Tag Archives: legal aid reform

The Weakest Link

A dark TV studio. Contestants stand behind oval shaped podia, each of them fanned out at an equal distance from each other, the line of them curved around a central figure. A female dressed all in black. A smart trouser suit with a three quarter length jacket. A look of disdain on an unsmiling face.

The camera focuses on each contestant in turn. The man behind the first mini lectern smiles weakly for the camera, the make-up girl has not managed to entirely stop the studio light reflecting off his bald head. He speaks, “Hi Maura, my names Chris and I am the first non-lawyer to be Lord Chancellor.”

The camera immediately swoops to the next face. Another male. Older this time. More hair but not by much and silvery white. “I’m Tom. I am in the Lords and work in Justice. I have been at the heart of Government pretty much forever.”

The first female contestant is introduced. Smartly turned out in a business suit and a smile that says she is to be taken seriously. She looks directly in to the lens of the camera and says “My name is Helen, I used to be a Legal Aid solicitor but don’t let that put you off me.” The audience, quiet until now, titters at this little quip.

Fourth in the male dominated quintet introduces himself, “My name is Damian. I live in Ashford. I am married to a barrister but don’t let that put you off me.” The smile on his lips remains fixed as his joke passes in stony silence. The camera lingers for a moment, just long enough to make his discomfort palpable before focussing on the final contestant.

“My name is Harry, journalist, author and, before you go mentioning it Maura, member of the Bullingdon Club and distant relo to the PM himself.” Harry allows himself a smile, content that he has already taken the sting out the quizmaster’s infamous barbs.

The camera fixes on the host. “So, the contestants for the Weakest Link MoJ special are here. Who will last less time than Applied Language Solutions? Who has less brain cells than second homes? Who will tip the balance for the scales of justice? Lets see as we play……The Weakest Link.”

The studio lights dim further as Maura turns to face the contestants, dramatic music heightening the tension. The questions begin.

“Chris, who failed to deliver on the terms of their £284 million contract to provide security to the London Olympics?”

“Errr…. The army??” replies Chris.

“No, G4S. Tom, who lost the contract to run Wolds prison in the same year that an inspectorate report found ‘concerns about a number of issues, including the availability of drugs, a lack of staff confidence in confronting poor behaviour, weaknesses in the promotion of diversity and limited work and training provision’?”

Tom thinks for a moment. “The Prison Service.”

“No, G4S. Helen, who had to drop out of the contract process for tagging offenders when it was revealed they had been massively over-charging the public for services that had not been provided?”

“The answer must be the Prison Service.”

“Wrong. It’s G4S. Damian, which company is still being paid £1.2 billion to run HMP Altcourse, £1.5 billion to run HMP Parc and also pockets £175 million to provide facility services to the Court Service amongst many such contracts?”

A pained expression crosses Damian’s face, he shakes his head, “Sorry Maura. The answer is there but my minds gone blank.” He looks down at his little desk before him and sighs. “Pass.”

“Not surprisingly, G4S is the answer. Harry…..” Before the question can be started Harry enthusiastically shouts “Bank”. You can almost hear a weary tone in Maura’s voice as she continues, “Harry, which operatic vocal quartet came to prominence on the X-Factor?”

Quick as a flash Harry answers “G4S”. Just as he does the dramatic music returns to signal the end of the round. Maura tilts her head to one side, “Close Harry,” she says, “very close. The correct answer was G4.” She pivots once again to take in all five contestants. “Well team, that wasn’t very impressive. Not a single correct answer and, unlike G4S, not a single pound banked. So, who is more Judge Judy than Baroness Hale? Who is more Marshmallow than Marshall-Hall? It is time to find out as you vote off…..The Weakest Link.”

As the contestants begin to scribble with a plastic stylus on a screen a voice-over, with a hint of ashtray about the voice, chimes in, “Statistically in that round Harry was the weakest link as he tried to bank when there was no money. And as no one else got a single question right the others all tied as the strongest link in that round.”

