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Competitive tendering is no longer the solution; it is very much the problem
As part of the “Big Society”, medics and lawyers have now been offended over competitive tendering. Competitive tendering is no longer the solution; it is very much the problem.
Yesterday, it was the lawyers’ turn. The Bar Standards Board (“BSB”) yesterday extended (10 May 2013) the first registration deadline for the Quality Assurance Scheme for Advocates in the face of a threatened mass boycott by barristers. The Solicitors Regulation Authority is expected to follow. In a statement yesterday, the BSB said the deadline will be extended from 10 January to 9 March 2014 ‘to ensure the criminal bar will have more time to consider the consequences of government changes to legal aid before registering’. The end of the first registration period will now be after the Ministry of Justice publishes its final response to its consultation on price-competitive tendering. The SRA board is expected to approve a similar extension later shortly.
A group of leading academics, including Prof. Richard Moorhead from University College London, indeed wrote yesterday,
“As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the minister of justice, that ‘access to justice should not be determined by your ability to pay’, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution.”
Previously, it had been the medics’ turn. That did not deter Earl Howe in collaboration with people who clearly did not understand the legislation like Shirley Williams in competition with the medical Royal Colleges, Labour Peers and BMA. The Royal College of Physicians set out their oppositions to competitive tendering articulated their position last month:
Competitive tendering is often considered to promote competition, provide transparency and give all suppliers the opportunity to win business. It may be that price tags are driven down, but most reasonable professionals would actually ask, “At what cost?” Competitive tendering, rather, has a number of well known criticisms.
When making significant purchases, frank and open communication between potential supplier and customer is crucial. Competitive tendering is not conducive to open communication; in fact, it often discourages deep dialogue because in many cases all discussions between a bidder and the purchaser must be made available to all other bidders. Hence, Bidder A may avoid asking certain questions because the questions or answers may help other bidders by revealing Bidder A’s approaches, features, and the like. At the moment, there is a policy drive away from competition towards collaboration, innovation and ‘creating shared value’. Dr. Deming also writing in Out of the Crisis, “There is a bear-trap in the purchase of goods and services on the basis of price tag that people don’t talk about. To run the game of cost plus in industry a supplier offers a bid so low that he is almost sure to get the business. He gets it. The customer discovers that an engineering change is vital. The supplier is extremely obliging, but discovers that this change will double the cost of the items……the vendor comes out ahead.” This is called the cost-plus phenomenon.
Competitive tendering furthermore encourages the use of cheaper resources for delivering products and services. A supplier forced to play the competitive tendering game may come under pressure to keep costs down to ensure he gets a satisfactory profit margin. One way a supplier can lower costs is by using cheaper labour and/or materials. If the cheaper labour and materials are poor quality, the procurer will often end up with inferior, poor quality product or service. However, warranty and other claims may result –raising the price of the true, overall cost. Another area where suppliers may be tempted to lower costs is safety standards. This current administration is particularly keen on outsourcing, and sub-contractors may cut corners and creating safety risks. This is obviously on great concern where patient safety in the NHS has recently been criticised, after the Francis Inquiry over Mid Staffs NHS Foundation Trust. Furthermore, then government agencies, and indeed, private companies use competitive tendering it can take several years to choose a successful bidder, creating a very slow system. The result is the customer can wait incredibly long periods for product or service that may be required quickly. Finally, insufficient profit margin to allow for investment in research and development, new technology or equipment. Already, in the U.S., private “health maintenance organisations” spend as little as possible on national education and training of their workforce.
So the evidence is there. But, as the Queen’s Speech this week demonstrated on minimum alcohol pricing and cigarette packaging, this Government does not believe in evidence-based policy anyway. In the drive for efficiency, with a focus on price and cost in supply chains, the legal and medical professions have had policies imposed on them which totally ignores value. This is not only value in the product, but value in the people making the product. One only needs to refer to the (albeit extreme) example of a worker being retrieved from the rubble of that factory in Bangladesh to realise that working conditions are extremely important. This is all the more hideous since the policies behind the Legal Aid, Sentencing and Punishment of Offenders Act (2012) and the Health and Social Care Act (2012) were not in any of the party manifestos (sic) of the U.K. in 2010.
Competitive tendering is no longer the solution; it is very much the problem.
Competitive tendering is no longer the solution; it is very much the problem.
As part of the “Big Society”, medics and lawyers have now been offended over competitive tendering. Competitive tendering is no longer the solution; it is very much the problem.
