Tag Archives: Chris Grayling

FOC 

The Criminal Courts Charge is a bad and pointless thing. Everyone knows it, with possibly one exception in the form of C. Grayling MP, TB (Total Buffoon). The problem, it would seem, is that the MOJ budget has been worked out on the basis of the revenue that the Charge is supposed to raise. Until they can replace the income stream, the Charge has to stay. 

Now this is, of course, a total fiction. The Charge will not raise the amount the budget says it will. It is being imposed upon people who will never be able to afford to pay it. It is being imposed on people who are being imprisoned for decades. It is, in one case of mine recently, being imposed upon a man who will be deported before the Charge can even be remitted. The predicted “profit” does not seem to take into account how much administering the collection/remission/ignoring of the Charge will cost. This is budgetary hopeful thinking on a major scale. You may as well include the largesse of the Tooth Fairy in your next mortgage application.

Poor old Michael Gove still has to find away of defending the Charge to the public. Every time he passes Grayling in the corridors of power he must feel like sticking out a foot and sending him flying whilst shouting “Why do I have to look a total berk every week defending the claptrap you left me with?” Although he may be tempted to include a few more words of more base Anglo-Saxon heritage, and would be well justified in so doing. 

But for now, defend it he must. So, through gritted teeth, Gove recently said: “The criminal courts charge is generating revenue, which helps ensure that the taxpayer is not the first port of call for supporting the way in which our courts operate, but it is important that we balance all the criteria in making a judgment on the review of the charge.”

Now there may be some that think that the taxpayer should be the first port of call for supporting the way which our courts operate. The courts are a key part of our democratic process. It is part of what makes us all safe. Safe in so many ways. Safe from the criminals, safe from the abuse of power. It is exactly the sort of thing that the raising of tax revenue should pay for. At the very least tax revenue should pay for the courts before it pays for a big plane for the PM to use see his mates in Saudi Arabia. But that may just be me. 

Gove’s statement did, at least, get me thinking. What if he is right? What if the public should not foot the bill for certain parts of the democratic process? What if we could find other ways of raising money on the back of keeping civilisation civilised?

Perhaps Mr Gove should look a little closer to home. How about a House of Commons Waffle Charge? A £100 per minute charge levied on MPs who want to filibuster in order to frustrate the work of the House of Commons. So those great and dedicated public servants like Philip Davies, who spoke for 93 minutes to defeat a Bill that would have given carers free parking at hospitals, can put his hand in his pocket.  By all means he should be able to exercise his democratic right to defeat legislation having a long argument rather than a reasoned, winning one, but why should the public pay? Implement my scheme and the public could have pocketed £7800 profit. And we could have made £3700 when he did it again to thwart compulsory first aid training for schoolkids.

Why stop there? At a tenner each time that the Prime Minister fails to answer a question we could all have a private jet by next Easter. Peers getting expenses for tipping up to the House of Lords? Why should the taxpayer be the first port of call for supporting the way our unelected second house operates? 

And may be the cost of every harebrained Government scheme that ends up scrapped should come out of the pension pots of those involved. The £6 million wasted on the ridiculous secure college for young offenders would make a heck of a dent in the pensions of Grayling and a few senior civil servants. Why should the public be the first port of call to support their incompetence? 

So Mr Gove, do the right thing when it comes to the injustice of the Criminal Courts Charge. Do not allow this ridiculous state of affairs to be governed by a fiction of a budget. And if you need to make up the shortfall, pop ten pence in a swearbox every time you think of a bad word in connection with Mr Grayling. “F.O. Chris!” You’ll soon be quids in. 

Untitled

I like a good title. And no, I don’t mean the Your Honour or Mr Recorder type titles. Which is a good job because I do not like the idea of taking a comprehension test beyond the age of fifteen. But I digress. 

