Tag Archives: duty 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. 

Best Mates

In a demonstration of unity with the Bar I call upon all solicitors to immediately cease undertaking Crown Court advocacy and to reject or repudiate any and all Two Tier contracts. 

I do not expect I will have many takers. Nor do I feel that a failure to act in this way actually demonstrates a lack of unity with me in my aim for appropriate remuneration for those working in Legal Aid cases and my desire to have a fair and equal justice system. 

The two acts I call for, albeit with my tongue firmly in my cheek, would improve the lot of the criminal barrister considerably. It probably would not leave much of a dent in the administration of justice either. And in the case of defeating TT, would be a positive all round. 

And yet I do not view this as treachery by solicitors. I do not feel this displays a lack of unity. I understand that we are distinct branches of the legal profession. I recognise that certain economic imperatives operate. 

So it really is time to understand what unity is and what unity isn’t. 

Unity is not expecting total, unswerving and unstinting dedication by everyone else to what you want. That is unity in the way that a dictatorship unifies the people in total and unquestioning supplication. Everyone is pulling in the same direction, whether they like it or not. And whether the direction benefits them or harms them. Unity is defined by what the dictator wants, nothing else. 

The Bar have been accused of a lack of unity in recent times. It is often accused of acts of great insult to our colleagues in the solicitor profession. Even in the pursuit of unity I cannot sit back and ignore this nonsense any longer. 

The language is sometimes offensive. There exists a number of Counsel who view all solicitor advocates as inferior. They are wrong. In house advocacy is not necessarily poor quality advocacy. The consultation on advocacy is, however, not an insult to solicitors. Nor is it born out of contempt for solicitors.

Firstly no advocate should be afraid of establishing their credentials when it comes to excellence. And I do not mean just demonstrating that you are “competent”. The aim should be for excellence. A proper panel scheme, and I do not mean the lip service of QASA, would improve quality assurance. In a post TT world that may be quite important. 

And, if I have not already been controversial enough, here comes the the really contentious bit. The reason why it is important is because of the economic temptation to instruct an advocate based upon an economic reason rather than reasons of quality and suitability. 

Please do not all shout at once. 

I am not saying that this is the basis upon which all employed advocates are currently instructed. I am not impugning the integrity of every solicitor out there. I am simply stating something that every player in the criminal justice system knows to be a risk. And it is a risk identified by the solicitor profession, in a slightly different context. 

Remember the Legal Aid Team video? That warned of under qualified or inexperienced personnel being deployed if legal aid was cut or contracted to big entities? The whole point is that cheaper labour for profit runs the risk of diminishing standards. Was that a suggestion which was a slur on the integrity of all solicitors? There would, surely, be some solicitors involved in these terrible organisations. The point was a good one. And is equally applicable to advocacy. 

Trying to find something that maintains standards in a post TT landscape is laudable. That the Bar should concentrate on maintaining standards in Crown Court advocacy is understandable. It is both where we see our strengths lie (championing your strength is not to denigrate others) and what we know about. It would be ridiculous if the Bar were to be at the vanguard of a consultation to promote quality assurance in police station representation. Very few of us do it. Clearly we would support such proposals as being of value to the system but we are not going to begin to design what would constitute proper quality assurance in that field. 

The Bar seems to being criticised for taking steps to protect itself in the post TT world. Which would be exactly the same motivation that lay behind any solicitor that bid for a contract. We do not want TT. We are not responsible for TT. We fear TT. We have nothing to gain from TT. Should we just go gently into the dark night that follows? No. Barristers work to earn money to pay their mortgages, provide for themselves and their families and to continue employing our staff. 

Those that bid for contracts on the rationale “we cannot afford to lose out if they come in” must totally understand that those that represent the Bar must work to try to minimise the impact upon their members. The way that is achieved must not be to the detriment of the administration of justice. If it is felt that the steps the Bar takes does diminish justice then argue against it. Don’t just cry “foul” and not be our friends any more. 

So the consultation about advocacy is not a slap in the face of all solicitors. It is not a declaration of war. It is a measure that should have been in place before market consolidation. There should have been such quality controls in place across the full range of services – police station representation, litigation, magistrates’ advocacy and crown court advocacy. 

Sometimes the best way to stay friends is not to take offence very easily. 

The U-Turn

I blame Thatcher. 

In fairness I blame Thatcher for most things. I am of that generation – she snatched our milk and we will not forget such deeds. I am also that way inclined, I possess a left leaning streak that some times manifests itself in outbreaks of Labour voting and always ensures an antipathy to M H Thatcher. 

But this bit of Thatcher blaming is quite specific. I blame our former premier for a political mindset that traces its direct lineage back to Maggie. From the moment she uttered the words “the lady is not for turning”, politicians have recoiled in horror at the thought of the dreaded U-Turn like pre Christopher Eccleston Daleks reacted to stairs. 

The “U-Turn” has become politician shorthand for weakness and lack of leadership. The odd thing about it is that the deathly accusation of a U-Turn is reserved for things that have previously been put in train. It seems you can promise to do something and then not do it. That is, after all, just a broken promise and why should we hold that against our political classes? You can break promises with impunity but woe betide the politician who performs a U-Turn once they have embarked upon a course of action. 

Which is a crying shame because we desperately need the Lord Chancellor to perform a U-Turn. He has demonstrated a willingness to think again. He has demonstrated a willingness to think differently from his predecessor. Suadi prison contract? Ripped-up. Huge Youth Prison? Scrapped. Book ban? Reversed. Criminal Courts Charge? Days are numbered?

A prudent Lord Chancellor would pause the Duty Contract process whilst claims from a whistleblower are investigated. This is absolutely crucial. He cannot look back at this a year from now and realise they have got it wrong. 

Yet he seems wedded to TT. Today the contracts have been awarded. We step closer to the precipice. There are so many good reasons why there should be a whopping great big, tyre-smoking, handbrake turn on this one. The consequences of getting this wrong are not capable of retrospective repair. Which is why an intelligent Lord Chancellor should be for turning. 

There are so many reasons why this process has to be paused:

  1. The MoJ have a poor history of procurement (interpreters??);
  2. This procurement process has already been amended by reason of the JR;
  3. Questions are now raised as per the whistleblower above;
  4. This is the same MoJ that were simultaneously entering into disastrous contractual agreements with Saudi Arabia;
  5. Just about every informed observer raises concerns over the procurement model; and
  6. The recent consultation on advocacy recognises that quality assurances provisions need to be put in place, sense dictates you do this before altering the market place and in more than just Crown Court advocacy.

There is no prospect of action being taken by those who have been awarded the contracts to derail the process for the greater good. We are left only with the hope that good sense will prevail. It is the only way we have left to turn. 

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.