This is probably going to be an uncharacteristically short post. I have quite a lot to get through today (defence statement – unpaid, advice on leading counsel – unpaid, skeleton argument on abuse – unpaid). That list of work makes an important point about the work which the Bar does which never attracts any additional fee.
There is presently a debate about what form action, if any, should take. These are my brief thoughts.
Like many others I support direct action. There should have been more in the past but we are where we are. When Des Hudson of the Law Society says that the Government does things because it can, he makes that assertion on the basis of past performance. In the past there was no real, concerted action, and so the Government could do what it liked. I believe that if we do not change that now, and make clear the manner in which the system depends on the co-operation, dedication and diligence of experienced and professional lawyers for its proper and efficient operation, the system will collapse in short order. Very few of those presently practising can afford to run businesses or maintain practices on the proposed rates, and even Des Hudson concedes that. It is inevitable that the best will no longer consider crime as an option and that will effectively kill off the future. Those who have other options will have no choice but to take them. That will effectively kill off the present.
We have a duty to those who come after us, and to society, to protect the professionalism of the system. The Government wishes to destroy it. Once it is gone it will not be recreated. We have to be brave and take direct action, unpalatable though it is, to that end.
I do not know that the young Bar can afford an all-out strike. Some may have other work they can do, but those who have already specialised will not. A total walkout risks severe hardship for those with no backing. Any strike must be accompanied with an urgent appeal for welfare funding.
I suggest a combination of partial walkout and work to rule, with assistance from Recorders and Deputy Judges.
The partial walkout shows what happens when the Bar totally withdraw but alleviates some of the problems of a protracted strike. I’d suggest one long weekend where the Bar do not work on a Friday or the following Monday, followed by a rolling series of Mondays and/or Fridays.
Recorders and Deputies should assist. It would be wrong for senior members of the profession to insulate themselves from the risks and consequences of action by simply choosing to sit. Sitting also assists the MOJ in propping up a woefully underfunded and consequently underperforming system. I agree with the call expressed elsewhere for Recorders to make it clear that they are unavailable to work. This would show that the court system depends on the Bar in many ways. Some may feel that their conscience demands resignation.
Finally the work to rule. This has a wider point of emphasising in a real and tangible way the additional work which counsel do but which is never seen or appreciated. It is taken for granted by many judges and it is destructive in real terms of family relationships, marriages, holidays and social lives. I’m sure I’m not alone in having had weeks on end where I do not see my children because I am working.
Counsel should work the designated court day and no more. No task that is not paid for should be undertaken otherwise than in the course of that day. Unpaid hearings should not be attended.
On days when the Bar is on strike there should be representative picket lines at relevant court centres. Those not on the picket line should, however, do good in other ways. I would suggest that local law centres, CABs and other such bodies (amongst the many worthwhile charities) might be pleased to benefit from the presence of some experienced barristers, willing to donate their time for the public good. Law centres and others have suffered at the hands of funding cuts too. We’re all in this together, as they say.
Timing. It must be soon. With the greatest of respect for Sir Anthony Hooper it cannot wait until the cuts come in. Better to stop it happening in the first place. If the cuts are to come in there will be firms of solicitors forced to close in advance of the date because their responsible officers will have to report the likely financial damage. If they look like they will become insolvent the SRA will have to intervene and they will close. Action then will be too late.
I hope that solicitors and solicitor advocates, as well as employed barristers like myself, will support the chosen action. We must stand together.
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.
Those who follow my posts on Twitter or Facebook will have seen that I, with many other people, am hugely disappointed with the actions of the Law Society this week. In this post I will try to set out why, and where we should go from here.
Where we were
The last seven days have been truly momentous. Just over a week ago the Backbench debate was held on the floor of the House of Commons. It was a debate that Her Majesty’s Government had not wanted to take place. However, democracy prevailed and a number of MPs from all parties used the time allocated to backbenchers to secure proper debate of the proposals for legal aid.
The striking thing about that debate was the number of MPs from all parties who spoke powerfully and eloquently in favour of the need for access to justice, and in total opposition to many aspects of the Transforming Legal Aid proposals. One significant thing to come out of the debate was the offer of an Opposition Day for there to be a more comprehensive debate with a division of the House.
Bearing in mind that by that stage the political reality was that the Labour Party was fully against the Government plans, the Liberal Democrats had also come out against it at a very senior level (Nick Clegg expressed doubts, the Deputy Leader opposed them vigorously, and so did the Party’s President), and many Conservative MPs were greatly concerned, there must have been very significant pressure on the MOJ for there to be a rethink. The appearance was that if there was a vote in the House, the Government would have faced a split in the Coalition, rebellion from several of its own backbenchers, and it would in all probability have been defeated.
Then on Friday, the #saveUKjustice e-petition passed the symbolic 100,000 signature mark. Whilst technically this merely means that there can be further pressure on the Backbench Business Committee to hold another debate, it is still a hugely important milestone. I doubt that the Government thought that lawyers would be able to gather enough support from the public to reach that level.
Added to all that is the fact that in the preceding weeks there had been hundreds of blog articles and newspaper reports highlighting the issues and raising profile, and several normally loyal newspapers had come out in support of the lawyers’ campaign.
The response to the Consultation, too, was totally unprecedented. 16,000 or more responses, totally united in opposition, all the way from the President of the Supreme Court, through the senior judiciary in the Judicial Executive Board (headed by the Lord Chief Justice), the Crown Court judges and Magistrates, all the professional lawyers’ organisations and a host of charities, representative bodies, and individuals.
Against this is a backdrop of continued and repeated failure in Government contracting exercises, with the interpreter shambles bringing the idiocy of Government actions into sharp focus, as expressed passionately in the debate the previous week. Sir Alan Beith MP described the potential for a “multiple train crash” if the process of reforming legal aid followed the same path as other contracting exercises.
That in a period of 14 days the various Justice Ministers had to face hostile questioning from MPs and Committees on no less than three occasions must have made this a very difficult period.
The climax of all this was to be the appearance of The Lord Chancellor before the Justice Select Committee. He will have been expecting a truly bruising and uncomfortable session in which cross-party MPs, having heard evidence from lawyers on 11 June, asked him detailed questions about his Department’s plans.
We had the Government on the ropes. They had lost most of the arguments. Any attempt to push the preferred PCT option through would have looked totally unreasonable and would have been politically unacceptable.
The will on the part of the professions was there to resist these changes. The mood is that we have had enough. We provide an enormously valuable public service. We often do it unpaid, late at night. The extra unpaid hours keep the system moving. Without our efforts there is no system. It depends on us.
We have in the last few weeks managed to convince a large section of the public, most of the media, and many politicians of the merits of our arguments. If it had come to industrial action of some kind our position could be understood and the impact would be enormously powerful and felt very quickly.
This is a battle which can be won. We were winning hands down. I doubt that MOJ had any idea at all that that would be the case. No doubt they thought the public would buy the fat cat argument and the proposals would pass unnoticed or with indifference. How wrong they were!
It was, therefore, particularly galling to see that on Monday of this week the Law Society chose to reveal its hand. It broke ranks from the unified professions, and in the perception of many of its members – I would stick my neck out and say the vast majority of rank and file criminal solicitors – offered Mr Grayling a way out.
The Law Society plan says nothing at all to resist the cuts the Government wishes to impose. Implicitly it accepts them. It simply says that they will be imposed and suggests ways in which firms might adapt. Whilst the Bar have been proposing ways in which the Government can save money and improve the efficiency of the system at the same time without affecting legal aid, the Law Society plan accepts the Government’s case.
The Society would dispute this, but the plans very firmly benefit larger providers over the smaller ones. There is no acceptance that in many cases smaller providers are more efficient and more adaptable than the larger ones, nor any express recognition or regret that hundreds of firms will be forced to close by their intervention, and thousands of duty solicitors will face redundancy or pay cuts. It is no coincidence that the Big Firms Group were extensively involved in drafting and approving the proposals. The plans benefit the owners of big firms to a hugely disproportionate extent – they benefit from a contraction of the market as smaller firms are forced to sell their practices to the larger operators, or close altogether, and they benefit from the change to the duty solicitor rules, enabling them to reduce their costs base by sacking or demoting many expensive duty solicitors. In some cases this variety of market consolidation could result in less firms in a given area than envisaged under Mr Grayling’s plan.
In their recent attempts to spin their way out of this crisis, the great and the good of the Law Society have denied this. They say that the proposals, if accepted, would protect solicitors from the threat of price competition, that efforts are being made to ease the transition to the new system, that the proposals had been discussed with a wide variety of representative groups, and that there has been no agreement to cuts.