No, when I mean I like a good title, I mean for a blog. And for this blog about the new Lord Chancellor I kept thinking about a little word play with famous song titles, usually around the word “love”. So titles were considered and rejected; “Gove Will Tear Us Apart” (too gloomy); “All You Need Is Gove” (too Tory cheerleader); “Gove On The Rocks” (unrealistic); and, as a variation on a theme, the Smiths’ classic “Hand in Gove” (just too weird).

Eventually I decided upon “Untitled” because the story of Michael Gove, Lord Chancellor, is a story too new to be pigeon holed by some semi-illiterate pun. And that is the beauty of the situation. 

I have read and heard much in the way of speculation. Much of it from people who I respect, much of it from people who have some form of inside knowledge. 

One school of thought says that we should judge Gove by what happened in Education. He was deeply unpopular with the troops on the ground in that field and we should expect him to be a similar thorn in our side. He imposed his will on the education system despite warnings from those with greater experience and we face the same. 

Another school of thought says that this is a period of rehabilitation for Gove, bruised after losing the Education job. That he will want this to be a success by first avoiding a repeat of the animosity and resentment that saw him out of office. He will not want a war. 

Others look at his predecessor. It is said that Grayling had suffered too many reverses in the High Court and Cameron needed someone more assured to bring home the final phase of the cuts to Legal Aid. Gove is a close ally of Cameron and can be trusted to finish the job. It is not exactly as if Leader of the Commons is viewed as a plum role as reward for a job well done by Grayling. 

Meanwhile some say that, in Grayling, Cameron had a zealot to the cause. A man driven by the pursuit of budgetary savings and committed to seeing it through. If there was still the desire to see further cuts, then Grayling would have remained. If a gentle retreat is called for, then it is much easier for a fresh pair of eyes to see the need for a different approach. 

There is a compelling logic in much of what is said. Somebody, somewhere will be proved right. But at this moment in time it is still a story unwritten. The facts are still to unfold. 

So what do we know? We know that a party was thrown on the streets outside the MoJ to bid farewell to Grayling. And now he is gone. Just let that sink in – Grayling is no longer the author of our futures. There was a time when we would rather have Rasputin in Petty France than Grayling. 

We have a new ear to listen to our arguments. We have to make our case that the second cut need not be made. That Two-Tier is therefore not required. That we can offer further efficiency savings. That the CJS is in need of resuscitation, not starvation. 

These arguments must be first and be strong. They should be delivered with all the persuasion that is the hallmark of the best of the two professions. And they should be made by our representatives with the unity of us all adding momentum to their efforts. 

Finally they should be made with the nature and strength of our other course plain for all to see. We do not threaten but we make it clear – talk and negotiation is not the last resort. 

This is not weakness, this allows us to demonstrate the strength of our case. This is not appeasement, it is the appropriate seizing of an opportunity we have hoped for. 

We will get an early indication of our prospects of success. The new Lord Chancellor needs to pause the tender process in order to allow the room for negotiations to take place. If the process is pursued notwithstanding the obvious logic in at least pausing it then we will know. We will know little has changed. 

Let us hope that Gove Changes Everything. *sorry*

Justice Delayed is Justice Saved

Dear Lord Chancellor,

Tomorrow the Court of Appeal deliver their judgment on the appeal brought by solicitors in respect of the Judicial Review into the Dual Contract process. The Dual Contract process, as you know, is the mechanism by which the MoJ intend to “consolidate” the market of providers of Legal Services remunerated by Legal Aid. The MoJ recognise that the only way that solicitors can survive after your next round of cuts is to reduce the number of solicitors that can do the work and therefore increase the volume of work done by each firm that survives. In order to stop solicitors going out of business you are having to make sure that solicitors go out of business.

Now I am not writing this to harangue you about fee cuts or your idealogical restrictions on access to justice. I admit that I have, from time to time, mocked you, ridiculed you and probably been insulting towards you. I have criticised what you have done and your reasons for doing so.

However this is not the time or the place for such expressions of anger, derision or disagreement. This is the time to ask you, no, to implore you to take the next step appropriately, whatever the outcome of tomorrow’s hearing.

