The general view amongst criminal lawyers is that we’re facing the fight of our lives, and the Government has something of a head start and numerous advantages (our money, power, access to media…)
The lawyers are represented by a number of different organisations. Some, like the Criminal Bar Association, are right at the sharp end of the campaign. Similarly with solicitor organisations like the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association.
The response from those more official bodies has been far more muted, rather to the frustration of many of us.
This is an open email I have sent to the President of the Law Society, along with the Vice President (who happens to be the Council Member for one of the counties my firm is in), and Council Members representing criminal law and the other relevant county.
Any response will be published, if suitable.
I regard the comments as equally applicable to the Bar Council, and will forward to the Chair. It is also my answer to those who despondently say that we have to agree to the proposals once we’ve amended the terms, and those who start with the basic idea that there must be cuts and maybe even tendering has a place. With much regret, that criticism has to be levelled at the Legal Action Group.
Don’t misunderstand me. I accept that we’re in austere times. But the Goverment chooses its own priorities, when there is wastage throughout the system. Parliament and Government itself costs an eyewatering amount of money, much of which could be saved, and much of which is less obviously of value to any of us. The legal aid bill is miniscule relative to much Government expenditure but huge in the eyes of the public because of negative publicity. The difference is that they are in control.
They have chosen to destroy respect for our professions and the rule of law, and now pick on the justice system using the public disquiet they created as justification.
We do not have to accept this. We do not have to agree with their terms of reference. We live in a democracy and I believe the future is, at least in part, what we make it. We have a responsibility to make the entire argument, not just the bits they want us to make.
I am not a member of the Law Society, but I write to you as a fellow concerned lawyer, employed in a solicitors’ practice. I have chosen to write to you in particular because you are the President, Criminal Law Representative, and constituency members for Nottinghamshire and Lincolnshire respectively. My firm’s practice is over one third criminal law and its offices are divided between Lincolnshire and Nottinghamshire.
I will write in similar terms to the Chair of the Bar. Indeed, my comments apply equally to all those who say that we must accept cuts.
I have seen your recently released consultation paper and I will respond to that in due course.
I mean no disrespect. I am sure you all work very hard and have our interests at heart. I have seen the statements released and they are a start. However, I wish to express my concern at the basic stance adopted by the Law Society. I believe most criminal lawyers working at the coalface share similar views, but I don’t claim any right to speak on behalf of others. They will have to speak for themselves. I hope they do so.
The Government, and previous governments of other shades before it, have systematically denigrated lawyers, law, the decisions of the courts, and legal aid, for many years. Respect for the rule of law must be at an all time low. We are faced with repeated criticism and misinformation about every aspect of our work and every area of practice. These criticisms have not been effectively countered by the professions. As a result many areas of practice have been attacked, and access to justice has been chipped away.
The result is that the Secretary of State for Justice can say with a degree of truth that the criminal legal aid system has lost credibility with the public. It has lost credibility as a result of years of negative briefing and the result that the public wrongly believe that we are all, without exception, fat-cat lawyers with our tongues in the feline milk dish of taxpayer-funded legal aid. Every day, it is thought, we play a game of cat and mouse with justice, in which we use every underhanded trick in the book to get our guilty clients off.
We all know that this is untrue. We play a vital role in an important system which upholds democracy and the rule of law. We spend much of our time advising our vulnerable clients that it is in their interests to (in effect) save taxpayers’ money by pleading guilty. We assist the Courts in finding the right outcome for all concerned. We deal with victims and witnesses in a professional and, I hope, generally compassionate manner. We deal with some of the most difficult and unpleasant individuals society has created, some of the most harrowing events known to humanity, and we often do so in the middle of the night. Solicitors and counsel alike work many more hours than they are paid for. They get the job done because it has to be done.
For all that valuable work, there is no reward in society. Lawyers are not respected. People assume we earn a great deal when many of us do not. At every social gathering we ever go to we have to explain why we defend the guilty. Basic constitutional principles which have existed for centuries are not accepted as a given by society – the idea that the prosecution have to prove their case is thought to be an alien European concept, when it is totally home-grown and a gift we gave to the World, rather than the other way round.
Legal aid lawyers are not paid a great deal, payments have been reducing steadily, and the majority work in this field out of love or duty, not for the rewards. The rewards would be greater elsewhere and we choose not to take them. Our offices are run-down, the paint is peeling, and our carpets threadbare. Yet we still come to work, and work hard, for the interests of our clients and because we believe in the adversarial equally-balanced justice system.
