Tag Archives: consultation

My personal response to the Legal Aid consultation

This is my response to the second consultation concerning Legal Aid. I begin by making it clear that this is not a “template” response. A large number of responses to the first part of this consultation were dismissed as “template” responses. I am unsure as to what is thought of as a “template” response but I can assure you, this is a very personal response to what you propose. I will deal only with advocacy fees in this personal response as that is the only area I wish to make further comment on.

I should make it clear that I adopt the response already submitted by the Northern Circuit, indeed I contributed to it in a small way. I also adopt the response submitted by the CBA. I have been particularly impressed by the response that I have seen from Treasury Counsel. I have no doubt that a lot of what I and others have said will be dismissed as self-interest. That accusation can not be levelled against Treasury Counsel. Treasury Counsel are the sort of lawyers that the Government are prepared to pay appropriately to advise and represent them in complex and difficult cases. Do not be the worst sort of client. Listen and heed their advice.

Now I am sure whoever is reading this will recall well my response to the previous consultation. If not I can summarise it in this way; I told you PCT was a very bad idea. I suspect thousands of people told you the same thing. Guess what? I was right. Whilst my twenty years operating in the criminal courts meant that I was steeped in self-interest it also gave me the knowledge and experience that allowed me to recognise that PCT was wrong.

So I bring my experience and knowledge to consider your latest consultation. My response can be summarised thus – your proposals will drive the Criminal Justice System to disaster.

Okay, I know you think that is a little sensationalist. Hysterical, you might say. It is not. Let me explain to you why the CJS is teetering on the brink. The future is yours to shape.

In relation to VHCCs you consider that reducing fees by 30% would not have an impact on the quality of representation for defendants in those type of cases. Now I remember applying to go on the panel for these type of cases. We had to demonstrate that we had the skills, experience and expertise to undertake these complex and difficult cases. I do not believe that anyone could ever argue that the vast majority of VHCCs are anything but complex and difficult.

On Wednesday 23rd October a story printed in the Guardian revealed the fees paid by the Government to lawyers to represent them in inquiries such as Leveson. I have no doubt that such work is complex and difficult. Indeed the MoJ response said that these fees were paid in cases involving “the most complex legal challenges” which meant using “the most experienced barristers” which resulted in the best outcome for the taxpayer. From that I extrapolate that the MoJ recognise the fact that you “get what you pay for.”

You have now decided to pay 30% less in the most complex legal challenges that arise in the criminal courts. The result? The most experienced barristers will not undertake this sort of work. The standard of representation will drop. I have no doubt whatsoever that people will turn away from such work in droves. Only the desperate or the unemployable will do this work in the future. The absence of the best in these type of cases will mean one thing. They will get longer and more inefficient. Ask the judiciary. Highly skilled advocates shorten cases.

At the very least you could be logical and consistent in your approach to pay in those cases that involve the most complex legal challenges.

I now turn to your proposals for fees in relation to the majority of advocacy conducted in the Crown Court.

Let me explain the current position. At the moment if I undertake work which is not publicly funded I can earn in two days what I earn in a week from my criminal Legal Aid work. So I could choose to use my twenty years of experience to make sure that a vulnerable victim in a sex case is cross-examined properly. By that I mean in a way which fearlessly represents the defendant and is tailored to the needs and situation of the witness. This will be a case where I have spent many hours outside of court editing video and other interviews to concentrate on the issues, saving considerable court time. Undertaking such work is difficult. I am not going to make any bones about it here. It is harrowing work. I have seen things that are seared in to my memory forever. I have to deal with difficult clients. The sort of people you would not want to be in the company of. I have to spend hours in small rooms with them establishing a rapport.

So what point am I making? Well I could try to do two days of private paying work and have the rest of the week off. Or I can do the five day rape case. At the moment I do the five day rape case. I do so because I believe it is important that a criminal case is an even contest between advocates of skill. At the end of the case, if my client is convicted, I have played my part in this vital aspect of a free and democratic society. Cut the fees and my choice will go the other way.

I know The Lord Chancellor seems to think that we can all supplement our Legal Aid income with private work. That is not true. At the moment I devote my time and effort to develop my criminal work. If I were to rely upon private work I would have to devote myself to that. It would have to take priority in my diary. My criminal work would suffer, dwindle and then expire. I do not want that to happen. However I simply cannot face doing another child rape being paid significantly less than I am now.