If the court rules in your favour then the tender process can re-start and we are set on a course that could see hundreds of firms disappear from the High Street. The legal landscape will be changed forever. It is exactly the sort of change that is very difficult to reverse. I urge caution upon you. DO NOT RESTART THE PROCESS.

We are 48 days away from a General Election. Any combination of things may happen. There has never been more uncertainty about the outcome of a General Election with minority governments, coalitions, a Labour administration or a Conservative administration all a real possibility. You may or not be in power. You may or may not be Lord Chancellor.

Forget purdah. Forget the niceties and conventions of the Civil Service. DO NOT TAKE THIS STEP THAT WILL IRREVOCABLY CHANGE THE JUSTICE SYSTEM. That is the only sensible, prudent, statesmanlike thing to do. Delaying now is not going to be a sign of weakness. It is not going to blow open the budget or the deficit.

And if the solicitors win? Just pause. Do not waste money on appeals. Do not rush through a false consultation. Pause. Think. Reflect.

Let me remind you of this

The Ministry does not know, and has shown little interest in, the knock-on costs of its reforms across the wider public sector as a result of increased physical and mental health problems caused by the inability to access advice to resolve legal problems.

It therefore has no idea whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. It does not understand the link between the price it pays for legal aid and the quality of advice being given. In short, there is not a lot the Ministry does know.

Therefore, while the Ministry is on track to make a significant and rapid reduction in the cost of legal aid, it is far from clear that these savings represent value for money.

It needs to get on and urgently review the impact of its reforms and, where necessary, act to address issues such as cost-shifting and people struggling to access justice.

Those are the words of Margaret Hodge from the Public Accounts Committee concerning the errors made in recent times by your department and the civil legal aid reforms. It serves as a timely reminder of the longstanding social costs of ill-thought out reform. It shows that savings do not always equal value. It tells you what many of us have said all along – do not diminish the quality of advice and representation as that causes damage.

You may not believe we are right. You may think you have no choice other than to do what you intend to do. But a pause now, a pause before devastation ensues, may just about be the best decision you ever take.

Yours,

JH

Pass the Placard

I am currently on a train on the way to London. Today I am joining a demo in the Old Palace Yard Westminster. I imagine that many people who will be there have not been on a demo since their student days. I cannot even claim that. Poll tax, apartheid, student loans – all were demonstrated against but the student VFTN did not go along and wave a placard. Today I am going to.

So what has motivated my middle aged bones to rattle off to London and spend too much time stood in the cold than is good for a man of my age? Well, something that is older than me. Something that turns 800 this year – the Magna Carta.

In fact it is not the Magna Carta itself that is causing me to join the massed throngs. If it was the Magna Carta itself then it would be a bit of a sham as the anniversary is not until June (which at least might stand a chance of being a little warmer). It is because this Government has the gall to use the ideals promoted by the Magna Carta to drum up business from abroad and cloak it all in a celebration of the venerable document.

For those who deal with football analogies, this is a bit like a Manchester United fan singing “You’ll Never Walk Alone” in an effort to impress someone they fancy. It is just wrong. It cheapens everyone.

This is rank hypocrisy from the Government. They are promoting a justice system by values and achievements that they are set to destroy. Do not take my word for it when I suggest this. Read these words:

“In short, we see the Government’s proposals for competitive tendering for services or a 17.5% reduction as likely to result in (a) a marked deterioration in the provision of services in criminal cases leading inevitably to injustice in a significant number of cases, and as a result (b) harm to the reputation of this country’s justice system, which is likely to do consequential harm to other areas in which legal services are supplied, to the benefit of lawyers in this country and the Treasury.”

That comes from the Chancery Barr Association’s response to the Legal Aid consultation. The 17.5% cuts are still there. The damage is obvious to all those who can see. It is not Justice that is blind, but the Ministry of Justice.

