Tag Archives: michael gove


The Criminal Courts Charge is a bad and pointless thing. Everyone knows it, with possibly one exception in the form of C. Grayling MP, TB (Total Buffoon). The problem, it would seem, is that the MOJ budget has been worked out on the basis of the revenue that the Charge is supposed to raise. Until they can replace the income stream, the Charge has to stay. 

Now this is, of course, a total fiction. The Charge will not raise the amount the budget says it will. It is being imposed upon people who will never be able to afford to pay it. It is being imposed on people who are being imprisoned for decades. It is, in one case of mine recently, being imposed upon a man who will be deported before the Charge can even be remitted. The predicted “profit” does not seem to take into account how much administering the collection/remission/ignoring of the Charge will cost. This is budgetary hopeful thinking on a major scale. You may as well include the largesse of the Tooth Fairy in your next mortgage application.

Poor old Michael Gove still has to find away of defending the Charge to the public. Every time he passes Grayling in the corridors of power he must feel like sticking out a foot and sending him flying whilst shouting “Why do I have to look a total berk every week defending the claptrap you left me with?” Although he may be tempted to include a few more words of more base Anglo-Saxon heritage, and would be well justified in so doing. 

But for now, defend it he must. So, through gritted teeth, Gove recently said: “The criminal courts charge is generating revenue, which helps ensure that the taxpayer is not the first port of call for supporting the way in which our courts operate, but it is important that we balance all the criteria in making a judgment on the review of the charge.”

Now there may be some that think that the taxpayer should be the first port of call for supporting the way which our courts operate. The courts are a key part of our democratic process. It is part of what makes us all safe. Safe in so many ways. Safe from the criminals, safe from the abuse of power. It is exactly the sort of thing that the raising of tax revenue should pay for. At the very least tax revenue should pay for the courts before it pays for a big plane for the PM to use see his mates in Saudi Arabia. But that may just be me. 

Gove’s statement did, at least, get me thinking. What if he is right? What if the public should not foot the bill for certain parts of the democratic process? What if we could find other ways of raising money on the back of keeping civilisation civilised?

Perhaps Mr Gove should look a little closer to home. How about a House of Commons Waffle Charge? A £100 per minute charge levied on MPs who want to filibuster in order to frustrate the work of the House of Commons. So those great and dedicated public servants like Philip Davies, who spoke for 93 minutes to defeat a Bill that would have given carers free parking at hospitals, can put his hand in his pocket.  By all means he should be able to exercise his democratic right to defeat legislation having a long argument rather than a reasoned, winning one, but why should the public pay? Implement my scheme and the public could have pocketed £7800 profit. And we could have made £3700 when he did it again to thwart compulsory first aid training for schoolkids.

Why stop there? At a tenner each time that the Prime Minister fails to answer a question we could all have a private jet by next Easter. Peers getting expenses for tipping up to the House of Lords? Why should the taxpayer be the first port of call for supporting the way our unelected second house operates? 

And may be the cost of every harebrained Government scheme that ends up scrapped should come out of the pension pots of those involved. The £6 million wasted on the ridiculous secure college for young offenders would make a heck of a dent in the pensions of Grayling and a few senior civil servants. Why should the public be the first port of call to support their incompetence? 

So Mr Gove, do the right thing when it comes to the injustice of the Criminal Courts Charge. Do not allow this ridiculous state of affairs to be governed by a fiction of a budget. And if you need to make up the shortfall, pop ten pence in a swearbox every time you think of a bad word in connection with Mr Grayling. “F.O. Chris!” You’ll soon be quids in. 

Added Interest

I am told Michael Gove cannot abide self-interest. It may have been his perception of self-interest that caused him to rebuff the approaches of solicitor representatives to delay/abandon Two Tier this summer. This is something he needs to get over. Quickly. 