You test the market. The market will answer. By walking out of the door.

Your consultation gives two options. That is not a consultation. That is a choice between a bad thing and a bad thing.

A scheme involving tapering is invidious. You have not produced one scrap of evidence that this will shorten cases. Not one scrap. It is just a device of paying less. That is all.

The second scheme, the bastardised Bar Council proposal, is wrong because the scheme mooted by the Bar Council was to provide administrative savings and to produce quick payment. The Bar Council recognised that there may be an element of swings and roundabouts in a scheme with less factors being used to identify the fee per case. It was only sustainable if the overall level of fees remained fixed.

Neither scheme meets my approval. Neither scheme is appropriate. Again I will make myself plain. The numbers in the boxes are not enough.

I repeat something which I know is in the Northern Circuit Response. Fees were set by independent review conducted by Lord Carter. It is well known he suggested that appropriate remuneration was generally greater than the fees ultimately introduced by the administration of the day. So that is someone not acting out of self-interest who recognised the appropriate level of remuneration for conducting this type of work. Since that time fees have drastically reduced. So the Bar have already taken their medicine when it comes to the economic plight of the country. I am already not being paid according to the work that I do. How dare you suggest I should be paid less.

So this is what I propose. An independent panel to consider the appropriate level of remuneration for the different types of offending. That panel could compare the rates received by advocates in comparison to the private sector. It could consider what is appropriate bearing in mind the lack of pension etc. It could consider what is required to ensure that criminal advocacy is an attractive route of able lawyers to pursue. It could consider the cost of living. Exactly the sort of thing that has happened for MP’s pay. What could possibly be wrong with that? I am confident to be subjected to such scrutiny. I bet the MoJ would not go near it. Because you know it will prove everything else I have said is right.

The course you currently seem intent on pursuing will drive the talented and experienced people away from the profession. Candidates with potential will not apply to join. You will be left with a rump of poor quality advocates. The Lord Chancellor is meant to ensure that there are appropriate resources to ensure the efficient and effective support of the courts. The principle resource are the people working in the system. The Lord Chancellor is not performing his basic task if he drives us all away.

I was right about PCT. I am right about this.

A Letter to Lord McNally

With apologies to the Intrigant. A pale imitation of your correspondence. Never had an original idea myself, that’s why I am a lawyer.

Dear Lord McNally,

I write to you today to offer my unconditional support to you. We have all had our hearts warmed by the Intrigant Letters (as history will record the totality of the support for our beloved Lord Chancellor at this time). We all know that when you told Joshua Rozenberg that “of course the Lord Chancellor had received some support” you were referring to the good sense and kind words shown to him by that worthy correspondent.

However behind every great man is a great Lord. How often do the public fail to recognise the genius of the right hand man? People fall over themselves to worship George Michael but where would he be without Andrew Ridgley? We marvel at the intellect of Shelock Holmes but ignore the contribution of Dr Watson. So this is my paean to you, the power behind the throne.

It has long been my intention to write to you ever since you robustly rejected the vogue-ish movement to have Alan Turing pardoned in relation to his conviction for homosexuality two years before his suicide. At that time you said,

“A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence. He would have known that his offence was against the law and that he would be prosecuted. It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd-particularly poignant given his outstanding contribution to the war effort. However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.”

It was a true believer in the rule of law who would resist calls to recognise the contribution made to the war effort by a great intellect who also happened to be homosexual. It was entirely right that, notwithstanding calls for the Government to give a free pardon to a man prosecuted for his sexuality who was barbarically chemically castrated as a result, you should recognise that your hands were tied by precedent. You may not be a lawyer but you know how law should always be followed, no matter how unfortunate the consequence.

All of that does bring me to the rather delicate issue of choice and LASPOA where section 27(4) states,

“An individual who qualifies under this Part for representation for the purposes of criminal proceedings by virtue of a determination under section 16 may select any representative or representatives willing to act for the individual…”

I must confess this had me worried. How would you get round what your new law said when it came to your next not-quite-law-because-that-would-require-the-assent-of-parliament? But I should never have doubted you. I should have known that a man that started out as a Fabian, was elected as a Labour MP, defected to the SDP, joined the Liberals and then became a minister to a Tory-led coalition Government would not allow a tiny little law to stand in his way. Where others seek to make virtue out of commitment to an ideal, you show the true path that expediency is the key to political success.

