Tag Archives: Attorney General

Rights and Wrongs

The night of the long knives has arrived. The Prime Minister sits alone in his office. Before the night is over the walls will be coated with the blood of many a politician. The BBC correspondent, Nick Robinson, has just Tweeted that the Lord Chancellor is on his way to see the PM. That meeting never actually happened. This is the imagined conversation if the meeting had taken place.

LC: Prime Minister, before you make any decisions that I come to regret can I just say that it’s not all my fault. I mean we never expected that the barristers could get organised but it’s all sorted now. There was a problem, now problem gone. And we still have the solicitors on the ropes. And the prisons, well we embarked upon a benchmarking process and we set the benchmark too low for the number of officers compared to our high benchmark of the number of celebrities, I mean, offenders we lock up…..

The PM raises his hand to silence the gabbling Minister

PM: I haven’t asked you here to sack you. I need some advice about legal stuff.

LC: The law?!? Me? Are you sure….

PM: Well not the law as such.

LC: Because if you want law, we should get Dominic in.

PM: That might prove a little……awkward. What I need to know from you is what law stuff we need to make it look like we are dealing with in order to win the election outright. I can’t face another five years of Nick Clegg and all that “ooooh I’ve got a conscience” nonsense.

LC: I have always said that public confidence in the Legal Aid system has been undermined.

PM: Do we still have a Legal Aid system?

LC: Sort of. Not much of a one, but it is still there.

PM: So how do we know that the public are bothered about the Legal Aid system?

LC: Because I just said so.

PM: I know you did. But how do you know?

LC: I don’t. Not really. But it always sounded good. So I say it a lot. It works for everything. You should try it; ‘the public’s confidence has been undermined in prison sentences so I am going to triple them’ or ‘public confidence has been undermined in the probation service so I am going to sell it’. It works in any situation.

PM: But I need something that the public are really bothered about.

LC: You could try human rights and the supremacy of the European court?

PM: Why do the public worry about the supremacy of the European court?

LC: Because we keep telling them there is a problem. Every time we get caught out…. I mean every time those foreign Judges try to tell us how to run our country by applying a bunch of alien standards that we drafted in the first place, we just explain that they are wrong and pop a Minister on TV to whine about us being steamrollered by Brussels.

PM: Do we know that is something the public actually worry about?

LC: Oh yes.

PM: Can I just check how we know this?

LC: Because UKIP tell us the public are worried about it. And if UKIP raise it, we have to address it. It is all about capturing the heartland of grassroots in the public imagination.

PM: And is there a problem?

LC: Not really no, but it gives us a good excuse when we lose. Which we don’t do very often. In fact the European courts interfere with the actions of our Government only a fraction of the time that they do with the rest of the signatories to the Convention. We are one of the good guys. But I am not going to sit idly by and have some Eurocrat tell me how bent my banana can be!

PM: So we have told the public there is a real problem about sovereignty when there isn’t really and UKIP now tell us that the public are really concerned about this when they really probably aren’t and the upshot of all this is your banana is too straight, have I got that right?

LC: Yes. Kind of. The bit about the banana is made up but the rest is spot on.

PM: Right, well we need to do something about this wretched court then. Something tough. We need to tell them we won’t stand for this any more. Like I told them about that Juncker fellow. That made ’em listen.

LC: Just one problem. Dominic has advised us in the past that not only is it very difficult for us to pull out of the European court, he also advises us it would be a bad idea.

PM: Just who does he think he is?

LC: Strictly speaking he is the senior adviser to the Government on all things legal.

PM: No, you mean he was the senior adviser to the Government on all things legal. As of about ten minutes before you walked in the door I got all “Lord Sugar” on him and fired “me learned friend”.

LC: I have a cunning plan.

PM: Ho ho, I loved that show….

LC: Show? What show?

PM: You were just doing a bit of Baldrick there weren’t you?

LC: No. I have no idea what you are on about. What I was saying was I have a plan more cunning than a box of frogs with a combined IQ of over 200 and a set of Encyclopaedia Britannica.

PM: Are you sure you are not quoting Baldrick?

LC: NO! This is a chance to really show we are all in it together. I have been saying all along that we will provide an adequate lawyer of basic competence when the public pays.

PM: And….

LC: We can show that you are no different. At £161,000 we have one of the most expensive Attorney-Generals in the world. And after this reshuffle we will show we are still the most generous with whom we hand it out to. So as long as the new Attorney-General is an adequate lawyer there may be some benefits to you.

PM: Such as?

LC: Well when it comes to those tricky bits of legal advice your adequate Attorney-General may be a bit more inclined to give you the right sort of advice rather than the advice to do the right thing.

PM: I get it. So when we hand out the Lord Chancellor’s gig to you I was giving it to an attack dog….

LC: …..Thank you Prime Minister….

PM: …..and in order to get tough over Europe I now need a lapdog…..

LC: Yes, Prime Minister.

Position Vacant – No Experience Required

I will declare this personal interest – many moons ago, when we were both undergraduates, I was kind of friends with Robert Buckland MP. I believe him to be an able and decent man. He is also an all round nice fellow. Nice enough that, when I contacted him through the mist of years to discuss Legal Aid, he was prepared to listen and engage.

