Iolanthe Part 1

On Friday evening a group of barristers and solicitors met the Lord Chancellor. This is my report of the meeting interspersed with my commentary [in italics]. I am going to try to provide as much detail as possible so will split it in to three parts posted over the next few days. Part 2 is now available here.

I have met three Lord Chancellors in my time at the Bar, Lord Mackay, Lord Irvine and Chris Grayling. Who is the odd one out? That’s right, Chris Grayling. Why? No, it’s not because he is not a lawyer but because he is the first Lord Chancellor who has consulted and then engaged with me personally about fee proposals. If you have read my previous blogs then this may come as a surprise to you but last night I was impressed by Chris Grayling.

Pick yourself up off the floor. This may seem like heresy so let me explain. I have not suddenly changed sides. I have not suddenly changed my view of the proposals. I am not suddenly blind to Chris Grayling’s faults. I have not suddenly donned a short skirt and a tight fitting tank top emblazoned with the initials CG to wave pompoms as the Minister’s chief cheerleader (and there are many reasons we can all be grateful for that).

Yet I confess I was impressed by Grayling on Friday night. I was impressed that he bothered. He did not have to come along and talk to a room full of lawyers in the Town Hall at Altrincham. I appreciate he may have been doing local MP Graham Brady a favour. I appreciate he was in the area. I appreciate that he was not meeting Mike Turner (and more of that later). I do however, appreciate that he came, talked and listened.

The fact that he did do has given me a greater appreciation of what legal aid practitioners face. It has allowed me a greater understanding of where he is wrong and why he is wrong. It has also allowed me to appreciate that we are not opposing some fool or some ideological bound bureaucrat. He was well briefed. He understood his brief. We underestimate him at our peril.

So let me report what happened. The meeting was organised by Neil Usher from Lincoln House Chambers in Manchester via his constituency MP, Graham Brady. The meeting was attended by barristers and solicitors in the constituency, although Neil did manage to sneak in one or two interlopers such as myself.

The meeting began with the Minister describing how this consultation did not come about from a desire to reduce the Legal Aid budget out of some ideological crusade but because a combination of previous and recent spending reviews means that the MoJ budget will reduce by roughly 12% by 2016. He sought to explain that Ken Clarke had concentrated on civil Legal Aid and now it was the turn of crime. He described how the Legal Aid spend needed to be reduced by 10% and that was consistent with other reductions within his remit in prisons, probation and court services. He made it clear that this was not an “and/or” situation. They were looking at all aspects of the Criminal Justice System such as restrained assets, offenders paying more towards the cost of cases, efficiencies gained by digitalised courts etc.

[Having heard this opening statement from the Minister I am quite satisfied that he will not view alternative proposals about saving costs such as put forward by the Bar Council or the CBA as being sufficient. I have no doubt he is looking to make such savings. It was also clear that he did not view that as an alternative to savings from Legal Aid. So let us make no mistake – at the end of the consultation process there will significant cuts to fees.]

He continued “I am very much of the view that when you are driving down costs you actually have to reform as well or otherwise in the end you slice and services fall over and so therefore, in part, particularly for the solicitors side of the profession, the challenge is very much to me about how we ensure that costs can be brought down but at the same time we do that with an evolving structure that is able to cope with a cost reduction and doesn’t actually lead to small business who do not try to change falling over or we end up with areas where we have no contractual levers and we have no more provision.” He went on to say that he “can’t change the overall direction” and that he had engaged in very constructive discussion with the Law Society and individual lawyers about how to change the system.

[I find this an interesting dilemma for the Minister. He recognises that solicitors cannot withstanding any further cuts. He recognises that if solicitors fail he will be left with gaps in the provision of essential services. His roll of the dice is that PCT means that they will not fail. It is an almighty gamble. It is also a gamble where the consequence of failure is catastrophic. If a provider gets it wrong and collapses post PCT there are less providers in place to plug the gap. I also cannot see why he sees that the solicitors have been cut to the bone but cannot see it is exactly the same for the Bar]

When the Minister then turned to the Bar he indicated that the focus was on VHCC costs but that for the most junior end of the profession the changes would produce a static level of income and, in some case, a small increase.

He then moved on to the consultation. He, curiously, stated that they had received 16,000 responses but that 5,000 were individual response with 11,000 being templates [and no, I have no idea what this actually means]

He was asked by a senior solicitor present whether he could give an early reassurance over client choice. The answer took some getting to! He began by stating that he was not interested in “all price and no quality” but that he had to “achieve the financial envelope”. He was “not interested in someone who turns up with a bunch of law graduates for a tenth of the price, that was not the game”. He outlined how there were three stages. He needed people to demonstrate they were able to operate at 17.5% lower than currently. Then they had to demonstrate that they could provide quality solicitors providing a quality service which was viable. Then, he described this as the “tie-break” they would look at who is the more efficient. Finally he turned to choice and told us “if we’re asking firms to amalgamate, invest in new systems or takeover small firms or whatever it may be we need to offer some degree of certainty around volumes, and this seemed to be the best way”.