The vague policy that prohibited a pardon for the man considered the father of computer science may have been insurmountable but you demonstrate that section 27(4) is less of a stumbling block when you made it clear that PCT would still allow the criminals to choose a barrister. A master stroke! Hopefully nobody will notice that the majority of cases will be dealt with at the magistrates court with no separate fee for advocacy and the slim likelihood of a barrister being instructed there. It would take some one mean spirited to suggest on the one hand that Chris Grayling’s portrayal of criminals as being no connoisseurs of legal services would suggest on the other that they may not even know that they could have a barrister in the Crown Court. I bet, like me, you wish Chris could be a little more “on message” at times – which is why you are so wise to keep him out of the spotlight at this delicate time. Let him do the vulnerable witness stuff whilst you handle these administrative changes.

Your stance on choice would make Henry Ford proud, “you can have any colour, as long as its black”. You can make the public realise they can have any lawyer as long as it is the one you choose for them.

For a moment I was confused about your appearance on “Law in Action” when you described the response of the professions to the consultation as “hysterical”. I confess that, despite my admiration for his zeal in creating a new Legal Aid order, the Grayling/Downfall videos that had been popping up on the Internet had made me chuckle. It surprised me that you agreed with this.

On reflection I realised you meant a different type of “hysterical”. I should have realised you we’re being pejorative, after all we are talking about lawyers here. After all their bleatings about choice, quality and driving talent away from the profession you have always met it with a straight bat, a casual “that is a worse case scenario that I don’t recognise” line. You are right not to pander to them. They are just trying to win over the public with their concept of “justice”.

It is not as if you have tried to deflect public attention away from issues surrounding civil liberties and the acknowledged altering of quality by planting misleading information in the press. I am sure the headline figures of the monstrous earnings of a Legal Aid civil firm popped up in an article about criminal Legal Aid by accident. I am sure that you consistently brief journalists how about much has already been contributed to the deficit reduction by the cuts already imposed on the advocates. I bet this morning you were on the phone to Quentin Letts telling him that describing the “£200 per hour” lawyers at the JSC was the sort of misleading information that could whip up hysteria in this area where you would only welcome reasoned debate.

It would appear that the lawyers’ hysteria is working. I know lawyers are constantly persuading judges about stuff, you had the nous to warn Grayling they were a tough opposition, but they have only just gone and persuaded the Council of Circuit Judges that they are right about choice and quality. Bastards. And then those pesky Treasury Counsel. Whipping up hysteria with their well reasoned concerns. They are meant to be on our side! Treasury Counsel? More like Treachery Counsel! (feel free to use that one to lift Chris’ spirits in the bunker).

That blessed e-petition has been cranking up too. It is now mass hysteria. The only sane ones left are you and Chris. Don’t listen to those who have experience in such matters, their experience just leads to self interest. Do not listen to the public, they are no connoisseurs of civil liberties. Just plough straight ahead with your plans and hopefully Chris will take you with him when he moves to a big job.

You are bang on the money when you said that you did not want your taxes to be spent on the 20 year career criminal having his choice of regular brief. Neither do I. The robbing scum bag. I mean 20 year career criminals are never innocent are they? Not totally. They are, after all, criminals. I appreciate that this is a discussion document so I am sure you have some whizzo ideas about how we can make sure that a nice taxpayer still gets the choice of a decent lawyer. Oh, and the innocent. And the Liberal part of me (like you, I am a man of many parts) would quite like it if the vulnerable could have access to a lawyer who understands their needs. I am sure we can do all that without creating a two tier system can’t we? After all when addressing lawyers in St Petersburg you told them “every citizen must be fairly and equally treated before the law”. Now I appreciate that you were on a junket about trade there but it sounds good doesn’t it? We just need to make sure we treat criminals less equal than nice people.