I disagree. The Law Society position throughout this campaign has been to concede that the Government has to, and will, make cuts. Where the Bar has said there need be no cuts because equivalent amounts or larger could be saved or gained from tackling inefficiencies in the system, and the real cost drivers in the CJS, the Law Society just accepted the austerity agenda without ever once challenging it. They were of the view that the Government would not listen to anything else.
To see the damage it is only necessary to look at the opening remarks of Mr Grayling before the Justice Committee. What he said was:
[The Law Society] have said that they accept that we face a very large financial challenge, and they have also accepted the need for consolidation of their sector. They have submitted to us a very interesting proposal as a possible alternative model, which still contracts the marketplace, and we have said we will engage in constructive discussion with them about that.
*These remarks are taken from the as yet uncorrected transcript of the hearing before the JSC.
Mr Grayling then went on to make unfavourable comparisons with the position adopted by the Bar. He portrayed the Bar as unconstructive, and ungrateful because he could have introduced “one case one fee” but had not. Solicitors good, barristers bad.
There have apparently been a number of meetings between the Law Society and the MOJ. It was reported on Twitter that following the JSC hearing the MOJ officials went straight back to Chancery Lane.
So in one fell swoop the Law Society managed to defuse the JSC hearing for Mr Grayling, make it more difficult to argue that cuts are unjustified, deprive the public of the opportunity of having the criminal justice system fully reviewed to remove inefficiencies, divide the Bar from the solicitors, alienate the majority of their members, take the wind out of the #saveukjustice campaign, and divide their members between those who support their proposals (big firms) and everyone else.
Of course, I am not surprised. I knew the Law Society was the weak link. That’s why I penned an open letter to them at the start of this campaign. Their thinking was clear from the tone of their campaigning pack – the first few pages of which make the Government’s case for austerity, rather than make the case for hardworking and dedicated legal aid lawyers – and their response to my open letter was totally defeatist. They would of course say “realistic”.
Pessimists will always say that they are realistic and that those who do not accept their bleak assessment are dreamers. If the “realists” had had their way humankind would still be living in caves. Women would never have got the vote. Nelson Mandela would still be in prison. The Berlin Wall would still be standing.
It is the passion, vision and courage of those who dare to think differently that drives progress. It is the determination of those who do not accept the conventional wisdom that changes the course of history. Here it has been the efforts of a thousand individual lawyers and others that has changed the political reality: politicians got on board and scrutinised the proposals because so many people wrote to them to express their concern, passionately but reasonably. The media got the story because so many people got in touch with them. If I might take a little credit, the first post on this blog shaped the campaign and led to the first national newspaper coverage of this issue. My individual effort counted. The effort of Rachel Bentley in starting the petition counted. The work of everyone who has taken part in the campaign has made a difference. Look at what we can achieve when we work together!
All of that was lost on the Law Society. It is as if the past months never happened. Their stance has not changed since the initial days of the campaign. In spite of all the progress they still think that Mr Grayling could impose his preferred version of PCT because “there is the political will to do so” (In other words because they had a meeting with him and he said he would.)
Why this is wrong
This is wrong. It is wrong because it accepts arguments which in truth have no merit. It is wrong because it allows the system to carry on as inefficiently as ever yet saddles the hardworking lawyers with the entirety of the cost. It is wrong because larger firms are not always better and choice for the public will be diminished. It is wrong because it is detrimental to individual solicitors who have worked hard to achieve their qualifications, only to find their value diminished to benefit big business. It is wrong because solicitors who built up businesses serving their local community will find themselves forced from above to alter the way they provide those services, or even to close down altogether. It is wrong because they have made it easier rather than harder for Mr Grayling to get his own way.
It is also wrong to think that Mr Grayling could act as he threatened. Faced with a passionately well-argued campaign supported by pretty much everyone with any knowledge, and faced with opposition both from within and without the Coalition, my view is that Mr Grayling would have found a way to shelve the more controversial proposals. He conceded on choice not because the Law Society capitulated, but because he had lost the argument and he knew it. With time there would have been other concessions. Even if cuts ultimately had been imposed, they would have cut less deeply.
Finally, it is wrong because there was no mandate whatsoever to make these proposals. Here the Society was going to Government and conceding that (a) cuts are required, in other words that solicitors are paid too much, and (b) that there are too many firms and a large number should be closed or otherwise removed.
You only have to look at comments on recent articles on the Law Society Gazette about this issue to see how little this view is supported.
Where to now?
Tonight representatives of local law societies are meeting with the Lord Chancellor, in the second of two meetings arranged by the Law Society.
As things stood last week, the proposed agenda for tonight’s session was as follows:
18:00 – 18:10 (10 mins) Introduction from Mr Grayling
18:10 – 18:25 (15 mins) – Economic realities currently facing criminal defence firms – in particular, what would it take for you to adapt from how you presently work and operate, to how MOJ intends. To what extent is this possible/desirable, particularly in the proposed timeframe and given the proposed cap on bids of 82.5% of current rates.
18:25 – 18:40 (15 mins) – Savings and efficiencies in the criminal legal aid system – the Ministry is clear that the savings must be made. Are there areas of the present system which could be more efficient, or where savings could be made?
18:40 – 18:55 (15 mins) – Practicalities of the proposals in Ch.4 of the consultation paper – Are there areas of the consultation that, in your view, raise particular issues. For example, the restriction on client choice, the size of the proposed geographical areas or the proposed limits on contract value?
18:55 – 19:00 (5 mins) – Closing remarks
There are elements of the agenda above which suggest that the profession might be willing to compromise on PCT if the details were right, although I’m informed by one of tonight’s participants that everyone attending is agreed that PCT is not acceptable. I’m sure all local representatives who took soundings will have been told that by their “constituents”.
While we wait for news of what happens tonight – probably not a climbdown by Mr Grayling given his comments in the Law Society Gazette this week – I can provide some details of what took place in the meeting between Mr Grayling and criminal lawyers from a cross-section of firms last week. This is the most detailed note I’ve seen. Apologies to those who have already seen it (and apologies also for any typos).
CG – This is mostly designed to be a Q & A – none of us want to be in a position where we have to take tough financial decisions. The Spending Review for 2014 – 15 which is what we are talking about is going to create difficult decisions all over Whitehall. That is going to be our starting point. We consciously took a decision not to say less just to take a slice off everything. I didn’t think that was sensible. What I have tried to do is adopt a two layered strategy to the MOJ. We are seeking to put in place measures to reduce demand on the CJS to e.g. reduce the size of the Prison estate e.g. improving rehab of offenders and new ways of tagging, also looking ahead to further challenges without doing same things again and again. The reason we have gone down the route of PCT, it doesn’t mean no quality, I took the view that simply saying lets simply do a few cut. I think you can’t continue to do that and continue with the same paradigm, we live in a world where organisations are continuing to reduce their costs, this is a conscious decision to change which I think if the only logical course. This may mean you are going to have to redesign and engineer your business models, this may mean mergers and bigger firms, it does not mean giant forms, it may mean pooling back office costs, we are not asking you to do anything different to that which other players in the professional world aren’t doing continuously. On a quality point we have set ourselves a goal of a reduction in spend of 17.5%. In a tendering model it would be easy to say we will just go for who bids the cheapest, we are not going to do that. There will be an essential stage, a second stage, are those organisations capable of delivering a quality service. We will clearly ask those who bid to pass a quality threshold, I have asked LS and the Bar Council to assist, we could use peer review but I am not prejudicing. If got two organisations at table and equivalent quality will give to the cheapest. It does not mean a chase to the bottom. Does this mean Tesco Law, not going to stop anybody bidding but it seems that for some of the bigger providers we have unexpectedly set the bar too low. This does not mean 1600 people go up in a puff of smoke. The smart people will consider how can we meet this challenge. It is my hope that the wiser and smarter people will sit down and say how can we meet this challenge. The next thing to say is I have to meet the spending target. I do 4 things, Court, Legal Aid, Prison and Probation, non will end up with increased budgets, some will change and others will have to deliver significant reductions in budgets. I can’t change the big picture but I can listen on the detail. With Probation and consultation we have changed things following consultation. I am not coming to this that consultation is just a rubber stamping exercise. I am happy to listen and we will sit down and listen and try to come up with the best balanced package that I can. This is not a plan to destroy the Legal Aid industry, this is an attempt to deal with a harsh reality. This is not of my making but it is something I have to respond to. The Bar changes we have to applied change to top of income scale, speedier process, two Counsel, seems to me a set of principles that are sensible. The door is open for dialogue. I think we have come up with a package that is the best thing we have got.