And that was not a one off statement by the ChBA. Tim Fancourt QC addressed the One Bar, One Voice event in these terms:

“The legal services industry makes a huge contribution to the Exchequer. When it comes to invisible exports to international consumers, the Government is very approving: I quote:

“We recognise the importance of the UK’s legal services sector and the excellent reputation its legal services providers have at home and abroad. The sector contributed £20.9 bn to the UK economy in 2011, £4 bn of this derived from exports. It is important that we consolidate the UK’s international standing in what is becoming an increasingly competitive international field” (Chris Grayling, in a foreword to a MoJ /UKTI paper on UK Legal Services on the International Stage.)

And of course the Lord Chancellor is about to trumpet all these virtues to the visiting world at the Global Law Summit in 2015.

But is the Government not missing something here?

Surely it must recognise that it is taking an unacceptable risk with the reputation of the system in which it finds such virtue?”

So there we have the lawyers who benefit from the reputation for justice carved out from the Magna Carta onwards warning the Lord Chancellor of the damage he is doing. A sector that contributes £20.9 bn to the UK economy on the back of a reputation forged on the back of the work of Legal Aid lawyers at a cost of £2 bn per year. As the Americans would say – you do the maths.

Tim Fancourt QC addresses a plenary session at the Global Law Summit this afternoon, let’s hope he takes the opportunity to remind the Lord Chancellor of the views expressed above. In fact it is neither a hope nor an opportunity. It is an expectation and a duty.

An expectation and a duty that has been missed by some already. The Lord Chief Justice opened the Summit in the morning session. He addressed the assembled lawyers, politicians and business people thus:

“Access to justice

We are also all familiar now with the second principle ‐ that all should have fair and effective access to justice. That was not always the case. In parts of the world it is still not the case. And in other parts of the world it remains an aspiration that many are working to realise. One thing that I am sure we can all take from Magna Carta is that our commitment to this ideal is something, that no matter how familiar we are with it, is one that we must constantly reassert, just as Magna Carta was reissued and its demands for access to justice were reasserted over the centuries.

We will therefore examine how access to justice is best achieved – the way government can best provide for a court system that is open, transparent and effective in vindicating and, as importantly, enforcing rights and responsibilities, how a state guarantees a judiciary that will act independently of governmental or commercial pressure, how citizens can be provided with better access to courts through the proper use of modern technology, and the way in which a vibrant, diverse and independent legal profession can best make a cost effective contribution to the delivery of justice.”

Now I ask you this – how can anyone deal with this area, with “access to justice”, and not mention Legal Aid? That is not apolitical. It is appalling. If the judiciary are to remain away from politics, why address a nakedly political event? If the Lord Chief Justice will not challenge the restrictions to justice brought about by this Lord Chancellor what are the rest of us to do?

The answer is – haul ourselves down to London and protest. Now can someone hand me a placard please?

Speak Up, Speak Out

The other day I blogged about the fact that I viewed it as the duty of a lawyer to use the invitation to speak at the Global Law Summit as an opportunity to berate the Government. Here is what I would say if given the opportunity….

“When I received my invitation to this event the first thought that crossed my mind was ‘I had no idea there was another barrister called Jaime Hamilton, I wonder how I can get this misdirected invitation to the person they really intended to invite?’

My second thought was ‘they can forget it if they think I am adding my limited credibility to their junket by taking part….’ There were a few other words in there beginning with “F” but you get the general idea.

However then I thought to myself that the Magna Carta and everything it represents was worth celebrating and defending. So here I am to tell you the path ahead leads us two ways. One way means this is little more than a wake after this Government has buried the rule of law and dances on its grave. The other way means that we can still save the ideals of liberty and equality that have been built over centuries.

The purpose of this Summit is to sell the idea of quintessential British justice to the rest of the world. That is what draws the oligarchs of this world to our courts to settle their disputes. That reputation has been hard earned. Now this Government is going to toss it away so cheaply.

