• Sundeep Bhatia

WHY I WILL NOT BE SUPPORTING THE NO CONFIDENCE MOTION AT THE LAW SOCIETY SGM ON 17th DECEMBER

On 17 December a Special General Meeting will take place at The Law Society headquarters at 113 Chancery Lane. The meeting has been called, at the behest of 100 criminal defence lawyers, who are putting forward motions of no confidence in both the chief executive, Desmond Hudson, and the current President, Nicholas Fluck. Their anger of these 100 solicitors is directed at the Law Society because the Law Society gave its backing to a deal with the Ministry of Justice concerning the reform of the criminal legal aid system. Under the “deal” there will be an unlimited number of own client criminal Legal Aid contracts available but far fewer Duty Solicitor contracts. The criteria for the award of Duty solicitor contracts will be far more stringent than those for own clients contracts. There will be a competition for the award of those Duty contracts and one of the criteria is capacity. This means that smaller firms will not, on their own, be awarded Duty Solicitor contracts. This will inevitably mean that most smaller firms will not be able to survive in their current incarnations. Some may be able to soldier on with own client work for a period of time but, inevitably, that work will diminish and will not be refreshed by clients represented as Duty Solicitor.

As a result many smaller firms will be driven out of business. That is a far from ideal situation. I personally fear for diversity within the Legal Profession and ,more importantly, fear that the needs of Black Asian Minority Ethnic communities will not be met by the remaining firms. These reforms are the culmination of eight years of civil service driven attempts to destroy the solicitor client base. Attempts to bring in Price Competitive Tendering were firstly put forward in 2005. The Carter report followed in 2006 and the Labour government made one final attempt to introduce Price Competitive Tendering in 2010. I have fought each and every one of those attempts. That is how I became involved with the Society of Asian Lawyers in 2005. I was vice-chair of the Society in 2007 when the Society of Asian Lawyers and the Black Solicitors Network joined hands in order to judicially review the Legal Services Commission over its planned Legal aid reforms.

On that occasion we had the backing of the Law Society and probably would not have been in a position to bring the judicial review without their tacit support. I also debated against Lord Carter in the library at the Law society regarding the effects that his planned proposals would have on diversity within the profession. I do fear for the effect the current proposals will have on diversity in the profession. Each year the Law Society publishes statistics regarding Trends in the legal profession. In the statistics published earlier this year it was confirmed that more than half of Black Asian Minority Ethnic Solicitors work in firms of five partners or less.

Those firms are likely to be disproportionately affected by these reforms even if the Lord Chancellor does not believe that to be the case.

I was present at Chancery Lane, on 13 November, when the Lord Chancellor stated that he did not agree with the above hypothesis because of the great entrepreneurial instincts of Asian lawyers. I am afraid that I do not share his misplaced optimism. The real villain of this piece is the Lord Chancellor and not the Law Society. As he pointed out,on the 13th November,he has to make cuts of a third in the Ministry of Justice. The problem is that this Lord Chancellor is not afraid to destroy the Justice system in the process of making those cuts Financial expedience gives him all the justification he requires.

At this point I should declare that I am a Council Member of the Law Society. I am one of three solicitors who represents the ethnic minority constituency and have been so since 2010. I am not known for being a shrinking wallflower. I am well known for expressing my views and for standing up for what I believe to be right. There has been, thanks to the intervention of the Law Society, a move away from Price Competitive Tendering. That is welcome.

Under the original proposals ,put forward by the Lord Chancellor , there would have been a handful of soulless factory criminal defence firms left . The vast majority of Black Asian Minority Ethnic firms would have been consigned to the dustbin of history. This move away from Price Competitive Tendering offers a small slither of hope.

Own client contracts may give firms a period of time in which to reinvent themselves or to join together with others.

The only heartening thing the Lord Chancellor had to say, on 13 November, was that loose consortia could be granted Duty Solicitor Contracts, provided that there was joint and several liability liability of all concerned. This gives some hope that firms will be able to find some way of working together in order to be awarded one of the elusive Duty Solicitor contracts. There are many practical difficulties which have to be sorted out and we will have to see what the LAA says about the way in which firms can or cannot come together.

The savage cuts of 17.5% will also make this process extremely difficult.

In fact all out opposition to cuts and ensuring the loosest form of consortia are the best steps which can now be taken so as to preserve some degree of diversity and variety within the criminal justice system.That is the policy of The Law Society.It opposes cuts and has commissioned Andrew Otterburn to look into the mechanics for awarding Duty Solicitor Contracts.This should ensure the survival of a greater number of firms. The Law Society has, over many months, taken soundings from a wide variety of practitioners and practitioners groups including the LCCSA, CLSA, SAL and the Big Firms Group and had given all those groups a sounding board and feedback. If the Law Society is given a bloody nose on 17 December then the ramifications of that decision could be very severe. If it,as a result, it looses its credibility as a campaigning force then Who would fill the void? I personally would not trust the Big Firms Group to protect the interests of smaller firms. Would you?

At the meeting at Chancery Lane on 13 November there were a number of individuals who talked about the need for consolidation before cuts. What that means is that they wanted a number of firms to be put out of business before any cuts are made. For the above reasons I will be opposing the no-confidence motion on 17 December and I would urge all of you to attend and do the same.

optimism.

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