A motion of no confidence in the senior leadership of the Law Society over the organisation's policy on criminal legal aid reform passed by a narrow margin this afternoon.
Some 228 solicitors (52%) attending a special general meeting at Chancery Lane voted in favour of the motion, proposed by Liverpool solicitor James Parry, with 213 against.
More than 600 solicitors had registered their attendance.
The petitioners oppose the Law Society Council's policy of direct engagement with the Ministry of Justice on proposed reforms of criminal legal aid. Parry and his supporters favour a 'hearts and minds' campaign of outright opposition that could include direct action.
Law Society chief executive Desmond Hudson described the outcome as disappointing. The Society's Council is meeting this afternoon to consider its response to the vote, which is not binding on it, and plans for continuing the organisation's campaign against legal aid cuts.
In a statement published after the meeting closed, a Law Society spokesperson said: 'There are lessons to be learned and we will reflect on these developments. Our immediate priority is to continue to influence the Ministry of Justice in our members' interests. We will continue to make it very clear to the lord chancellor that we remain opposed to cuts.'
Hudson said later that the Society will tomorrow seek to engage with Parry and his supporters. The Society does not intend to proceed with a postal ballot of the full membership however. This was not requested by James Parry or anyone else who attended the SGM. Indeed, Parry said it could amount to an 'additional, unwanted distraction'.
Parry admitted afterwards that he was surprised by the narrow margin by which his motion was passed. He said Law Society president Nicholas Fluck and Desmond Hudson would need to consider their position and look at changing the Society's stance, but stressed that he remains open to fresh talks. 'I want the Law Society to work for the profession and my door is open to them. There is a diversity of views here. If there is a lesson to be learnt, it's that there has been inadequate communication with members. That's needs to go, and we need to find a way forward.'
Asked if he and Fluck would consider their position, Hudson said their immediate focus will be two research reports, one commissioned from Oxford Economics on the Ministry of Justice’s financial modelling for the revised proposals, and the other from KPMG/Otterburn on duty solicitor contracts. Both are expected shortly.
‘It’s those, along with other issues such as the flat fee for guilty pleas, that we will be focusing on in the coming days and weeks,’ he added. ‘Once we have dealt with our duty to our members, there will be time for other things.’
Hudson said the Society leadership did not see the necessity for a postal ballot of members as no one at the meeting called for this. ‘We’ve spent almost £120,000 on today’s meeting. Taking that up to £200,000 with a postal ballot is not the way to expend our resources to the benefit of the membership,’ he added.
'That said, we recognise that there are no winners and losers from today's meeting. While I opposed Mr Parry's motion, I don't oppose what we are both seeking in terms of a functioning, high-quality criminal justice system with a sustainable body of criminal law solicitors.'
He added: 'Tomorrow morning, what we want to do is reach out to James Parry and all the people who voted for him. Because while we may differ on tactics, we don't differ on what we want to see. In our published response to the first consultation we laid evidence from Deloitte/Otterburn which shows very convincingly that a majority of firms cannot maintain a sustainable practice minus 17.5% [in fees].
''We also have to contend with the argument that there are too many suppliers and we could do with fewer. We don't believe this is practical on the scale they have spoken of. How do we resolve these issues? If we can do that in step with James Parry and his supporters, then that's what we want to do, because the more important issue is the interests of our members and the working of the criminal justice system - not Nick or I.'
Asked by the Gazette what he believes lord chancellor Chris Grayling's response to today's vote will be, Hudson added: 'I don't know, you'd need to ask him. We were concerned that a sense of disunity would not have been a problem for Mr Grayling.'
Some contributors to the SGM debate indicated that they will join in the bar-instigated 'day of action' on 6 January, which will see criminal barristers refuse to attend court for half a day. Chancery Lane has no 'official' position on this action. But Fluck counselled against pushing the supposed analogy with the bar too far in respect of the legal profession's seemingly unanimous opposition to the government's reforms.
'Unanimity sounds fantastic around this table,' he told the press. 'But when you look at the fantastically disparate nature of our profession, they will all have a view on when they can take "rest days". The Criminal Bar Association - the bar - is a much more coherent organisation. They find it much easier to exert that degree of control.
'If you do not achieve unanimity, then adopting a policy of not doing something - or just shouting from the sidelines - in the hope that unanimity will deliver you a result is doomed to failure.'
Hudson added: 'Some of our members are business owners; striking is problematic for them. What we have been doing is going up and down the country talking to our members. Some of those views do not reflect those of Mr Parry. Some of our members are saying, "if there is rapid consolidation and I get a volume uplift, then I can deal with this". Others say, "we don't like this, we don't want this, it puts strain on our professional duties, but we think we can make some of this work".'