Pointing to the litigation in the mercantile court as being indicative of our legal system is a little like pointing to the track at Silverstone as being indicative of the state of our roads. As miscarriage of justice follows miscarriage of justice, as newspaper report of injustice to the individual follows newspaper report, as the fabric of our court buildings decay and as solicitors are driven out of business the reputation that this nation has for justice will go the way of its reputation for shipbuilding, a lost industry.

However the thing that sickens me is that this is not an industry. As you sit here with your £1,500 per head tickets you are feeding off a reputation built by publicly funded lawyers who earn that amount per month. You are doing it off the reputation built by charities prepared to do pro bono work in our communities. You are doing it off the reputation built because we used to have a justice system that was open to all, not just commerce, not just the rich.

The perception of the Magna Carta is almost more important than the words it contained. And the perception is that it created a truly universal and incorruptible justice system. Where the law recognised the rights of the pauper with equal measure as the nobleman. Where the individual is protected against the excesses of the State.

And now this Government restricts access to judicial review. It cuts the availability of legal aid with no assessment of its impact. It slashes fees with no thoughts about the consequences. Do not sit here and celebrate. Sit here and grieve.

It is not too late but it will be soon. The Magna Carta was born from rebellious stirrings against King John. The Lord Chancellor needs to learn from that lesson of history. Make him hear the disquiet. Make him hear the malcontent.

Turn this event into a celebration and a defence. Speak up and speak out. And then hopefully we will have something worth celebrating in another 100 years.”

So it is undoubtedly better that I am not invited. However you are all invited to the Justice Alliance event on 23rd February that you can find here. It is not £1,500 per head, will be a lot more fun and will be the place where those really interested in justice can be seen.

Speak Truth to Power

In February the nation is set to celebrate the 800th anniversary of the Magna Carta. Well when I say the nation is set to celebrate I am not suggesting there are going to be street parties, an extra Bank holiday and fireworks over the Thames. In fact the nation is set to celebrate by the holding of the Global Legal Summit in London.

Now the organisers describe the GLS thus; “the Global Law Summit is being held in February 2015 to mark 800 years since the sealing of Magna Carta. It is a unique opportunity to commemorate, celebrate and embrace 800 years of legal history which have inspired lawyers and non-lawyers alike for generations.” Laudable and inspiring indeed. The event sounds like it will be a paean to liberty and the protections that define….., well…. define Britishness in the same way that cricket, strawberries and cream and a cup of tea do.

Except that it is not. The organisers also had this to say about it “the Global Law Summit, launched by Secretary of State for Justice and Lord Chancellor, the Rt. Hon. Chris Grayling MP, is a unique one-off high level business forum supported by the legal profession, business and government. Unlike other legal conferences, the Global Law Summit will bring together a mix of practitioners, business leaders, public sector decision makers and government officials from around the world to discuss, debate, and develop relationships across markets and jurisdictions.” A one-off high level business forum. Notice the way “markets” comes before “jurisdictions”?

So we are left in no doubt whatsoever the Prime Minister describes it as an event “to mark 800 years since Magna Carta, I am pleased that London will welcome global leaders in both business and the law to discuss the issues that are shaping the agenda legally, commercially and socially over the next generation. I am delighted to support the Global Law Summit – it is yet more evidence that Britain continues to lead the way in promoting free enterprise, economic growth, and the rule of law around the world.” Again, note that the rule of law comes after free enterprise and economic growth.

I do not pretend to speak on behalf of the original contributors to the Magna Carta. It may well have been that they had the libel actions of oligarchs firmly in their minds when drafting the words “We will sell to no man, we will not deny or defer to any man either Justice or Right”. However the Global Law Summit has little to do with what most lawyers and citizens would understand the Magna Carta to represent.

I would not attend the event and I would suggest that no lawyer with a concern about the Government’s attitude to the rights of the individual and the availability of legal aid should attend. On the day of the event the professions should walk out of every court in the land and mass outside the conference hall to protest against the restrictions on judicial review, the unavailability of legal aid for children or victims of domestic abuse and to protest against the parlous state of our criminal justice system. That is what should be happening.