Yesterday, it was the lawyers’ turn. The Bar Standards Board (“BSB”) yesterday extended (10 May 2013) the first registration deadline for the Quality Assurance Scheme for Advocates in the face of a threatened mass boycott by barristers. The Solicitors Regulation Authority is expected to follow. In a statement yesterday, the BSB said the deadline will be extended from 10 January to 9 March 2014 ‘to ensure the criminal bar will have more time to consider the consequences of government changes to legal aid before registering’. The end of the first registration period will now be after the Ministry of Justice publishes its final response to its consultation on price-competitive tendering. The SRA board is expected to approve a similar extension shortly.
A group of leading academics, including Prof. Richard Moorhead from University College London, indeed wrote yesterday,
“As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the minister of justice, that ‘access to justice should not be determined by your ability to pay’, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution.”
Previously, it had been the medics’ turn. That did not deter Earl Howe in collaboration with people who clearly did not understand the legislation like Shirley Williams in competition with the medical Royal Colleges, Labour Peers and BMA. The Royal College of Physicians set out their oppositions to competitive tendering articulated their position last month:
Competitive tendering is often considered to promote competition, provide transparency and give all suppliers the opportunity to win business. It may be that price tags are driven down, but most reasonable professionals would actually ask, “At what cost?” Competitive tendering, rather, has a number of well known criticisms.
When making significant purchases, frank and open communication between potential supplier and customer is crucial. Competitive tendering is not conducive to open communication; in fact, it often discourages deep dialogue because in many cases all discussions between a bidder and the purchaser must be made available to all other bidders. Hence, Bidder A may avoid asking certain questions because the questions or answers may help other bidders by revealing Bidder A’s approaches, features, and the like. At the moment, there is a policy drive away from competition towards collaboration, innovation and ‘creating shared value’. Dr. Deming also writing in Out of the Crisis, “There is a bear-trap in the purchase of goods and services on the basis of price tag that people don’t talk about. To run the game of cost plus in industry a supplier offers a bid so low that he is almost sure to get the business. He gets it. The customer discovers that an engineering change is vital. The supplier is extremely obliging, but discovers that this change will double the cost of the items……the vendor comes out ahead.” This is called the cost-plus phenomenon.
Competitive tendering furthermore encourages the use of cheaper resources for delivering products and services. A supplier forced to play the competitive tendering game may come under pressure to keep costs down to ensure he gets a satisfactory profit margin. One way a supplier can lower costs is by using cheaper labour and/or materials. If the cheaper labour and materials are poor quality, the procurer will often end up with inferior, poor quality product or service. However, warranty and other claims may result –raising the price of the true, overall cost. Another area where suppliers may be tempted to lower costs is safety standards. This current administration is particularly keen on outsourcing, and sub-contractors may cut corners and creating safety risks. This is obviously on great concern where patient safety in the NHS has recently been criticised, after the Francis Inquiry over Mid Staffs NHS Foundation Trust. Furthermore, then government agencies, and indeed, private companies use competitive tendering it can take several years to choose a successful bidder, creating a very slow system. The result is the customer can wait incredibly long periods for product or service that may be required quickly. Finally, insufficient profit margin to allow for investment in research and development, new technology or equipment. Already, in the U.S., private “health maintenance organisations” spend as little as possible on national education and training of their workforce.
So the evidence is there. But, as the Queen’s Speech this week demonstrated on minimum alcohol pricing and cigarette packaging, this Government does not believe in evidence-based policy anyway. In the drive for efficiency, with a focus on price and cost in supply chains, the legal and medical professions have had policies imposed on them which totally ignores value. This is not only value in the product, but value in the people making the product. One only needs to refer to the (albeit extreme) example of a worker being retrieved from the rubble of that factory in Bangladesh to realise that working conditions are extremely important. This is all the more hideous since the policies behind the Legal Aid, Sentencing and Punishment of Offenders Act (2012) and the Health and Social Care Act (2012) were not in any of the party manifestos (sic) of the U.K. in 2010.
Competitive tendering is no longer the solution; it is very much the problem.
Is the attack on the disabled necessary and proportionate? The response should be a legal one.
Most of us know by now that welfare benefits is out-of-scope in #LASPO. This concomitant loss of funding for legal aid work may mean that CABx and legal centres shutting in the context of a problematic finding. This is particularly ludicrous given that as many as a third of people claiming incapacity benefits who are declared fit-for-work later may go on to win appeals against the decision.