He went on to warn: 'Nick and I listen to all our members. If you only talk to yourself or the people who agree with you, you get a distorted view of the world. I say that Mr Parry is not hearing all of the views. Sticking your head above the parapet on social media to disagree with James Parry was a courageous act.'
Hudson again dismissed the argument that members affected were not adequately consulted by Chancery Lane. 'We had 400 valued members in the Society today whose views and concerns count for both of us. We have a democratic structure and it's open to members to change that. But are we saying we can only take decisions by plebiscite involving that sub-group of the membership which is [affected] by that particular issue? I do not think that is a practical way forward.
'That does not mean we are going to ignore what we have heard over the last few weeks. If we can improve and get better engagement with members we will do every last thing to achieve that.'
Speeches from the event are reproduced in full below.
Desmond Hudson, Law Society chief executive said: ‘We are confronted by a government – and a secretary of state for justice – who are committed to cuts – cuts at any price. It is they who are pursuing cuts, not the Law Society. With the publication of the first consultation the Law Society set itself some goals:
- To maximise the greatest number of our members who could sustainably practise criminal law;
- To defeat cuts;
- To avoid savage market contraction;
- To obtain the longest period to enable our members to adapt;
- To defeat price-competitive tendering, and to preserve client choice.
‘We have insisted – and will continue to insist – that these cuts are not sustainable by the majority of solicitor firms. That a functioning, high-quality criminal justice system is critical to the rule of law. We have pursued a policy of engagement with the government because we believe – and past evidence shows us – non-engagement does not work.
‘By doing what solicitors do best - making evidence-based arguments - changes by the government have been achieved in the interests of our members. Of course, it's easy to forget just where we started from, and easy to criticise the work of the Society’s volunteers in working for change.
‘At the start, the primary concern for practitioners was getting PCT off the table, client choice reinstated. We weren’t alone, because the practitioner groups agreed defeating price tendering was the absolute priority. They helped us work up our strategy and develop quality standards.
‘There was no suggestion we should reject any proposal that removed price tendering if it did not also abandon the fee cuts. A quality threshold enshrining the importance of professional standards is to be put in place.
‘Overnight many of the 1,200 firms that would have gone to the wall in a matter of weeks under the first proposal had a chance to survive. Some say now that we should not have accepted a two-tier system for duty contracts.
‘But what was proposed was a one-tier contract of just 400 firms. Not 570, not 600 or 700, but 400 firms. We did not secure what we wanted on duty contracts but we pressed the government to agree that any decisions should be based on independent published reviews. We have never agreed to any cuts – and we never will.
‘Mr Parry talks of surrender, of appeasement and that if only we had stayed firm, press and public opinion was about to change miraculously in favour of criminal legal aid lawyers. Just say: 'No'. If only he were right.
‘We have a duty to our members to do the very best possible for them and in the context in which we had to operate, that is what we sought to do. It would have left the door open for a government to bulldoze their proposals through. It was not appropriate.
‘It would have been easier, and more popular just to oppose the government.
‘I have given alot of consideration, both at the time and since, to whether we should have done that. It would have reflected the views of many, and deflected a lot of criticism. But I still come back to the same conclusion; I think it would have been the wrong thing to do.
‘Just as it is wrong to suggest that the Society had no mandate, a point at the heart of this motion.
‘We had a mandate under the rules of the Society. You may say you disagree with that mandate, that you want to change the rules of the Society about how a mandate is formed, but as fellow lawyers we all know that under our constitution there was a mandate.
‘That approach was endorsed by our governance structures – democratically elected members of the profession – which gave us the mandate to take the path we did.
‘There are still plenty of things to fight for: consortia that allow far more people to continue to practise, fee structures that reflect the reality of doing business in rural Cumbria or central London.
‘I shall be voting against this motion not because I seek to defeat James Parry, but because I respect him as a fellow solicitor and respect what he believes in and because I want what he wants, what we all want – a working system of criminal legal aid.
Nicholas Fluck said: ‘My name is Nicholas Fluck and I am president of the Law Society of England and Wales. [I know a number of questions have been asked of me today and I hope I will be able to answer them now]. As president I am proud to represent our profession in all its many guises.
‘For this year and the past two years as an office-holder, I have been involved in all of the complexities facing all sectors of our profession, but before my involvement with this Society of ours I was and am one of two partners running a small firm in Stamford, Lincolnshire. I’ve lived in Lincolnshire most of my life and been in practice there now for more than 32 years. I’m a practising solicitor, running a firm, who has seen this profession of ours grow, and at times struggle.