I listen with Interest to your opening remarks. I say as a practitioner, a partner in a criminal practice, I don’t share your optimism on the proposals that are in the paper and so if they change significantly from the proposals that are in the consultation paper that will be vary welcomed. My concern is that those proposals that are in the paper will lead to exactly what you have said you do not want, that is not just the destruction of the Legal Aid industry, but to the Criminal justice, PCT has not been tested not been piloted (that is something that when in opposition the current Attorney General thought was essential so that a system could properly operate, we are well aware of the risks that tendering can bring from tenders elsewhere, not just in the CJS and frankly we have no confidence that the current proposals we lead know nothing other than the collapse of the whole system. I hear with interest your comments about quality, we do not see how quality can be maintained where client choice is denied, client choice is an essential element to maintaining standards, it is an essential element to our Criminal Justice System. If you take together the lack of client choice and the flattening of fees proposed so Solicitors are paid the same fee for a guilty plea case as they are for conducting a trial in the Magistrates’ Court then inevitably the market which is operated by business men, will tell you to try and get as many guilty pleas as possible, It will place us in conflict between our clients and our business interests, and to give you one example I know there it at least one parson around this table who has been figures it is simple not going to work for people to take on a 28 day trial at the flat fee being offered. It will inevitably impact on quality. The impact assessment of that has been prepared recognizes that and so we have real concerns of the impact on the British Justice System which is the foundation of so much that goes on in this country in other areas of the legal industry not just in Legal Aid. We have therefore real concerns that the proposals put forward will damage not just firms but the justice system itself, they are unworkable in their present-form and wilt remain so unless changed.
CG – so let me ask would you prefer if I cut everybody’s fees by 17,5%
RA – I would be happy to engage in discussion with you about alternative ways of dealing with the reforms that you have to make but that I want recognition that these proposals are no alternative to it. It is not a case of you can have this or that this is death and destruction to the CJS it is not an alternative to 17.5% cut, 25% cut or a 50% cut. It is no alternative at all. Yes we will engage in discussions, but only when it is recognized that this is totally disastrous.
CG – now look, you can’t say you will only engage in discussion if I recognize that I am proposing death and destruction. What you are saying is you are incapable of reorganizing in a way that brings down the costs to deliver the same service. Unlike almost any other industry in the country which is happy to do this day by day and week by week.
RA – I am not saying that and I do not want to dominate the discussions we only have an hour. I am very happy if you would like to meet we can talk but I can see hands raised.
I am a Duty Solicitor in Exeter area. What I can say is not intended to cut across other Firms or make a split between rural and urban because they have to speak for themselves. In Devon and Cornwall the proposals give us 10 contracts across the peninsula, we would not be able to comply with PCT we are very clear about that, with the best will in the world even if we believed in the principle, which we don’t, we could not comply. The logistics of getting a solicitor from North Devon to Cornwall which can be a 3 hour drive in the summer, it doesn’t work. If we try to amalgamate and I can understand why you would say that, the difficulty is, if I go to my bank manager and say my work volume is falling, so is my colleagues in Cornwall, we are told by the government that we have to join up to try to make this work, he is not going to lend me money to invest in the sort of infrastructure that this proposal requires, so we feel trapped, we can’t comply even if we wanted to.
I am a solicitor from vary rural west Wales. I find the suggestion that we are unable to deal with challenges that face us and cuts in rates offensive, there hasn’t been an increase in rates for 20 years, in fact in real terms the rates have fallen by about 45% in 20 years in the last 3 years because of cuts that have already been implemented the rates have been taken down by about 20 % in the last 3 years as far as my Firm is concerned and to suggest we should re-organize to face a further 17.5% cut is offensive to the business realities that we are dealing with at the moment. We have already had cuts thrust upon us that seem to have been ignored, they are been massive so that my margins in my Firm are way way below 17.5%, in my business which is a 21st century business, we have geared up, you say that larger Firms have had the rug taken from under them, because they are already doing more than what’s on offer, I currently do 45% of the work in Pembrokeshire, 20% of the work in Dyfed Powys, concentrated in . Pembrokeshire and Carmarthernshire, the work on offer in my procurement area is 25 % of the work in Dyfed Powys I would have to cover four times the geography, for an additional 5% of market share which I have already got concentrated in a small area, I find the suggestion that we can’t arrange ourselves offensive.
CG – I think you can arrange yourselves, I think you are suggesting that you can’t. I am not making the suggestion that you can’t.
JS – we can’t, if you have ever been to an area such as rural West Wales, these just do not work, it cannot, nobody can make them work.
I have a mandate on behalf of BME firms. (hands in a letter), I and my colleagues are extremely worried on the effects on diversity both within the profession and outside of it. Many BME Firms have sprung up to serve communities and have knowledge of their background and their circumstances, through those Firms they receive justice through the Advocates that represent them in Court and it is healthy for society, many of those Firms are small, more than half of five partners or less. My fear is that those communities will suffer as a result. I also fear diversity in the profession will be decimated, I would ask you to consider the effect this will have on diversity.
Diana Paine from Blackfords:
I am a partner in one of the larger Firms that undertakes Criminal Legal Aid work. I have looked at it and it is unworkable. I say that to you as a business woman, not as a lawyer, as a business woman. It is utterly unworkable. If I say that as a business woman then it must impact upon me as a lawyer and I say this to you, , that if it is economically unsustainable, the talent will go from my Firm, when the talent goes the quality will go. The Criminal Legal Aid System is one of the beacons of our society, it will be irretrievably extinguished if PCT goes through, so whilst you say it is both logical and sensible, it may seem logical to you but I would strongly suggest it is not sensible.
CG – So what do you think I should do instead?
DP – I have no alternatives at this stage for the very reason that we have this crushing obstacle in the way affecting the viability of my practice, this three letter word called PCT that needs to be dealt with before we can go on and have further sensible discussions with you.
CG – that doesn’t really work. What you are saying to me is I come up with an alternative. You won’t come up with an alternative unless I accept mine is
DP – I echo what Richard has said, I don’t think that is the purpose of my words to you no, what the purpose of my words to you is for you to understand from a Firm that is run deeply efficiently, survive on the threshold of survivability by being deeply efficient in our house keeping the way that we do that, but if we can’t get past that I can’t go on to consider anything else.
Spoke about his Firm in West London and Thames Valley covering large area, but procurement areas and caps on volume meant the proposals could not work for him. Said he felt that there should be minimum contract size and the BME Firms should be protected. Hines also spoke about stupid procurement rules. Existing duty schemes should remain but bottom 30 % of market share should be eliminated.
CG – so is the problem about the nature of the geographic areas?
CG – I am here to listen, I am asking you what works.
CG – one of the reasons that the question has been asked of choice, and one of the reasons that we have gone down the road of saying individual can’t choose is so that we can guarantee volume, my expectations that if you get a repeat offender they would be reallocated to the same Firm unless there was a good reason not to. This is something I am happy to discuss.
Talked about the difficulty in setting quality standards and that it would be a race to the bottom on bids, once through PQQ it will be the lowest bid. We do want to engage for the alternative, but we do want to see the race to the bottom removed from the dialogue.
CG – the race to the bottom has never been in the dialogue in the first place. Would not automatically take the lowest bid. If you have some bidding a lot lower you will want to know why. Once the level of saving I am trying to achieve has been achieved it is quality that I want so if we have a Firm 1% lower than competitor of comparable quality will go with 1% lower, if 15% lower I would be deeply concerned.
There Is unprecedented opposition from Solicitors and Bar because it is not a real competition, It is simply an opportunity, there is no certainty in the contract, the notion of bidding on price is an anathema, an illusion, there is no guarantee on numbers there is an absence of certainty and you can’t offer it. It is a pity that you do not do joined up policy with HO, a whole system approach. PCT will be unsustainable.
CG – there is no certainty now as crime rates falling. We can map out best estimates and give you as much certainty as possible, we have removed choice for the accused to give as much guarantee of volume.
AB – as things are today there is no certainty but I am not facing a guillotine.
CG – look, I go back, it would b easier for me to say, let’s have a big fee cut, I don’t think that is the most sensible way of addressing this challenge. I throw down the gauntlet to the industry over the next 18 months, re-engineer the way you work, in a way that enables us to bring costs down, so I am not saying to 1600 Firms here is a fee cut. Am I wrong.
Lots of yes
CG – so would you like me to say I would cut fees by 17.5%?
Lots of no
One lawyer said that with 15 minutes to go it is not possible to talk about the alternatives. Proposals in paper won’t work in practice.
