Insomnia

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.

 

 

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10 comments

  1. criminalbarassociation

    Reblogged this on criminalbarassociation and commented:
    Chris Jeyes, a hardworking High street Solicitor delivers an excoriating rebuke to the abject surrender by Des Hudson, Chief Exec of TLS, of his own members’ interests at the Justice for Sale meeting last night. Chris, like many other solicitors at the coal face has declared his full support for the joint fight of Bar and Solicitors.

    • cjeyes2012

      Not quite, but our struggle is a little harder because of the actions of TLS. However, I’m confident that if we unite and stand behind the CBA, CLSA and LCCSA, this is a struggle which can be won. Don’t listen to the defeatists and stay true to what you believe.

  2. chrispyes

    Very well said. Clearly a blog to be spread as far and wide as possible. If you watch Chris Grayling’s speech to his party conference on Monday afternoon (which must be available on BBC iplayer etc.) I suspect, like me, you will:
    1. appreciate how these cuts are purely politically motivated as Barrister 999 rightly identifies above; and
    2. end up with boiling blood and the stomach for a fight to prevent these cuts.
    I recommend everyone watch that speech.

  3. christopher stuart ranson

    The problem is that no one organisation or profession or trade is sacrosanct from cuts in monies provided by the public (in this case from the general taxation system). My own calculations suggest that since about 1997 cuts in the payments to Solicitors for criminal legal aid work when combined with the cuts now proposed suggest a reduction in fees of nearly 2/3 from what they were. I doubt that any organisation or body has suffered cuts like that! Some may point to the fact that the profession still exists shows that criminal solicitors were highly paid in the past – but that does not take into account the myriad of adjustments and support from other depts. that have had to be brought about to achieve ability to survive.
    Examination of the figurework now being produced in almost meaningless statistics does seem to show that by taking a national average (i.e. taking no account of regional variations or cost base of those regions), some firms face a near 50% cut in fee level (due to their current fixed fees being above this so-called national average) while others necessarily may see an increase in their fixed fee levels (due to the fact that their fixed fee current levels are lower than the national average). Now that is what I call getting foolish results from statistics. Since when has it been a “good” business practice to take an national average as a basis to reflect proper remuneration without any regard to the variations which must exist in a national average. Why oh why is it sensible that in a cost cutting exercise should some firms merely because of their region obtain a benefit because other firms because of their reason face a higher fee cut when the principle originally established for the differences historically was the acceptance that the higher current fee in some areas was justified because of the higher cost of provision of work in those areas!
    So what is the conclusion which should be forcibly taken as a first step?
    Demolish the proposition that a national average is the base on which all fees are calculated regardless of region or higher cost provision.
    No doubt an answer to this may be that in support of the national average firms should be encouraged to “pick and choose” areas where they gain by supporting regions where there is a gain in fee level terms which will outweigh a loss in fee level terms which they can also support. Let me see ….. How about an office in Hampshire (high current fee level) which will take a big hit after the cut as it is a long way above the national average) together with a matching office in a region with a previously low fixed fee level (and which will therefore not be hit as hard if a national average is now paid) – even if the offices may happen to be 125 miles apart. Daft!
    Let us go one further. If we can properly show that the fee levels have historically reduced over time as I believe the stats will show and compare such reductions with ANY other profession or trade starting from the same base year, can we not prove unequivocally that while others over the years have INCREASED their pay levels we have actually seen consistent REDUCTIONS. Compare with politicians perhaps, or MPs etc
    Finally, prepare to meet the argument that the cost cutting exercise is designed to create a market driven new profession. where the actual costs of provision are attacked by the reduction in the “back office” or administrative provision: i.e. it is not the individual case fee which matters it is the volume of such case fees which can drive down the cost (the Tesco argument). But surely the greatest cost of the provision of legal services in Crime is the actual MAN HOUR cost? Because in every individual case a lawyer has to either read, write or advocate. The biggest cost saving would be the ability to avoid the queuing system of the courts themselves. Solve that and a huge element of cost saving would result – but then I suppose the MOJ would say another cost cut would be on the way as the travel and waiting “average@ is included in the fixed fee
    BTW – just what is an appropriate rate of pay for an experienced legal advocate on an hourly basis. Or to put it another way what is an annual rate of pay for such and how many hours are expected for that annual pay … mmmmm …. let us say a working week of 36 hours of sustained fee earning work …. for say 46 weeks to allow for holidays, maternity/paternity leave and sickness ….. mmmmmm that would mean an annual gross pay at £40 per hour ….. mmmm ….. would mean 40x36x46 = £38,880 per annum. Now, suppose a firm has to pay that sum to such experienced person and then the National Insurance and then its overheads – what sort of profit is possible when the fixed fee rarely is much higher than the above plus the NI – never mind the incoming pension provision and any other overheads or travel costs. For the individual experience Solicitor to earn such he either must work at night time or other unsocial hours or simply more hours on a fully fee paying work.
    Finally, allow for the ACTUAL ability to perform full fee paying work being reduced by the many times it is not possible to do so due to the queue system at police stations or courts where waiting time is either not paid at all or only at £25 per hour then I do not care how you work the figures, to keep quality up and accept the cost reductions is a sure way to bankruptcy
    The costing of services method used to be by means of working out the manual cost of labour as above, but in the MOJ proposals that all seems to have gone by the board and in its place an arithmetic assumption if you can average everything out and then cut it by a pre chosen percentage someone daft enough will accept the proposals. BUT watch out for the maladministrations of justice, the large no of self representing clients, the delays in court procedures AND IN PARTICULAR THE REDUCTION IN QUALITY of service. The arithmetic simply does not stand up to scrutiny!
    How do we compare?
    Big business bosses and chief executives saw a 15 per cent increase in their salaries this year – earning an average of £112,157
    Also in the premier league were corporate managers and senior officials, earning on average £77,679 a year. While pilots and aircraft engineers pocket, on average, £71,555
    UK SALARIES 2011 Rank Occupation Average annual wage (£) Percentage change from 2010 Source: Office for National Statistics, Nov 2011
    Directors and chief executives of major organisations £12,157
    Corporate Managers And Senior Officials £77,679
    Aircraft pilots and flight engineers £71,555
    Medical practitioners £69,952
    Police officers (inspectors and above) £58,746
    Air traffic controllers £55,352
    Brokers (financial and insurance) £54,924
    Financial managers and chartered secretaries £53,944
    Managers in mining and energy £53,741
    Protective Service Officers £49,394
    Public service administrative professionals £49,333
    Health professionals £48,775
    Health Professionals £48,775
    Research and development managers £46,854
    Information and communication technology managers £46,353
    Functional Managers £45,627
    Solicitors and lawyers, judges and coroners £44,552
    Marketing and sales managers £44,163
    Transport Associate Professionals £43,890
    Electronics engineers £43,772
    Hospital and health service managers £43,523
    Electrical engineers £43,156
    Financial institution managers £43,141
    IT strategy and planning professionals £42,931
    Purchasing managers £42,735
    Train drivers £42,527
    Higher education teaching professionals £42,263
    Legal Professionals £42,251
    Personnel, training and industrial relations managers £41,466
    Coal mine operatives £41,140
    Physicists, geologists and meteorologists £40,927
    Managers in construction £40,484
    Production Managers £40,185
    Production, works and maintenance managers £39,994
    Broadcasting associate professionals £39,162
    Mechanical engineers £39,142
    Police officers (sergeant and below) £38,918
    Advertising and public relations managers £38,178
    Corporate managers £38,091
    Management consultants, actuaries, economists and statisticians £38,008
    Senior officers in fire, ambulance, prison and related services £37,596
    Information And Communication Technology Professionals £37,498
    Quality assurance managers £37,195
    Engineering professionals n.e.c. £36,991
    Pharmacy managers £36,883
    … and so on.
    The above being from the Inland Rev stats for 2011 – so BEFORE the intended cuts and without reference to pension provision as most of the others do with guaranteed retirement age provision in some
    So … why does not someone provide the basic arithmetic instead of simply going for averages and trying to compare things which are not comparable … remember income is based often in the “hourly rate” business on the no of hours “put in” and is not a simple salary based on a set no of hours!
    The above earnings data is published in the Annual Survey of Hours and Earnings (November 2011) and covers the average pay for workers, covering more than 300 trades and professions.
    The data is drawn from HM Revenue & Customs (HMRC) and Pay As You Earn (PAYE) tax records

