THE TUESDAY TRUTH – 1st March 2016

 By Greg Powell

Après La Débacle

La Débacle, a novel by Emile Zola published in 1892 deals with the humiliation of the French Army by Prussia 20 years earlier.  Fast-forward almost 150 years to another process that merits that description, the LAA/MOJ Débacle known as Two Tier Contracting which always appeared a project too far and too complex for the administrative resources of the LAA and so it proved. 

The costs of course, in cash expended, time and emotional and financial uncertainty are inevitably again borne by and within Solicitors firms.  In the highly lopsided world of contracting the LAA has imposed a series of disasters upon our profession, staggering from one PCT to the next BVT to the next tendering apparently without any “lessons learned” period of quiet reflection. 

All of which obscures the much greater and compelling truth which is the pauperisation of rates of pay which coupled with aggressive managerialism and the delays of means tested applications leads to defendants and their lawyer’s everyday facing pernicious choices.  Plead or not, lose credit or not, act and advise without certainty of a Representation Order or the evidence – “your client knows what he did”, Judges turn blind eyes to the practical realities of Solicitors and Counsel litigating cases. 

So, in January 2017 we are to have a new version of the contract. The fiasco of 2 Tier provides the context therefore for a number of questions:

How are 24 hour police station duty slots to be allocated?

Is there substance to the endless anecdotes that scheme lists are littered with “ghosts” (the retired, the dead, the abroad, the conveyancer, the “he never actually goes to the court” etc.)

Is London different, (as the LCCSA have contended for the last 20 years) and is there an issue concerning the number of schemes for which any solicitor is eligible? 

Should allocation in London be based on boroughs or criminal justice areas?

How are change, closures of courts and police stations, to be accommodated within the arrangements?

What of the contractual position of freelancers?

What should be the criteria that qualifies a person to be a Duty, maintain that membership and which is verifiable by a newly proactive LAA?

What of “touting”, payment for cases and other malpractices?

My own view is that simplicity has huge advantages to sides, solicitors and the LAA.  That a period of calm and certainty would be welcome.  That the real debate should be about rates of pay. 

Two basic models feature in proposals, the events based and hours based.  It is possible to invent hybrid versions but immediately complexity and that incurable tendency of bureaucrats to tweak and twiddle comes to the fore.

Events Based
The present system is events based.  A minimum number of magistrates’ courts and police stations attendances per year.  It seems it is the intention of the LAA to actually “police” a future contract with the beneficial side effect of dealing with the ghost problem.  Being a Duty Solicitor means possessing a skill set.  People in court and police stations benefit from experienced and skilful people representing them and it would be a hope that the arrangements would encourage Duty Solicitors of experience to actually do police stations and court duties. 
On that basis, and having a very watchful eye on the necessity for a simple and verifiable scheme that has the least administrative and cost burden, I favour a basic minimum requirement that has come to be known as 4x4. 
4x4
A basic requirement that a Duty Solicitor actually does four court duties per year and four 24 hour slots (evidenced by records of attendance, cases dealt with, all objectively verifiable by reference to the court and custody records).
This might be a part of a larger set of police station and court attendances e.g. 12x12 but the merit is in the DOING directly related to rota membership.
Hours
Hours based schemes are more complex.  So many hours per week doing criminal litigation with alternative of per month and a minimum per year (e.g. 17.5 hours per week or 350 per year) are not usually related directly to duty work. 
There are also issues for freelancers which revolve around the hours to be completed for the firm to which they are primarily attached (who receive the duty slots).
These schemes are advanced in conjunction with the other very contentious issue called “Breaking the link”.

Allocation
Pursuing the theme of simplicity (avoiding litigation) and minimal administrative burden I favour a continuation of allocation of duty slots in the names of Duty Solicitors.  It is simple, appropriate and transparent.  Coupled to the event based 4x4/ plus (as above) it is a well understood workable system. 

Others – Break the Link
Another view currently advanced is a new form of allocation based on a firm’s historical volume with some tweaking or adjunct to try and ensure that a firm with ghosts is not over rewarded. 
This is, for those who are especially keen on 2 tier, another method of achieving allocation without any link to named Duty Solicitors.  However we have been here before in an MOJ consultation some years ago.    I am certain any attempt to use history as a basis has all the potential for complaint, litigation, delay and then abandonment that 2 tier had.   “My allocation is based on the wrong statistics, that police station closed, this is unfair to new entrants and so on”.
So let’s keep to the non-litigated familiar allocation that works, keep the link, be events based, be transparent and create workable minimum compliance criteria which lead to transparent easy verification.

Let’s not forget the much more compelling issues, low rates, nothing for travel and waiting, nothing for Sendings and S.51, and nothing for the factors that make litigation so difficult, clients who are vulnerable, have mental health issues and are in custody. And whatever happened to London Weighting?
I would need another Tuesday Truth for London as a uniquely complex challenging space. 
Above all let’s try to avoid another Débacle. 

There is a LCCSA meeting on 7^th March 2015 at 5.30pm at the Law Society to discuss these issues.  All LCCSA members welcome. Please notify the administrator in advance so as to reserve a place.                                       .