In Catherine Baksi’s interview with Sir Henry Brooke the retired Judge tells us about the early days of Legal Aid. He describes how lawyers would undertake Legal Aid work for 10% off the market rate, this being the lawyers’ contribution to the Legal Aid fund. 

A while ago I conducted a committal for sentence. The day after the hearing the client dropped an envelope into chambers. It contained a wad of banknotes. It contained in excess of 300% of the Legal Aid fee. The client had judged what he thought my work deserved as a gratuity. (The envelope and its contents were returned to the solicitor to be given back to the client, before anyone reports me to the BSB).  Legal Aid fees are a fraction of the going market rate. 

Let me begin to join up the dots. Mr Gove need not fear self-interest of Legal Aid lawyers. We are already investing more into the Legal Aid system than the Treasury. When he sits across the table from Legal Aid lawyers he is talking to people whose only interest is a sustainable and fair Legal Aid system. 

When he spoke to those Legal Aid lawyers in the late summer the message was we were too far down the road to abandon Two Tier. The savings from the second cut had to be banked. Two Tier had to go on. 

It turns out his biggest problem was not the self interested lawyers. It was not strikes or direct action. It was the usual inadequacy of the Government procurement “specialists” to organise a cocktail party in an off-licence. Inevitably there would be litigation but the information from two whistleblowers Freddie Hurlston and Paul Staples added considerable grist to the mill of the disappointed. 

So the implementation of Two Tier has been put back until at least April. A further cut to fixed fees has followed suit. And do you know what? The finances of the country have not been blown apart. 

In fact all that has happened is that the Government have wasted vast amounts of taxpayers money on a procurement process which has only procured a steaming pile of……procurement appeals. There is every chance that they may throw good money after bad in defending the assessment of untrained temps. 

The Lord Chancellor has been gifted a window of opportunity to find a better way forward. He should have done so in the summer. All that he has achieved is further cost. Now is the time to listen to those who have the most interest in the system working well. Time to talk to the lawyers. Lawyers who are not self-interested parasites but are expert participants best placed to advise how to deliver savings without cutting standards. 

Come on, Lord Chancellor, you know that everything Grayling did was a disaster. You know every decision he made was the wrong way forward. It is the lawyers across the table who can save you from the ultimate folly of Two Tier. That is in everyone’s interest. 

One Small Step….

After 52 days the CLSA and LCCSA have suspended the action being taken by solicitors who hoped to defeat the most recent cut to Legal Aid fees. Whether this is action suspended or action terminated remains to be seen. The proof of that particular pudding comes when the seat at the table earned by the CLSA and LCCSA either produces results or does not. Direct action which has been suspended would swing back into life. Let us hope we do not have to find out. 

Does this represent failure? From a personal point of view, yes it does. In a very specific way I had hoped that concerted effort by Solicitors and the Bar, taken across the board in the CJS could have led to real results. And with a result on the cuts I hoped that we would find a way to defeat Dual Contracts. 

Was it inevitable that it would fail? No. Taking action of this nature requires impact and sustainability. It is a delicate balancing exercise between bringing the system to its knees and allowing people to participate for a reasonable length of time. Had the solicitors hit the CJS harder, refusing duty work etc, then the action may have proved successful in a shorter space of time, however firms would have hit financial problems more quickly. 

I would have preferred a quicker, more direct approach. Take the momentum produced by the early shows of militancy and step up the pace. Not as sustainable but would have brought the system crashing. 

Oh the benefit of hindsight. 

That is not to say that everything is a negative. The two representative bodies have now got a seat at the table. Remember when Grayling would not even meet Michael Turner QC? Well the Criminal Bar are now much better served by having the attention of the MoJ. It is much better to have a representative body like the CBA at the table than the monolithic Bar Council. And now the CLSA and LCCSA are in the room and fighting. That is a positive. 

One of the reasons they are in the room is because Jon Black, Bill Waddington, Robin Murray and Zoe Gascoyne managed to produce a predicted Impossibility – solicitors taking action. They said it could not be done. They said it would fall apart as soon as it began. Yet these four, and many other committed committee colleagues, welded together competing elements and produced a plan. A plan that produced action and action that they kept going for an admirably long time. Sadly, not long enough. 

