Tag Archives: client choice

A Third Letter to Lord McNally

Dear T-Mac (I have decided you are now worthy of a soubriquet which is down with the kids, feel free to reply to Biggie-G),

So much water has passed under the bridge since last I wrote. Things have gone so Peter Tong (as the kids say) since our last interaction I am not in the least surprised that you have not had the time to respond. And I should imagine that you are spending so much time reviewing who should remain in your Linked-In profile that I can understand that you have not yet had the opportunity of adding me to your network.

I should imagine one easy choice was pressing the “delete” option for that turncoat Grayling. Such a quisling. It would seem that in the last 7 days he has been everywhere, and I mean EVERYWHERE, declaring that he isn’t anti-choice after all. And not only has he been saying he isn’t anti choice he has been saying that he wasn’t ideologically bound to a removal of choice. It was, apparently, only a means to an end. And, furthermore, he realised very soon in to the consultation process that he had got the whole choice thing wrong and that his instinct told him that it was wrong. It is just a pity his instinct didn’t share that with you. Or that other pedagogue of jurisprudence, Bob Neill.

If, for one moment, the Lord Chancellor had shared with you his doubts about restricting choice there is no way you would have, and pardon the expression, bared your arse on Law in Action with “No To Choice” tattooed across your buttocks.

When you appeared as part of the Bar Council’s Legal Aid Question Time you made it clear where your beliefs lie “The idea that a 20 year career criminal should have a brief of his choice is not right.” That was a plain and unequivocal statement of your belief. You state categorically that it is not right.

So when Chris Grayling wrote to Sir Alan Beith and said “One specific point in the consultation which has attracted significant response is the proposal to remove client choice in the model for competition for criminal litigation. The rationale for proposing this change was to give greater certainty of case volume for provides, making it easier and more predictable for them to organise their business to provide the most cost-effective service to the taxpayer – it is not a policy objective in its own right,” that could not be a clearer statement in contradiction to your beliefs.

What a pickle you find yourself in. It would seem the Lord Chancellor changed his mind very early on in the life of the consultation that your view on client choice was contrary to a fundamental aspect of the effective administration of the Legal Aid system. The consultation closed on 4th June and yet on the 11th June (Law in Action) and the 20th June (Legal Aid Question Time) you were expressing your deeply held principles about how wrong client choice truly is. So how early was the change of heart by the Lord Chancellor? One week? Two weeks? If he announces it in a letter dated 1st July then you would have thought he had made his mind up well before you were announcing your, clearly independent, view.

If we are left in any doubt when he appeared before the Justice Committee and said “I actually decided this a little while back, but you cannot make changes in mid-consultation. I had to go through the process of allowing the consultation to be completed, and looking at some of the responses to make sure that I got it right. It would have been irresponsible of me, and probably illegal, simply to take a decision without considering the issue, but I accelerated consideration of that issue post the end of the consultation, because my instinct was that it was the right thing to do.” he makes it clear he doubted the removal of choice before 4th June but just needed to double check before declaring removing client choice was wrong.

If we are to believe the Lord Chancellor then two things arise. Firstly he did not change his mind shortly before his appearance before the Justice Select Committee simply to avoid the embarrassment of having to defend this position but because he realised very early on that denying defendants choice in their legal representation was wrong. Why did he not share this with you? If he had simply been faced with the prospect of an uncomfortable time before the Committee and changed his mind because of this that would be a very feeble u-turn.

Secondly this had not been a statement of principle by him. He was not denying defendants their free choice as a result of an ideological belief that it was wrong. He was not doing it because that was one of the elements of the Legal Aid system that caused the public to doubt its credibility. Denying client choice was not, in itself, something he thought right, it was a sacrifice he was making as a favour to lawyers in order to trade off the cuts for certainty of volume. Compare and contrast this with his recently stated views on the availability of Legal Aid for prisoners.

All of this leads us to one conclusion. He has to go. Well, it has to be either you or him. I know friends are supposed to be able to disagree from time to time. But you are not friends. You’re in Government together. You are bound by collective cabinet responsibility. You have publicly advanced removing client choice as a cause, as being in the public interest. Turns out that was never the case. You still went on to beat that drum after the Lord Chancellor was working with those he trusted to abandon that proposal.