CG – the whole point of doing this is that is it s a consultation and you can say what will work and what won’t work. I said at the start that I am open to looking in detail of the proposal, what you are all saying is you don’t want me to so what I am proposing but you don’t want me to do the alternative.
We will engage you about the alternatives but that is not the occasion.
JS – you have not consulted on the alternative, the consultation paper makes it clear that this is not a consultation on the principle of PCT but on the mechanism, not alternatives to PCT, we are saying PCT doesn’t work, we will engage with you as a profession and professional bodies. I sit on the CLSA committee, there are lots and lots of ideas out there as to where savings can be garnered in the Criminal Justice System and with regards to Legal Aid, injecting fresh streams of revenue into Legal Aid, what cannot work is PCT, your consultation is its PCT and how PCT will work, nowhere does it say would you prefer to have a 17.5% cut.
Simon from small Criminal Firm in Norwich:
1. You have an awful lot of money to save. We all have our views but that is not going to change.
2. PCT is loathed by every member of the profession, the Bar and I suspect the judiciary. You have managed to come up with this PCT idea which
CG – I haven’t come up with it, this is an idea that has been on the table for about ten years.
Simon – no pay rise for 20 odd years and we are still running our businesses, the problem with the concept of quality is this (example of failed tender for VOSA pros works determined purely on price).
CG – I am giving you a clear on the record for assurance that that is not my intention on how we will do this.
I wonder whether seen a Statement issued today, joint statement all agree one of things unanimous opposition to is removal of client choice to guarantee numbers, we find the concept that these vulnerable people being reduced to numbers somewhat disturbing, I will briefly explain why it will not work, the removal of choice, quality will go down the toilet, if you are guaranteed the work, they don’t want you next time – tough – They are with you for the next 3 years. You think it doesn’t matter but you will get lots of miscarriages of justice
CG – I think it would be a lousy business model and you would not get a new contract and would fall foul of quality checks.
JM- three years down the line – we all agree that quality will be affected. We all agree that you don’t appreciate the efficiencies that we bring to the system, by a Solicitor knowing a Client over a number of years and how that affects the system, it has been touched on by Sundeep, Clients will accept advice from a Lawyer they know, cases dealt with efficiently and speedily which will be lost with removal of Client choice.
CG – but won’t be able to guarantee volumes.
JM – we don’t think you can anyway. Lots of variables. If you try to force a Client on a Solicitor on who they have no confidence they won’t do it. It’s like me as a Sheffield United supporter being told to support Wednesday. I won’t do it, they will represent themselves, will end up with had affect on Court Service, we say removal of Client choice, apart from the ethical and moral reasons, we say it won’t deliver the savings you think.
(echo removal of Client choice will reduce Client choice)
CG – we aren’t saying a person will get passed around from Firm to Firm.
Lots of yes you are
CG – the norm would be that someone would return to the same Firm, but if we don’t have a mechanism to deliver volume, but we will listen to alternatives.
Chair of CLSA – this is not just my view but from information fed to CLSA on a daily basis. You say you have not gone for administrative cuts but you invite us to participate in a tendering process at 17.5% less than charging at present time, you mention about PCT not being a race to the bottom, I am quite sure that when ALS won the interpreting tender they did not expect that to be a race to the bottom but it was and the tax payer is picking the bill for that.
CG – it is important to say that the tax payer is saving a lot of money as a result of that contract. And mistakes were made in the contract that we need to make sure are not repeated. I can only it is not my intention that this should be an exercise in price.
BW – James said he was offended, I am quite sure that you did not intent to offend anyone, but you did say that the wiser and smarter would be talking and planning to make it work, that does imply to my membership that they are neither wise nor smart as non of them can see how it can work.
CG – I do not believe that it is the case that no one is looking at the future, and how to make it work, I think people will bid, I will listen and what is as good as possible be. If someone has a letter idea in consultation we will look at it engaging with professions.
Take PCT off the table and we will engage.
CG – it’s not a case of taking PCT off the table – if no one comes back with a counter proposal.
There is a minimum I need to achieve, below that there will be a focus on quality, this is not about me wanting as much money as possible.
Not going to reiterate what joy said about Client choice, I will make a point about victims who will be cross examined but litigants in person, also the time frames are totally unachievable. I make no apology, firms are not structure to make the changes in the time frames proposed Firms will go out of business and you will be left be the next election with a CJS that has crumbled.
CG – we are talking about 18 months period.
RA – no you are not, no one will implement until they know that they have a contract so it is three months.
JS – Minister, if we are right and you are wrong what then?
The note I have ends rather abruptly there. Rather poignant though.
Let’s see what comes out of tonight’s meeting.
I wrote to my MP, Patrick Mercer OBE MP, some time ago.
Yesterday I received what can only be regarded as a standard reply, trotting out all the usual stuff and not dealing with any of the specifics of what I said at all.
So I thought I’d have another go.
My letter is nowhere near as eloquent as that written by Steven Bird (who incidentally was the first person to interview me for a job, years ago), but this is what I said. Hopefully Mr Mercer will be prepared to meet to discuss.
Dear Mr Mercer,
Many thanks for your letter of 13 May 2013. I have to confess to being rather disappointed with your reply. The reason for my disappointment is not so much that you did not agree with me, but more that having taken almost a month to respond you did not in fact address any of the specific issues I raised, and provided what I know is a standard response given by the Ministry of Justice.
Perhaps I am a little idealistic, but I believe that, although we have a system of party politics in this country, you are my local elected representative and should listen and respond to my individual concerns. What I raised with you was a matter of very great public importance, which is not being properly debated, but also something of very great personal importance which will affect quite a number of your constituents.
I will set out some additional thoughts below in a little more detail, but I wonder whether it would be possible to meet to discuss this? It is too important to leave to correspondence. I will be in London on 22 May and wonder if you might have time around lunchtime then?
You note that you agree with the Justice Secretary that we have an excellent tradition of legal aid and one of the best legal professions in the world. That rather begs the question why you propose to destroy it. You will not find a lawyer in the country, or indeed anyone who works within or is closely acquainted with the criminal justice system, who believes that anything resembling a high quality justice system will survive after these proposals have been implemented.
The quoted figure of £220 million for reduction has been arrived at arbitrarily, and has moreover been arrived at without regard to the extensive cuts already made in recent years. The MOJ itself is unable to say what the impact of previous cuts is, as the figures are not yet out. The consultation document itself is based on figures from 2010-2011, and leaves out of account both reductions in fees and reductions in volumes of work. The Legal Aid Authority (recently renamed and rebranded at, no doubt, enormous cost) has produced its annual figures for this year, suggesting that certainly £168 million has already been saved.
All lawyers could tell you ways in which money could be made or money could be saved. Michael Turner QC, Chair of the Criminal Bar Association, has a clear plan which would potentially make money for HM Government, but Mr Grayling refuses even to meet with him.
A clear example of waste within the system can be found in something which happened in my own professional practice just last week:
I undertook a trial at Lincoln Crown Court with a Lithuanian defendant accused of theft. The trial was capable of being dealt with in a single day, quite easily. The time estimate was known and the date had been set in November to allow a fixed hearing, bearing in mind the need for an interpreter.
However, on the first day of the trial we found we were listed behind another trial, which subsequently resolved by way of a guilty plea. My case did not get on until after 14:30 so by the end of the first day we were only part way through the prosecution evidence. The interpreter, paid by the minute, and myself, on a graduated fee, spent most of this day waiting for our case to get on. Had the case started at 10:00 promptly we would have reached the same point by about 12:00 noon as we had reached by the end of the day.
On the second day it became apparent that, although I had by 13:00 the previous day asked Listing to ensure an interpreter would be booked for the unexpected second day, no interpreter was available. The newly contracted interpreting service had failed to find anyone available to cover the hearing and the interpreter used the previous day was committed to a prior booking in Wales. All involved in the case waited until 11:30 to see whether someone could be located, but in the event it was not possible. The case was therefore adjourned until the following day. My time, the prosecutor’s time, the jury’s time, and the court’s time was entirely wasted. The Judge had a list of other work to do but that was not scheduled even to start until 12:00 noon because our trial had been put in that slot. Incidentally, as a result of the previous fee cuts I received no additional payment for this second day.
On the third day we did not get a clean start because the interpreter did not arrive until 10:20, but once we managed to get going we were able to get the jury out by 12:00 noon, and at 14:08 they returned and unanimously found my client Not Guilty of both counts on the indictment. Under the fee structure there was a modest additional payment for the third day in court.
