Tag Archives: dual contracts

One Small Step

A little like Pammy and Bobby Ewing, Michael Gove has woken up, found common sense was having a shower and it is as if the last two years have just been a dream. 

Except it was not a dream. Grayling was, and remains, a grim reality for the legal profession. 

I thought that when….. no, if the day came when TT was abandoned and there was some positive news regarding the cuts I would punch the air and organise a street party outside chambers with trestle tables, egg and spoon races and a New Orleans Jazz Band. 

When the news came I found I had very little appetite for celebration. Why?

There are many factors. It is difficult to celebrate when I know many have already been lost to the professions due to the uncertainty and the financial peril caused by the cuts. A small proportion of the damage foretold has already been caused. And that has affected people adversely. If Grayling was capable of shame it should burn in his heart like the sun in the sky.

I also cannot help but feel this was a self inflicted defeat rather than a victory. I have no doubt that the various fronts of opposition have had their toll on the MoJ. I do not doubt that those with the ear of the new Lord Chancellor have been making a forceful and effective case. I do not doubt that Gove has an understanding of things better than Grayling was ever capable of. Yet I am left with the feeling that, had the MoJ been capable of organising a wine tasting in the Vintners’ Society, TT would have been introduced. And the damage has been escaped by happenstance rather than endeavour and . 

That is not to say that the efforts of all those involved should not be applauded. The various Chairmen, Chairwomen, Presidents and Officers are all owed a debt of gratitude that cannot be properly expressed in words. As are the activists, those that marched, those that funded, those that took action, those that returned briefs, those that did not accept the returns, those that organised and even those that did no more than sign one petition. Win, lose or draw you are all a legion of heroes

The most significant factor is the state of the CJS. Gove’s statement was a giant leap for solicitor-kind but a small step for the delivery of a just justice system. It was a positive but one that did not stop the papers being served late/incomplete/not at all in countless cases today. It did not suddenly cause the videolink equipment to work in the vulnerable witness’s case in the Crown Court at Breaking-Point-on-Sea. It did not inject the funds required to properly investigate, prosecute and defend cases. 

And that is why I cannot celebrate. We have so many more battles to fight. So many more victories to win. And we cannot always rely upon those in the wrong shooting themselves in the foot. 

The Candidate

A room in the Legal Aid Agency. It is in the early summer months. A long serving civil servant, Bryan Loyal, sits behind a desk. Sitting opposite him is a nervous looking man in a slightly ill-fitting suit. He is Jobe Seeker and has been sent for this interview by an employment agency. 

B LOYAL: Thank you very much for coming in today. My name is Bryan Loyal, I’ll be interviewing you for a role within a very important Governmemt procurement process which is all a bit hush-hush at the moment. Now, first of all, please do not be put off by Gonzo here (Bryan Loyal points to a flame haired Gonk on his desk) I took him to my Civil Service exam with me for luck and he has been with me ever since whenever I’m doing something important….which is probably why I never got the Foreign Office gig….can’t have Foreign Heads of State seeing a 70s plastic toy “apparently”. So here I am, interviewing you for this hush-hush job. Not that I was meant to be interviewing you of course. Mrs Jones was meant to be interviewing you, but she is poorly today. So, to be honest, the job isn’t that hush-hush, it’s just that I don’t know much about it. Something to do with Legal Aid and some contracts. But we are not going to let that hold us back, are we?

JOBE SEEKER: I guess not. 

BL: That’s the spirit. You’ll go far in the LAA with an attitude like that. A little bit of knowledge is a dangerous thing, better to have none at all!

JS: If you say so…..

BL: Not only do I say so, but Gonzo says so too, don’t you Gonzo?…. (Bryan picks up the strange troll-like figure and mimics a nodding movement)…. Right, first question. (Bryan reads from a sheet of paper in front of him) Do you have any experience in the Legal Sector?

JS: Not really. 

BL: Anything will do…..

JS: Nope. Sorry. 

BL: Come, on! You seem like a nice fellow. Gonzo likes you. Give us something to work with!

JS: Well I did watch that Silk thing on the telly….

BL: That’ll do!

JS: I was joking!