This is not just a bit of lame name dropping by me, it is so you know that background when I excuse him from the criticism that I level here. He has been appointed Solicitor-General and I do not see anything wrong with that appointment. He is an able deputy to the Attorney-General, being called in 1991, practising until 2010 and being appointed a Recorder in 2009. What is remarkable is that he is the deputy to Jeremy Wright. The new Attorney-General was called in 1996 and was elected to parliament in 2005. From that point on his entries in the members’ register of interests reveals he has not practised. So the deputy has nearly twenty years post-qualification experience, the head guy has no more than eight.

The criticism of this appointment is clearly voiced in Matthew Scott’s blog and I invite you to read his piece where he describes Jeremy Wright as “the least distinguished Attorney-General in two hundred years”. I am not going to repeat all the points that Matthew eloquently makes.

What I would observe is that this is not a position forced upon the Prime Minister. It is not due to a lack of adequate candidates that we now have a non-lawyer as Lord Chancellor and a non-silk, 8-year-PQE-lawyer as Attorney-General. One could point out, for example, that the Solicitor-General is more qualified for the job than the Attorney-General. It is also not a constitutional requirement that these offices should be filled by MPs. They are principally legal appointments which are now being filled by politicians. The PM had the choice of a field of able and experienced lawyers that could be appointed to the job. He could have limited himself to ones that share his political views and still had dozens and dozens of Silks who could undertake this job. Instead we have a politician in the most senior non-judicial law job in the land.

What does that matter? Everything. It sets the tone. He is notionally the Leader of the Bar (and the Bar Council should act immediately to end that tradition after this appointment). He advises the Government on the law (would they usually go to someone with 8 years experience to advise on whether we go to war?). He appoints the head of the Crown Prosecution Service (a job that an 8 year post call advocate would not even get an interview, if he applied). All of this is now being dealt with by an appointee who is first and foremost a politician.

I venture to suggest no Prime Minister has ever lost a General Election because of his choice of Lord Chancellor and Attorney-General. The Prime Minister could have appointed able, talented, experienced lawyers to these posts. But that would not be politically expedient. This part of the Cabinet deck of cards riffle shuffle makes it more likely that the Government can act in a way which they hope will win them votes but will mean that this nation will lose the Rule of Law. And that leaves me terrified.

My Learned Dodo

When I came to the Bar I hoped for a glittering career. I have always been suspicious of any barrister who does not begin their career with a hope of obtaining Silk. It takes such a tremendous quantity of confidence and self-belief to take to your feet for the first time it can only be a life which those who believe that they can be the very best would embark upon.

The extent to which my aspirations have been held back consequent upon my ability is not for discussion here and at least some of my confidence can remain intact, even if it is misleadingly so. However the time has come now, 20 years in, whereby my fears are not where my career will go but when it will end.

In recent times both The Lord Chancellor and the The Attorney-General have expressed the view that there are too many barristers. It would seem to be the case that they are linking this to a reduction in the level of fees paid in each individual case. My contention is that the number of barristers is not a matter for Government, and my instinct would be that it is certainly not a matter for a Conservative Government. Surely a Tory administration would welcome open competition between individuals who are engaged according to their ability?

Leaving political persuasion to one side, I find it remarkable that the level of fees is being used as a tool by the administration to thin out the number of barristers. At the outset of the PCT consultation the Badger cull was metaphorically referred to. This is now a more direct comparison. The Bar are being culled. Remuneration is the lethal device of choice.

The reasons why this is wrong are palpable. Not one word of either of the consultations refer to fee cuts being wielded as the executioner wields his axe when it comes to the Bar. The case for cuts is made out on the basis of economic need. The longer this goes on, the more I am convinced that the cuts are motivated by ideology. Economic difficulties have given the Government the opportunity to pare down the numbers of pesky lawyers.

Why is it any business of the Government how many barristers there are? When we are not working we cost the taxpayer precisely nothing. When a criminal lawyer is required barristers are available to advise and represent. We are an army of specialists and locums available without being on the payroll or representing a pension burden.

To prove the point I will rely upon this quote “if I were running a business 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”. Not my words but the words of Chris Grayling. So why does he want to reduce the number in the team of the experienced freelancers?

Fees for cases should be set at a rate which represents fair remuneration for the work undertaken. It seems that implicit in the uttering of Grayling and Grieve that they acknowledge the rates will be fixed at a level that only members of the Bar with extensive diaries can survive. Which is great news for anyone hoping to divide their time between their family and their career. And gives little hope to those yet to carve out their own practice. This is not a series of cuts aimed at fat cats. This is a cull which will come for the scrawny cats first. Oh, and by the way, I can only really do one trial at a time. So I would like to be paid appropriately for the work which it involves.

Let there be no mistake. Not only are the Bar right to fear we cannot survive further cuts to our remuneration but we should now fear that is the intended consequence of the proposed cuts. A fan of conspiracies may view this as sinister in the context of a Government that seems intent on reducing or removing the ability of the citizen to challenge the State. I do not know about that. But I do know one thing – the Bar and the opportunity for people of ability to become part of the Bar are things worth fighting for.

We should not sit back and simply accept cuts. This is about each of us fighting to preserve our existence. In War of the Worlds, HG Wells described man’s initial failure to react to the Martian invasion in these terms “So some respectable dodo […] might have lorded it in his nest, and discussed the arrival of that shipful of pitiless sailors in want of animal food. ‘We will peck them to death tomorrow, my dear’.”

Fighting the cuts is not to oppose austerity. The Bar are not the latest public servants to experience cuts. We were at the vanguard of the cuts. Now it is about each individual taking responsibility for taking action against the proposals. The stated intention of the Government is to put you out of business. Do not be a dodo. Start pecking back. NOW.