Thus, because (a) the court had in its wisdom listed this case behind another, (b) had not booked an interpreter in the event the case overran its slot, and (c) because no interpreter was available for the second day, a case which could easily have been dealt with in the space of a single day took three days to complete. Many hours were wasted, I spent a day entirely unpaid in which judge and jury simply sat and twiddled their thumbs, and then the legal aid bill was increased by a modest amount on the third day. None of this was the fault of the defendant or his legal team.
This is, of course, a single example from a single small court and the diary of one single advocate. I know that my professional colleagues would be able to tell many, many similar tales.
The system we have is full of waste from top to bottom. There is inefficiency all over the place, and the lawyers know how to reduce or extinguish it.
It is therefore a great pity that in preparing this consultation document not one single lawyer was asked for their views on how to reduce the cost of criminal justice. No-one was ever asked how things might be improved. There is no qualified lawyer or experienced criminal justice practitioner in the policy team which created the consultation paper. We know that is the case because the question has been asked and answered at the recent meetings with the MOJ.
There are ways, too, for the system to make money. It would be perfectly possible, for example, to introduce a banking fraud levy, to make the financial institutions pay for the cost of cases emanating from their leaky and insecure systems. Large-scale financial fraud and insider trading cases make up a very large proportion of the legal aid bill, yet the banks pay not a single penny towards the cost of dealing with these matters. Such cases could have been avoided if the banks had installed adequate security in the first place.
Deferred Prosecution Agreements will in due course address some of these issues, but although they will reduce the legal aid bill it seems likely that Ministers will simply bank those savings but persist in reducing the service which is available for the rest of the population.
Aside from this, there has been no calculation of the overall impact on the public finances of these changes. MOJ does not know how many people are likely to be made redundant, how many people will have to claim benefits, how many businesses will become insolvent, how many firms will have to be intervened in by the Law Society at great cost to the others, how many other services will become unviable because the solicitors who purchased them have disappeared. There has been no analysis of this and MOJ have confirmed as such in a recent FOI question I asked.
I can say that just from our firm 50 people would be made redundant and three partners might well become insolvent. The leases on three buildings would be defaulted on. Services in family law, conveyancing, private client (wills and probate) and general civil law would be lost as well as those in crime. Something like £2.5 million (for the avoidance of doubt, not just legal aid revenue) would vanish from the local economy with corresponding loss of tax revenue and local spending power. Choice of supplier would be lessened for the people of Grantham, Newark and Lincoln. In Newark I can say with certainty that no firm would remain which would offer criminal legal aid services.
These sorts of issues would have to be multiplied across at least another 1,200 firms.
The policy is therefore horrifically short-sighted. A headline saving of £220 million is very much less as a net saving when you take into account lost tax revenues, increased benefit payments, additional costs of introducing the scheme, administering insolvency via the Official Receiver… the list goes on. If the deficit is to be reduced the Government needs to start thinking holistically and examining knock-on effects in other budgets. No household could work in the way that HMG does without becoming insolvent very quickly indeed.
I am concerned too, for the administration of justice. You may not be familiar with the detail of the consultation paper. Indeed, Mr Grayling showed himself to be unfamiliar in a meeting with lawyers earlier this week. The proposals, in a nutshell, do this:
a) Reduce the number of providers from a present figure of approximately 1,600 to an absolute maximum of 400. It is accepted by MOJ that it is possible there could be as few as 38. Bearing in mind that some providers will bid in more than one area, or even nationwide, the number of solicitors firms which will close is at least 1,200 and probably more like 1,400. MOJ does not know the number of redundancies but I would hazard a guess at around 15,000;
b) Deprive legal aid defendants of any choice in their representation. They will be allocated to a solicitor against their will and only be able to change solicitor in exceptional circumstances;
c) There will be a limited number of providers in given geographical areas. In Lincolnshire there will be four, in Nottinghamshire six. My work is primarily in Lincolnshire and I can say there are about 14 firms doing criminal legal aid work. 10 of them will no longer be able to do so. There are more firms in Nottinghamshire and the majority will lose their contract. There will be no firm in Newark providing this service as none are large enough.
d) Each provider will get a fixed market share. In other words, in Nottinghamshire each provider gets one sixth of the work, allocated to them by strict rotation and without regard for the interests or needs of the client.
e) Providers are chosen by price competitive tendering. After fairly basic quality and delivery criteria, contracts will be allocated to the lowest bidders, with a ceiling price of 17.5% below the 2013 fee level. This is a race to the bottom.
The biggest concern must be for quality. At present we have a free market in which defendants can choose their solicitor. Some are randomly allocated to a duty solicitor, others come by recommendation, some are repeat clients. Those firms which provide a good or high quality of service expand, those which do not tend to remain small. Some firms have developed expertise, for example in animal or firearms law. A number have expertise in a sector close to your own heart, the Courts Martial.
The market ensures quality services. By and large we work hard to provide a good service, often working far more hours than we are paid for. It is not unknown for me to be in the office at 3:00am finishing a written document for the court, or honing a closing speech or cross-examination. I am not paid extra for doing so – the fee is fixed by length of trial and other factors, not by how many hours I do.
I would ask you to bear in mind that defendants are exactly that – they are entitled to be regarded as innocent until proven guilty, so they are not “criminals” as Mr Grayling has previously referred to them. I have represented taxi drivers accused of sexual assault after passengers have refused to pay the fare, a businessman who sacked a fraudulent employee and was then accused of assault, husbands accused of domestic violence to support a child custody case – all of these people rightly acquitted, and all entitled to decent representation.
My concern for the clients is that once providers have been guaranteed a fixed and immovable share of the market – which can’t be expanded by good service or contracted by poor service – and have also bid the lowest fixed price for the work, the commercial imperative is bound to be to reduce services. Quality will inevitably suffer, and we will move to a privatized version of the US Public Defender service, where overworked and underpaid lawyers, often with 600 or more cases to look after, have been known to spend as little as seven minutes per case.
This problem is compounded by the fixing of fees. Where presently there is a different fee for a guilty plea, a cracked trial (one which is prepared for trial but resolves either because the defendant changes their mind, or because the prosecution drop the case), or a trial, the proposal is that the fees will be harmonized. If there is no difference between the fee for a plea and a fee for a trial, what commercial justification can there ever be for the extra work involved in preparing a case for trial? And if a trial is going to happen, what incentive is there to do a proper job and not just a cursory one?
The MOJ says that it wants to “incentivize guilty pleas” and “streamline the system”. Does it really suggest that professionals bound by a code of conduct up and down the country are advising people to have trials they should not have in order to increase the fee? If it does think that it is both entirely wrong and horrifically insulting. Every day of my professional life I find myself advising clients that they should plead guilty, even where that is directly against my own interests. And every day I have clients who do not wish to accept the advice and want a trial. That is their right and the right of everyone in a free system.
It should be added that in quite a few cases where I have initially advised there ought to be a plea of guilty, on closer examination after disclosure, or at trial, the evidence turns out not to be as first thought and people have been acquitted. They were right in their instinct all along.
Most importantly, if we are to remain free it must be the choice of the defendant. Yet the risk of these proposals is that there will be those who are forced into pleading guilty when they did not wish to. The most likely to suffer from that are those who are inexperienced or vulnerable. Some of these cases will be miscarriages of justice.
There will be an additional systemic effect. At present cases are, by and large, prepared properly. This means that the issues are properly identified prior to the trial, the correct evidence called, and so on. If there comes a time in which this is no longer the situation, trials will more routinely have to be abandoned, adjourned or will become longer. Miscarriages of justice or appeals will also increase. There may be an increased conviction rate, not necessarily rightly, and that may have a prison cost too.
Much good is done in the system by the goodwill of lawyers. Barristers like myself, especially during trials, do much unpaid work outside of court hours. If witness statements need editing, interviews need to be agreed, or legal arguments prepared, that is done during the evening and at weekends. In the trial I did last week I rose at 4am one day to finish my speech. I spent Friday night reading the papers for my case on Monday, Saturday night reading and editing proposed agreed facts from the prosecutor, and Monday night reading proposed interview edits from the same prosecutor. He had spent his evenings preparing them, as had I. The result was that the case could go on without delay. Bearing in mind this was the tragic case of Peter Thurgarland, which you have probably seen in the local news, that must surely be in the best interests of his family, who had suffered enough.
It is unlikely to be the case under the new regime that so many lawyers will give so much of their own time. My family undoubtedly suffers because I do, but under the new system could I ever justify that?
It should be recognized that the unpaid and out of hours work of lawyers contributes greatly to the smooth running of the court system. If it were to be removed the system would grind to a halt, and that would surely happen when G4S, Serco and others are running it. That again has a cost.
