SJ interview: Des Hudson

Ninety four per cent of legal aid firms have signed up the new contract. What happened to the determination showed by so many legal aid firms that they would not sign?

Nobody can be criticised for signing up the contract; the firms concerned are juggling a range of issues, from how they continue to support their clients to how they run their own businesses. But the tactics and methodology used by the Legal Services Commission (LSC) has raised some serious questions and they will regret it. Lawyers were put into a very blunt position to 'sign or starve', and their decision to sign is understandable.

Signing the contract is also a way of buying time: time for firms to consider other choices before the reduced rates of pay begin to bite in the autumn, and time to try and resolve the more fundamental concerns about the changes to the system. Carolyn Regan's letter of 27 March is a graphic illustration of the tactics they have resorted to.

Are you saying the LSC will regret its approach because there will be no firms left to provide legal aid?

Yes, that is the primary point, but there is also a deeper effect, which is that the legal aid profession has shown that it can be united in a way which has not appeared possible before. Only 1 per cent of firms support or welcome the changes, the approach or the attitude that the LSC adopted. Lord Carter's report emphasised the need to work collaboratively with the supply base, that has not happened.

Can you see a way around this now?

No. Delay in the system has to be managed under a 'whole-system' process, so all partners should sit together: the police, the prison service, the court, the prosecution, and work this out. The LSC's reforms have picked the most malleable part of the system to squeeze ; it's very difficult to deal with the courts, the prison service, and others, so they have taken the component that they can easily deal with '“ and that's very troubling.

It seems that everyone agrees that there is a case for reform, so where are the flashpoints?

The Law Society accepts that there is a clear case for reform, that there is an imperative to spend money wisely and in the most effective way. There is a right on the part of the buyer as to how it wants to procure its services, and that the government and the LSC are not there to provide certain types of lawyers with a guaranteed living. But can you totally divorce quality from pay? Can you have a more efficient system than that based around private practitioners? All the evidence I have seen suggests that you can't. So nurturing and supporting that supplier base is very important. That's before we even touch upon the question of constitutional importance of your right to choose your own independent lawyer to represent you.

Do you have any difficulties with the predicted move towards fewer but larger legal aid firms which would be able to deliver an efficient service without compromising on quality?

There has been no clear evidence that in this sector 'big is better'. You could buy better efficiencies and manage the quality of service by having a small number of localised suppliers, but that raises a host of questions. For instance, your right to choose who you want to represent you. And if you move to that approach, how do you set pay and manage costs? It could become like the NHS, where local GPs are the first or second line of delivery for healthcare, who have effectively a monopoly in a particular area and are, in effect, salaried. If we are going to go down that route, there is a debate to be had. We would be happy to sit down with the government and the LSC to discuss this.

Will you be pursuing the option of judicial review of the LSC's decision?

That would be the last resort and I hope that the issues can be resolved by sitting around a table; but the position is that the new arrangements would be in breach of EU procurement rules, particularly in terms of the right to make unilateral amendments to the terms of the contract.

A judicial review would take time '“ so what would you do in the meantime?

There are other consultations under way which we are responding to, and we are also looking to continue the political debate. The publication of the Constitutional Affairs Select Committee report into the government's legal aid plans is the next key development expected after the Easter recess. We disagree with the LSC on many points but fundamentally we disagree with the government, which is a matter of political choice, so it is in this arena that we need to redouble our efforts.

Senior lawyers and judges made representations to Parliament and it doesn't seem to have made much difference. What makes you think you have better chances to convince the government?

We have to keep up the fight, slogging away at that issue. We must also continue to expand the message in the media, and we've seen some improvement. The plans are entirely driven by reference to a financial agenda, presumably set by the Treasury.

As Gordon Brown takes over the reins of the Labour party over the next few weeks and speaks to party members about the importance of inclusion and a fair society, they ought to question him about how these changes will deliver these objectives.

We also need to engage the government and the LSC in new thinking. For instance, no lender would be prepared to lend a business any money if the contract with its main buyer contains a clause that allows the buyer to amend the contract unilaterally.

The government needs to understand this rather that continue to gouge legal aid lawyers, because people are at breaking point.