradicts what we and The Law Society were told in March 14. I understand that both the President of the LCCSA, Jon Black and the chairman of the CLSA, Bill Waddington will be making further enquiries of the MOJ and seeking an amendment of the criteria so that both litigators and advocates are subject to the same factors in any further reviews.

In conclusion the MOJ appear anything but a fair and transparent body.  It is  proceeding with a tender that on their own evidence is likely to cause market collapse. It talks  austerity but means ideology and its governing ideology involves restricting  access to justice. After all if it was austerity how could the Ministry justify the vast increase in the expenditure in external legal advice in 2012/13 £34.2m up from £21.9m the year before. The spend for 2013/14 will be similarly eye watering bearing in mind its sequence of losing judicial reviews as a result of unlawful policy and procedural decisions.

This is a Ministry that foists destructive reorganisation on others but in its own secret deal making, appointments and spending demonstrates a business as usual approach, don’t do as we do, do as we say. .

If there is to be a meaningful and open review of the justice system that should start from the top , physician heal thyself.  



1 comment:

  1. Re this opaque, sinister and farcial review, is the 'trusted' Dr an employee or independent contractor? What are the terms of reference? Who is on the team? How will the work be done? Was it tendered? Did she bid the lowest price?

    Greg Powell