Anyway, must go now. I have another letter to fire off to Bob Neill. You and Chris must just keep looking everyone in the eye and saying “we are right”. I hope you are making good progress through the consultation responses. You don’t have much time until you have to announce how wrong they are. Probably best if you and Chris give the Internet a wide berth for a while. It may distract you. Oh and that chap Turner. Don’t talk to him. And you might want to add McGowan and Scott-Moncrief to the banned list too.

Yours, in total wonderment,

The Gardener.

PS I think Hague’s strop with you was unfair. It wasn’t your fault there was a spelling mistake on the posters advertising the benefits of a custodial sentence. How were you to know that the slogan “Prism Works” would be so controversial? Thank God they didn’t hit the streets *embarrassed face*

Find the second letter to Lord McNally here.

A Barrister Rants; aka The (Real) Summary of my Response

I have reproduced some of my responses here to the consultation paper. I have not produced everything because it turned out to be quite a long document! But I have included those responses where even a calmer read through could not placate me and the responses became more personal to me. I confess these are the less thought out and evidence based sections but it made me feel good to get it off my chest…..

1) Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons.

No. The right of the citizen, even if a prisoner, to challenge the decisions of the state is critical in a proper system of checks and balances. The prisoner is the least likely member of society to have the resources to launch such matters privately funded. There should be a clear merits test but not the restrictions suggested in the consultation document. This is simply a headline grabbing attack on a section of society that lacks public sympathy. And as a barrister I know how that feels.

3) Introducing a residence test

Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.

Again, as a feature of a free and democratic society, is it not right that the state provide a mechanism whereby the actions of the government can be tested in the courts by foreign nationals where the actions of the government may be unlawful? When this country enters the theatre of war in places like Afghanistan should those affected by our actions have at least some recourse to the UK courts where appropriate? Should we really expect that an Afghan farmer unlawfully detained by the armed forces should have no recourse to justice unless he can pay?

This is just a headline grabbing “we are hard on immigrants” stance taken to win back voters from UKIP. That it finds its way in to a document about reforming Legal Aid demonstrates the political use that Legal Aid is being put to and the things that are being brought in under the disguise of austerity. As a nation we are better than this.

Chapter Four: Introducing Competition in the Criminal Legal Aid Market

Scope of the new contract
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.

No. PCT is a disaster for the criminal justice system. If implemented it will be amongst the worst decisions made by a government in modern times. This consultation should have as its first question in this section something which allows for a debate about the proposal and not just questions designed around the model. The Lord Chancellor has repeatedly said he would listen to alternatives to PCT but where is the opportunity for me to do this within the body of this consultation? The Minster and the officials at the roadshows ask us to come up with alternatives but where is the question in this consultation that asks us to do that? How am I, as an individual, meant to come up with costed proposals designed to save money? I have plenty of suggestions such as telephone hearings, efficiencies in the use of court time, changes to legislation such as Custody Time Limits but in the eight weeks afforded to me how am I meant to present those in this document which does not even ask me a question designed to get such an answer?

Q8. Do you agree that, given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.

I do not believe the need to deliver further savings. If the nation are “in it together” in austere times the legal profession was the first over the top.

iii) Geographical areas for the procurement and delivery of services
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset /Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.

Geography is one of the waiting disasters of PCT. You will create vast swathes of the country to be covered by an entity that will have one small central office and a minimum of staff. Americans call them Lincoln Lawyers. I call them rubbish lawyers.

Q11. Do you agree with the proposal under the competition model to join the following criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.

No. Because PCT is a very very bad idea.

Q12. Do you agree with the proposal under the competition model that London should be divided into three procurement areas, aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.

You may spot a theme here. PCT is a bad idea.

Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.

Have I mentioned PCT is a very bad idea? Clearly you have to guarantee market share to make it workable in terms of your model. But it is that guarantee that also guarantees laziness and ineptitude.

iv) Number of contracts
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.

PCT. Bad. Idea. However, clearly different sized areas would need a different number of providers based on need.

Q15. Do you agree with the factors that we propose to take into consideration and are there any other factors that should to be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model? Please give reasons.

PCT is a recipe for injustice. As ideas go I would say this is a bad one.

vi) Contract value
Q16. Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.