The CLSA and LCCSA managed so much by managing the consultation with their members so well. They tried to keep everyone informed (it was not perfect, but it was a fine effort), they consulted their membership by surveys (not votes, apparently lawyers don’t do votes) and local meetings. Lessons of openness that many could learn from. 

The action also, hopefully, heralds an era of better cooperation between the CBA and the other organisations (am getting tired of strings of capital letters every other sentence). The cries of treachery that followed “the deal” were overreactions of epic proportions. Whilst there were good, logical arguments against “the deal”, the white heat of anger that followed it did not help one bit. The support given by the Bar to this action should put paid to any solicitor ever referring to “the deal” in a disparaging way. Those that did in the past were wrong to do so then, they have no excuse now.

It is certain that the CBA have to take onboard the concerns expressed by so many of their members about these cuts to fees and the danger of Dual Contracts. The question that lies ahead for Mark Fenhalls QC and Francis Fitzgibbon QC is how to best shape the way forward to address these concerns (a bit of a clue for them, it ain’t all about referral fees, or even a little bit about referral fees). 

So, whilst my hopes have been dashed and I fear for the future of my professions and for the Criminal Justice System, it is not time for despair. It is time to think again and to come again. Not a backwards step, just not the stride forward we had hoped for. 

Difficult Days

There’s many a slip twixt cup and lip, so the old saying goes. Is this just a drop in the saucer or are we sitting here with hot, scalding tea in our lap?

There are some things that have not changed. Have not changed one iota. As I see it dual contracts are still a poor outcome for the Bar. The second cut, imposed on 1st July, is still a bad outcome for the Bar (and solicitors). The fight against the second cut is strategically an important step in bringing dual contracts to an end before they begin. These two judgements remain unaltered. 

It also remains the case that I believe the alternative proposed by those against the taking of direct action at this time, and in this cause, is insufficient, of itself, to ensure the future of the Bar. I see no argument yet made that persuades me regulation about referral fees will be enough to secure our future. We have seen it before with Carter – the greatest threat to our source of work is inadequate remuneration to those that provide us with work. Thereafter our remuneration for that work is of paramount importance. Securing appropriate remuneration is therefore key to our survival. It is also vital to the provision of proper and skilled representation in the police stations, in the lower courts and in the most serious of cases. 

None of that has changed. 

It is folly, however, to pretend that the issuing of the second protocol is not a significant event. If any proponent of action tries to brush it off as anything other they are plainly, palpably wrong. 

It was obvious, and I apologise if this needed pointing out in advance, that the possibility existed for a change in tactics by those corralling the solicitor profession. Did I expect this change at this time? No. 

Am I disappointed by this change? The honest answer is yes. I accept and acknowledge that I am something of an extremist in this regard. I believe that we should all, barrister and solicitor alike, walk out of court until such time as Legal Aid is put on a sustainable footing. I believe Sir Anthony Hooper and I have in common the belief that the Government will only listen when we withdraw our labour. And nothing amounts to a greater withdrawal than courtrooms sitting largely vacant. 

So I am disappointed. Recently I addressed solicitors in Manchester and urged them to stay out of the police stations and out of the courtrooms. Maximum disruption provided the maximum opportunity for success. 

Direct action can and does work. We saw that, to our benefit, with the previous policy of no returns and we saw the first sign of that with yesterday’s meeting. 

(As an aside, the furore over who was there and who was invited was a storm in the said teacup. All it served to highlight was a need for communication between the “leaders” with each other and between the associations and their members.)

So my next question is whether the change to the second protocol diminishes the prospect of success? There are two ways to look at this. The first is to say maximum disruption equals maximum prospect of success and therefore the answer would have to be “yes, it diminishes the chances”. On the other hand if maximum disruption is unsustainable then sustainable and significant  disruption becomes the next best scenario.