Nikki Neufeld, of the Pembrokeshire Citizens Advice Bureau, said that nationally, in new Employment and Support Allowance claims that 41% of all fit for work decisions have been appealed against and, of the appeals heard between December 2010 and November 2011, 32% were successful.
The Disability Living Allowance (DLA) is being replaced by the Personal Independence Payment (Pip) next year. Approximately two million DLA claimants are to be reassessed as part of the change—and as many as 500,000 will be denied the new benefit. The Coalition Government hopes to cut at least 20 percent, almost £2.2 billion annually, off the bill.
There is now an overwhelming case file of perplexing examples of decisions made lawfully. For example, Paul Mickleburgh, 53, has undergone a series of operations over the past 33 years, including four failed transplants, and has suffered 14 heart attacks. The father-of-three says he is the victim of changes which involve transferring tens of thousands of Scots claimants off incapacity benefit or severe disablement allowance and on to the new Employment and Support Allowance (ESA). He criticised the Government after being told to attend work-focused interviews and actively look for employment or face a cut in benefits.
In September 2010, Jan Morgan had a brain haemorrhage, which caused a severe stroke that left her cognitively and visually impaired, doubly incontinent and totally paralysed on her left side (in her own words). The prognosis was that she would need 24/7 care for the rest of my life. She was 50 and her youngest child was aged just 12 years. Astonishingly she “was politely informed that [her] benefit had been stopped as [her] medical certificate had expired.” Also, an online petition has been raising the awareness of cutting of benefits opposing plans by the Department for Work and Pensions, which could lead to the blind and partially-sighted being denied existing benefits. One recipient said, “I have more than 36,000 signatures, which have come from disabled people and those from all walks of life. They include the chief executives of large organisations, to those who just care about welfare reforms being totally unjust.” Indeed, a CWMCARN man who was declared fit to work despite being registered blind and suffering from rheumatoid arthritis is appealing against the decision.
Even veterans are not safe, it seems. Officials have estimated that a total of 500,000 people will lose disability benefits under Mr Duncan Smith’s plan for a “more focussed” allowance called the Personal Independence Payment available only to those in “genuine need” of support. In a formal submission to the Department of Work and Pensions’ consultation on the reforms, the Royal British Legion apparently has warned that the criteria that could be applied to the new benefit could hit limbless ex-Servicemen especially hard.
The social media have been a Godsend for many disabled citizens. Sue Marsh has been relentlessly raising awareness of the issues she has been facing on her ‘Diary of a Benefit Scrounger’ blog, and Kaliya Franklin was recently nominated for the shortlist of the Orwell Prize 2012 for her blog “Benefit Scrounging Scum”. The impact of the Coalition, felt by many disabled citizens, is now finally being recognised in the wider media. For example, Jess Thom writes:
“Disabled people are right to feel like the hardest hit by the coalition’s relentless cuts. On the national level there’s the planned abolition of disability living allowance – a move designed to make 500,000 disabled people ineligible for basic support – or the health bill, which will privatise the NHS by the back door and make it harder for disabled people to access the services they need. And the brutal cuts continue at a local level affecting countless crucial frontline services.”
Any law in the UK has to be proportionate, and there is a European legal doctrine of proportionality which oversees this. The concerns about the disability benefit legislation, as regards human rights, are well documented (see for example a previous article on this blog). The European doctrine of proportionality means that, ‘an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective’:Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR 1991, 2003.
Proportionality is probably not a ground for review separate from judicial review, but when a decision is challenged by judicial review the new approach required under the HRA was described by Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 25 – 28. Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [2001] 2 WLR 1622, in which he said at paragraph 27:
The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
The response to the attack on the disabled should not just be a moral one, then. The response should be a legal one.
February 18th and 19th 2012: "Walk the Thames" to support legal aid (including BPP Pro Bono Unit)
A huge group of people affiliated with the English legal profession is walking 40 miles in darkest February?to raise funds for London’s legal advice charities. New “registered walkers” include Lloyds PR solicitors, Baxter Webbe Solicitors and Islington Law Centre.
Each team has a fundraising page on Virgin Money Giving.? ?Very keen fundraisers are encouraged to establish their own individual page there but any team member can use the team page and ask everyone they know to sponsor them online through that page.