You are not slicing a pie or dividing pallets of goods. You are dealing with people’s lives. The liberty of the subject is not a commodity to be auctioned off. Anyone proposing that would be ventilating something which can only be described as…..a bad idea.

vii) Client choice
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.

The limitation on client choice and the removal of a significant proportion of the supply base could jeopardise parts of the justice system. The benefits of continuation, reputation and confidence of representation, e.g. for vulnerable or black and minority ethnic clients, may be lost and some rural areas could lose supply altogether – these are not my views but those of Lord Carter after his detailed iterative review of procurement. Listen to him. Please.

Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.

I risk repeating myself here but it is worth saying until you understand. Choice is part of the civil liberties that we deserve. Choice is also seen as a driver for quality in every other area of public funded welfare provision. Education? Choose a school based on tables. NHS? Choose your doctor or service provider. Locked up for a crime you did not commit? Just have the cheapest provider who is next off the conveyor belt.

Let me explain the cab rank rule to you. It is meant to ensure clients get representation no matter how heinous their crime. You will manage to invert that so that the accused has to take the first jalopy on the rank, notwithstanding it is a death trap.

Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.

The reality is they already are. What is wrong is the fact that you lash them to an unknown, low-rent lawyer in the first place.

ix) Remuneration
Q21. Do you agree with the following proposed remuneration mechanism under the competition model? Please give reasons.

 Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
 Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
 Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
 Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area

Now we get to the real reason. You want to pile them high and sell them cheap. How can you cheapen justice? You appreciate you cannot cut any more from the litigation fees without guaranteeing market share. You realise it is unsustainable. Should you not look to try and make your savings elsewhere rather than cutting a sector that has already been pared to the bone? The only way you can do this is by shredding up years of quality service in this area and selling it off to the lowest bidder with a consequential loss of quality. Listen to the people at the coalface. You cannot and should not do this. This whole consultation introduces a race to the bottom.

x) Procurement process
Q23. Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.

Quality. I am going to mention it here because you do not seem to have any question designed aroundw the standards that will follow PCT and how you intend to maintain them. I appreciate that this is because you realise that PCT will lower quality. I have heard much of how the LC is going to work with the Law Society and the Bar Council to design a quality assurance scheme. When? Where is it? Where is the quality assurance scheme for litigators that has been designed with PCT in mind? You have put the cart before the horse but even the cart manages to smell agricultural.

You see, Lord Carter said this about BVT

“Recommendation 3.1: The Legal Services Commission should begin from July 2006 a national roll-out of peer review assessment for all firms seeking a place in the new market so that the introduction of best value tendering can take place from April 2009 onwards. The Legal Services Commission should adopt four criteria to plan the roll-out of peer review:
• greatest quality impact for clients;
• greatest opportunity to restructure the local market;
• ensure a level playing field for all firms until best value tendering takes place; and
assess the impact on the justice system.”

I would venture to suggest that the same applies to PCT. In fact under the proposed model the risk to quality is even greater as the only driver is cost. So Lord Carter envisaged a quality assurance scheme established 2 and 1/2 years before the tender process so the scheme could be refined and the bidders could be scrutinised for quality. Your process has not even got such a scheme in place yet. The promises about quality are based on nothing more than faint hopes and aspirations, so much so that your promises are empty and meaningless. You are driving the criminal justice system off the edge of the cliff and want the public to believe it is all going to be alright.

Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
 introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
 reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and
 taper rates so that a decreased fee would be payable for every additional day of trial?
Please give reasons.

No. I am a criminal advocate. My income has halved. I have already had cuts which I can scarcely withstand. And yet you want to come again. There is only one result of this. People of experience and skill will leave the profession. You recognise that you cannot unduly limit bankers’ pay and bonuses because of the potential for an exodus of talent from the sector or the country. It may well be that MP’s salaries are increased due to a recommendation that you will not attract good candidates at the current level of remuneration. Why can you not see the risk in criminal advocacy?

If you pay peanuts you get monkeys.

