Iolanthe Part 3

The last in an occasional series where I meet the Lord Chancellor…..

Now people, don’t be lazy. Please read Iolanthe Part 1 and Iolanthe Part 2 before reading on in order to get the full context.

A recap. In Part 1 I reported how the Lord Chancellor was asked if he could give an early reassurance on client choice and his response was to say he was listening but could do no more at the moment because he was in the midst of a consultation that he had to let run its course…..three days before he was widely reported in the press giving an early reassurance on client choice. In Part 2 I told you how the Lord Chancellor revealed he had been talking to people who thought they could provide a service within his “financial envelope” of savage cuts……which turned out to be the Law Society.

In Part 3 you will hear some of the Minister’s views on lawyers, fat cats and Michael Turner. And when you hear how some of those views are expressed you may also find out what his opinions really are!

So the next topic covered was the eligibility criteria for criminal legal aid and the £37,500 income threshold. In what you may view as a socially awkward moment the Minister asked the questioner if he understood the income threshold. He then went on to explain, speaking very slowly so we could keep up, that it was disposable income that was the determining factor and not income. He then went on to explain what disposable income was. We were all managing to keep up. He then went on to explain that it basically meant that someone had to be earning a six figure salary before they would be caught by the income threshold.

[I am just going to interrupt at this point. He had been doing a good job up to now of telling us what we already knew. But his protestation that it basically only captured those on a £100K salary did, perhaps, reveal something he did not know. It is household disposable income. So two headteachers, married to each other and their work, would in many instances have a joint income in excess of six figures. If it was the case that one of them was the subject of a malicious allegation by a disgruntled or emotionally vulnerable pupil then they may well not get legal aid to assist them through one of the darkest hours of their life. This income threshold does not just capture the wealthy. It captures many a hardworking household.]

However the Lord Chancellor then went on to reveal the things he really did not know. He was asked how many cases that were granted Legal Aid last year would now be excluded by this threshold? He did not know. He was asked how many households fell in to a bracket that would be excluded by this threshold? He did not know. He did qualify the restriction by saying that there would be a discretion to allow Legal Aid in certain cases.

[I presume by this he was not simply referring to cases where the public would quite like the defendant to have Legal Aid but was a reference to financial hardship etc. Let us for a moment just imagine that the Lord Chancellor was right and this provision only captures those in the very highest bracket of earnings. In these circumstances I would imagine a high proportion of people falling in to that category are prosecuted for fraud or commercially related offences. Those are often the more complex prosecutions. Not made complex by the lawyers but by their very nature. Hence they are often quite costly. So costly that most people’s disposable income would be dwarfed by the cost of the case. So they would be exempted and receive Legal Aid under a hardship test. So all we have achieved is the added cost of the whole process of eventually granting them Legal Aid with all the administrative cost and delay that will entail. Brilliant.]

The most junior practitioner in the room, a barrister conducting publicly funded family work, then addressed the Minister. He described the increasing reluctance for practitioners to undertake publicly funded work. He described his own regret at having followed this path already. He eloquently told the Minister, “the Bar is not making up the fact it is under threat – it IS under threat”. The young barrister then deplored the fact that the consultation introduction drew unfair comparisons with the salaries of public servants and the press statements relating to the income of the Prime Minister.

[Hold on to your hats….] The Lord Chancellor responded, “If somebody is deriving their income from Legal Aid work, in my view, rightly or wrongly, then I struggle to see why, taking in to account chambers fees, VAT, pension contributions, why someone’s actual personal income from criminal Legal Aid should be more than the Prime Minister earns and the truth is at the top end of the scale we have people earning considerably more than that.”

[I am making no comment. The fallacy of this argument has been dealt with elsewhere in an excellent piece by Matthew Scott.]

He continued, “I have been accused of saying that barristers are fat cats, I have never said barristers are fat cats.”

[You may never have used those words. It is just an unfortunate coincidence that those words appear in newspaper stories that report your view that barristers should not earn more than the PM whilst we are treated to another photograph of you, arms folded, looking tough in a prison. I await your complaint to the PCC.]

And then, “Look, financially and logically we should just go for one case one fee. It is obvious. It makes perfect sense. Its easier to operate. It creates a streamlined system but I don’t do it because I didn’t want to destroy the Bar. I have had colleagues say I should do it but I didn’t want to because I want to preserve the Bar.”

[And in that moment we have both reassurance and a threat. I feel cared for like an orphan being called “my dear” by Fagin.]

Yet the words of support kept on coming, “I don’t think the Bar is in trouble per se. I think the Bar has a big challenge because of the number of people in it and the number of people trying to come in to it. I recognise coming in to the publicly funded Bar is much less financially attractive than coming in to the commercially funded area of the Bar but that’s the decisions we take. That’s why I became a member of Parliament instead of carrying on with a job where I earned £60,000 per year more than when I became an M.P. You do it because you want to do it.”

