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?
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.
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.