BL: There are marks available on the form for “having observed the working of a legal practice” so you are off and running on the score sheet. Next question. Do you have any experience of procurement?

JS: Well, my dad reckoned he procured his flat screen telly from Dodgy Dave down the pub….

BL: Not sure that’s what we have in mind. 

JS: To be honest I am not sure what procurement actually is….

BL: Basically it is all about comparing the available service providers in an area and then choosing which best meets the needs of the Government. 

JS: I did help my gran switch her gas supplier through that website …..

BL: Wonderful! Top marks!

JS: And I once had a job with those meerkats who sell car insurance to Arnie.

BL: Might leave that one out. Don’t want you to seem over qualified.

JS: I was only packing cuddly meerkat dolls and sending them out to customers….

BL: We’ll definitely give that one a miss. Delivery is strictly a different department. Now – do you have any experience of marking against a set criteria?

JS: Errr…well I did draw up a pros and cons list as to whether I should ask my girlfriend to marry me. The cons came out way ahead.

BL: That’s good practical experience. And it helped you come to the right decision. 

JS: We got married six months later.

BL: Oh. Right. Well, congratulations……

JS: We got divorced within 18 months……

BL: There we go then. Your rigorous marking system was proved right in the long run. She was a nightmare. Should have trusted your list.

JS: But then I realised we couldn’t live without each other so we get remarried next month…..

BL: BrillIant. Flexibility is key. Well done. Now we move to the quick fire round.

JS: I am sorry, can you just expl……

BL: No time! The clock has started. What’s the capital of Italy?

JS: Sorry, what’s this got to do with the job….

BL: No time for explanations. Just answer the question. Italy….?

JS: Errr….Rome.

BL: ABBA won the Eurovision with which song?

JS: Really?!?……errr, I don’t know… Dancing Queen?

BL: Who is Winston Churchill?

JS: He was Prime Minister.

BL: Who scored in Coventry City’s only FA Cup Final win?

JS: Look, I can’t possibly need to know that…….

BL: Just give me an answer!

JS: Oh I don’t know. Kevin Keegan. 

BL: And finally what is otherwise known as the Central Criminal Court?

JS: I haven’t the foggiest. 

(Bryan sits bolt up right in his seat. His arm mimics the second hand of a clock as he imitates the music from Countdown)

BL: Derr-derr-da-derr-derrrrr.  Derr-derr-da-derr-derrrrr. Derr-derr-da-derr-derrrrr. Derr-der, derr-der, biddly boo…….(as Bryan’s arm reaches the desk he rounds off with a crescendo of an explosion sound. Both men stare at each other in silence) ……..I am not going to lie, there is some room for improvement there.

JS: I know. I’d be surprised if I got more than two right…….

BL: Oh, don’t worry about getting them right or not. It was your timing. Five questions in 42 seconds. You’ll need to pick up the pace a bit if you want to win the Mars Bar.

JS: The Mars Bar?

BL: Yes, a Mars Bar. Helps you work, rest and shape the future of the criminal justice system. And now, the final question of the round – do you know the difference between Sussex and Cheshire?

JS: Errrr, I think so. 

BL: Briiliant. That seals it for me. I don’t mind telling you that, if it were just up to me, you’ve got the job….

JS: …..fantast……

BL: …….BUT……. It isn’t just up to me. Your scores from this interview have to go through moderation before any formal offer can be made. 

JS: Oh. Ok. 

(Bryan picks Gonzo the Gonk from the table and holds him to his ear. Several times he takes the Gonk from his ear and holds it as if the lucky charm is reading the piece of paper on the table. All the time Bryan is whispering both sides of the conversation with the Gonk)

BL: Congratulations Jobe, I am delighted to inform you that you’ve passed our rigorous moderation process and you’ve got the job!

JS: Oh. Thanks. I think. 

BL: There is just one final formality to go through. This is serious Government business.

JS: I totally understand. Do I need to sign the Official Secrets Act?

BL: No. I just have one final question for you……..have you ever contemplated blowing a whistle……..


Horses with Parachutes

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

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

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

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

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

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

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

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

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

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

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

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

Yes or No

I invited anyone who wished to contribute to the debate to email their blog to me and I would be happy to host. Kent solicitor Oliver Kirk has done just that. Here is his contribution. 