Again I make it clear, I believe the step change has come too soon. The timing is poor, for reasons I will develop in a moment. I am confident that the leadership of the CLSA and LCCSA have taken this step in the best interests of what they hope to achieve and as a result of developing circumstances. My sense of disappointment and dismay is not the same as a sense of betrayal. 

Is the second protocol capable of success? The answer is yes, if it is widely adopted. And there is a prospect that this will be more widely adopted than the first action. I would suggest it would be folly for any solicitor committed to the first protocol to reject this one out of hand. It may encourage some of the doubters to come on board. We will see.

Now for the big question. Should the Bar sustain a commitment to support this action? Nobody is going to fall off their chair when I answer “yes”. I go back to my aims as stated at the outset. I look at what I can do and not at circumstances that are beyond my control. Does the Bar adopting no returns and refusing new work strengthen the effect of direct action? Overwhelmingly, yes it does. 

I return now to the question of timing. It is a crying shame that the first protocol was not persisted with to overlap with the introduction of no returns. Now that would have been almost the perfect storm for the MoJ to weather. My sense of regret in that regard is deep. 

The more important question of timing is one of perception. The perception created is that the Bar is now being expected to shoulder the greatest burden. We, generally speaking, earn the lion’s share of our income in the Crown Court. That work is created by new work and returned work. The current direct action turns off both taps. If solicitors feel the economic pain of bills to pay and staff to face we have mortgages and families. 

Perception does create a skewed picture in this regard. Not undertaking new work in the Crown Court still will have a significant financial impact on solicitors. Their HCAs will be underused. Their clients will still be being turned away. Poaching will still be a risk. The system is such now that the Crown Court workload subsidises less profitable police station and Magistrates’ work. So the second protocol is not all jam for the solicitors. Far from it.

The perception is still very important. We may all be lawyers but we are also, mainly, humans too. Cold, hard logic is not always where decisions are made. Anyone dismissing this perception as nonsense does the owner of the perception a grave injustice. 

That being said, the implementation of the second protocol does shift the comparative burden. I am afraid the suggestion that those following the protocol should brief out Magistrates’ trials to the junior Bar does not ease the burden signicantly. It is a well meant gesture. Gestures do not pay the rent. 

So it is both the reality of a shifted burden and a perception of hardship falling only one way. 

So, what am I saying? I do not ignore the fact that the second protocol changes the situation. It is a development which could cause people to change their mind. No doubt in the coming days there will be meetings of solicitors that will allow them to reflect and make decisions. The Bar should do the same. 

And I’m afraid that means another ballot……please do not throw things. It is the only sensible way forward. People should not claim to speak for others, everyone should be allowed to speak for themselves. And that requires a ballot. 

The ballot should be organised quickly and should conclude in a short space of time. In the meantime I would still invite my colleagues to respect the decision made recently. That is why I will still not accept new work and will not accept a returned brief. 

If a new ballot is organised then I would respectfully suggest the Bar should ease the burden on itself. I would suggest a new protocol that the returns policy only applies to trials. That, in some way, reflects the shift made by the solicitors. 

I have no doubt that some will say I do not have all the answers. You would be wary of me if I claimed I did. These are not easy times. We are all trying to find solutions. Time once more for the Bar to consider and to speak. 

Back to the Future

“There is no profession more noble, no calling more vital, no role more important than being a barrister. Far and away the best part of my job is spending time with barristers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great advocacy left me feeling more optimistic about the future. I believe we have the best generation of barristers ever in our courts….. “

Fine words from a minister new to their job. Words that show the man in charge at the Ministry has the interests of the people on the front line at the forefront of his mind and at the heart of his policy. Barristers can hear these words and rest assured that this is the dawn of a new era in relations between the Bar and the minister. We can have confidence that our future is safe. 

