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?
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.