President's Letter (February 2010)

There is little doubt that the Legal Services Commission together with the Ministry of Justice are continuing to put practitioners under intense pressure with tendering for Civil and Criminal Contracts.

Stuart HuttonThere is much comment made that the Legal Services Commission just does not understand the nature of our businesses and the market that we have to contend with.

In consequence the decisions made by civil servants are thought unworkable and unforeseen consequences are likely to follow.

Practitioners have been complaining for years that the Legal Services Commission does not understand them and are doing bit by bit everything that they can to undermine the efficacy of the profession and its future.

The Ministry of Justice proclaims its desire to secure the best value for the tax payer and assert that the Government already spends more money on legal aid than any other country in the world.

The “value for the tax payer” issue is a red herring as no acknowledgement is made that the tax payer has had value for money for years bearing in mind that legal aid practitioners have been paid rates that are 3 or 4 times lower than market rates. A simple calculation of the expense of time demonstrates that legal aid practitioners are receiving a wholly insufficient return for their capital and staff costs.

Of course the statement that the State spends more money on legal representation than any other country in the world is to imply that our Government is over-generous. As I have said before in 1943 the RUNCIE Committee which was, of course, the all party, no party apolitical conference, determined that poor relief should go and that a properly funded legal aid system should be established. This piece of history should not be forgotten.

Our political forbears recognised that financial legal assistance was the only way to meet Dicey’s Rule of Law and satisfy the standards of our free society. It goes without saying that a legal right does not exist unless it is capable of being enforced. Therefore without a properly funded independent legal profession individual rights cannot be enforced.

In the setting that I have just described I was heartened to read that as a result of the Competition Commission’s request to the Government last August, an Ombudsman is to be created to enforce a code of practice governing supermarkets’ relations with their suppliers. The Consumer Minister, Kevin Brennan, has said that the new code has now come into force and that a period of consultation will begin on how best to enforce the code including who the Ombudsman should be and the powers the position should carry. All of this has, of course, happened because large supermarkets are able to wield unfair demands on their suppliers. It is known that some supermarkets regularly make retrospective changes to contract terms, charge suppliers for every customer complaint and confirm orders with less than 24 hours notice.

It does not stretch the imagination too far to see an analogy between the supermarkets and their suppliers and the Legal Services Commission and its suppliers of legal services. In both cases the bargaining position is unequal and demonstrably unfair.

We really need to campaign for change and the need of an independent Ombudsman to set and safeguard remuneration so as to take it out of the political arena.

There is the further practical issue arising from this turmoil in that our profession will be unable to attract younger practitioners to the legal aid side of the profession. The consequence of this is obvious.

Stuart Hutton, CDLS President


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