A response to Mr Myerson QCs response to Mr Csoka QC

I am writing this brief response, I hope to clear up what some see as ambiguities or inconsistencies in the position of solicitors, and to help those who may still be undecided in their decision on the current ballot.

In case it is not abundantly clear- many solicitors firms are currently in a precarious state: their futures uncertain awaiting the outcome not only of the current action- but also of their LAA bids- or indeed for the fall-out from their failure to bid. All are united in their uncertainty as to whether the new, significantly lower rates can possibly be financially viable. (My own view is that they are not.)

Why don’t solicitors withdraw their bids?

The LAA is the principal provider of work. The only show in town. So, if a firm either fails to bid- or withdraws a bid, then it is then condemned to rely only on private and own client work. In the case of most firms large enough to bid, those two sources of work are simply not a viable option.

Own client contracts are, by their very nature wasting assets- criminal clients often find themselves in custody for lengthy periods have difficult personal circumstances, which result in tragically early deaths, and of course some reform or were never guilty in the first place- all of which mean that repeat business cannot be relied upon. Furthermore, clients, as well as being fiercely loyal, can also be a perfidious bunch, meaning that it is never really possible to count upon return business. An own client contract alone may only provide an unstable and unpredictable revenue stream over any significant period of time. Unsurprisingly, most firms need the new blood of duty cases to refresh their client base.

Why not withdraw a bid to do economically unviable work? Once your bid is withdrawn- that is “Game Over”; if some form of improved deal is put on the table in due course- you won’t be part of it. If some firms withdraw their bids, and others do not, those who have withdrawn make their own situations worse, not better. Think of it in these terms as well: most owners of firms will have made significant personal investments in their businesses. The buck also stops with them if the business fails- their homes, and any other assets are quite likely to be tied up by way of personal guarantees to banks. It would therefore be personally and professionally reckless in the extreme to withdraw a bid in the hope that a better deal might emerge that the firm could be part of.

Bidding and getting a contract therefore becomes the only possible way of surviving- in a sort of “gruel tomorrow” pact that allows a firm so stumble on in the hope of staving off insolvency for a little longer. The alternative of withdrawing a bid would, for many firms mean the prospect of having to make significant redundancies at time when it is unlikely that the funds are available to pay even those.

Please consider also that many of the bidders may be consortia of smaller firms and sole practitioners, who have already invested many, many hours putting a bid together. To withdraw such a bid now after making such investments of time when to do so might be curtains for the firms involved is a gamble too far . This is especially so, when you consider how effective the current action appears to be in its early days in getting the MOJ to think again.

No-one should be under any illusions- the current rates of pay do not incentivise work. They do not encourage a “no stone unturned” approach to a clients’ case. They encourage the opposite. Equally, the current rates of pay are such that solicitors have been forced out of the lower courts into the Crown Court as a means of remaining in business.

If reduced rates and DC come in, various things will almost certainly happen:

1) A significant number of small “High Street” firms will pull out of Criminal Legal Aid altogether whether as a commercial decision or because they do not get a contract. Many such firms or departments are operating on such tight margins that the July cuts followed by the January 2016 cuts will finish them off before the MOJ even start their “2016 Review of legal aid rates”.

2) Other (probably smaller) firms who do not get duty contracts will soldier on with own client contracts- but with diminishing volumes and cuts to remuneration, will probably go under. I pause to ask myself whether it is these same firms who currently instruct the Bar?

Of course they are! These are the firms who instruct the junior Bar on a daily basis, whether to do their Magistrates Court trials or their Crown Court cases; the same firms who once discovered and instructed those who now lead the Bar. Those firms will wither and die.

3) Those larger firms who do get contracts undoubtedly keep as much advocacy in-house as possible. They will recruit from the ranks of an underemployed Bar who will be wondering where their instructions have gone….

So- when asking yourself Mr Myerson’s questions and deciding how to vote, please remember that if you are currently briefed by a solicitor- that firm may not be around for long to brief you if it has not applied for or does not get “awarded” a contract. As for those who apply for and get a contract the margins will be such that they will have to try to keep all their work in-house.

