Horses with Parachutes

To misquote Hot Chocolate: “It started with a consultation, never thought it would come to this….”

It seems like a long time ago that we all responded to the first consultation entitled “Decimating Justice” or some such. Then we had “Decimating Justice: The Next Slaps in the Face”. Or something like that. And now we have a consultation about how we go about papering over the cracks that the Government have caused. 

I am all consulted out. I will, of course, respond to it in due course. Not now, however I do have a few immediate thoughts to share with you. 

We seem to be on the eve of the age of Two Tier. This is a dark day indeed. I would just take the opportunity to remind one and all that TT is not the Bar’s fault. It is important that we all remember that. I cannot think of one barrister or representative body that has said “Yeah, TT, that’s grrrrreat.” This was the product of the Government failing to place proper value on the work of criminal solicitors and then the Law Society trying to ameliorate the impact of “consolidation”, that being a euphemism for putting people out of business. 

What is more the Bar have tried to oppose Two Tier. Both in words and action. That opposition has not always been as direct as many of us would have wanted. That was quite hard to achieve without solicitors mounting a concerted effort to defeat TT. That is not to say that there were not concerted efforts by some. The JR was a tremendous effort in terms of energy, money and personal endeavour by many. Clearly many solicitors have forcefully argued against TT from the outset. 

When the Bar voted in significant numbers to return to direct action in order to support the action of solicitors, the underlying motive for many was to try to defeat TT. Sadly the collective will has never been there to directly oppose TT by means of direct deed, the most obvious direct deeds being not bidding, withdrawing bids or not signing. I understand the reasons why that has never happened. That does mean I think it should not have happened. It should. Time and time again the Government point to the fact that we work at those rates or we sign those contracts or we do the work. TT could have been avoided. But who knows what would have risen in its place!

So we are where we are. And the response to the consultation has to be with a view to protecting the administration of justice in a post TT landscape. And if you are at the Bar, it has to be about how to survive in a situation that is not of our making. 

The other most striking thought this evening is that this is all the wrong way round. It strikes me that the Government are now consulting on whether to introduce legislation to make the closing of stable doors mandatory when the horse is already in the next County. 

Lord Carter made it quite clear in his review that, before any consolidation in the market was attempted, a proper tested system of quality control needed to be put in place. It seems the Government are now thinking about how to ensure quality in a market that has been consolidated. That is folly in the extreme. What if the necessary quality assurance measures prove impossible to put in place? What if they are not put in place in time?

It is like jumping out of plane hoping someone will throw a parachute out after you. 

It also strikes me that this is all very unfair to those that did bid and those that did not bid. It is a distinct possibility that firms which have been relying upon an income stream from advocacy will have that curtailed or cut off. Which is why it makes more sense to do it the other way round. Establish the framework then get people to bid with the requisite knowledge. 

The current consultation keeps referring to the fact that the threat to quality is not the fault of the Government’s actions. It must just be a coincidence. It saddens me that the Government cannot see that the threat exists to the entire Criminal Justice System. Remuneration is a driver of quality in the police station, in the Magistrates’ and in the preparation of Crown Court litigation. Where is the consultation on how to maintain quality in those areas?

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