Letters to the editor

It would be helpful if those who believe they are entitled to instruct others on policy paid attention to their own words. Dr Peter Swinyard - no doubt an esteemed professional - being one such individual (‘Top GP backs checks on whiplash claims’).

Dr Swinyard appears blithely unaware of the implications of his words when he says that, while he always wants to believe his patients, ‘you sometimes have a hunch things are not as they seem’. There is a certain irony in a doctor’s ‘hunch’ being a determinant of policy, when at the core of the debate on the reality (or otherwise) of whiplash injury is the medical expert’s preparedness to endorse injury when there is no ‘objective evidence’ to prove it - at least so Jack Straw MP frequently tells us.

Policy arising from such soundbite propagandising will result in as many flaws and unintended consequences as the existing mess causes.

John Holtom, managing partner, Legal Solutions Partnership, Luton

Max Hill QC’s recent letter to the Gazette in reply to comments made by solicitors’ representatives highlights the schism between the two branches of a single profession.

Like barristers, solicitors are struggling with adverse conditions, but they are also finding it difficult to trust the bar’s motives. The latter’s call on judges to ‘halt solicitor abuse of QASA and plea-only advocates’, the Bar Standard Board’s description of solicitors as ‘superfluous intermediaries’ and the suggestion that solicitors are improperly withholding/delaying payments to barristers only serves to rub salt into the wound that was first inflicted in the days of Lord Carter (when the bar positively endorsed the introduction of the Litigators Graduated Fee Scheme despite serious opposition by solicitors and promoted the extension/implementation of a graduated fee scheme to litigators undertaking very high-cost cases).

The self-employed criminal bar is using the Quality Assurance Scheme for Advocates as a ‘turf war’, but it needs to be seen in the much broader context of a battlefield with multiple fronts, including the bar extending its direct access scheme and the proliferation of barristers training to be duty solicitors. All of this is lawful competition and the march towards a fused profession seems unstoppable.

The fact is that the proper functioning of the adversarial system and justice requires both litigation and advocacy skills, and access to those skills across the whole country needs proper and consistent funding. The current configuration of criminal legal services has many features that should be sustained and nourished (I personally support a niche advocacy bar). For every barrister facing problems there is a criminal solicitor facing redundancy - what is unhelpful to the debate is the narrow self-interest of one group of stakeholders being promoted above the wider interests of clients and all those involved in delivering quality and justice.

Jim Meyer, president, London Criminal Courts’ Solicitors Association

I write in relation to the letter from Max Hill QC concerning a unified approach by solicitors and barristers to tackling the threats posed to the criminal justice system by funding reforms and cuts.

I agree entirely with his argument, but I am not sure just how it can be achieved. As a clerk working equally with solicitors and barristers, it is obvious to me that even if the Law Society and Criminal Bar Association presented a united front and threatened strike action, they would also need to agree how to deal with those who will inevitably break ranks. The action would need to be sold to members on the basis of ‘a month’s pain for long-term gain’. ‘Gain’ not only for the professions, but also for the public through a properly funded and managed criminal justice system.

Once 100% of your members are on board, you then need to sell it to the public. Make no mistake, the popular press will have a field day, citing the 'greedy lawyers’ line. But I wish you well - though only a humble clerk, I do have a vested interest and, more importantly, so do the public.

Chris Barlow, Bryan & Armstrong, Mansfield

There is a lot of discussion about digital working in the criminal system, but one issue the Crown Prosecution Service appears unable to address relates to the security marking of papers. When they receive documentation from the police, that documentation normally carries a security marking of ‘Restricted’. The CPS considers the documentation and decides what is to be made available to be produced in open court. This is the material that is served on the defence.

With digital working, the CPS appears to demand the material is dealt with by solicitors on the basis that the ‘Restricted’ security marking is retained. It is ridiculous to argue that the material remains ‘Restricted’ once the CPS has served the documentation, but its continued insistence that this is the case creates insurmountable problems for solicitors when preparing their clients’ cases.

It is unlikely that any early adopters of digital working are able to comply with the terms and conditions imposed upon them, or that they do treat the material in accordance with the ‘Restricted’ label in all cases.

We are in danger of concentrating upon the process, without fully analysing those details that matter so much more.

Dennis Clarke, Clarke Kiernan, Tonbridge, Kent

Ronnie Fox is quite right to say that Law Society specialist committees should be wary of being drawn into party politics. The employment law committee does not take sides in the employment relationship, acknowledging that the Society's membership comprises both employers and employees, and includes a number of the kind of micro-businesses at which much of the government's employment law reform programme is aimed.

When we offer government our advice on proposals for changes in the law, we do so with the aim of supporting ‘good law-making’. It is right, therefore, that we should comment on the evidence for and the likely consequences of proposed changes to the law from our perspective as experienced employment solicitors.

Our response to the consultation explains, in more detail than is possible in this letter, that the evidential basis for introducing compensated no-fault dismissal is based more on perception than fact. One of the identified risks in creating a two-tier system of employment law rights is that micro-businesses may be inhibited from taking on more employees if this is going to result in the threshold being reached when higher employment protection rights are triggered. This may have implications for business growth and lead to other practical problems for the overall competitiveness of micro-businesses.

What would, however, be of benefit to micro-businesses is better ‘signposting’ to the employment law information, guidance and advice that is already available.