This is the Bars decision.

This is the Bars vote.

Make no mistake, this is for Our future.





The Future

i usually try to start with something funny or lighthearted. I may not always succeed, but at least I try. Not this time though. This time things are just too damn serious. 

We now know that the CBA Exec have decided upon their strategy. The strategy is to engage with the Government to put in place measures that they believe will be advantageous to the Bar and safeguard the flow of work. They believe that the Bar is in a very strong position to compete for work when excellence and ability are key factors in the allocation of work. 

This is a legitimate avenue for the CBA to pursue. They are the body that represents criminal barristers and should be largely devoted to improving the situation of their members. It is most definitely not their job to represent solicitors. 

But in this instance they are wrong. 

I imagine this to be the point when some Silk somewhere will begin typing a comment below about how I am confusing anger with reason. How I am conflating my disagreement with the decision with ideas of treachery. 

I am not. I accuse nobody of treachery. I have been appalled by some of the comments posted to places like Twitter that speak as if the Bar have acted together and deliberately without honour. 

However I do fundamentally disagree with the CBA. Here are my reasons why. 

The strategy that they seek to pursue is one which may have paid dividends for the Bar. However this is the wrong time to deploy the strategy. It should have been deployed in 2007 when the Carter changes led to economic realities requiring solicitors to want a piece of the advocacy pie. The genie is out of the bottle. We are locking the stable door after the horse has bolted. In fact the genie is a speck in the distance atop a bolting horse. 

However that is a minor detail compared to the more urgent consideration. Given the decision on QASA this morning, a scheme to which the CBA are implacable opposed, how are the quality controls to be put in place? The sort of mechanisms that will be required will take months, maybe even years, to work out and implement. Yet the second round of cuts happen to solicitors in just seven days time. 

Let me spend a moment to recap why this is bad for the Bar. The reports that the Government relied upon for their Transfroming Legal Aid plans made it clear that the level of cuts now imposed would make many solicitors unprofitable businesses. There is just no profit to be made. This is not speculation. This is why Dual Contracts have been introduced. The Government and the Law Society both acknowledged that the cuts meant firms had to have an increase in volume to improve profit. The Two Tier system is also specifically designed to bring about “consolidation”. Consolidation means firms ceasing to exist. Again not speculation. In the style of Rafa Benitez, that’s a fact. 

So firms that currently instruct you are being deliberately holed below the waterline. They will either go out of business (bad for you) or have to find other ways of increasing the amount of money coming in. And that means wanting more of the advocacy pie (bad for you again). Fine words about choice of advocate not being based on economics are laudable. But wholly unrealistic. 

Planning for the long term future is all well and good, but a little pointless when your future is bound to the fate of your solicitors who are being hit in seven days time. This is like being distracted by the fire engulfing your house whilst looking at the architect plans for the new conservatory. 

Defeating the cut coming in just seven days is not fighting the battle for the solicitors. It is fighting a battle which is imperative to the immediate future of the Bar and your chambers. 

When I read or listen to those talking about salvaging the Bar for the future and seeing what we can be saved for those currently just starting out I am reminded of the young soldier in War of the Worlds who speaks of building a new world beneath the ground whilst the Martians bestride earth, before showing the narrator the start he has made – which is no more than digging a shallow ditch. For the Bar “survivalists” you may as well be digging our shallow grave. 

Fighting the cuts is an act of extreme self interest for the Bar. 

My objection goes far beyond self interest however. I am ideologically opposed to the Lord Chancellor. Not because of political prejudice. But because he is a man who recognises that we have a two-tier criminal justice system but thinks the answer lies with lawerly charity work plugging the gaps. The gaps that are his duty to plug. 

What the rape victim needs is a properly funded criminal justice system, not 25 hours pro bono work by some City lawyer. What does he think is going to happen? Clin Neg Silks doing their bit by prosecuting a murder for free? Of course the Lord Chancellor is not thinking that is actually going to happen. But with all his talk of efficiencies, technology and improvemental he ignores the plain truth. The CPS, the Court Estate and the provision of defence services have all been sacrificed on the altar of cost. What the hell is going on when the CBA and the Bar Council welcome this sort of nonsense?