“Right, time to reveal who you think is the weakest link” Maura tells them with that clipped manner of the school teacher.

In the next 30 seconds each of the first four contestant press a button to reveal a single name written as by a child on an Etch-a-Sketch. Simultaneously each of them declare “Harry”. At the end of the crescent a somewhat forlorn looking Harry reveals Helen as his weakest link.

Maura addresses Damian, “So Damian, clearly nobody leaked the questions to you did they?” Again Damian looks uncomfortable, “No Maura.”

“It can’t have been the pressure of TV, what with you having been a journalist before entering politics, so what made your brain freeze?”

“Well, you see, there are just so many big corporations these days running different aspects of the criminal justice system sometimes it is a bit difficult to keep up with who is doing what,” Damian splutters.

“I see. Not difficult to see how they get away with ripping the public off then is it?”. Not one of the contestants will meet Maura’s eye as she speaks.

“Harry….”

Harry clears his throat, “Yes, Maura.”

“Why did you vote for Helen?”

“Well, Maura, she gave an obvious wrong answer. Anyone in the know would realise we don’t sell…..errr….outsource the running of the prisons to the prison service because that would be insourcing and no one as ever heard of that so…she….was clearly a weak…..I mean….the weakest link.”

“I know Harry, but you got your question wrong as well as shouting ‘bank’ when there was nothing to bank…..” Maura says with a touch of something bordering pity in her voice.

“That was force of habit. The boys in the Bullingdon are forever playing bank when there’s no money to be had so it just popped out,” laments Harry.

“Harry, you are the weakest link…..goodbye“. And with that icy send off, Harry departs the scene, head bowed. Maura turns to the remaining four, “you survive. Well let’s see who is about to be moved to Fisheries? Let us learn who is destined for higher office and who is packing their bags for Northern Ireland as we play……The Weakest Link!”

“As none of you managed a single correct answer in the last round we will start with Chris again…..Chris if the Ministry want a Legal Aid budget of less than £1billion by 2014 how much does it have to save from Criminal Legal Aid?”

A look of confidence flashes across Chris’s face, “20%” he declares in what he believes is an authoritative way.

“Wrong,” replies the host, “the correct answer is ‘not one penny’. Tom, beginning with ‘U’ what describes a proposal that removes the rights of prisoners to bring actions against the State, bars people from receiving funding because of where they were born and simultaneously makes the whole process of Judicial Review harder and more expensive?”

“Hang on a minute, it wasn’t me that this began with,” Tom complains, “it was all Chris’s idea. He was the one….” Maura inerrupts, “Steady on Tom, I didn’t say ‘you’, I said ‘U’…..as in the letter, which word beginning with the letter ‘U’ describes the proposal to limit the individual’s ability to challenge the Government?”

“Oh I see, gotcha, right…Which word…” Tom mumbles to himself, “beginning with ‘U’…..stops Judicial Review….. Got it Maura,” Tom beams as he speaks clearly now, “Useful. Such a proposal is ‘useful’!”

“The answer I was looking for was ‘unconstitutional’.” Maura turns to Helen, “Helen, which South London firm of solicitors was paid £200,000 in Legal Aid after your appointment to the Ministry?”

“Mine!” Helen immediately answers. “Or rather my husband’s….”

“It’s not the answer we have here, that says Grants Solicitors…..but I am being told in my ear we can accept that. Damian, your question, who decides whether the Prosecution should appeal a sentence as unduly lenient?”

“The P-prrrime-Minister,” stammers Damian, “no, wait, the press….nope, hang on….both.”

“Wrong. Again. It’s the Attorney-General,” Maura is interrupted by the dramatic music, “and that’s your lot for this round. So who is the Cambodian defendant with a Mandarin interpreter? Who is a level 1 advocate “acting up” in a level 3 trial of issue? Who is more My Lacklustre than My Learned Friend?”