The purpose is as stated below:
“Law Centres and specialist legal advice agencies provide their services through a mixture of legal aid funding, local authority funding and charitable donations.? The agencies make a huge difference to people’s lives, reducing debt, poverty and homelessness, and combating discrimination and injustice.? ?The Government have reduced the amount paid for legal aid by 10%. Local Authorities are reducing funding as part of their cost cutting.? ?In the second half of 2011 legal advice agencies in London have been closing at the rate of one a month. Had it not been for the funds raised by the walks and provided by law firms that closure rate could easily have doubled.? So while we can’t hope to replace the funding that is being withdrawn we can make a huge difference to the effects and maintain legal help for many thousands of vulnerable people.”
Lord Phillips of Worth Matravers has sent out this message to recruit walkers:
“Times are hard. More people than ever need free legal advice about housing, debt, benefits and employment. But funding for legal advice centres is shrinking. On 18 and 19 February I shall be leading the annual “Walk the Thames” expedition from Canary Wharf to Hampton Court to raise some of the money that is desperately needed to maintain these services. The company will be great and the scenery a delight. Please come and join us, whether on foot or on bicycle.”
If you’re a student at BPP Law School, please contact the Pro Bono Centre (which can also be followed here on Twitter) on their email probono@bpp.com. Every walker recruited produces more funds for the important charities, and every penny raised this year is especially vital. A warm welcome is extended any family, friends or external colleagues who wish to join your team. So far, the organisers have raised over £11,000.
This event has a lot of prominent wellwishers: Jordans is providing a goodie bag, Clifford Chance is hosting the start and Jordans and BPP Law School will be buying all participants a drink at the end of each day. The organisers are also grateful, as ever, to Allen & Overy for designing and printing our publicity and drinks vouchers
The instructions to participants are as follows:
Start
Day 1 starts at 8.30 at Clifford Chance’s offices at 10, Upper Bank Street in Canary Wharf where C.C. have kindly agreed to provide a hot drink and biscuits to start walkers off.? ?Because we are starting at the Isle of Dogs there is a quite a bit of river crossing and a quick tour of Battersea Park to make up the lost miles from our old Thames Barrier start.? ?After circling the inside of the Isle of Dogs you stay on the North bank until Tower Bridge where you cross and take the South Bank to London Bridge; over to the North Bank to the Millennium Bridge, where you cross to walk the South Bank to Westminster. Cross again and along the front of Parliament setting off for Chelsea Bridge. Cross the bridge and the route takes a route through Battersea Park to Albert Bridge where you cross the river again. From there it’s a reasonably straightforward route to Putney Bridge which you cross to go to the Rocket pub at Putney Wharf Tower in Brewhouse Lane Putney http://www.jdwetherspoon.co.uk/home/pubs/the-rocket .
To see the map for Day 1 click here or go to http://g.co/maps/tc7nk
Day 2 will start at Putney Pier (Thames path south side again – just West of the Bridge) and take the South Bank Thames path all the way until we cross the River at Teddington footbridge. A little road walking takes you to Bushey Park where a circuitous route of the park makes the walk up to 20 miles before exiting at Hampton Court Gate and straight across the road. Enter through the back gate of Hampton Court and head for the main gate (signposted Trophy Gate) . Go out of the main gate and turn left and cross Hampton Court Bridge. Cross the Road when you get to the station. Bridge road exits the small roundabout and the Prince of Wales is about 50 yds. down on the right. http://www.beerintheevening.com/pubs/s/12/128/Prince_of_Wales/Hampton_Court.
To see the map for Day 2 click here or go to http://g.co/maps/xt8cq
Start times?
Day 1 is scheduled to start at 8.00 a.m. Organisers will be there from 7.30 and they will remain there until about 9.30 a.m. Participants do not have to wait for everyone to arrive before starting off. Day 2 participants get a lie-in as the organisers schedule the start at 9.00. Again organisers will be there half an hour in advance of the scheduled time and stay for an hour after.
Will opposites attract?
I am posting this following a recent tweet this afternoon. Incidentally, my article got a very hostile reception the first time around, Sundeep and Neil!
Lawyers in training often become bewildered as to how parts of their course ultimately gel together. This possibly contributes to their uncertainty in choosing which part of the law to specialise in. For example, how on earth does constitutional law, including the rule of law and human rights, relate to the different specialisms of law, such as immigration or housing? And what have they got to do with the big powerhouse corporate law firms, if anything?