There are other effects too. Presently we have many experienced criminal lawyers. I have worked my way up from the bottom of the profession over the last 16 years. Having graduated from University I worked as an outdoor clerk, sitting behind counsel in the courts of London. Then I qualified to give advice in police stations. After that I undertook Magistrates’ Court case preparation, and later Crown Court case preparation. During those latter stages I continued working in police stations out of hours, and studied part-time, firstly towards the Postgraduate Diploma in Law, and later towards the (then) Bar Vocational Course. After four years of part-time study I was called to the bar, and then spent a year in pupillage, during which time I lived away from my family during the week. I am now approaching eight years’ call.
Many lawyers in criminal firms have a great deal of experience. We understand the criminal law and procedure, but also understand our clients and their cases. Criminal practice is as much about people as it is about the law, and the skills developed in years spent advising in the police station in the middle of the night pay off when advising difficult clients about their options.
An experienced and trusted lawyer can give unpalatable advice to implacable individuals in a way that inexperienced or untrusted lawyers cannot. Many needless trials are avoided this way.
The new system will destroy this on both levels. The new providers will not need to retain expensive duty solicitors and their need for efficiency and keeping the cost base down will mean that they will make all their expensive senior staff redundant, and hire only the cheapest inexperienced junior lawyers. If a job can be done by unqualified paralegals it will be. If work can be done by agency or temp staff rather than employees then that will be the preference. All those lifetimes of experience, knowledge and skills will be lost, and the best students will no longer consider coming into criminal law. Very few criminal firms or sets of chambers will be offering criminal training contracts or pupillages this year or next.
The other way in which damage is done is through the deprivation of choice. I have clients that my firm has represented for years, and in some cases where we represented their parents too. Of course it would be better if they stopped offending, but on the assumption that this is wishful thinking it is necessary to consider what will happen. At present these, often difficult, clients will accept our advice on trust because we are their solicitor. If we tell them the evidence justifies a plea they will usually accept that advice. In this way the work of the court is facilitated and justice runs more smoothly. Will that be the same if they are required to go somewhere else, perhaps to G4S or Eddie Stobart, and represented by an inexperienced solicitor who meets them for the first time at court?
A word about the Courts Martial. Presently most armed forces defendants are defended by a civilian lawyer allocated and paid by the AFCLAA. There are some firms with a niche speciality in this area, and they greatly assist the Judge Advocates in running the Courts because they know what is expected and they are also familiar with the necessary procedures. Many of those firms will cease to exist under these proposals and it is certain that the new providers will not provide the same level of service.
I myself appeared at the Catterick Court Martial Centre last year, representing a Guardsman accused of fraud. I was able to advise him to plead guilty, which he did, and our work saved his career because he was sent to Colchester with the Judge Advocate’s recommendation that in view of his excellent active service record he should be put on the NCO Cadre.
I had not previously appeared at such a court. I bought, at my own expense, the main book on the subject, by JAG Rant, and I downloaded and considered all of the procedural guides. I taught myself all the relevant traditions and procedures in order to be able to do a good job for my client. All of that was unpaid and additional. Again, is that likely under the new regime? I very much doubt it.
I should add that although I have focused in this letter on solicitors, the proposals will destroy the Bar too. There will be almost no work left for them to do when the new providers are required to do all their advocacy work in-house to even scrape a profit.
I appreciate that MOJ feels that the market is presently inefficient. I do not see why that justifies these changes, because any inefficiency in the market is a problem for us rather than MOJ. It does not affect the legal aid bill, which is dictated by the number and nature of cases rather than how we structure our businesses. If there is inefficiency then in due course the market will sort it out, while retaining quality and our system’s reputation. Interference by the state in this market, to remove quality, to deprive defendants of choice, to create a two tier system where poor defendants have no real representation and wealthy defendants get a gold service, is wholly destructive and unjustified, and moreover seems to me to be anathema to traditional Conservative ideology.
Our justice system is a valuable thing, developed over hundreds of years, and admired the world over. Our criminal lawyers are respected worldwide. Our courts are seen as fair. Our judges are seen as impartial and able. If these proposals are implemented this will no longer be the case.
I can say that in my time in the profession I have never seen our professions so united in opposition to Government proposals. If MOJ had asked before producing these ideas we would have told them that they will not work, and you risk total system collapse. We would have been willing, and still are willing, to give you ideas of where to save money and where to make it. If we worked together we could secure the safety of the system for future generations, and be a beacon of hope for justice throughout the World. But we cannot do that while the Government holds a gun to our heads and threatens to destroy everything we strive for every day.
One last thing. These are proposals of the utmost significance. It is absolutely not acceptable for them to be implemented by secondary legislation without so much as a vote in the House. I believe in parliamentary democracy and open debate. The Government should propose this by way of an Act of Parliament so that there is full and proper scrutiny. To cut Parliament out and to enact changes as important as this without any debate is utterly undemocratic and wrong.
I therefore hope that you will reconsider whether you will engage in debate about these proposals, and will not simply accept what the MOJ says in its standard letter.
I would be delighted to discuss with you and deal with any questions you may have. I know other lawyers in Newark would too. Please just let me know when.
Many thanks for your assistance.
Last night our beloved Lord Chancellor appeared on the BBC Radio 4 panel show, Any Questions.
Some hoped that perhaps that might mean that a question could be asked of Mr Grayling relating to the proposals for legal aid.
The reason this is so important is that Mr Grayling refuses to meet anyone who is likely to challenge his ideas, and does not propose to implement his ideas in a manner which requires a Parliamentary debate. That means everything he says, and all the public misconceptions, are unchallenged.
Likewise in the press. Some newspapers have published stories which give our side of the debate, but others have allowed Mr Grayling an unchallenged platform to state his views. This is not balanced journalism because there is no exploration of the other side, or even an opposing quote.
I find it rather frightening that this can happen in our “democracy”, because this means that the executive can push through measures which severely damage access to justice for ordinary people who cannot afford to pay for their own representation, which in many cases limit the ability of the population to challenge the executive, and all of this happens on the back of a wave of populist misunderstanding and misinformation.
Only when the history books are written and say something like the following will the public sit up and take notice, but by then it will be too late:
“The ability of citizens to hold their government to account and to access justice in the courts increased steadily in the late twentieth century. However, by the early years of the 21st century the executive was reaffirming its hold on power. By 2014 successive governments had introduced measures to weaken the judiciary, the courts and the lawyers who served them. The public acquiesced in this process, believing it was in their interests, not appreciating that it was their rights which were being limited. A popular wave of hatred for legal aid lawyers supported the government’s aims, and it was not until a mass of cases were referred to the Court of Appeal by the Criminal Cases Review Commission in 2025 that the great miscarriage of justice scandal broke. New measures were introduced but did not take effect for decades due to the weakening of the legal professions…” [my pessimistic view of future history]
So, it is important that the questions are asked. And asked they were on Twitter last night, with question after question appearing under the #bbcaq hashtag. I’d estimate that about 80% of the tweets last night related in some way to Mr Grayling and his proposals.
Here’s a flavour:
#bbcaq Please ask Mr Grayling why he refuses to debate legal aid with Michael Turner QC of the Criminal Bar Association
#bbcaq Please ask Mr Grayling how he is upholding the British tradition of a fair and equal trial by introducing justice on the cheap.
#bbcaq Please ask Mr Grayling why he is going to destroy 1500 self-made small businesses in order to allow big business into justice system.
#bbcaq Please ask Mr Grayling why MOJ refuses to state how many people will be made redundant as result of legal aid changes (c.15,000?)
#bbcaq Please ask Mr Grayling why he thinks criminal defence for ppl who can’t afford to pay should never rise above the “acceptable” level.
#bbcaq Please ask Mr Grayling where the judiciary will come from once he has destroyed the criminal bar and solicitor professions.
#bbcaq Please ask Mr Grayling whether he has actually considered any of the many questions being asked by lawyers, or is justice irrelevant.
#bbcaq Pls ask Mr Grayling whether it is consistent w dignity of his office to repeatedly misrepresent lawyers’ earnings for political ends
#bbcaq Please ask Mr Grayling why he thinks it acceptable to take such drastic action ref justice system without a debate in Parliament.
#bbcaq Pls ask Mr Grayling if he was wrongly accused of expenses fraud if he’d want his lawyer to be high quality or just acceptable?
#bbcaq Should Mr Grayling resign his position as Lord Chancellor given his disdain for hardworking lawyers of both professions?
Were any of those questions asked?
We need to make sure these issues are aired properly before it is too late.
Since I wrote the above post there have been a couple of other media events, but they don’t change the overall picture above.