As the competitors turn their attentions to scribbling their betrayals the voiceover reminds us that Helen, being the only person to answer a question correctly all evening is the strongest link, whilst the three men are equally weak as each other.

Maura looks at the players with increasing disdain, “Who is going getting the go direct to jail card? Who is having their licence revoked? Lets reveal, the Weakest Link.”

Moments later the three male contestants are stood behind their electronic scrawl nominating Helen whilst Helen herself glowers behind her vote for Damian.

“Chris, you haven’t answered a single question correctly all night. It’s almost as if you would be better avoiding the questions if you have no answers. Why Helen?” asks Maura.

“If you have a team of people working at the same level sometimes you just have to say ‘Sorry Guys, this has been a difficult conversation but we are all in it together, it’s just that one of you guys has now gotta be on the outside in the cold, in it with us, in here.’ And that person has to be Helen. Which I am sure she understands.”

The look on Maura’s face tells us she barely understands a word and Helen certainly seems scarcely comforted as she departs the studio floor.

“And then there were three. Is it three wise men or three men in a boat without a paddle and without a clue? Does MoJ stand for Ministry of Justice or Ministry of Jokers? Starting with you Chris…. which member of the cabinet takes an oath to ‘respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.’?”

For a moment Chris looks stunned, “Me. That’s me!”

CORRECT. Now Tom, which politician, who has not succeeded in an election since 1979, is doing everything he can to make sure the Lord Chancellor does not fulfil his oath?”

“That’ll be me,” cries Tom.

“A miracle. Yes, that’s correct. Now Damian, which is more expensive, the Crown Court or the magistrates?”

“Easy,” claims Damian, “the Crown Court.”

“Right again. Lets keep moving. Chris, statistically which type of sentence is more likely to cut re-offending? A short custodial sentence or supervision by the Probation Service?

“Don’t tell anyone but its Probation,” Chris says, wistfully.

“Wonders never cease, that’s correct. Tom, how often do magistrates commit cases to the Crown Court where the Judge then imposes a sentence less than the maximum available in the Mags?”

“40% of the time,” answers a now cocky Tom.

“What a run. Correct. Now Damian, where should the more complex and serious criminal cases be heard?”

“Too easy, the Mags,” crows Damian.

The dramatic music cues the end of the round. Maura looks visibly drained as she tells Damian, “With that wrong answer you ended the round with no money banked. So which of you is destined for the woolsack and which of you is getting the sack?” And now Maura pauses and looks at her cue cards of acerbic wit. She looks back at the three most senior people in the Ministry. “You know, none of you are the weakest link. Because you are all a shower of shite,” she begins to remove her earpiece and turns to walk away. She glances back at the stunned contestants and continues, “Not one of you has a clue what you are talking about. Not a clue.” As she walks off stage she can be heard saying “Get my agent on the phone. Hook me up with Ant and Dec. If these three are in charge I am beginning to think I am ready for I’m A Barrister, Get Me Out Of Here. Eating a kangaroo testicle has to be better than this…..”

A Note of a Meeting with the Lord Chancellor

I understand this note was compiled by the Leader of the Midlands and Oxford Circuit

NOTE OF MEETING WITH LORD CHANCELLOR

LC began by saying that he was surprised that the Bar was not engaging in the consultation process with him. He said that this in distinction to the Law Society who had come up with a set of proposals and were actively debating them with him.

We pointed out that we were engaging with him. The Bar was responsible for a large number of the responses that he had received to his consultation document and contained many reasons why what he proposed was not in the public interest. The responses contained a number of ways in which significant sums could be saved without cutting legal aid payments. We said that we were not prepared to engage in, for example, a debate as to how standards could be maintained in a PCT scheme because we took the view that such a scheme was so fundamentally flawed that no effective scheme could be devised to protect standards within it.