A surprising fusion of these ingredients could hold the key to solving a different problem that has been vexing English and Welsh law for several decades, at least. That is, the issue of what to do about the provision of legal aid.
A community law centre, where the lawyer might examine a sensitive landlord-tenant dispute, may seem ‘worlds-apart’ from the work of a corporate lawyer, who may be advising on a multi-billion-pound, headline-grabbing deal. However, it is possible that these circles might mix more in future, due to the current circumstances.
Access to the law: back to the basic constitutional law
One of the very first things that law students focus on in their constitutional law courses is the ‘rule of law’. Indeed, the rule of law underpins the work of both ‘divisions’ of lawyers: the barristers and the solicitors.
In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the ‘rule of law’ in some (but not all) societies. Some of Raz’s principles include the fact that the courts should be accessible, i.e. no man should be denied justice, and that the principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
And what of the actual reality of today, in England and Wales?
“The Government strongly believes that access to justice is a hallmark of a civilised society. The proposals set out in this consultation paper [on the reform of legal aid] represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for the most serious cases in which legal advice or representation is justified.”
‘A brief history of legal aid’
Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949, with the aim of providing equality of access and the right to representation before the law. The scope of legal matters covered in 1949 was very tightly drawn.
However, today legal aid in England and Wales costs the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world. It is argued that the current scheme is available for a too wide a range of issues, including some which should not require any legal expertise to resolve. The provision of legal aid is now governed by the Access to Justice Act 1999 and supplementary legislation.
The possible effect of the proposed legal aid reforms
Many civil cases will no longer be eligible for legal aid, and fees paid in civil and family cases will be cut by 10% across the board, according to Ministry of Justice plans set out in the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, released in November 2010.
The UK government has estimated that, under the plans, £350m will be saved from the Ministry of Justice’s budget by 2014/15, if its proposals are implemented in full.
Ken Clarke QC MP, the Secretary for State for Justice and Lord Chancellor, has said in an interview that,
‘I believe that the taxpayer should continue to provide legal aid to those who need it most and for serious issues. But the current system can encourage lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which may not always ensure the best result for those involved. The proposals I have outlined suggest clear tough choices to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in society and the efficient performance of the justice system.’
Reaction from the solicitors
The cut in legal aid may offend the rule of law. For example, the Law Society Chief Executive, Desmond Hudson, has warned that:
‘If the government persists with these proposals, it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law. Legal aid clients are some of the most vulnerable in society and good legal representation where required is essential if they are to obtain justice. The Society will now consider the green paper in detail.’
The effect on the high street – the community law centres
‘Law Centres’ employ solicitors and case-workers who specialise in debt, discrimination, housing, employment, welfare benefit, community care, mental health law, and immigration and asylum law. Their initiatives are truly inspirational.
In an open letter dated October 2010, Julie Bishop, Director of the Law Centres Federation, provides a very interesting description of the impact that the financial recession – a possible driver in the need to cut costs in legal aid services – has had on the high street legal services:
“We serve 120,000 clients every year. The recession is hitting our clients hard. Already, the Employment Tribunals Service has recorded an increase from 10,800 to 19,000 in the number of cases related to unfair dismissal over the past year [October 2009-10]. ACAS has recorded a 13% increase in enquiries for conciliation services. Law Centres have experienced a 30% increase in clients assisted with employment and discrimination cases.”
An example of where the Law Centres have made a substantial impact is in Brent. Brent Community Law Centre stated that the cuts to legal aid will leave two options for those in poverty on Jobseeker’s Allowance: “a move from poverty to extreme poverty, or possession or eviction if they do not pay their rent.”
They cite that a single person living in a one-bed flat paying £180 per week will have to contribute £18 to the rent out of a weekly income of £65.45, leaving £47.45 for all other expenses including fuel. A separate (but linked issue) which compounds vulnerability is the proposed capping of housing benefit. It is estimated that this will cost claimants in Brent an average of £8,817,844 per year. This loss is to be shared among 1,988 claimants. If their rents are not reduced, they will have to pay £4,436 per household out of their own income. Currently, the Brent Law Centre is able to advise on this issue.
Brent Law Centre argues there will inevitably be far more possession cases in the county court because landlords, whether council or private, will bring court action for rent arrears. In addition, they believe that the impact on costs for other departments, such as social services and child protection need to be assessed.