But it is not. Instead the event is being held with the blessing and support of the Bar Council and the Law Society. I kind of get the fact that both those bodies represent those for whom international litigation is their business. And business trumps conscience for many. No representative body, big or small, has called for, let alone organised, a boycott and demonstration. The event is happening and it is happening with the lawyers involved.

So what of those who will speak at the event? Is there any point in turning down an invitation? What would I do if I was invited to speak? (Please do not all laugh at once at the thought of me being invited). Well, in the absence of a mass boycott, I would attend and address the summit. And embarrass the hell out of the organisers and the Government. I would view it as an opportunity to highlight the damage being caused to hundreds of years of the rule of law.

Actually forget that. It is not an opportunity to do that, it would be my responsibility to do that. It would be an obligation as a lawyer who sees the damage that is being done on a daily basis. To attend and not lament the recent damage to the rule of law would be rank hypocrisy. And I leave rank hypocrisy to the politicians.

It would not matter that it would be “off message”. It would not matter if it was rude to my hosts. It would not matter if it upset some very powerful people. As an advocate I would relish the chance to make every politician, every civil servant and, although I regret it that I have to say this, every “on message” lawyer in the place squirm in their seat.

The publicity that would be gathered by the Bar Council and the Law Society turning their back in the event has been lost to us. So any lawyer with the chance to speak can only use it to one end. To protest. To protest with power, with dignity and with their conscience clear that they did the right thing.

This is not a time for diplomacy. This is not an opportunity for building bridges. This is a moment for impact and for the power of the truth.

I have not been invited to speak. Those who view their role as protectors of the rule of law, and by that I mean the judiciary, should not feign fear at being political, they should make the politicians fear their stern rebuke. Those who speak on my behalf, those who come from a body representing me, should choose their words carefully. Not so that they mince their words, but so that no word falls from their lips that could give this administration a single crumb of comfort. From the senior Judges there to the Chairman of the Bar Council to the President of the Law Society and beyond, Grayling should be told again and again “you may be a friend to business and commerce, but you are no ally to justice”.

Principle before profit. This is not the time to advance a business case or self interest. This is the time to stand up and say “no”.

Better Early Than Never

A colleague of mine recently received a bad character application prepared by the prosecution. The application was sent out from the prosecution 12 days in advance of the next hearing in the case.

The Criminal Procedure Rules and common sense dictate that such applications should be made as soon as possible and at an early stage in the proceedings. This was not an early stage in the proceedings but at least it gave the defence 12 days to respond and, in the current climate, perhaps we should rejoice at this small victory.

The problem is that the application was sent out two weeks after the trial. The next hearing date is sentence.

Comical and depressing, all at the same time.

I know exactly what the problem will have been. It was dictated and went into typing weeks ago. There it will have languished for a while before being returned. Then it will have sat around for a while, waiting for the busy and the harassed caseworker to reach it in their ever burgeoning list of tasks.

How do I know this? Because I held in my hand today a letter dated 1st September that made it into the post for the 26th September. 25 days to turn around the typing and posting of a piece of correspondence. The problem? Lack of resources.

Recently HHJ Newell made the point, in open court, that we are fast approaching the time when there will be a miscarriage of justice. The fact is we have probably already gone beyond that point. We just do not know it yet.

As Judge Newell observed, “they [the staff at the CPS] are best endeavouring to work with a broken machine, it is not their fault.” It is a machine that has been broken by our politicians and the politically ambitious.

If a piece of prosecution evidence can be sent out two weeks after the trial and only in time for it to be wholly irrelevant for sentence, how can we be confident that an important piece of evidence is not being missed so as to lead to the wrongful acquittal of the guilty? Or some piece of unused material is not revealed that acquits the innocent man? How many ticking timebombs currently await discovery by the Court of Appeal?

When politicians talk of cutting this and cutting that, they should consider the damage they are doing.