He then explained to us that there were two categories of defendant, “offenders” who had been in the system before and “accused” who were first time entrants in to the system. The Minister stated that “accused” customarily opted for the duty solicitor and “offenders” went back to the solicitor they got when they were first an “accused”. He said that the proposal was to allocate cases in a way that just meant “offenders” were not guaranteed their choice of solicitor but were still allowed to select a barrister if they required the services of a specialist advocate. In relation to choice he stated he was listening to what the profession had to say about it.

It is clearly the case that as the consultation was still ongoing then he would not be able to give a definitive view at this stage. He described the proposal as a “starter for ten” and then said ” we have a road we have to travel down, a place we have to get to. If it requires us to modify the line of the road because the consultation comes up with a compelling argument that we have to one thing slightly differently compared to another I am prepared to do that”.

[This echoed a theme that was evident by the time the MoJ Roadshow came to Manchester. It was repeatedly said that they had heard what was being said on client choice. I, and this is purely a personal view, think they realise that client choice is an area of vulnerability. They realise it is an area which will cause opposition from many different quarters. However the profession should not view this as being the death knell for PCT. I have no doubt that they will spend the summer trying very hard to build as much choice as possible in to PCT. The Lord Chancellor spoke of a road. He is simply trying to get around a traffic jam. He is still trying to get to the same place. 17.5% cuts which he knows he can only do with PCT.]

I then had my opportunity to speak. I tried to explain to the Lord Chancellor that further cuts to advocacy fees would have an impact on quality as experienced skilled practitioners would turn their back on crime due to plummeting incomes. I gave him the comparison of what I earned per hour in a specific criminal case compared to how much I was paid in a particular regulatory case. I said to him that he would choose to do the regulatory case every day of the week if he could.

His answer troubled me. He began by saying that the criminal Bar had increased by 20% at a time when crime was falling. He understood that there were 3,000 people training and only 300 pupillages. His view was that there were too many people chasing limited work.

[Think about this for a moment. This is the answer when told someone with 20 years experience and a Level 4 prosecutor may cease doing crime – “there are 3,000 behind you waiting to step in to your shoes”. He believes there are too many at the Bar and therefore does not care how much experience or talent is lost, as long as some of us leave. In taking this approach he pays no regard to the ability of the advocate and scant regard to the value of experience. The implied view seems to be “if you want to take your skills and experience elsewhere…..good”]

Neil Usher tried to illustrate the point. He cited on individual who is known to be highly thought of but who is leaving the profession this year. Another barrister in the room of six years call told the Minister that he had just concluded a case whereby the taper proposals would have meant he would be paid £6 per hour for that case. Why should he continue to do crime? Someone else told the Minister that under the new proposals more solicitors would feel the need to undertake Crown Court advocacy to maximise potential profit and he feared the death of the criminal Bar.

The Lord Chancellor said these were reactions he struggled to understand. “If I were running a business,” he said, “and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”.

[I have to confess to a heckle at this stage. I could not contain myself. The phrase “Can you have a word with the DPP?” was out of my mouth before I could stop it. I wanted to embrace the Lord Chancellor to my bosom and thank him for finally understanding what the Bar had been saying to the CPS for years. I know many of you do not rate Chris Grayling as Lord Chancellor but I reckon he would make a fine DPP…. Alas it may only demonstrate how when it comes to Government and justifying budgets there is more than one absolute truth….]

TO BE CONTINUED click here to read more

7 thoughts on “Iolanthe Part 1

  1. Neil

    Very interesting, although ultimately worrying. The point he makes about freelancers does not hold water, because there are (i) two fees – for litigation and advocacy, and (ii) fees are set externally. When one uses freelancers in other market places, the money comes from the client at a price set by the market. It does not in the solicitor-barrister world. That difference is what drives in-house advocacy. With a larger and guaranteed number of cases, there could only be more in-house work because of the need to make money, however little, where one can find it.

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  2. Tim

    It is clear that his explanation for the cuts (ie. they are driven by a need for austerity) should not be taken at face value. The cuts are driven by a political ambition to abandon the promise that the state will look after the vulnerable.

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  3. Pingback: Save UK justice: the blogs | ilegality

  4. Robert Hardy-McBride (@Robert_HM)

    I am sorry but just because Grayling says that other savings are to be ignored, that has to be taken as Gospel. Procurement inefficiencies cost us dearly, save those then he should be satisfied, if, however, he still attacks Legal Aid, it is not an austerity measure, it is political and probably political on his personal career level.

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  5. Pingback: Iolanthe Part 2 | A view from the North

  6. Pingback: Iolanthe Part 3 | A view from the North

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