We live in times of austerity and I appreciate that our clients and members of the public are suffering. I hope I can be forgiven a little cynicism when I observe that it sometimes seems that the only people in today’s society who are not suffering are Members of Parliament and the current Executive. I accept that as responsible members of society we must bear our fair share of difficulties.
However, the question must be, what is that fair share? Indeed, are we presently already bearing it after years of cuts and an ever-increasing workload?
I am concerned that in prefacing all the Law Society’s comments on this issue with the premise that we accept that cuts must be made, and Government will not listen to us if we suggest otherwise, we start on the wrong foot, going in the wrong direction, and we fail to make our case.
The Government does not come to the Law Society to talk, in good faith, about what the right way through this is. Mr Grayling does not, in my opinion and with all due respect, speak truthfully when he says that he is interested in finding a way to avoid price competitive tendering. If that were the case it would have been easy indeed to launch an open consultation with a number of different options, or simply solicit suggestions from those working in the system as to what should be done. With thousands of intelligent and able lawyers, all well acquainted with the system and its failings, I am sure there could have been many suggestions.
That is not what was done. We are told there is to be no debate about price competitive tendering. The questions are just about the details. It is assumed that savings must come from legal aid and not elsewhere. Not ensuring that only the right cases are prosecuted. Not dealing with expensive fraud cases in a different way or requiring the banks who authored all our misfortune to pay their fair share of the costs of cases emanating from their system. Not stopping Government meddling with the law relating to sentencing and therefore increasing the burden on lawyers and courts of all levels as we work out what yet another set of laws mean. Not ending the repeated invention of new offences for political ends. Not preventing wastage in the court system, cracked trials which could have cracked earlier, unnecessary adjournments.
And all that is only the small list which springs to mind now, and does not even begin to consider what happens in the rest of public life.
The consensus view amongst both solicitors and barristers, so far as I can see, is that the proposals, if implemented, will destroy both professions. Thousands of firms will close. Thousands will be made redundant. The Bar will collapse. Justice will be gone forever.
There are two possibilities in what the MOJ are doing. Either they mean to implement the proposals, in which case we are fighting for our lives and everything we hold dear about the system, or they have no serious intent to implement and use this as a negotiation tool.
If it is the latter it is an astonishingly dirty trick right out of the North Korean School of Diplomacy. They’re threatening to press the nuclear button so that we concede to them. We’re being threatened with a painful execution in the hope that we’ll agree to cut our own limbs off to avoid it.
After so much criticism in the press, most of it untrue, this is bullying of the worst kind.
We spend our working lives defending the vulnerable, and giving them a voice which would otherwise not be heard. It’s time we did it for ourselves and our system.
The Law Society should be standing up for all lawyers, for the rule of law, for the decisions of our judges applying that law in our historic and World-respected courts. The Law Society should be screaming from the rooftops that the services of our lawyers are infinitely more valuable than the figures paid in legal aid. The Law Society should be presenting the counter-argument loudly in every forum it can possibly reach. The Law Society should be convening emergency general national meetings to ballot the profession on what should be done, and hear from us as to what should be conceded, and where the line is drawn in the sand. Leaving it until May or later and making concessions which have not been mandated is not enough.
What the Law Society should not be doing, with the greatest of respect, is starting off with a quiet whimper of, “They won’t listen to us if we say there shouldn’t be cuts.” If that is your first bullet-point this is not a strong skeleton argument in our favour.
This is not about cuts. This is about everything we hold dear. Everything we studied and thought amounted to our system.
It should matter to all lawyers. Not just criminal defence. It should matter to every citizen.
It is the job of the Law Society to convey that message. Action is required. Many of us have started a grassroots campaign. We need you behind us every step of the way.
Fight for us.
With very best wishes,
PS. I will publicise the content of this email on my blog, which has been seen 7,100 views in the 48 hours since it was launched. That should give you some idea of the strength of feeling.
As a start might I suggest the following:
a) Publicise this issue more. Blogs like mine, but there are many others, convey our message. Crimeline’s Twitterfeed is a good place to start.
b) Email all solicitors to ask that they respond to the MOJ Consultation and don’t accept the basic premise that PCT is required.
c) Ask everyone to sign the petition. http://epetitions.direct.gov.uk/petitions/48628 11,150 signatures in a little over a week, with no official sanction. How many solicitors are there? This should be so many more.
d) Your statements on this issue and a link to the petition should be a massive banner at the top of your website, above the fold. At present no-one will find what you say unless they specifically look for it.