The daily rates are already poor. It is laughable to reduce them across the board. It is insulting to reduce them one iota because of the length of the trial. If I ask for time in a case it is because it is in the interests of justice to do so. Not so I can get a refresher. If it takes a while to cross examine a vulnerable witness it is because that is the best approach to take for all involved. If I tarry, the Judge will chastise me. If a trial in a violent disorder to which there are twenty eye witnesses and six defendants takes three weeks that is not my fault, it is the length that the trial has to take. In fact I shorten trials by making sensible concessions and formal admissions on a daily basis. I DO NOT NEED PENALISING IN FEES! The only thing it will do is encourage the less experienced and less well trained to cut corners. No one spins out a case and you have no evidence that we do. This is just about saving money. Attending court for £100 or less before expenses is simply not viable.

Introduce theses fee changes and I will be part of the talent drain away from the criminal bar.

2) Reducing litigator and advocate fees in Very High Cost Cases (Crime)

Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Please give reasons.

They are already ludicrously low. I can’t get a plumber or a mechanic to work at these rates. I do not undervalue their experience and expertise. This consultation seriously undervalues mine.

Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons.

No. That offends some pretty basic principles of contract law. If you ask a lawyer, a commercial lawyer, they will tell you that and then charge you more per hour than you will pay a Silk in a terrorism trial. You have value for money right now with the criminal bar. You want blood.

Chapter Seven: Expert Fees in Civil, Family, and Criminal Proceedings

Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.

You will not be surprised to hear that I say no. The quality of experts will diminish in the same way everything will if you underfund the provision of experts. There should be proper control of these fees, it is difficult to understand why a psychiatrist gets paid more in the majority of the cases than the advocate who prepares and presents the case. Oh no, hang on, I do understand it. It is because we, the advocates, are already paid considerably less than other professionals…..

PS

As a postscript to this post I would like to say that I have read many of the responses that my colleagues have produced. I am proud to say that they are all brilliant pieces of advocacy and I am more than ever convinced of the power of the opposition to this ludicrous proposal. Where I have ranted, Mark George was precise. Where I have prattled on, Tim Forte was coruscating. Where I have taken, broad swipes,Tony Cross was surgical. Where I have lost my cool, Guy Gozem has espoused reason.The list could go on. Hundreds of responses were delivered from the Northern Circuit in person to the MOJ by Lisi Ke and Sarah Griffin. Dozens more (such as my own) went by email.

If anyone suggests this is self interest then direct them to the 50shadesofaffray blog here.

If you haven’t done so already sign the e-petition here.

The Inconvenient Truth

Those who know can talk, those with an agenda will not listen. Another conversation from the imagination….

Backbencher Thank you for agreeing to see me Lord Chancellor

Lord Chancellor Well we all have to humour the swivel-eyed loons.

BB Are you talking about me?

LC Of course not, I was simply saying I understand that you are here representing the view of your constituents and I am here to listen.

BB Right, well, I have had letters from some of my constituents about Legal Aid.

LC Brilliant. My officials told me that they existed but I thought they were kidding. At last I can shut some of those lawyers up and point to the letters you have showing the public’s concerns about the credibility of the Legal Aid scheme. I was beginning worry these letters might be my “weapons of mass destruction” so thank goodness you have some. This is turning out to be a jolly good meeting.

BB Sorry Lord Chancellor, these letters support Legal Aid and are rather critical of your reforms.

LC Oh. Did you mention that to Maureen when you made this appointment?

BB I certainly did.

LC I see. [reaches for pen and paper] That’s one more wage saving I can make straight away….

BB The letters I have received raise a lot of concerns about the cuts.

LC I have to make cuts. I have already agreed to make cuts. I promised Gideon.

BB I don’t wish to be pedantic but didn’t you take an oath that included the promise to discharge your duty to ensure the provision of resources for the efficient and effective support of the courts for which you are responsible?

LC I remember something along those lines.

BB And doesn’t that set you apart from most of your ministerial colleagues?

LC Well I suppose if you are someone who applies the technicalities of oath taking and don’t just see it as a quaint tradition there for the tourists then yes, technically speaking it does make me a bit different from the other ministers but I don’t like to make it too obvious.

BB If we do think it means something then shouldn’t it mean your job is not to agree to any cuts? Isn’t that your duty?

LC Look, you’re not Michael Turner are you?

BB No!

LC Right. Are you sure?

BB Of course I am sure.

LC Its just that I have never met him so I thought I should check. I imagine these are the kind of pesky questions he asks.