I am ideologically opposed to a Lord Chancellor who speaks of how those who have no choice other than being within the system are let down by that system BECAUSE HE DOES NOT PROVIDE ADEQUATE RESOURCES FOR THE SYTEM TO BE ADEQUATE. And refers mainly to victims and witnesses in that regard. Not the innocent or the unwell. Now that is someone playing politics with justice. 

And to cap it all he has the chutzpah to make it seem like this is somehow the fault of the lawyers. That we do not do enough for free. This is the man we trust will do right by us in the very moment he is pontificating about a two nation justice system when he is days away from cutting Legal Aid once again. 

So the Lord Chancellor has made the proper provision of quick, high quality Justice the centre of his agenda. We all must now hold him to that commitment. That begins by defeating this latest cut. For once self interest and the greater good collide. 

The  Monday Message concludes with the fact that the Exec anticipate an EGM and welcome it as the democrats they are. The Message is correct when it says that there are competing views, beliefs that are strong to be aired. In those circumstances the CBA should not be defiantly welcoming the prospect of an EGM. It should be calling it. This issue is too important for the Exec to decide on its own. As before with the Delegates Conference or the vote on the deal this issue is something the whole Bar should be involved in with the debate and the decision. 

In Flash Gordon, the film, Dale Arden cries out to the hero “Flash, Flash, I love you, but we only have 24 hours to save the Earth!”  Right now my cry is this “CBA, CBA, I love you, but we only have 7 days to save the Bar!” I could be wrong, I could be right. If I am right and the CBA pursue the path they currently follow then bad things will befall us. If I am wrong it is vital that the Criminal Bar decide I am wrong. For it is all our futures. 

A Brief Note for Briefs

Joseph Markus from Garden Court North in Manchester, attended the CLSA and LCCSA Rally about Dual Contracts. He kindly agreed to produce this briefing note. Clearly he wrote it for publication before the General Election. However, as the time for decisions about action draws nearer, it is important that as many people as possible understand what is afoot. Joe’s note is a pretty succinct explanation of what is planned and when it is coming into effect. Maybe the new Lord Chancellor may need to read it so he is totally up to speed. 

Many thanks to Joseph for producing this. 

LCCSA rally – dual contracts

Criminal legal aid services are provided under contract to the Legal Aid Agency. The current position is that an individual firm can apply for a Standard Crime Contract, which gives that firm the opportunity to take instructions from new clients as well as join a “duty rota” under which solicitors are posted to police stations (and in some cases magistrates’ courts) in order to provide legal advice and representation to those who require it. 

The Lord Chancellor intends to split criminal legal aid work into two contracts, the first for Own Client Work (“OCW”) and the second for Duty Provider Work (“DPW”). As now, the individual firm will need to apply to the Legal Aid Agency for a contract. Under the new system firms will only be able to take on a “duty” role if they hold a DPW contract and these will only be issued to a limited number of firms throughout a particular region. The geographical regions represent considerably larger areas than firms were previously required to service. These reforms are to be made in conjunction with a net fee reduction of 17.5 per cent. The first fee cut of 8.75 per cent was implemented on 20 March 2014; the second 8.75 per cent fee cut is due in July 2015.

The Lord Chancellor believes that limiting the number of contracts in this manner, and requiring providers to commit to the provision of legal advice and representation across the whole geographical area, will produce a more efficient system where criminal legal aid providers will be able to benefit from economies of scale and the ability to offset loss-making cases with those charged at higher rates. 

The effect of this reform is acknowledged to be widespread and irreversible market consolidation. That is the only way that firms will be able to successfully demonstrate an ability to service an entire region (as required). The estimates suggest that up to 1,000 firms will be forced to close as a consequence of two-tier contracting.

We know from the argument before and the judgment of the Court of Appeal in R (The Law Society & Ors) v the Lord Chancellor [2015] EWCA Civ 230 that the number of DPW contracts will be capped at 527 and the Legal Aid Agency will award contracts based on a tendering process. The tender will consist of firms applying to the Legal Aid Agency demonstrating a capability to provide duty rotations of solicitors across the designated region.