So I am excited by the prospect of your resignation and move to bring a motion of no confidence in the Lord Chancellor. I know you are a man of beliefs. And I don’t mean by that you are a man capable of holding a multiplicity of beliefs. All that changing of political parties must have been because each time you decide on matters of principle you stick to them. So given that both the Deputy Prime Minster AND the Lord Chancellor are opposed to your view I guess another change in party membership is due. UKIP perhaps? Monster Raving Loonies?

I know some lawyers compare his dome-headed, cold-eyed appearance to Lord Voldemort but in this instance perhaps true believers like you, Bob and I should start referring to him as Lord Volte-face, or He-Who-Should-Be-Ashamed. I tell you something else, the Prisoner of Azkaban did not get Legal Aid to complain about the softness of his mattress and nor should the Plumber of Azerbaijan if he hasn’t been here twelve months (if you can’t keep up you either haven’t read enough JK Rowling, a single mum but otherwise really quite acceptable, or you haven’t read the consultation). He performed a u-turn, now is the time for you to send him round the u-bend!

I pledge my support to the cause. I reckon the way forward is an e-petition, some badges and dressing Bob Neill up as a badged badger. All proclaiming your “No to Choice” mantra. We will win. We must win. Our cause is right and just.

Yours, as ever, and with increasing affection,

The Gardener.

PS Successive Home Secretaries spent £1.8 million on the legal fight to deport Abu Qatada then achieved it through diplomatic and political means. It really is terrible when clients run litigation isn’t it?

PPS In your motion of no confidence you might want to ask the Lord Chancellor how he is going to deliver PTC without removing choice? And how is he going to make his cuts without guaranteeing volume? And how does he guarantee volume without removing choice?

For a look inside the mind of Lord Volte-face read my Iolanthe blogs. You can also read the first letter and the second letter to our hero.

Iolanthe Part 2

This is the second part of my account of a meeting between the Lord Chancellor and a group of barristers and solicitors on Friday at Altrincham Town Hall. If you have not read the first part you can read it by clicking here. Since writing the first part and planning this part the Lord Chancellor seems to have made some concessions on choice in conjunction with the Law Society. Which is interesting bearing in mind he consistently told us that he could make no decisions and make no pronouncements until after the consultation process had finished. You can read about the discussions that have taken place with the Law Society here. I repeat my observations I made in Part 1 and maintain them below. The Lord Chancellor WILL cut fees and WILL introduce a tender process, of that I have no doubt. He is just trying to find a palatable version. His concession made today is to listen.

Welcome back! Now where was I? The Lord Chancellor had just dealt with the prospect of the loss of me from the profession (some might say that he dealt with it stoically, others might observe he felt it to be no great loss). He had also expressed a view that seemed to be contrary to the recruitment policy of the CPS.

The conversation now returned to matters connected with solicitors’ contracts. One of the solicitors present raised the difficulties that had been experienced by their business due to the uncertainty faced by the profession for a number of years. The Minister said that he was prepared to discuss matters relating to the contracts such as length or contractual framework as he was open to developing a contract that gave the solicitors profession the greatest certainty. He described himself as uninterested in “something cheap and untenable”. Somewhat ominously he used the question of certainty to tell us “I appreciate that you have been here twice before when the Government faced huge opposition and backed away”.

[I describe that last pronouncement as ominous because it is. For those of you reading this who believe the battle is already won in defeating PCT, think again. As you will see, the concept of the Minister not changing his mind where others have due to opposition surfaced more than once on the evening. I have no doubt that the Minister is wedded to some form of tendering and contract process.]

Joe Boyd, counsel from Lincoln House in Manchester, raised again the prospect of solicitors or alternative business structures employing advocates to try to plead as much as possible at the initial stages of the Crown Court process. This is a business model that the proposed “harmonisation” of the guilty plea fee with the trial fee encourages and the potential loss of work to the Bar had to be seen in the context that “the Bar was very close to the edge and small changes such as this could put it over the edge”. The Lord Chancellor responded by saying that he understood that the position with the CPS is that they have rules that a certain ratio of work had to be sent out to counsel [if that is correct and it is set in stone, it has passed me by]. He indicated that he would be willing to consider whether it should be part of the litigator’s contract that a certain percentage of the Crown Court work had to be sent out to counsel.