We asked him where the consultation process had so far led him. He said that there would be another shorter consultation period in the Autumn – probably September. The length of that consultation had not yet been decided but would be no longer than 6 weeks. He said that the shape of the new consultation package was not yet decided as the Department was still reading some of the responses to the original consultation.

LC said that as far as the position of the solicitors is concerned, some of them had initially come to him and asked for a straight pay cut without PCT. He told us that he had told them that a pay cut without structural change was a non-starter. He said that they had then come back to him with their current proposals.

We spoke about choice. He said that he had some time ago decided that the idea of “no choice” was inappropriate. He said that it had been part of the original proposal as he thought that the successful bidders in any PCT auction would need to be assured of volume of work. He said that solicitors had told him that they could work with a system that included the right to chose. He said that the re-introduction of choice does not mean that PCT was dead but that in fact new models were being considered.

The LC said that he wanted to reduce the amount of red tape surrounding the legal profession generally. We welcomed this.

The LC said that he wanted to “streamline the process”. By this he meant that he thought that money could be saved by having fewer cases listed for mention unnecessarily, doing some preliminary hearings over the phone or the net etc. We pointed out that this would be in our interests as we did not get paid a separate fee for mentions anymore. We also pointed out that streamlining in this way depended more on the cooperation of judges than it did on the bar. He said that he thought that Thomas LJ was eager to devise ways to help on this point.
We asked whether he had rethought his proposals on VHCC – in particular his plan to cut the rates payable to people who were already part way through preparing a case. He said that he intended to stick with this idea. We pointed out that many silks who had such contracts running at the moment had already expressed an intention to return briefs if this came about. He said that he thought that the amounts payable under VHCC contracts made this unlikely in his view. He confirmed that if they did so fresh counsel would have to be instructed to prepare the case.

We pointed out to him that VHCC was a scheme introduced by government and that the Bar had on a number of occasions in the past suggested a scheme (GradFee Plus) that would save a lot of money on admin costs alone. He said that, following some of the consultation responses on this subject, the government had looked out the original GradFee Plus documents from the Bar Council and were studying them again.

We discussed the new fee structure used by the CPS with its reduced reliance on page counting. LC asked us whether such a scheme would find favour with the Bar as it might result in administrative savings. We said that the Bar’s response would likely depend on the figures in the boxes. We warned him that the Bar would be against a change like this if it was just a veneer for reducing our fees but that, if the only saving was administrative, it was perhaps a more acceptable way for him to save money than a fee cut.

We said that we had an expert report which suggested to us that the spending on legal aid was going to be much lower in years to come than anticipated given the reduction in work and the changes that were still working their way through the system – fee cuts over the last three years, EGPS etc. He said that his figures suggested that this was not so but said that if we wanted to submit any fresh data to him for consideration he would be happy to look at it.

LC suggested that we should look at ways in which he could help to ensure that work was still coming to the Bar. He said that if we were right and quality of advocacy at the Bar was so much higher than that of solicitors perhaps we should look for a way of ensuring that only advocates of real quality were able to take on serious criminal cases. We repeated our view that QASA was not a means of properly controlling quality. He suggested that we should consider a respected figure being appointed to look at the questions of recruitment to the Bar and the solicitors profession and at control of quality in the Crown Court. We said that we would consider this idea.
LC offered to set up a working party with the Bar to look at how the criminal justice system could be streamlined to avoid time wasting. We again said that we would consider this.

A Fourth Letter to Lord McNally

My Dearest Tommy,

May I first apologise for the frequency of my correspondence? I know now that it was how often that I felt moved to write to Richard Madeley that led to the injunction. I do appreciate how a mountain of correspondence can become tiresome in itself. I hope that the photos of me enjoying the sunshine whilst shopping in Tescos that I sent you on Snapchat have added some moments of levity to your day in these times of austerity.

However I could not let recent events pass without comment. You will, of course, recall what you said last week about litigants in person,

“There have always been a significant number of people representing themselves in court – they did in around half of all child custody cases last year – and we provide information and guidance to help them. Evidence shows that cases where people represent themselves are normally completed quicker.”