The only problem being that Mr Gove did not utter these words, well not about barristers anyway. He said them about teachers in the early months of his tenure during a speech he gave at Westminster Academy;

There is no profession more noble, no calling more vital, no role more important than teaching. Far and away the best part of my job is spending time with teachers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great teaching left me feeling more optimistic about the future. I believe we have the best generation of teachers ever in our schools….. “

We all know how that relationship ended. Mr Gove, a close ally of the Prime Minister, was moved to Chief Whip in July 2014 when his relationship with the teaching profession was described as “toxic“. His reform proposals had left teachers feeling that the man in charge was a man who was not listening to their needs and concerns. The negative nature of this relationship was such that the Prime Minister feared that it would damage his party’s re-election prospects. I bet the teachers did not envisage this when being so warmly described by the brand new minister. 

The equally concerning aspect of the speech to the Academy, and many other speeches from the same period, is the fact that it bears many similarities to the speech delivered in his latest role to the Legatum Institute and the speeches that have followed. Warm words about the actors on the stage followed by concern at the two tier nature of the system. Of how the delivery of a quality service is currently dependent upon the ability to pay. And then solutions to problems by study of what they have done abroad. 

It goes without saying that we have to judge the Lord Chancellor on what he does. The important thing is not to just base that on what he says. Warm words can soon turn to dust.  His meeting with the CBA, CLSA, LCCSA and BFG gives him an early opportunity to match his words with deeds, deeds that benefit all the actors on the stage.

When is a Vote not a Vote?

Last night a group of barristers had a monumental decision to make. I refer not to the CBA but to myself, Mrs VFTN and our friends, all of us criminal barristers. We had to choose accommodation for our holiday. We had a number of options. We discussed the pros and cons. We then had a vote. We adopted a preferential voting system and all agreed to be bound by the result. And hey presto! A decision was reached. 

At about the same time the CBA Exec met. The result of that meeting is captured in a message which you can read here. The upshot is that the current CBA position is that they will not be calling for any direct action from the Bar at the present moment in time and they believe work can be done with the Government that puts the Bar, and the public, in a good position. 

I say “hmmmmmmm”.

I actually said a lot more. But “hmmmmmmm” sums it up in a way that seems more reasonable and even handed (and slightly less David Cameron down with the kids) than “WTF!”

For the time being I am going to leave to one side what “hmmmmm” says about the wisdom of putting all our eggs into the wisdom basket of the MoJ. I don’t necessarily blame my baldness on being patted on the head by wise and cool coves who tell me that the news from the Ministry is encouraging but it has happened often enough for it to be a contributory factor. And it has certainly happened more often than the actions of the Ministry being encouraging. 

No, my “hmmmmm” is mainly expressed as a surprise at what it says about democracy. I am a real stickler for it. That was why, despite my personal opposition to “the deal”, once the membership had voted that was the end of that episode. 

So I am little confused. You see back in May the Bar were asked this question;

Would you support action, ‘No returns’ and ‘Days of Action’ if the new government decides to proceed with the Duty Provider Scheme, reducing the number of solicitor providers by at least two thirds? 

The response was overwhelmingly in favour. You will note that the question was not predicated on the positions adopted by solicitors. This was the Bar’s response to Dual Contracts and the threat it posed to us. And our willingness to take action to change proposals that we viewed as damaging to the Bar. Not “will you strike if they strike?”. 

The response was communicated to the world in a press release which included these words;

“The Criminal Bar Association has conducted a survey of its members in order to gauge better the depth of concern amongst the profession about the Government’s proposals for the Dual Provider Scheme. The response for such a survey was unprecedented and 96% of those who responded have urged the CBA to take action to press the Government to think again. 

I make, if I may, three observations. The first is this – the Government must really quake in their boots now at the thought of the power of the Criminal Bar. We roar like lions and act like mice. The second is this – I do not see in today’s message the route that we have travelled from the membership urging the CBA to take action to the exec ignoring their urgings. The third is this – hmmmmmm.