The first was the appearance by barrister and ex-MP Jerry Hayes on Question Time. Again the BBC was deluged with questions, and again nothing was raised. Mr Hayes managed, briefly, to get a reference to the changes in, but as it was not the question being asked nothing went any further forward.
The second event was last Sunday on the BBC’s Politics Show. Chairman of the Criminal Bar Association. Michael Turner QC, travelled to Birmingham from London for an interview. We all hoped this would be a proper expose given national coverage. We were therefore horrified when it turned out this was local coverage only, and Mr Turner, who had spent about an hour being interviewed, was broadcast for only a few seconds.
It seems abundantly clear that this important issue is simply not going to be aired on the BBC, and the country will sleepwalk into the loss of a system which is admired the World over, apart from in our own country.
On Saturday the Leader of Her Majesty’s Loyal Opposition was in our local city of Lincoln, campaigning for his party in the local elections.
We thought it would be a pity for the occasion to go unmarked. One local lawyer managed to ask Mr Miliband a question about what his views on the consultation paper were . The response?
“Any cuts under Labour would not affect clients’ access to justice.”
So, no suggestion of investment or undertaking not to cut. And the slightly strange idea that one can cut but not affect access to justice. If Mr Miliband knows the answer to that particular quandary we would appreciate him passing the information on to the Ministry of Justice, who certainly don’t have a clue about how to avoid it, given that they’re busy in almost every sphere placing padlocks on the doors leading to the hallowed Halls of Justice.
What is more worrying is that Mr Miliband didn’t seem to know what the question was asking about. He could have said, “We’re aware of it and are looking at other ways to save money.” Or he could have said, “We agree that cuts need to be made.” Or better, he could have said, “We disagree with these proposals and will oppose them.”
Instead, he gave a general answer which was not thought through and did not address the issue. That may mean that he simply does not care. It may mean that his policy staff have not briefed him. Perhaps his front bench justice team have not decided how to respond.
There is one certainty here. It is that these important plans, endangering the entire justice system and risking devastation for both professions and thousands of businesses, are not on the radar. If they’re not on the radar they will not be opposed. They will not be debated. They will not be questioned and they will not be scrutinised.
If changes like these can go through without even a second glance from the Opposition that is truly horrifying.
We hope that all those who care about justice will carry on trying to engage with their representatives, respond to the “consultation”, attend an MOJ event, and generally keep shouting about what a disaster all this will be. We need to make this an issue which is noticed.
In the meantime, we hope that the letter we had handed to Mr Miliband’s senior policy staff on behalf of all criminal lawyers in Lincolnshire is read and considered carefully. It won’t take long to read, but if these changes go through it will take a lifetime to undo the damage.
So Mr Miliband, here’s the letter again in case it’s been mislaid. A response to our tweets about whether you’ve read it yet would be appreciated. Radio silence so far.
Dear Mr Miliband,
For many years the criminal justice system has been deprecated by those both in Government and in Opposition. The dedicated hardworking professionals serving it have been derided as fat-cats and the decisions of the courts dismissed or criticized. Those in power, the press, and the public have forgotten the value of the rule of law and the benefit brought to a democracy by a high quality court system.
The culmination of this is the release by the Coalition of a green paper entitled “Transforming Legal Aid”. Its proposals represent the climax of a campaign to reduce access to justice and erode the principle of equality before the law.
In the sphere of criminal law the paper proposes price competitive tendering and savage fee cuts across the board. The number of criminal law providers will be slashed from 1,600 to a maximum of 400, but possibly as few as 38 may remain. Publicly-funded criminal litigation will in the future be provided by a small number of providers who bid the lowest price for their services.
In the future there will be no client choice. The market which presently regulates our services by reference to the quality of what we provide will no longer exist. Instead the limited providers will be allocated clients without reference to the nature of the case or the suitability of the provider. The quality of the service is irrelevant and the commercial imperative will be to provide the cheapest possible service. The market share of each provider will be fixed such that the nature of the work done by that contractor will have no impact on whether they succeed or fail. Only bargain basement prices will count.
In a system run in this way justice will suffer. Trials will not be prepared properly as the cut-price service on offer will allow for only the bare minimum of preparation. With every penny being strictly monitored papers will not be read carefully, witnesses will not be seen, accounts will not be investigated and issues will not be identified. The work of the courts will be harder, trials longer, and justice will be inconvenienced by delays, adjournments, mistrials and appeals arising from poor work.
Victims will suffer too. The agony of the trial will be prolonged or repeated. Witnesses will suffer for the same reasons. Defendants, some of whom it ought to be remembered have been wrongly accused and may be innocent, will also be harmed. Some will be wrongly convicted; others will plead guilty to things they have not done because of pressure put on them by a lawyer who can only make the business model work by increasing the number of guilty pleas.
The value of chosen lawyers working in a market regulated by quality rather than price alone cannot be overestimated. We know our clients and our communities. We can give unpalatable advice to implacable individuals in a way untrusted people cannot. We identify the issues in a case from years of collective experience. We help the prosecution to weed out the hopeless cases and are trusted by the courts to make sensible submissions.
Under the new system those links and advantages will be broken and lost forever. With no link between clients and firms trust will be eroded and justice impeded.
The criminal bar is not safe. The new providers will only be able to make a profit by taking all their advocacy work in-house. This will destroy the junior bar and with it the bar’s future. Before long the criminal bar will be a shadow of its former self. Who, then, will make up the crème de la crème of the criminal judiciary? Who will prosecute and defend the most delicate of sex or most violent of homicide cases?
The human cost should not be forgotten. With the loss of criminal work around 1,500 firms of solicitors will become insolvent. They exist on a mixed diet and with a significant proportion of their income removed the entirety of those businesses will be affected, not just crime. Firms will close with the loss to those communities of all those employment opportunities and legal advice services. Small and medium sized towns will be without a local solicitor and their office will stand empty. Thousands of people will be made redundant and become a burden on the state. Those local businesses which had been built up over years will be destroyed at a stroke.
We understand the austerity drive. We see the suffering in our communities and we suffer too. Very few legal aid lawyers are fat cats. Most work incredibly hard for little reward but the value of job satisfaction. However, the financial justification for this destructive policy is not there. The cuts instituted thus far have already saved all bar £52m of the Government’s target. That sum could easily be saved elsewhere in the system if only someone would ask where.
It is proposed that there be no debate on this issue on the floor of the House of Commons. We are told that there is a cross-party consensus for these changes.
We hope you may reconsider that position. The country is presently being led blindfolded into the loss of the most well-respected justice system in the world. Hard-won traditional rights and liberties will be destroyed and honourable historic professions decimated. Once that road has been taken it will not be possible to retrace our steps.
If Labour believes in justice and the rule of law, it will object to these sweeping changes being proposed without so much as a vote in the House.
Help us to Save UK Justice.
Whatever else you might think of them, the Ministry of Justice are pretty good at political spin. All their announcements have been about saving money for the taxpayer. Given that most lawyers are taxpayers, it seems almost like they’re on our side. It’s only wastage that MOJ wants to cut. For reasons I’ve previously given, I don’t accept the MOJ case that this is about saving money.
However, there’s another point here. MOJ never says in its publicity anything which refers to the impact its policies have on people. Not the impact on clients, other people in the justice system, or on the many thousands of lawyers and their staff who will be made redundant, and have the businesses they’ve created destroyed. Exactly how would it feel to the partner in a medium-sized firm who has to break the news to 50 staff members that all of them are out of a job, as is she?
The human impact is hidden, However, I wanted to know how sizeable MOJ thinks the human impact is. After all, they must have thought about that. Only someone completely irresponsible and heartless would not have considered how many people would lose their jobs and what the effect of that would be.
Of course, that’s not relevant only in terms of common humanity. It’s also relevant from a financial point of view. MOJ says it is interested in saving money for the taxpayer. Well, tax income is part of that equation. Every staff member in a firm of solicitors, with the possible exception of a few low hours part-time staff, will pay Income Tax and National Insurance. The employer pays employers’ NI too. So too their various suppliers. The partners in law firms are taxed on their share of the profits of the firm. Banks get paid interest on their financing of the firm. Their landlord pays tax on the rental income. There are utility bills and other services.
In other words, there is an economic impact. A solicitors’ firm is a business putting money back into the Treasury’s bank account, and providing employment in a local area.
If the firm closes down, all of the above revenue is lost. And many or most of the staff employed by these firms go from being economically productive to potentially being benefit claimants. There are other consequences like mortgage repossessions.
So, I thought, if MOJ is really interested in saving money, they’ll have done these sums. They’ll have compared the amount of money paid out in legal aid with the amount of tax and NI revenue, and associated VAT, paid back to the Government. They’ll have looked at the net gains and losses. They’ll have considered how many firms might go under and how many people might lose their jobs. They’ll have considered how many of those are lawyers and how many are other kinds of staff. They’ll have done the economic sums and worked out what the impact of their policy is.