This was in response to the report from The Judicial Working Group on Litigants in Person (report here). They had raised spurious concerns about litigants in person occupying judicial time out of court because they contacted the court about all sorts of irrelevant matters, that they made unwarranted applications, lodged unmeritorious appeals, could not understand the difference between a sense of grievance and a cause of action and that the presentation of the cases could be chaotic. They concluded,

“All of these issues have the potential to slow down, and to drive up the cost of, proceedings; and to take up judges’ time.”

Yet where is their evidence of that? I mean it is all well and good Mr Justice Hickinbottom, District Judge Ayers, His Honour Judge Bailey, Professor Dame Hazel Genn, District Judge Lethem, His Honour Judge Martin, Mrs Justice Parker, Alison Russell QC, Regional Employment Judge Carol Taylor and Penny Williams JP DL giving some anecdotal accounts of their collective experience but what do they know? The statistics show that not having a lawyer makes the cases conclude quicker. And that has to be good, right? Justice delayed is justice denied. It isn’t about the Judge coming to the right decision but a quick one. Lawyers just get in the way with their evidence, their law and their persuading the Judge that their first view may be wrong. You don’t get that with litigants in person.

In the debate on 11th July in the House of Lords lots of your noble friends, many of them speaking out of knowledge, sorry, self-interest as former m’learned friends, raised various concerns about the proposed reforms to Legal Aid. I was impressed at your cunning avoidance of answering any of the points they raised. This has caused you somewhat of a pickle in the past when you answered the point about choice, only for everyone else to agree with them. So it was probably for the best that you stuck to a party line (unfortunate phrase for you I know, can lead to confusion as to which party it is this week) in a prepared statement and then going “no comment” to the rest of it. Your opening line that “it was important that I put on record the Government’s point of view” was a wonderful device of political speaking. Making sure your personal ideological view is not confused with Government policy.

You then went on to quote extensively from Lord Carter and his review where he said,

“A healthy legal services market should be driven by best value competition based on quality, capacity and price. All three of these factors should lead to the restructuring of the supply market…..The emphasis of the proposals has been upon providing incentives for firms to structure their businesses in such a way that legal aid services can be procured more effectively, and that the service is delivered more efficiently”.

An admirable source of support for this Government’s proposals for reform. It is to be hoped that everyone ignores his other thoughts when he also recommended,

“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.”

So Lord Carter proposed just short of three years of work that included peer review of all firms seeking to bid for the new contracts. Handy indeed to avoid mention of this given that before the Justice Select Committee the Lord Chancellor was able to tell them that only 10% of firms are currently peer reviewed and he wants these contracts underway by Spring 2014 (well the Lord Chancellor couldn’t, he had to get his colleague to, the Lord Chancellor should not get his hands dirty with peer review when there are cuts to be made). One of the safeguards envisaged by Lord Carter was that all the firms bidding should have been subject to peer review before they were allowed a contract. Surely it is just as safe to do it after the contracts have all been granted? Never mind the quality, feel the consolidation of the market.

As lawyers continue to bleat on about their fees being cut you observed in the debate that “some lower earners may see a small increase in their fee income”. A brilliant political promise. If one year from now you can point to one advocate who has had their income rise by one pound you will be proved correct. And even if you cannot, you would still be right. God, you’re good.

You quite rightly chastised the legal profession for confusing the public. In seeking to reduce the number of contracts to 400 you are not seeking to reduce the number of firms to 400. Loads of the other firms will continue doing all the private paying clients. Who will get a Rolls Royce service. Which is good. Look how many Rolls Royce garages there are on every High Street….oh hang on, that doesn’t work so well. Anyway, lots of firms will contract out services such as attendance at the police station to firms that will then exist on these crumbs from the table. It is wholly disingenuous for the legal profession to suggest that if you remove the ability to undertake publicly funded work from two thirds of firms providing criminal advice and representation that they will cease to exist.