The evidence in support of the proposals shows that what small businesses want are incentives for growth such as reductions in national insurance – but commenting on that really would be going beyond our remit as lawyers.

Angharad Harris, Watson Farley & Williams, London EC2

The arguments of Junior Lawyers Division chair Hekim Hannan (Comment) are, to borrow his own words, ‘ill-considered and nonsensical’. He appears to speak for less than 10% of junior lawyers, let alone black people and other ethnic minorities, who, after attaining a respectable law degree and LPC, are unable to get a training contract simply because many big firms overlook them. It is my guess that over 90% of BME-run firms cannot afford to pay the present minimum salary.

There are hundreds of aspiring solicitors who, after years of training, hard work and financial stress, have no training contract. I was a mature student and a junior lawyer. When I completed my law degree at the University of Central Lancashire and my LPC at BPP Law School, I did not get a training contract despite hundreds of applications. I was 58 years old, so I painfully accepted that becoming a lawyer was one of those unfulfilled dreams. I continued to work as a housing officer at a London council, on £26k pa.

A chance meeting with an old acquaintance changed my fortunes. He had done voluntary work with me at a law centre six years before his enrolment as a solicitor and setting up a firm. He was very sympathetic about my plight and was eager to help. The only snag was the minimum salary. We agonised over it, but seeing no other way round it, he signed me on.

After paying me the minimum for 10 months, he was on the brink of bankruptcy and had to reluctantly terminate the contract. I found myself in a worse situation because I had quit my employment to commence a training contract that came to an abrupt end. Luckily, a BME principal soon accepted me to complete my training and I qualified.

Today, my firm is authorised to take trainee solicitors. We have trained a solicitor and another is training. Six solicitors earn their livelihood as lawyers at the firm. Consider the fact that, on the minimum salary, my hopes of becoming a solicitor were almost dashed. If allowed to do so, I would have accepted a training contract with no salary at all or to be paid on commission.

There should be no salary prescription. Applicants and employers should agree a way forward. Rich firms can pay the minimum or more, while struggling firms may pay less.

Abolition can only help increase the number of training contracts. It will help junior lawyers and new graduates, and increase diversity in the profession. The so-called ‘key stakeholders’ appear to speak for the privileged few.

Adolph Okoro, Graceland Solicitors, London SE18

Your correspondent of 24 May omitted to mention that by ‘giving the practice away’, at least the professional indemnity runoff cover (two and a half times the last premium) was saved.

Further, although the goodwill of the fish and chip shop was £120,000, it would have been worth zero if the client’s lease had expired (or attracted an unsustainable rent).

Sandie Graff, Graff & Redfern Solicitors, Richmond, Surrey

I have just read Susan Singleton’s response to my earlier letter about the trainee minimum wage. Her letter is indicative of the current state of mind of the profession.

I went to an ‘ex-poly’ – City of London Polytechnic – because it had an excellent business law course and a first-rate specialist business school. I worked hard and came out with a very good degree. Ms Singleton appears to believe that we should only consider candidates with top degrees from the top universities. This is wrong and immediately leads to the situation we are now in, with the vast majority of law and LPC graduates failing to obtain a training contract at the end of their lengthy and expensive studies.

There will, of course, be a process of almost Darwinian natural selection – the best candidates will always get the best jobs – but what message does that give to students who may not have achieved the aimed-for results at A-level, thereby missing out on Oxbridge or the equivalent? ‘Sorry – you’re only 18, but it’s all over for you now, loser!’

It is naive in the extreme to say that removing the trainee minimum salary and relying on the national minimum wage will actually increase the number of contracts. It won’t. There are only so many jobs available in any year, and all law firms will do is pay their trainee intake a lower salary, thereby reducing costs and increasing profit. A good result from a business perspective; a disaster from a moral perspective.

Ms Singleton also talks about her grandfather’s experiences in the 1920s – and yes, it was undoubtedly harder then than it is now. The country had just come out of the bloodiest global war, and the Great Depression, the Holocaust and the butchery of the second world war were still to come. However, that’s why we – as a global population – have progressed in the last 100 years. We need now to progress as a modern profession.

With the training review well under way, discussion such as this is key; and if you haven’t yet contributed, you should do so. We must take this opportunity to create a proper, modern legal profession which values the dedication and career advancement of our youngest members. Then we will have created something of which we and our own grandchildren can be proud.

Edward R Foster, senior partner, Fosters Law, Herne Bay

It is essential that the issue of elitism is tackled head on, but there is no simple solution (‘Top firms told to stop cherry-picking from Oxbridge’).

The National Admissions Test for Law was established eight years ago to ‘level the educational playing field’ and tests a student’s natural, raw ability when applying to study law at university.

It provides invaluable information to universities seeking to find talented students from less-privileged backgrounds and is now seen as an essential admissions tool at eight of the UK’s leading universities.

This has enabled universities to take great steps forward in widening participation and provides law firms with the opportunity to recruit from this wider pool.

However, as recent research has identified, fewer than half of state school teachers encourage Oxbridge applications, so universities can only choose from the applications they receive, which at present are overwhelmingly from students from more affluent backgrounds.

The issue must be addressed at all levels, giving young people from all backgrounds the encouragement to aim high. Further down the line, law firms must be more proactive and make a commitment to increasing diversity within their own firm.

Dr Dennis Baker Chair, National Admissions Test for Law