The tender process for the 527 new DPW contracts re-commenced on 27 March 2015 and will close at midday on 5 May 2015. The tendering process would be implemented such that the contracts would start on 11 January 2016.

The Bar can expect that two-tier contracting, together with the proposed fee cuts, will have an effect on the number of cases briefed out, especially to the junior criminal Bar. The need to slash costs and run economies of scale is likely to lead to an increase in the number of Higher Court Advocates operating from within firms. 

The Labour Party has committed to scrap two-tier contracting in the event that it is returned as the UK Government in May 2015. It has pledged to review the fee cut scheduled for July 2015.

And now, the bio and marketing blurb. View From the North would like to make it clear that other barristers are available…. 

“Joe is a civil practitioner with a growing judicial review practice covering his core areas of practice (immigration and housing) as well as other fields of law. He has developed particular experience of challenges focusing on Articles 6 and 8 ECHR relating to the Legal Aid Agency’s exceptional case funding regime, having been instructed in one of the lead challenges to that regime – successful both in the High Court and Court of Appeal – as well as a number of follow-up cases”



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.



Will the Last Barrister Please Switch Off the Lights

A senior clerk, Ben Arrowboy, sits down with his Head of Chambers, Sidney Blinkers QC, to discuss chambers in advance of the AGM. The chambers, Cloistered Way Chambers, are a predominantly criminal a set. This conversation takes place some time in Summerr 2016.

SB QC: Just give me the headlines and the figures, Ben, so I can do my normal State of the Union address to the AGM. You know, the usual stuff, the “these are difficult times” but “chambers still continues to flourish” kind of stuff.

BA: I’m afraid it is not that straightforward this year, sir. I am afraid we just had a bit of bad news, sir.

SB QC: Oh no, don’t tell it is Mr Auld QC? He hasn’t finally pegged out has he? I told him he shouldn’t be prosecuting road traffic lists, not at 103. But he was always going on about not having a pension and I just could not get him to stop…

BA: No sir, it isn’t Mr Auld. I am afraid it is Tiddles and Co.

SB QC: What about Tiddles and Co? We all cut our teeth on Tiddles work. Old Frank Tiddles instructed me from the first day on my feet. When his daughter took over running the firm they really went from strength to strength. I virtually took Silk on the back of the work they sent me. They are the most loyal solicitors that chambers have. What about them?

BA: Well, sir. They did not get one of the Crime Duty Contracts in the recent tender and it turns out they got lots of work through their duty slots and now they have had to throw their lot in with another firm….

SB QC: That’s very sad. But they have always been loyal so I am sure they will still send their work in from wherever they have ended up. Who have they gone in with?

BA: Biggs, Fish and Pond.

SB QC: Oh.

BA: Exactly, sir. They have been subsumed into the nationwide Biggs, Fish and Pond, one of the main players. They got contracts all over the place and are now hoovering up the Own Client Contract firms that are now struggling.

SB QC: But BFP don’t send us any work.

BA: No, sir.

SB QC: They send it all to Domination House, don’t they?

BA: Yes, sir.

SB QC: Because Domination House as a chambers have an arrangement with BFP that they refer work to them in return for being exclusively instructed by them.

BA: Yes, sir.

SB QC: Why didn’t we think of that?

BA: Because Domination House have chambers on several circuits, sir. They have more connections, more work to refer.

SB QC: Right. Well I suppose that means we have lost Tiddles’s Own Client Contract work does it?

BA: Yes sir, with Tiddles failing to get a CDC with the LAA they have taken their OCC to BFP of the BFG and we are TFO.

SB QC: I’m sorry?

BA: Didn’t get a CDC… Crime Duty Contract with the LAA… the Legal Aid Agency so their Own Client Contract has now been taken by Biggs, Fish and Pond, the Big Firms Group practice.

SB QC: Right. And that leaves us TFO……?

BA: Totally F**ked Over, sir.

SB QC: Well at least we still have other solicitors… As Churchill was fond of saying KBO, KBO, Ben.

BA: KBO, sir?

SB QC: Keep Buggering On, Ben. We will soldier on with our other solicitors.