Lord Carlile of Berriew, a member of your own party (for the avoidance of doubt, and as an aide memoire to yourself, that’s the LibDems) then had the temerity to interrupt you and said “Will the noble Lord answer the debate?” to which you pithily answered “I am answering the debate.” If one was a pedant one may point out that you had moments earlier said “I will not be able to follow the usual courtesy of a detailed response to the many individual points and questions raised…..and I will see whether I can cover some of the specific points raised in an omnibus letter that we will circulate to noble Lords.” So everyone can see you were both answering the debate and not responding to the points raised at the same time.

It is quite clear that your answer to the debate is to reiterate what the Government’s position has always been (except on client choice, where they were wrong, but only out of a desire to do the legal profession a favour). If the Lords cannot understand this then that is their fault. I thought Baroness Deech was a bit cutting at the end when she thanked you for “listening”. Made it sound like all your talking had not contributed to the debate.

But you had made one very valuable contribution. In my recent correspondence I had commented upon the fact that I awaited your motion of no confidence in the Lord Chancellor. I was beginning to feel a little disappointed in you. I apologise. I should never have doubted you. You are simply biding your time. Towards the end of the debate you said this,

“However, when the cuts have been made we will still be left with one of the most generous legal aid schemes in the world. I would make the point that although I have never compared it with continental legal aid schemes, I have compared it with common law legal aid schemes in Australia, Canada, New Zealand and elsewhere—and noble Lords will find that it is one of the most generous in the world. I am proud of that fact. I want us to have a generous legal aid scheme. Access to justice is important. I want us to work on ways and ideas, some of which have been thrown up by the consultation, which will give long-term sustainability to legal aid.”

Again the pedantic amongst us could point out that when you describe it as “one of the most generous legal aid schemes in the world” you are comparing it to the continental schemes, what with them being part of the world and all that (unless this is heralding your move to UKIP and we can ignore Europe as part of the global community). But the pedant would miss the true message here. Although you have not compared it to Europe we all know someone who did. George Osborne. In his speech on the spending review he said “the cost of legal aid per head is double the European average.” And now the true believer can see where you are going. Get rid of Grayling. He may be able to survive tagging and interpreter scandals but not an operator like you. Once you have offed Grayling time to point out that the Chancellor of the Exchequer has got his comparisons wrong, point out how pear shaped the Legal Aid system is going in Australia where you have murders unprosecuted through lack of representation and you can save the Legal Aid budget from the cuts! It is Machiavellian brilliance. You win the day and everyone is home in time for tea and cake.

Before now I had been blinded. As I write this letter the scales have fallen from my eyes. I had believed criminals should not be allowed choice. I believed prisoners should not have the protection of the courts. I believed lawyers were overpaid. But now I review your closing words in the House of Lords debate,

“Our legal system, our respect for the rule of law and the eminence and integrity of our judiciary are precious gifts passed down from one generation to another. We all have a duty to protect what is best while managing the change that is inevitable. That is the task before us now, and I again call on all those who care about the system of justice to join us in that task.”

I can see that all along you have been working on the inside to #saveukjustice and I am with you Brother. Every step of the way. If I am wrong about this then I am still with you every step of the way. You just need to let me know where we are going.

Yours in supplicant devotion,

The Gardener

PS I understand the CBA have elected a new boy. Word on the street says he goes by the nickname Red Cross. It must mean he is versed in First Aid. I am sure it is nothing to do with battling for the rights of those he represents……

PPS In your continued rise to power we need some well placed PR. I suggest a few personal interview pieces in the Spectator. We can get that chap Mount to write them. They can be called “When Harry Met McNally”. The whole world will want whatever you are having.

Iolanthe Part 2

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

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

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

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

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

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

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

[This all sounds very PCT-ish to me]

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

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

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

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

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

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

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

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

TO BE CONTINUEDThe concluding part is available here.