[Now reader, wipe away that tear. Stop the gratitude swelling your heart for the selfless sacrifice to public office made by Chris. When he became an M.P. he had the prospect that the more successful he became his income would increase in proportion to the responsibility of his role. He also had the safety net of the potential for a pay rise. I have no such comfort. He was able to emply his wife on a salary of £37,500 per year, paid for by the state. I am sure if I could employ a member of my family as my clerk and have the State pay for it, I would find my income would go that little bit further. He has the State contribute towards his living expense for a second home, despite his proximity to London. When I go to Bristol next month to do a trial, I will pay for my hotel out of my fee. If he is voted out of office at the next election he continues to receive an income from the State as he continues to receive his salary. If all my solicitors go out of business in the autumn I receive an income from the State. But it is means tested and called Job Seekers Allowance. So Lord Chancellor, although I began in Part 1 saying I was impressed by you, this is the point when you started to lose the room completely. This was the moment when we were treated to the duplicity that lies behind the cuts.]

But he did go on to reassure us that he “knew junior publicly funded barristers are not earning a massive amount of money and are not fat cats. I have never suggested they were [my dear]”

It was probably for the best that the discussion turned at that point to the unintended costs of litigants in person becoming more prevalent. The Minister was adamant there was no evidence of that. [By that he meant statistical evidence, we can ignore the experience of the Judiciary.] He also stated that he was not worried about not being able to find suitable experts as “we still pay experts £70, £80 or £90 per hour so they are not going to be impoverished as a result of it.” [ Can I be paid £70 per hour? Can I be paid for my preparation and my attendance at court? Please Lord Chancellor, can I?]

As the allotted time neared it’s conclusion we were told, ” We are going to take decisions as sensitively and as thoughtfully as we can. Every decision we’ve taken has been taken for a reason. We may have got some of those reasons wrong but that is why we do a consultation and looking at what people have said and being smart enough to spot when someone says you haven’t got that right and work on it through the summer.” [Except when it comes to client choice, which he will decide upon immediately before appearing in front of the Select Committee because that could have just been embarrassing.]

And then came this gift, “I promise you I do listen and try to talk to people. It is said Chris Grayling never talks to lawyers. That is simply not true.” Which allowed Paul Becker to immediately pounce with, “Well why haven’t you met with Michael Turner?”

Answer……”Michael Turner had a meeting last week with my colleague Lord McNally. There are a lot of people to meet, we are not each meeting with everyone. I have met with the Bar Council, the Law Society, Circuit Leaders, Law Society regional committees and about seven meetings like this with lawyers. Lord McNally saw Mike Turner a couple of weeks ago. Maybe three weeks ago, so we are not ignoring anyone.”

[I probably need make no comment. And yet I cannot resist a little word or two. The list of people the Lord Chancellor had met was impressive. The name Mike Turner is a glaring admission. When dealing with a consultation that includes swingeing cuts to the fees paid to members of the Criminal Bar who would you have at the head of the list that the Lord Chancellor should spend his Friday evening talking to? Me, a criminal hack, or Mike Turner, the voice of the Criminal Bar Association? The idea that this is as a result of Mike Turner having been met by Lord McNally instead of the Lord Chancellor was just too delicious for me, as anyone who has read The Wizard of Epsom will understand.]

And with that, following a photo opportunity which was, for reasons I will not trouble you with, personally hilarious, the Minister was gone.

So what did I get from the meeting? It made it clear to me what we face. As has been demonstrated in the last 48 hours there will be changes and modifications along the way. However I am convinced that he still considers it necessary to introduce catastrophic changes to the system. Yes he will ameliorate the proposals by altering client choice. Everything else is still in the mix. I cannot help but think reducing access to justice is as troubling as ignoring justice. I cannot help but think headline grabbing capital is being made out of things like a residence test for eligiblity. I make no bones about the fact that the perceived need to reduce fees is dangerous, unfair, unthinking and just wrong. I will not apologise for feeling that the work I do requires adequate remuneration. I do not think it is self interest in wanting skilled, not just competent, advocates and lawyers to be present to play their part in the prosecution of the culpable and the protection of the innocent.

Those who oppose these changes oppose almost every aspect of them. The brutal truth is that the Lord Chancellor sees himself as a reformer. Transforming Legal Aid is his crusade. A petition alone is not going to defeat him. Articulate argument is not going to defeat him. Demonstrations with lawyers carrying the coffin of legal aid are not going to defeat him. Strongly worded letters to the Times will not defeat him. Vaguely amusing blogs will not defeat him. But defeat him we must. He has to be forced to see that cuts are unsustainable. He has to be forced to see that the concept of justice is not about unit price, or mere competence, or commerce but is about excellence. I cannot think of anything that underpins our nation in terms of its spirit, rather than just a flag, more eloquently than a sense of right and justice.

Everything that has gone before in terms of opposition has to be redoubled. The petition needs another 100,000 signatures. We all need to keep sharing our thoughts and information. We need to keep the clarity and force of our arguments in the public conscience. In a coalition of thought as disparate as those who oppose these plans there will be difference of opinions but we need as much unity as we can muster in line with our individual beliefs. We need to be prepared for the fact that, in due course, the Government will introduce a series of changes which are unacceptable. And then we must prepare for action. Direct action. And in that we must be bold, unswerving and skilfully led. I know my enemy. I do not underestimate my enemy. I know we can win.

PS it really bugged me throughout the meeting who the Lord Chancellor reminded me of. Then it struck me. His incessant use of “Guys” was reminiscent of Cliff Richard in Summer Holiday…..

Thank you for reading. If you have not done so already, please see what else was said in Iolanthe Part 1 and Iolanthe Part 2.