When is a democratic decision not a decision? Well I guess the answer is when a vote is a survey. 

So I am not going to worry my pretty little bald head over such things as my future, the future of the professions and the future of the Justice system. I am going to leave it to those who know best and the man who wreaked havoc in Education. 

So this morning I have booked the villa. When I say “the villa”, I in fact mean the villa I wanted to go to. Yes that wasn’t the villa we chose last night, but that was only a “survey”. And what are my friends going to do about it? Not be my friend any more? Who needs friends anyway, when you have a lovely big empty villa to enjoy all on your own?


I like a good title. And no, I don’t mean the Your Honour or Mr Recorder type titles. Which is a good job because I do not like the idea of taking a comprehension test beyond the age of fifteen. But I digress. 

No, when I mean I like a good title, I mean for a blog. And for this blog about the new Lord Chancellor I kept thinking about a little word play with famous song titles, usually around the word “love”. So titles were considered and rejected; “Gove Will Tear Us Apart” (too gloomy); “All You Need Is Gove” (too Tory cheerleader); “Gove On The Rocks” (unrealistic); and, as a variation on a theme, the Smiths’ classic “Hand in Gove” (just too weird).

Eventually I decided upon “Untitled” because the story of Michael Gove, Lord Chancellor, is a story too new to be pigeon holed by some semi-illiterate pun. And that is the beauty of the situation. 

I have read and heard much in the way of speculation. Much of it from people who I respect, much of it from people who have some form of inside knowledge. 

One school of thought says that we should judge Gove by what happened in Education. He was deeply unpopular with the troops on the ground in that field and we should expect him to be a similar thorn in our side. He imposed his will on the education system despite warnings from those with greater experience and we face the same. 

Another school of thought says that this is a period of rehabilitation for Gove, bruised after losing the Education job. That he will want this to be a success by first avoiding a repeat of the animosity and resentment that saw him out of office. He will not want a war. 

Others look at his predecessor. It is said that Grayling had suffered too many reverses in the High Court and Cameron needed someone more assured to bring home the final phase of the cuts to Legal Aid. Gove is a close ally of Cameron and can be trusted to finish the job. It is not exactly as if Leader of the Commons is viewed as a plum role as reward for a job well done by Grayling. 

Meanwhile some say that, in Grayling, Cameron had a zealot to the cause. A man driven by the pursuit of budgetary savings and committed to seeing it through. If there was still the desire to see further cuts, then Grayling would have remained. If a gentle retreat is called for, then it is much easier for a fresh pair of eyes to see the need for a different approach. 

There is a compelling logic in much of what is said. Somebody, somewhere will be proved right. But at this moment in time it is still a story unwritten. The facts are still to unfold. 

So what do we know? We know that a party was thrown on the streets outside the MoJ to bid farewell to Grayling. And now he is gone. Just let that sink in – Grayling is no longer the author of our futures. There was a time when we would rather have Rasputin in Petty France than Grayling. 

We have a new ear to listen to our arguments. We have to make our case that the second cut need not be made. That Two-Tier is therefore not required. That we can offer further efficiency savings. That the CJS is in need of resuscitation, not starvation. 

These arguments must be first and be strong. They should be delivered with all the persuasion that is the hallmark of the best of the two professions. And they should be made by our representatives with the unity of us all adding momentum to their efforts. 

Finally they should be made with the nature and strength of our other course plain for all to see. We do not threaten but we make it clear – talk and negotiation is not the last resort. 

This is not weakness, this allows us to demonstrate the strength of our case. This is not appeasement, it is the appropriate seizing of an opportunity we have hoped for. 

We will get an early indication of our prospects of success. The new Lord Chancellor needs to pause the tender process in order to allow the room for negotiations to take place. If the process is pursued notwithstanding the obvious logic in at least pausing it then we will know. We will know little has changed. 

Let us hope that Gove Changes Everything. *sorry*