A Second Letter to Lord McNally

Dear Tom,

I hope that I can call you Tom at this stage in our correspondence. Albeit I am still awaiting a response to my friend request on Facebook, I am sure this speaks more of how busy you are at the moment rather than existing as any commentary on the depth of our bond.

And busy you have been. The Lord Chancellor and you have developed a cunning strategy. He is an elected representative. He cannot continue his zealotry of Legal Aid reform unless he is in power. You are a life peer. You do not rely upon a mandate from the people to change society. If you are left to do front of house then, in the unlikely event this all goes wrong, Chris reduces his risk of losing his seat in the House because his name is indelibly linked to a failed policy as you are the public face for this reform. And it is no risk for you as you do not have to rely upon the mendacity of the electorate. Genius.

So when this has to be discussed in public you are the perfect man for the job. You are Chris Grayling’s bullet proof vest. Ready to take one for the team. You are the Kevin Costner to his Whitney Houston (without the romantic interest).

So let us talk about your week. The Bar Council invited someone from the Ministry to Legal Aid Question Time. It made perfect sense for you to go rather than Chris expose himself again. It was right that you should make it clear that you did not regret the hysterical comment. I mean the legal profession keep referring to the Magna Carta. The Magna-freaking-Carta. It’s not like that is even a real law. When King John signed the Magna Carta declaring “To no one will we sell, to no one will we refuse or delay, right or justice” you, as a similarly unelected embodiment of the state, are free to ignore that. The legal profession and the judiciary referring to the Magna Carta is properly to be dismissed as histrionics. That is so different from Legal Aid. Did King John establish Legal Aid? No! So those pesky Judges should just let it lie.

If King John was around I’m sure he would have something to say about that cad Grieve. Something like “off with his head!”. He was being a very clever lawyer with the way he worded his letter to Treachery Counsel. He doesn’t “own” the policy on Legal Aid, the Lord Chancellor does. He may not own the policy but it was pretty clear to me that he was disowning it. What does he know? A fine example of what happens when you let lawyers meddle in areas like justice. Time to have a non-lawyer as Attorney-General. Can I suggest Eddie?

Now I know that when you were elected Leader of the LibDems in the Lords you said you wanted to be “the voice of conscience and reform on issues such as civil liberties, human rights, changes in the legal system and access to justice” but you should have told Nick Clegg you didn’t bloody mean it. What’s all this about it being perverse to not allow defendants to choose their own solicitor? Has nobody told Clegg about 20 year career criminals? It sounds like Clegg thinks they may, on occasion, be innocent. Time for a word with the Deputy Prime Minister. Remind him you did for Kennedy. That’ll keep him in line.

You need to make the likes of Grieve and Clegg realise where you are going with all of this. I recall you saying of Abu Qatada “The fact is, in my mind, if the Human Rights Act occasionally comes in favour of somebody who is not very likeable in terms of what they have done or who they are… that to me is a reassurance, that if even he is given the protection of our law and Human Rights Act then all the more the rest of us are going to be protected by it as well…..The law is there to protect us all and sometimes it protects those least worthy of its protection, but the fact its protection is there is part of what makes us a civilised society.” That demonstrates that you do indeed have a conscience. And you are right when you say that protecting those who we may dislike is the hallmark of a civilised society. And this is where your policy is so clever. We can have all the safeguards that show us to be a civilised society but then make sure no one can afford access to the courts so the Government are inconvenienced by hysterical lawyers. Foreigner we want to deport? Fails the residency test. Prisoner wants to review penal policy? Denied Legal Aid. Career burglar? Provided with lawyers no better than adequate and get them to plead without the rigmarole of a trial. Saving face whilst saving money. This policy is just brilliant. I can see you now at the party conference “Strong on Justice, tough on the causes of Justice.”

They should give you a Knighthood….

Yours admiringly,

The Gardener.

Read the first letter to my mate Tom here.