Was the Law Society right to engage with Chris Grayling?

Among rumblings of unprecedented discontent from practitioners with their professional representative body, it was always going to be interesting to see how the Law Society's representatives coped with exchanges between them and local practitioners from the East Midlands region.

The decision of the Law Society to work with Chris Grayling's team in developing a new consultation paper on crime tendering has been hugely controversial and very much at odds with the approach of the Criminal Bar Association, who under the chairmanship of Michael Turner QC preferred to stay away from working with the Ministry '¨of Justice.

Last week the Law Society kicked off a series of roadshows by defending their decision to engage and work with the Ministry of Justice (MoJ) and explaining the implications '¨of the new consultation '¨for practitioners.

Government's work

In a state-of-the-art facility at De Montfort University in Leicester (the funding of universities appears to be going in the opposite direction to legal aid), the Law Society was represented by head of legal aid Richard Miller, access to justice committee '¨chair Joy Merriam, and deputy vice-president Jonathan Smithers.

Based on the anger of the profession, there was clear potential for a rough ride from a noisy audience. In fact no one shouted or strongly criticised the Law Society's stance. Instead most practitioners asked a series of questions seeking clarification about the proposals.

The closest the evening got to confrontation was one suggestion that the Law Society could more strongly emphasise their opposition to the proposed pay cuts as workable. One suggested that they appeared at times to be doing the government's work.

There was also a suggestion that the potential introduction of PCT and the proposed loss of 'Own Client' contracts was simply a device to negotiate with and that the government had always intended not to proceed with these reforms - a suggestion which Richard Miller strongly denied. Miller and Merriam pointed out that U-turns are embarrassing for ministers and can affect their careers. They clearly felt strongly that the concessions would not have been won had the Law Society not engaged with Grayling.

Clearly, whatever action the society took would likely result in criticism from some quarters. Would it not have been easier to just stay away from Grayling?

I think it's helpful to think about this question from Grayling's point of view. Would he and his senior civil servants have had an easier ride with co-operation or with non-engagement?

I know from experience working in senior management at the Legal Aid Board in the late 1990s that it is a damn sight easier to push reforms through if the other side is not engaging. In 1999 when it was clear that the Law Society would not engage over franchising being made mandatory, it was simple to implement the reforms on time. Back then, until a few days before the deadline, the Law Society were following a position of non-engagement and advised firms not to participate. No doubt worried about their own potential liability, they performed a U-turn a few days before the deadline and advised firms to apply. The reforms went through without concessions.

No workable alternative

In relation to a policy of engagement and the criticism that goes with it, the frustrating thing is that, as far as I am aware, no one has yet come up with a workable alternative to it which will stop the cuts.

Strikes won't work. There will always be some prepared to accept additional work in those circumstances. The only initiative I can remember that came remotely close to working was the Bar's approach to advocacy contracts with very high cost cases. Most barristers stayed away and the minority that did sign were on the receiving end of some extreme criticism.

Last Monday's roadshow presented a package of help for practitioners including webinars, template documentation, provision of advice for practitioners, assistance to share back office costs and interestingly a sort of dating or marriage broker system to enable firms to join consortia. This no doubt helped keep practitioners '¨on side.

The evening ended with a good question about what happens next, after the cuts had been implemented. Richard Miller said that the proposed contract lent some certainty to practitioners for at least the proposed four-year length of '¨the contract.
could not see how practitioners could cope with a 17.5 per cent cut, let alone further cuts.

Miller said he

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