BA: I didn’t say that was the only bad news, sir.

SB QC: Why? What else can there be?

BA: Do you remember those two partners from BFP who went out on their own a couple of years ago? Set themselves up to be fraud specialists? Send a lot of work into chambers?

SB QC:Of course I do. Rav Singh Ruptah and Diana Banks. Excellent outfit.

BA: Well the have lived up to their name.

SB QC: What do you mean? You clerks always speak in riddles.

BA: They have gone the way of the firm’s name, sir.

SB QC: You are not making sense. The firm is Banks Ruptah…..oh…..I see what you mean. Really?

BA: Yes. They had cut everything to the bone but their Own Client Work just was not enough for them. There were no more cuts to make. A couple of trials were adjourned and cash flow problems drove them to the wall yesterday. They have been consolidated out of existence.

SB QC: Right. I know Johnson and Sons are still going. They have just briefed me.

BA: They are, sir. But just one thing. It’s not Johnson and Sons any more. It’s just Johnson. The sons have both seen the money is elsewhere. One son has gone off to be an intermediary and the other son has locked himself in his back bedroom preparing bids to tender for three probation service contracts, the running of a private prison, a tagging contract and the next tender process for court interpreters.

SB QC: Does he have any experience to bid for such things?

BA: Not at all sir. In the clerks’ room we can’t work out whether he is a visionary genius or he has just had a breakdown….

SB QC: Thankfully Mr Johnson Senior has a good loyal base of old clients to keep him going with his own client work.

BA: He certainly did, sir. Problem is some of them have gone to the big house in the sky, several of them are currently serving IPPs and can’t get Legal Aid to challenge their continued incarceration and when it comes down to it, that leaves four of them.

SB QC: Four what?

BA: Four of his own clients. That’s why Johnson Jr is locked in the back bedroom with a laptop and some conversational Polish CDs….

SB QC: Did any of our professional clients get the Duty Work contract?

BA: Yes, sir.

SB QC: Who? We need to concentrate on servicing their work.

BA: Caldwell and Cunningham have got both contracts.

SB QC: Excellent! That’s excellent news. You need to take them out and oil those wheels!

BA: I already have, sir.

SB QC: Of course you have. You’re my top man….

BA:…. and its bad news I’m afraid.

SB QC: Oh. Of course it is. Seems to be the only news you have at the moment.

BA: Am afraid they are using the increase in work to maximum effect. They have sacked everyone except a few recent graduates as paralegals and then recruited a bunch of HCAs to keep all the work in-house and take the advocacy fee on top. They promised me the odd mention and sentence hearing.

SB QC: This is disastrous. Perhaps I had better get a few of the big-hitters of chambers together to discuss the way forward. Tell Jude, Issy and Guy that I need to meet with them ASAP.

BA: There may be a problem with that.

SB QC: What? This is a crisis.

BA: Do you know that bunch of HCAs I told you Cunningham and Caldwell have recruited?

SB QC: Yes….

BA: Well Miss Askew, Miss Karriet and Mr Foulkes are that bunch.

SB QC: Traitors. Each of them.

BA: And it’s not just them either. Some of the more junior bodies have gone too.

SB QC: Ben, these are desperate times. I just didn’t see this coming. How could anyone see this coming?

BA: It was fairly obvious, with respect.

SB QC: Why didn’t you warn me then? We’ll have to cut costs, even then I don’t know if chambers is going to survive….

BA: On that subject, I can help you with cutting costs.

SB QC: How’s that?

BA: You won’t have to pay my salary any more, I am taking a job at Domination House.

SB QC: But….but…you can’t….I mean….what will we do?

BA: KBO, sir?

SB QC: I don’t know about buggering on, you’ve all buggered off!

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Fight Club

In March 2013 George Osborne’s introduction to his Budget speech included these words: “This is a Budget for those who aspire to own their own home; who aspire to get their first job; or start their own business; a Budget for those who want to save for their retirement and provide for their children. It is a Budget for our Aspiration Nation.”

He went on to refer to the positive steps the Government would take in order to support and encourage small to medium sized businesses through their own procurement procedures: “To help small firms, we’ll increase by fivefold the value of government procurement budgets spent through the Small Business Research Initiative.”