    Read more: http://www.thisismoney.co.uk/money/article-2067258/Best-paid-jobs-2011-Tables-official-figures-UK-salaries.html#ixzz2gZVdlh5w
    Follow us: @MailOnline on Twitter | DailyMail on Facebook
    Read more?
    http://www.thisismoney.co.uk/money/article-2067258/Best-paid-jobs-2011-Tables-official-figures-UK-salaries.html#ixzz2gZRsr3ZW
    Disgruntled Solicitor (now part retired(

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  5. Peter Jones

    An email I have sent to Des Hudson:-

    Dear Mr Hudson,

    I attended a meeting of East Midlands criminal defence lawyers – solicitors and barristers – in Nottingham this evening. The consensus view confirmed what I know to be the position in relation to my own firm, namely, that the cuts proposed under the present consultation are utterly unsustainable. Agreeing to them will be tantamount to the profession signing a collective suicide pact.

    There are other aspects of the package proposed by the Ministry of Justice (and promoted by them as something tacitly agreed by the Law Society) that cause enormous concern. However, it is the level of the cuts (let us not forget they are cuts on top of cuts) that are the bottom line for me. They will put vast swathes of the profession out of business. The residue will be a very pale shadow of what we have now.

    It is time for the Law Society to pull itself out of the hole it has so unnecessarily fallen into. Please start fighting for the interests of criminal defence solicitors, stop squandering the unity reached with the bar, return to being representative of our views and oppose the laying to waste of the huge contribution we make to the quality of justice achieved in this country. If that doesn’t happen don’t be surprised when you see criminal defence lawyers taking action irrespective of whether they have the support of the Law Society.

    Yours sincerely,

    Peter Jones

    CJH Solicitors
    Unit 11
    Prime Parkway
    Derby
    DE1 3QB

    Tel 01332 362509
    Fax 01332 362574

    This message (and any files transmitted with it) is intended for the addressee only and may contain information that is confidential and/or legally privileged. Unauthorised use is strictly prohibited and may be unlawful. If you are not the addressee you should not read, copy, disclose or otherwise use this message or any attachments except for the purpose of delivery to the addressee. We make every effort to keep our system virus free. However, you need to verify this email and any attachments are virus free as we can take no responsibility for any computer virus that may be transferred via this email.

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