This hasn’t been a good year for sleep. When the Government’s original consultation came out I seemed to lose the ability to do it properly. I’ve spent hours lying awake at night reflecting on things. It took about four months for me to get back to something approaching normal.
Recently I’d started to improve, or so I thought, but here I am awake again. There could be many things keeping me awake at night (and I should be thankful that my children generally sleep through, unlike those of some friends of ours), but right now, the position of our campaign is what is occupying my mind, or at least what passes for my mind at this time of the morning.
What position is that? It is one in which, as the Chair of the Criminal Bar Association said last night, we are having to fight our way back now from a sitting start because of the defeatist attitude of the Law Society. Nigel Lithman QC said that he was “shocked, stunned and disappointed at the very least” by the actions of the Law Society and the stance taken by Des Hudson, its Chief Executive. Mr Hudson had, he said, blamed everyone but himself. Mr Lithman’s comments were met with prolonged applause from the audience at the Justice Closing Down Sale meeting.
The past Chair of the CBA, Michael Turner QC, had some things to say too. He pointed out that at a meeting of the representative bodies in August a certain stance had been agreed, but the next meeting of those bodies was cancelled by the Law Society, who, it turned out, had already entered into secret talks with the Ministry of Justice and conceded the structural changes desired by the Ministry even though the vast majority of the Society’s members would not be in favour of that course. His question was (in gist) what assurance would the Society give that no further concession would be given without consultation?
Des Hudson, who unlike his members last year received a 6.8% pay rise, taking his remuneration package to over £407,000 (or the gross income before expenses of ten criminal barristers; about 16 criminal solicitors), was unapologetic. He said that decisions had been taken in accordance with the Constitution of the Society and future decisions would be taken in the same manner.
I find this astonishing. Mr Hudson conceded at one stage in the evening that the Society does not regard it as possible to conduct criminal litigation properly on the rates proposed by the Government, and he recognises that the changes proposed will force the vast number of criminal solicitors out of business. Yet, instead of fighting tooth and nail for his members, Mr Hudson regards the changes as inevitable. As the largest of the representative bodies, the Society should be leading the way. It ought to be incandescent that the Government proposes changes which, he accepts, will lead to an inability to provide proper representation. Yet instead Mr Hudson appears to feel no shame at all for abandoning both the public and his constituents. There was not a word of regret or a hint of apology. Faced with clear anger from the audience (shouts of “shame!”) Mr Hudson was unwavering in his assertion that the Government would simply do it because it can; that the politicians are not interested; and that the Government only needs enough lawyers to do the work – it does not need all of us. He said that the Big Firms Group had submitted a proposal to the Ministry of Justice which gave them everything they wanted, but he refused to condemn that action (which was to the detriment of all the rest of us, and society at large). Mr Hudson has clearly not learned a single thing from this campaign.
This is, of course, what I feared all along. When Mr Hudson says there have been cuts from Government for twenty years, he is right. But when he says that is an example of how they can get their own way and therefore there is little point in active resistance, he is utterly wrong. Rather, it is an example of where the approach of the Law Society gets us: precisely nowhere. The Society ought to be ashamed at how totally it has failed its members in that time.
Several speakers last night pointed out that we had reasoned with the Ministry of Justice, and presented cogent arguments backed with evidence. And that the MOJ had failed to listen to reason and ignored the evidence. I’m sorry to say that the Law Society is just as bad. I, and others, urged them to take a different course at the start of this campaign (see here) but from start to finish they have maintained a steady course, direction locked on the MOJ iceberg. They might as well be standing on the bridge of the Titanic shouting “We’re all going to die!”.
What they fail to appreciate is that their position is entirely self-fulfilling. If the Government knows that the Law Society is telling its members that the changes will be imposed and it is not possible to defeat the Government, that is solace for the Lord Chancellor and does the work of twisting the knife for him. In my everyday practice in the criminal courts it is akin to me purporting to represent my client while at the same time telling the prosecutor that we plan to plead guilty: why would the Crown reconsider the weak aspects of its case if the defendant will plead anyway? There is only one outcome to that concession. A guilty plea regardless of the evidence, law or merit of the case. It is the same here; the concession deprives the arguments of their force.
Equally, all the Law Society’s concessions about the need to reduce the deficit and reduce spending are misguided and wrong. The cuts are political. They are not necessary. The Government chooses where to spend our money and it does so on the basis of its own political priorities and partisan interests. The cost of the married couples tax break, for example, dwarfs the size of the legal aid cuts, but will only benefit a chosen proportion of the population, and frankly won’t benefit them that much.
It is clear now that no amount of argument, persuasion, ire, handwringing, evidence or public humiliation will cause Mr Hudson and his Society to change their view. He appears to have no regret at all for his actions. He seems to think that history will forgive him for giving in. Perhaps he ought to ask Neville Chamberlain how that one worked out.
My position is what it has always been. We provide a hugely valuable service which is often not recognised as such by the public, at least until they need us, but which should be recognised by the Government. The responsibility of the Government is to provide a justice system we can be proud of, and which is immune to and aloof from tabloid-headline hate-politics.
We provide that service. The system works because of us. It works largely based on our goodwill. There is no other job or profession which does so much for free, out of a sense of duty and professional obligation. There is no other sector which has been cut so extensively for so long. Firefighters and teachers are striking over lack of improvement or changes to things like pensions – things which lawyers can only dream of. We had the cuts even in the good times.
We all know what will happen if we withdraw our goodwill. If we say we are not to be treated like this. If we will not work for free. If I, and others, say that we will not stay up until the early hours doing the work required to keep the court moving the next day. The system will grind to a halt almost immediately. Without us, there is no system. If we don’t do the work, it won’t get done.
It is only that which will force the Government to come to the negotiating table. If the Law Society can be seen not to be carrying its members with it the concessions it has made will cease to have any force and it will lose the ability to act as a “representative” body. Instead, we can all trust the Criminal Bar Association, with the CLSA and LCCSA, to properly and impartially represent their members and the wider interests of society.
I suppose it’s going to be some time before I go back to sleeping properly and soundly at night. I can only hope that Messrs Hudson and Grayling, in bed with one another, are not sleeping soundly either.