Yesterday the Lord Chancellor announced Government policy that will put hundreds of small to medium businesses out of business by the way the Government have chosen to procure legal services. Yesterday he signed the warrant of execution for scores of businesses that provide a service to the community at the very heart of the High Street.

There will be 527 duty contracts. There are currently something in the region of 1,600 criminal legal aid providers. There are some who will survive. There are those who hope they can prosper from this scheme. And there are those who will be “consolidated” out of existence.

So why should you care?

Well that depends who you are.

Senior Solicitors: Clearly there are going to be losers in all this. People put out of work. Your colleagues and friends.

Yes some of you will survive. Yes some of you will still eek out an existence by coming up with a business model that works.

But ask yourself this – did you go to university, law school and spend hours working your way through the profession to undertake criminal law as purely a business? If you did then you must be pretty stupid. Sorry if that seems offensive but there are much better businesses for you to profit from.

You are an equity partner in your firm because you care about the delivery of justice to both the accused and the victim. Reignite that ideal now.

The cuts and consolidation impact upon the access to justice in a way unprecedented since the creation of the Legal Aid scheme.

I appreciate it is difficult in that there are your staff to consider but you are the leaders of your profession. Explain to your staff why action has to be taken. Then take it.

Junior Solicitors: This is your future. Your career. Seek out your senior partner. Tell them of your ambitions. Tell them of your ideals. Ask them to fight on.

The Criminal Bar: I really hope that it does not need explaining to barristers that a section of your supplier base ceasing to exist is bad news for you as a business. And I am afraid it is no answer to say there will still be the same number of cases.

If you are unlucky, and there will be some who are this unlucky, either the majority of your solicitors or the majority of your chambers’ solicitors will go out of business or stop/reduce their criminal work.

If they go out of business and the individuals are fortunate enough to find work elsewhere or if the firm is subsumed by some greater entity there is no guarantee that they will continue to instruct you. In fact the larger firms with greater volumes of work and greater control of blocks of cases coming up from the magistrates is the perfect scenario for the employment of in-house advocates.

Individuals and possibly whole chambers are going to struggle. So polish your CV. You may soon need to find alternative employment too.

Even if you retain a sufficient client base to carry on you need to appreciate the political reality. The solicitors are also facing the implementation of the second round of cuts. We have seen the reports that suggest minimal profit margins for firms in the new Legal Aid landscape.

So the next time a civil servant has to suggest to a minister where a few savings can be made what do you think the answer will be? Advocacy fees.

Other Barristers: The financial struggles of your colleagues leads to higher chambers’ expenses. The disappearance of some firms could impact upon your access to work.

And then there is the fact that this is plain wrong.

Campaigners for Justice: Nearly every concern that PCT brought now resurfaces. Choice is reduced in a shrinking market place. Quality is reduced as bulk work and cheap prices take the place of specialisation and excellence.

The General Public: I would like to think that the people of this nation care about the quality of justice. This is not just about guilty men complaining they do not have access to a Playstation as is their Human Right. This is about a justice system in decline, miscarriages of justice, a lowering of standards across the board. It is setting up massive costs for the future, both financial and social.

And it does have an impact upon you. The firm in the High Street? The firm that helped when your neighbour caused a nuisance? The firm that did your Grannies’ will? The firm that did your conveyancing? By this time next year they could have gone out of business. You might have another charity shop.

So what can we do? The simple answer is to fight it. The how we fight is for discussion. The two observations I will make is that it does not have to be every criminal practitioner who fights. Just a significant number. And I know it is difficult to see a rival still work whilst you take direct action. I know it is because I have witnessed it. But the alternative is worse. So unity is not the same as unanimity. Organisation and information is the key.

The other observation is that whatever has happened in the past must be consigned to the past. It matters not who let who down last time round. This is now. Action is needed. The last thing a Government seeking re-election in May needs is things going seriously wrong at the moment.

I will say that it is unrealistic to expect the Bar to take the only direct action. Solicitors will have to organise and take steps themselves. I, for one, would join with them like a shot because this is important. Really important.