When I heard that the timetable for “consultation” on price competitive tendering was being accelerated, I lodged a Freedom of Information Act request with MOJ to ask about the human impact. What I asked was this:
‘Please provide answers to the following. The questions should be answered on the basis the MOJ’s proposed plans take effect unaltered from the original proposal which is to be put to consultation in April.
1. Has the Ministry of Justice (“MOJ”) conducted an impact assessment for the proposed plans for competitive tendering for publicly funded criminal defence services (“the Plans” and “the Services” respectively)?
2. Has MOJ conducted an equality impact assessment for the Plans for the Services?
3. How many solicitors’ firms does MOJ estimate will become insolvent and/or cease to practice criminal law if the Plans are implemented on MOJ’s preferred proposal?
4. In respect of 3 above, please specify many will withdraw from the sector and how many will become insolvent.
5. How many redundancies does MOJ anticipate will arise as a result of the Plans for the Services being implemented on MOJ’s preferred basis?
6. In respect of 5 above, how many redundancies are forecast to be in the following categories:
b) Support Staff
c) Associated industries, e.g. legal support companies such as providers of paralegal/police station staff,
office suppliers, enquiry agents.
7. How many barristers in independent practice does MOJ estimate will cease to practice criminal law if the Plans are implemented on MOJ’s preferred basis?
8. How many barristers’ chambers does MOJ estimate will close and/or cease to operate in crime as a result of MOJ’s Plans being implemented?’
I received the answer the other day.
Here’s the relevant section in full:
I can confirm that the department holds information that you have requested. The information is exempt under section 21 of the FOI Act because it is reasonably accessible to you, and I am pleased to inform you that you can access it via the following link [to consultation paper]. This consultation is a way for the Ministry of Justice to seek views on the proposals outlined in the consultation document and likely impacts of those proposals. Section 21 (1) of the Freedom of Information Act exempts disclosure of information that is reasonably accessible by other means, and the terms of the exemption mean that we do not have to consider whether or not it would be in the public interest for you to have the information.
So the MOJ says that the answers to my questions are in the green paper.
I accept of course that there are impact and equality assessments of sorts in the paper, but any statement at all of exactly how viable they think this is? How many firms will bid and how many can’t? How many providers will bid in more than one area? How many firms will go insolvent? How many job losses? I accept that the exact answers would be dependent on what happens in the tendering process, but they could estimate or give details of how they’ve considered this.
Those details are nowhere to be seen. The “answer” from MOJ is a total cop-out.
Needless to say, I have requested a review of the decision. Apparently they have two months to consider. In two months time, with the new shortened consultation timetable, the consultation period will be over. So MOJ have shut out any possibility of being able to refer to a FOI answer in response to the consultation.
There are three possible reasons for that. None of them are favourable. Perhaps MOJ simply does not know and has not thought about it. If that’s the case it means they are totally incompetent and moreover have not looked at the overall economic impact of their proposals. That harms their case for saying that this will save as much money as they allege. Perhaps MOJ do not care. That speaks for itself, and is unbelievably callous. Or perhaps MOJ do know the answers, have talked about them, and decided that job losses of these levels are acceptable, perhaps because we’re only lawyers (tell that to the conveyancing secretaries who lose their jobs too Mr Grayling). Maybe, as many of us suspect, this is not about saving money at all. It is about shutting down access to justice.
Whatever it is, MOJ does not want us to have the answers. It does not want an informed debate. It does not want the public to have the full picture and be able to understand what the policy does. One person’s cut is another person’s job. MOJ want the truth to be hidden and don’t want the two to be connected. It wants the truth to be hidden because the truth does not support its case. It wants the truth to be hidden because it wants to make policy based on spin rather than argument.
It is frightening that in a supposedly open, free and democratic society a Government department can act in this way, more or less with impunity.
And that is why lawyers, and the laws they deal with are so important.
I have now had the response to my offical FOI review request. Amongst other things, the answer from MOJ is this:
In relation to your Questions 3 to 8 which relate to insolvency of firms and redundancies, the answers to your questions are partly contained in the consultation paper and impact assessments but no statistical analysis on the impact of the proposals in terms of redundancies and/or insolvencies has yet been carried out. The Ministry of Justice does not hold the data required to conduct such an analysis. However, in accordance with usual consultation practice, we have invited respondents to the consultation to highlight which other factors we should take into consideration when conducting our final impact assessment based on the policy decisions made (including the final design of a competition model) and provide any necessary data to support such an assessment.
So it would appear that the answer is “we don’t know and we haven’t thought about it”.
How, if a Government is genuinely seeking to save money, is it possible to produce proposals and not reflect on what the consequences of those proposals will be? If the net saving is reduced or extinguished because of other systemic costs arising as a consequence, the aim of the policy will not be achieved.
This aspect of the plan is incompetence, pure and simple.
Mr Halloran at Lawtons Solicitors has done some more work on the figures.
To help him publicise the work I’m reproducing it in full below. The original can be seen here.
The amount spent on criminal legal is said to be over a billion pounds a year. It has been used in the Consultation document, accompanying press releases and articles by the Secretary of State.
A proper considered analysis of the figures reveal a different picture. The suggested spend figure for criminal work in the Consultation document is put at £1.109 billion.
These figures relate to work billed in the period 2011/12. As such, it relates to historic work billed in that financial year and does not provide an accurate spending figure for current rates. The point about this is that the reductions imposed since 2010 are not reflected in the published figures.
The up to date spending figure, we are told, will be provided prior to any bid round. They are in fact available as projected figures. The latest figures available are contained in the Business Plan for the Legal Aid Agency (LAA) published on 16 April. This will be subject to scrutiny from the Audit Office and is the first Business Plan from the LAA. These figures will be accurate.
The projected spend on criminal legal aid is £941 million for financial year 2013/14. The saving on the figures used in the consultation document is already £168 million.
The aim of the consultation is to achieve savings, from the criminal budget, of £220 million by 2018/19. If the correct figures are used the saving needed is £52 million.
The effect of previous reductions in scope are still being felt and will have an impact on the overall spend going forward. This is conceded in the LAA’s Business Plan.
The historic spending figures also reveal the extent of the cuts already imposed. A consultation document from the MoJ released in November 2010 (Proposals for Legal Aid Reform) provide the historic spending figures on criminal legal aid.
In real terms, allowing for inflation, the current projected spend is less than the spend on criminal legal aid in 1997/98, when the spend was £955 million (page 215). Even this figure is 3/4 years out of date.
The amount of legislative changes since 1997/98 have been significant and this has been a cost driver. The prison population in 1997 was (including those subject to a suspended prison sentence) 69,000. The prison population in 2011 was (again including those subject to a suspended prison sentence) 116,000. These figures are in a report published by the MoJ in 2013 entitled Story of the Prison Population in England & Wales 1993-2012.
Despite the increase in the complexity of the work we are being asked to deal with and the seriousness of the work, as judged by the substantial increase in the number of cases crossing the custody threshold, the efficiency of the legal aid system is evident.
The savings and efficiencies that are being asked of the legal profession have already been achieved and then some.
… unusually for me.
The Law Society Gazette has published an excellent article which echoes many of the sentiments I hold.
It’s worth looking at the comments at the bottom, because Stephen Halloran of Lawtons Solicitors makes a rather good point.
The consultation is aimed at reducing expenditure by £220 million, but the paper is based on old data about legal aid fees, before recent cuts, rather than current data reflecting cuts which have already been made. The fees being paid in legal aid now are already significantly lower than those referred to in the consultation document.
I knew that much. However, Mr Halloran has very diligently done the maths, and points out that apparently savings of £168 million have already been achieved.
That would suggest that a far smaller saving is required to get the MOJ to the level it apparently wants to achieve – only £52 million.
To impose further cuts on top of such already significant cuts will lead to bid figures very much lower than even the consultation envisages. This is not a financially viable model for the provision of basic services, let alone quality ones in the interest of justice.
Secondly, if the savings to be achieved are relatively modest, only relatively modest changes would be required to implement them. No need to destroy an entire system and cause thousands of redundancies for such a small gain. The entire process becomes utterly disproportionate.
And of course it could be asked whether the savings from legal aid are already sufficient, and changes elsewhere in Government could make up the difference.
Indeed, the cost of consulting, considering responses, reporting, legislating, and dealing with the knock-on effects from the process and whatever results from it are likely to far outweigh these modest savings.
The MOJ should think again.