Brent Law Centre, only through the goodwill of an army of unpaid volunteers, is currently able to provide legal advice and assistance for residents of Brent on a range of legal issues including education, employment, housing, immigration, mental health, public law and welfare benefits.
An unlikely solution?
It has not gone unnoticed that one of the effects of losing £350m from the existing £2.1bn budget may be to put corporate law firms under greater pressure to contribute to the provision of legal aid.
High profile pro-bono interventions by the household names in corporate law can become tied to big international events – such as helping out at the Sierra Leone war crimes tribunal (Weil Gotshal & Manges), or representing wounded soldiers in compensation cases against the Ministry of Defence (Hogan Lovells).
Nonetheless, doing pro bono has become attractive to graduates in an increasingly competitive job market, where law firms are keen to attract the best graduates, and graduates are keen to demonstrate their social awareness.
However, it is true that many newly-qualified graduates do contribute much time for free to the local community, often in very deprived areas, but find the work immensely fulfilling. This is despite the fact that their Managing Associates and Partners will not tolerate any compromises in their professional ‘day job’.
Who knows where this is heading?
The ideal outcome might be for a restructuring of legal aid services, such that the public and lawyers have a clear idea where the money is going to, and which enables fair access to legal services for the public. The crunch question inevitably becomes: “where this money is coming from, if it’s not the taxpayer?”
Brent Law Centre is just a single example of where professional lawyers give their skills free-of-charge for the benefit of the community, but it would be tragic to see a situation where lawyers cannot even do this because of the ‘system’.
It might be, even, that the corporate lawyers have a crucial part to play for the benefit of society, in contributing towards the maintenance of legal aid in the high street law.
BPP student societies podcast: legal aid and access to justice
It was with massive pleasure that, after a morning looking at the corporate strategy of Tesco as part of my MBA, I managed to make it to go to the BPP Law School at Holborn. There, I managed to bump into, by accident, Ray Stewart who has made a massive, beneficial impact on me personally as Learning Support Officer for BPP. His role at our University College is enormous, and it never fails to amaze me how much he gets done on behalf of all of us.
Our team of six podcasters (aside from me) was meticulously prepared, and knew their subjects backwards. We appeared to enjoy recording them, so much so we’ll be doing some more shortly, we hope. The podcasters are all students at BPP, and happen to be doing either the Graduate Diploma in Law or the Legal Practice Course prior to their training contracts.
In this final podcast, for the time-being, we discuss whether the legal aid cuts are a big deal or not, but in a wide-ranging discussion we go onto discuss whether it’s possible to be a self-litigant these days and what the point of a solicitor is. We hope you enjoy listening to the podcast as much as we enjoyed making them.
The podcasts are a joint initiative between the BPP student societies, the BPP Commercial Awareness Society and the Legal Awareness Society. The views expressed in this podcast are personal views of the student contributors, and cannot be taken to be legal advice of any description. They do not represent any official views of BPP.
Have a nice weekend. Please follow @legalaware on Twitter, the official Twitter thread of the Legal Awareness Society, one of the student societies at BPP. You can find details about the Legal Awareness Society and the Commercial Awareness Society on the official BPP students website here.
Law centres and legal aid funding
This is not a headline you will normally see.
Firstly, I should like to acknowledge Krish, who tweets at @TheTCHawk, for providing the inspiration for this blogpost. He has recently written on his experience with the Citizens Advice Bureau for which he works.
Instead, I have been working in a famous law centre in London for the last few months. This has been an incredibly rewarding for me, as I am looking forward to studying law further in my LPC in January 2012. I have already spent four years in legal training, but one of the many things that I have learnt of some importance is that lawyers do not get emotional.
Once I was aghast when a law student tweeted at a friend of mine, “Is there a difference between a law centre and a CAB?” However, it was a perfectly reasonable question. As members of law centres, we must confront this issue of what we’re (=law centres) doing that’s different from CABs. Marketing professionals must have an understanding of the awareness of any particular brand, for example the CAB or the law centre, before proceeding to develop a marketing strategy. I feel that law centres will need to develop a professional marketing strategy to raise their awareness amongst the community and investors. In my belief, whilst the CABx brand is very strong indeed, perhaps for historical reasons, the ‘Law Centre brand’ is virtually non-existent in comparison. I would be interested to know whether this is borne out by any hard data.