‘As a solicitor not too dissimilar to many people here, I understand why members are angry and frustrated. Believe me, I know what it’s like when you can’t focus on doing your job, because you’re worrying about your overdraft, struggling to keep your office watertight or wondering how you’re going to pay your staff or the VAT.
‘I know this is part of what it means to be a solicitor not just for me but for many of our members.
‘We seem to have a government that wants to sweep away our industry: introducing liberalisation, non-lawyer competition, failing to recognise or value the difference we solicitors make day in, day out and we have a secretary of state for justice who isn’t a solicitor and doesn’t seem to understand what that means.
‘He doesn’t seem to understand the damage it would do to our judicial system to cast aside the people who devote their lives and careers to ensuring others' rights are defended. I’m proud to be part of our solicitors profession that gets up when the phone goes at two o’clock in the morning and goes to the police station because somebody needs them.
‘I am a practitioner in this profession, but in my role as president, I am also responsible for carrying out the wishes of our Council.
‘Because of the fight the Law Society has put up – and I can assure you it has been a fight – the secretary of state is now starting to understand why there is a real need for more criminal legal aid practitioners than he first thought. When I go and speak to the lord chancellor I am representing the whole profession, and have its interests at heart – rather than any one particular group.
‘He knows and I know and you know there is more to play for, and more for the profession to gain.
‘I think we have every chance of more victories if we do that by using all means at our disposal, and as well as shouting that has to include engagement.
‘Some may wish we had done it more publicly, but from the start we’ve been there talking to the government, persuading them why they are wrong, doing what all of you do every day, using the facts and showing them the evidence.
‘Getting rid of PCT, securing client choice, getting agreement on quality and commitment to an independent review of the shape and size of contracts and the areas they’ll cover – none of these is insignificant, none of them were easily won, but there is still more to play for. I think we can get more concessions if we work together.
‘I believe the changes we’ve achieved, because of the approach we’ve taken, give many criminal legal aid practitioners and their firms, opportunities for survival that did not exist before.
‘Remember where the lord chancellor began. Remember what we were faced with when he announced his consultation.
‘Look at where we are today. All of you may be worse off because of what the lord chancellor has done, but some of you are better off than you would have been if we had done nothing.
‘We need to stand united against the cuts. Thank you.’
Jonathan Smithers, Law Society deputy vice-president said: ‘One of the great things about our profession is the diversity of practice which it contains from conveyancing to corporate, from insolvency to international, practised in firms of many different shapes and sizes from magic circle to sole practitioners and in-house. The chief executive, the president, the vice-president and I talk with and listen to them all.
‘Whatever the practice area, or whatever the structure, we are all solicitors and have many shared values and goals: to protect the rule of law and access to justice, and to act in the best interests of our clients.
‘Many of us also face some of the same challenges which criminal practitioners face, sometimes through competition or other changes like civil costs funding for example. As a profession we should stand united against a government which is seeking to impose cuts on us.
‘Let me take this opportunity to rebut a couple of the charges that have been made against us in media articles.
‘The Law Society is not “chummy” with Chris Grayling and it hasn’t “drafted legislation” for the government as has been suggested. It is the government imposing these cuts on practitioners not the Law Society.
‘Your Law Society has always made it clear to the government that it is against the cuts; that the profession is against the cuts; and that the cuts are not sustainable. As a result of that, and along with effective lobbying we have managed to secure changes from the government which will make a difference.
‘Many more firms, possibly double the number or even more, will have the chance to survive than under the original scheme.
‘The government has not yet announced its response to the consultation, and we are still fighting to make sure that we make gains on consortia, on fee structures, and the number of contracts. Making the case on these issues should be our focus now, not trying to undo what has already been achieved.
‘The Law Society has learnt its lessons from the past. Protesting in the streets, shouting from the grandstands might make us all feel better but it actually gives the government an excuse to implement what it wants in full. Ticking the “megaphone lobbying” box would have been the easy thing to do. I am sure it would have gained us lots of plaudits from many people, but if the lord chancellor had then brought in his original plan, I think you would have protested against your Society very loudly. And rightly so.
‘Frustration is understandable, kicking colleagues is unlikely to make that better it will probably make it worse.
‘It is my privilege to work closely with Nick and with Des since my election to DVP in mid-July. I can tell you from first-hand experience, they take their responsibility for the whole profession very seriously and that means acting to secure the best result for as many of our members as possible.
‘There are battles still to be fought, there are battles still to be won. It is those battles on which we should be focused.