[Such an element would be of interest to the Bar. How workable it is or how attractive it would be to the solicitors is debatable. I suspect the Devil would be in the detail ie what proportion and how would it be divided? By fees? Number of cases? Number of hearings? For my own part (remember I am a barrister so please don’t shout at me you solicitor types) I have long advocated that the PCMH form and client care letter from the litigator should have sections devoted to informing the defendant of his right to instruct and choose an advocate, including from the Bar. If we are believers that client choice is important, we should be consistent. Shouldn’t we?]

The meeting then really moved on to the heart of the matter. The Lord Chancellor summarised his starting position by telling us “I am in the position of any customer of an industry turning up and saying: ‘Guys I can’t afford this any more I am going to have to pay you 17.5% less’, and because I want to know that the people who are going to deliver the product can do it, I want you to go through a process to demonstrate you can do it……There is not a magic way to avoid this being a tough process for everyone”.

[This all sounds very PCT-ish to me]

This prompted the crucial question from the floor “do you accept that setting the bar at 17.5% below the current price there will be a reduction in quality?” The Minister responded “What I know is that I have got a number of firms I have spoken to privately, and some that have said this publicly, who say ‘Yes we can redo the way that we do things and we can deliver this. Its tough but we can do it’…. I have got to do this, I have got people saying to me they can do it. I know it is a huge challenge, I know I am throwing a huge challenge at people who have operated in a particular way for a very long period of time. There is no alternative to making significant changes. I am not going back to the Treasury and asking for millions from other sectors.”

[Now the first observation to make is that the initial response does not actually refer to quality. Don’t fear, it comes later. What appears to be his first response is a reliance upon the fact that he has current practitioners telling him it that it can work and he assumes this is a guarantee of similar quality. Unfortunately that is a huge gamble to take. The gamble comes in the phrase ‘we can redo the way we do things’. Cutting costs is never very far from cutting corners. The second observation I make is to repeat – this is not the talk of someone planning a major change from the announced policy]

That final observation is not necessarily indicative of my perspicacity as the Lord Chancellor went on to say, “I can tell you, what comes out of this will not be identical to what was in the original document….. We will vary some things……[and now please pay attention, this is an important bit] Please don’t believe at the end of the process I am going to say ‘Guys, it’s been a tough conversation so we won’t do it’.”

[Please don’t believe at the end of the process I am going to say ‘Guys, it’s been a tough conversation so we won’t do it’ – those words completely reinforced the view that I had already formed up to this point. A 17.5% cut based around a competitive tendering process leading to a contract will feature in the final proposal. Undoubtedly the opposition to the proposal has had an impact. But it has not been defeated. Yet.]

After this affirmation of the Minister’s position and his declaration that he believes he can make it work he finally turned to the actual question regarding quality. He observed “It’s about getting the best balance we can in terms of quality and in terms of value for the taxpayer. Now I have said in response to the issues legitimately raised about people just turning up and providing a very low quality service, I have said to both the Bar Council and the Law Society, ‘actually if you guys want to make some recommendations to me about the quality thresholds we should set to ensure someone can’t come along with an industrial machine that’s delivering a rubbish service’ I am very open to that. The Law Society have been very interested and engaged. The Bar Council have said no.”

[Of note here is the Ministers’ view on what quality means. In striking a balance between quality and value he is prepared to sacrifice a degree of quality in return for a good price. He is not looking for the cheapest. Nor is he looking for the best. I like to think of quality in terms of excellence. It would appear the Lord Chancellor likes to think of it in terms of base level of competency.]

Questions were then raised with the Minister about the taper. One barrister present gave him an example of a case he has later this year that is listed for five weeks and by day 17 he would be earning less than £100 per day. The Minister kept repeating that the £14 per day cases simply did not happen [then why have a taper that goes that far?] but that it was his intention to make the system “meaner, leaner and faster.” [In that moment repeating the slur on advocates that we prevent mean, lean and fast.]

[That is it for this section. I shall conclude the meeting in part 3 as soon as possible. I read with interest that in the Law Gazette article printed today the Lord Chancellor is quoted as saying he would also ‘explore further’ the Law Society’s suggested alternative proposal to ‘consolidate the market in stages, using quality and capacity criteria to achieve this’. He seems to have conceded ground on client choice. He is still working on the model. I believe we have every reason to fear what the model will be. He has to guarantee volume to make a 17.5% cut sustainable. He will look to make a 17.5% cut. He will shift on client choice because he realised it was unsustainable. What comes instead may surprise everyone. Even the Law Society.]

TO BE CONTINUEDThe concluding part is available here.