I have been thinking about how my law centre, especially my area of welfare benefits advice for disabled citizens like me, can benefit from alternative sources of funding, like the Big Lottery Fund, but this fundamentally depends on what pitch I should make. Is it that we are any more central to the communiy than the CAB? Or is it that we have more specialist qualified legal advisors than the CAB who can act as advocates? Are any generalisations possible or warranted? Furthermore, legal aid funding affects private practice stakeholders, as well as legal centres and CABs, and market forces affect all three. For all stakeholders to benefit the public the most, which is their ultimate aim after all, they need to have a clear idea of their values and which services they’re providing, so that all stakeholders can achieve optimal market and strategic positioning in a crowded, funding-challenged, market, perhaps.
Whatever – I personally think all legal practitioners should be given support, acknowledging that funds are limited. but funding bodies will have to prioritise unfortunately. In fact, a focus on funding may have the beneficial effect of providing better precision to all stakeholders in their strategy and core competences of their legal services, whatever sector they are in. However, fundamentally, I most agree with the observation that, at this late stage, arguing over a sense of entitlement is totally unhelpful. It is desperately important that we fight until the end for our common purpose in protecting legal aid. I would find it very hard to support law centres if they wished to campaign at the expense of CABx or other stakeholders, but they should think about how they differ from other stakeholders when applying for London Borough grants for community investment or structural upkeep, I feel.
Immediately this throws you into the territory that, as a lawyer to-be one day hopefully, I am getting emotional. Worse than that, I am getting political. Of course, central to the whole debate, is access-to-law and the rule of law. The Law Society and Bar Council provide that the legal aid cuts offend this fundamental right, and indeed many blogposts and the Guardianistas have thus far pressed home this vital point. However, an issue that my colleagues in the Law Centre I work at feel enormous frustration at the fact we are simply unable to get our message across.
We have, as citizens of society, to acknowledge that no political party will be in power forever, and it is not impossible that this Bill will become repealed in time or amended drastically. I feel that all employees in all legal institutions should not feel frightened in giving a voice to the opinions of citizens wishing to protect legal aid, and should be allowed to express such opinions in this organisational change. As part of my MBA, I studied in enormous detail critical success factors for relatively-rapid organisational change like this in the public sector, and by far the most important issues are trust and openness in the followers (including legal professionals) in ensuring the change goes smoothly. This is in addition to the demanding structural changes which are necessitated in this reform.
An issue is that the Legal Aid and Sentencing Bill, as proposed, could have a selectively detrimental effect on certain groups of society, including the disabled. Many of us have been prone to defend our own patch, and there is somewhat an element of ‘divide-and-rule’ in the debate which has ensued. Yet again, whilst I find repugnant that welfare benefits legal advice is being cut at the expense of some other fields of law, I feel that we all should be pulling in the same direction of protecting all areas of law (but especially for the socially disadvantaged.) In other words, lawyers and bloggers appear to the outside world to be not “in it together“, talking at cross-purposes, and becoming constituted by tribalistic vocal subgroups which are easy to ‘defeat’ as a whole. Secondly, I believe, that there is an element of where looking forward to the holiday has become more exciting than the holiday itself. I had a feeling of this in our opposition to the Health and Social Care Bill, where Labour loved opposing, but were completely incompetent in articulating arguments about competition, quality, value and cost in the NHS. Indeed, further, like perhaps #OccupyLSX, the opposition for the left has become more exciting than the substantive points of the opposition itself; I do not deny the inspiring success of @SoundOffJustice, and others. In fact, I met them at the DODS meeting in September, and was overawed personally about how much passion they had put into their campaign.
Thirdly, some elements of the ‘progressive left’, for example the Liberal Democrats, perhaps could have been more articulate about the effects of the legal aid policy on children, families, and wellbeing, which are now central planks of Liberal Democrat policy. Fourthly, whatever the reasons for it, the Legal Services Commission has been criticised, and there is a huge amount which could be done to improve the legal aid funding mess which has developed for a number of decades, including the last Labour governments? Whilst I do not feel the need to be perjorative in quoting the “most expensive service in Europe” statistic, which is actually untrue, we do need to address how best to develop legal aid funding. Fifthly, and this is an economic and quasi-political argument, I am a Keynesian and I do not agree with the ‘maxing out the credit card analogy’, but likewise, albeit as an utilitarian, I do believe we have to prioritise given the deficit which has come around in a large part through recapitalising the banks in #gfc1 (a policy which I am still uncertain about).