BB It is one of the things my constituents raised, as Lord Chancellor you should protect the front line services of representation and find savings from elsewhere only if necessary. But you should be fighting to protect the budget, not agreeing to reducing it.

LC The Legal Aid budget is over £1 billion. I need to reduce it.

BB No it isn’t. The spend was over £1 billion. The future projected spend is well under that figure. You have already reduced the payments we make to practitioners so you don’t have to make further savings.

LC Yes I do. I promised.

BB You also promised resources in your oath….

LC Here we go again…. Look I need to make savings and the Legal Aid spend is huge and so that has to give. Every penny I spend is critical to complying with that oath thingy you keep banging on about.

BB Really? £2 million on leadership training for the civil servants?

LC Its vital that someone shows some leadership.

BB £3.6 million on car hire?

LC People in the department have to get from A to B doing all these blinking’ roadshows.

BB What about the £720,000 your department spent on actors?

LC They play an essential role in selecting a suitably qualified and diverse judiciary.

BB More important than funding the lawyers appropriately who go on to be the Judges in the future?

LC Paying them less won’t diminish quality.

BB How about PCT? Won’t that diminish quality?

LC Nope.

BB Won’t removing client choice and market competition reduce quality?

LC Nope. There may be a different quality but it will still be there.

BB Is there a risk that the different quality will be lower than before?

LC I am committed to defendants having a fair trial. The CPS have been under resourced for years. I am just levelling the playing field.

BB Speaking of paying lawyers I note that the MOJ paid over £6million for “estate legal services”, £200 grand for legal support to MOJ procurement and I dread to think what you have paid the lawyers assisting with plans to privatise the courts.

LC Of course we did. These chaps don’t come cheap. You’re a Tory. Market forces and all that. You have to pay the going rate. If you want quality advice you have to be prepared to pay.

BB But that doesn’t apply to the provision of criminal representation?

LC I am a connoisseur of legal services you see. I know what I am looking at. The plebs, I mean, the public are generally speaking just run of the mill amateur palates when it comes to legal services. I like caviar, they like fish and chips. So it’s best if I choose who represents them and how good they are at it. And if they are acceptably adequate then that’ll do me. For them of course. For me and the Home Secretary it is wall to wall QCs all the way.

BB Isn’t it quite important that the individual gets to choose though?

LC I have a strong record on individual choice. The B&B owners of this land know how much I believe in individual choice. But I just prefer it when their choice matches my choice. And at the moment these people keep choosing specialist lawyers and I would prefer them to choose one of my contracted lawyers. But people cannot have free choice when the state picks up the tab.

BB What about the NHS. Haven’t we introduced personal choice there to improve standards.

LC Okay. People cannot have free choice when the public pays, unless they are ill.

BB What about mentally disordered offenders?

LC Right, people cannot have free choice when the public pays, unless they are ill, EXCEPT where them being ill coincides with them being a criminal.

BB What if them being ill means they should not be labelled a criminal? What if being ill means they are innocent? Should they not be able to choose a specialist solicitor with experience of them personally or mentally disordered offenders generally?

LC Look at that giant hummingbird over your shoulder. Look! Look now!

BB There is nothing there is there Lord chancellor? Okay. Let’s for a moment say we are not going to allow the market to dictate quality, how else do propose to maintain quality?

LC Well clearly there will have to be rigorously assessed standards and processes of quality assurance to make sure the lawyers are all acceptable to me.

BB And how long has that quality assessment scheme been up and running?

LC It isn’t.

BB Because one of my constituents directed me to Lord Carter’s review of legal services procurement from 2007 and in his report he considered it vital that if client choice was removed there had to be a rigorous quality assurance scheme in place that would take at least two and a half years to establish and develop before choice was removed from the market. So how long until you put your plans in place?

LC Four months. But this focus on quality is just a smokescreen by the fat cat lawyers and their monstrous earnings.

BB My constituents were quite, well I think I can safely say, were quite irate about this.

LC I am not surprised they are irate! I have proof as well. Statistics. Evidence of payments. It is fair to say that no professional should be paid more than the Prime Minister out of public funds.

BB They are not irate about what barristers earn, they are irate about what you say they earn. The last figures I have available to me showed that seven civil servants in your department had a salary bigger than the Prime Minister.

