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