Finally, we need to get people interested in this subject in the media. I don’t mean the Guardianistas necessarily, otherwise we’re preaching to the converted. Whilst Sepp Blatter and racism, superinjunctions, anonymised injunctions and Andy Marr, and the BBC’s Children in Need are very important issues, we could do with much more focused coverage and debate of the Legal Aid and Sentencing Bill. I think this is essential, as I bet my life that this will obtain Royal Assent without any difficulty in due course.
LegalAware podcast 1: Ataxia and welfare benefit cuts
Welcome to the first ever LegalAware podcast. I am sorry for the sound quality. There are two reasons for this. Firstly, it’s recorded on a very busy Regents Park Road, which can be busier than the #m6. Secondly, I am still getting used to the #yeti microphone and Audacity. Notwithstanding these problem, Alan (@AlanROYGBIV) joins me for a explanation of the neurological condition of ataxia, which we both have, what Ataxia UK is, and how the welfare benefit cuts are a tragedy for society, including disabled citizens like us.
Ken Clarke presents the Legal Aid Bill to parliament
This statement was provided by Ken Clarke QC MP.
The power of Krispy Kreme donuts: a new model for corporate social responsibility?
Recently, the BPP Pro Bono Unit, which is extremely active and successful at BPP in delivering on legal pro bono schemes in the community, sent out the following brief message:
“Krispy Kreme doughnuts are being sold to raise money for Liberty tomorrow (Thursday) between 12 and 2pm in the foyer of BPP Holborn – enjoy!”
Needless to say the event proved to be very popular indeed! Interestingly, Emine Saner has recently written an article on how Britain has fallen in love with Krispy Kreme doughnuts. Her article from yesterday is here.
This week, the North Carolina-based chain announced it would be doubling the number of its outlets in the UK to 100 over the next five years, on the back of growing sales, with revenue up 12.6% and serving 5 million customers. The next will open in Leeds next month. There is no doubt that Krispy Kreme take their fundraising activities extremely serious in the UK. In the light of withdrawal of public funding for many walks of life, including legal services, this is especially important.
Their UK website gives a very inspiring description of their activities,
Need a more interesting way to raise money for your charity?
Whether you are a charity looking to raise money at a specific event or an individual looking for a different way to hit that sponsorship target, Krispy Kreme’s fundraising scheme is here to help.
From early on in our history, Krispy Kreme has supported charities and played an active role in the local community. We know that it is increasingly difficult to simply ask people to make a donation, which is why our scheme allows you to sell them something they’ll love, our doughnuts, whilst you make a profit for your charity!
Link here: http://www.krispykreme.co.uk/fundraising/raise-dough/
From a business point of view, here in the UK, they are stocked in Harrods and Selfridges as well as there is also a less glamorous retail side. There are kiosks in motorway service stations, and in Enfield. In the UK, all stores are company-owned, but in the US, most are franchises). By the end of the 90s, the company had gone national, and in 2000 it was floated on the stock exchange. Over the next couple of years, the company expanded rapidly, including internationally. They spent little or no money on advertising, relying instead on word of mouth and giveaways.
Emile Saneer gives a very interesting of the marketing strategy, in relation to the strategic operation of Krispy Kreme. MBA students at BPP are currently studying in detail strategy and organizational behaviour. Saneer provides (in an article in the Guardian lifestyle section) that,
“playing its part in the drive to get Americans to the polling booths during the 2008 presidential elections, Krispy Kreme outlets rewarded those who had cast their ballot with a free doughnut. To celebrate Barack Obama’s victory, the chain offered punters a free coffee with its very own piece of coffee art – an image of Obama in the foam – rebranding the drink “The United States of Americano”.”
This arguably extends further the concept of ‘corporate social responsibility’, seeing greater involvement between private companies in the private sector and charities in the third sector. For example, “Advice for Good” (4th June 2011) provides that,
“In this article in the Vancouver Sun we discuss an emerging type of partnership between charities and companies: affiliate marketing. This mutually beneficial arrangement provides charities with access to funding and businesses with new customers and promotional opportunities. It is a creative way for charities to get private sector funding and it goes beyond the typical corporate social responsibility (CSR) and community investment support. There are an ever increasing number of charity-corporate affiliate marketing partnerships, with companies including Ben and Jerry’s and Krispy Kreme getting on board. With high demand among charities for corporate charitable contributions, affiliate marketing is a creative way for fundraisers to redefine corporate partnerships.”