LC Well you have to reward some people commensurate to their skills and the responsibility of their work.

BB Isn’t that what is going on when a handful of lawyers get large single payments that will relate to the most serious and complicated cases?

LC But it is why the public lack confidence in the credibility of the Legal Aid regime because they see these figures.

BB Because you tell them these figures….

LC It is simply freedom of information and statistics don’t lie.

BB But ministers some times do in their use of them.

LC I have no idea what you mean.

BB Well it could be said that some minsters have form for it. A propensity to use statistics in a misleading way.

LC Propensity…..that sounds like a lawyer’s word. You’re not Ian West are you? He’s another one of the awkward squad. Are you?

BB No! If the information you release is undermining the credibility of the system why don’t we tell them the reality rather than base a reform on this misconception. Lawyers often say difficult cases make bad law.

LC The public will never think that lawyers are anything but fat cats [whispers] … thankfully …

BB We could tell them. You could tell the press how impressed you are by this account of the junior bar in the blog 50 Shades of Affray [hands minister the document]. Read that and you’ll see she only earns £20,000 per year before expenses after three years in the job.

LC £20 grand before expenses? I bet she gets her decorators paid for on top of that. And claims loads against her expenses for her daily travel, accommodation and meals. We all know how much you can top up your income with some imaginative claims, not that I am condoning that sort of thing you understand. But £20,000 before taking into account her expense claims would be most misleading.

BB You’re right. It would. But it is £20,000 before she takes her expenses OFF that figure. An economic adviser with postgraduate qualification in your department starts on £31,000 per annum. I would imagine their economic advice to that barrister would be “get another job”.

LC Well it is exactly that member of the junior bar that I have made it clear I want to help.

BB By cutting their fees and squeezing them out of the Crown Court by cutting solicitors thereby forcing them to do their own advocacy?

LC Yes. And if they don’t like that help I have made it quite clear I will introduce PCT in to the Crown Court. That’ll learn ’em.

BB So PCT is a weapon rather than a reform?

LC PCT is my grand plan. My flagship policy. The Grayling’s not for turning.

BB But what’s your Plan B?

LC I quite liked the Defamation of Strickland Banks but the rest of his stuff leaves me a bit cold……

BB No Lord Chancellor. Not a question about music What is your alternative to PCT?

LC I don’t need one.

BB But what if there are no bids?

LC There will be.

BB Indulge me for a moment. Let’s say that too few solicitors bid to cover the work. What will you do then?

LC They will bid. And if they don’t we’ll call the Army in. That’s what we always do. Firemen on strike? Call in the Green Goddesses. Security a bit lapse at the Olympics? Call in the Army.

BB That doesn’t really work does it. And what happens if you put 1200 firms out of business and then PCT turns out to be the disaster many predict. What then?

LC What do you suggest? Pilot schemes?

BB Well it would seem sensible. At least have some idea you are right before you get it very, very wrong.

LC I promised to make the savings now, or rather I need to make immediate savings.

BB But you already have. That’s what my concerned constituents are saying.

LC No. I need to save something from the £1.2billion budget.

BB As I said before, it is less than that now.

LC No. The budget is £1.3 billion.

BB You keep changing that figure.

LC No I don’t. The £1.4 billion budget is spiralling out of control as we speak.

BB You are just deliberately inflating the figures.

LC I have to rein in the projected £1.5 billion we are going to spend on criminal Legal Aid.

BB Stop this. It’s ridiculous.

LC Yes it is ridiculous that we spend £1.6 billion on mostly foreign criminals who don’t have a defence. I agree it needs stopping.

BB I am beginning to think you might say anything to justify these reforms.

LC Not at all. The public need to know that I intend to curb this system which swallows £1.7 billion of public funds….

BB Right, I’m leaving this is pointless.

LC Jolly nice to see you. Thanks and all that. Tell your constituents that at £1.8 billion we spend more on criminal legal aid than any other country….

BB I’m off. You are not listening.

LC Oh I am old boy. I listen. Send Maureen in on your way out. I have a saving to make. And give my best to the SELs…..

Make the Lord Chancellor listen to the facts and evidence being debated in Parliament. Signing the petition here is our only chance for that to happen.