Tag Archives: PCT

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…..”

Dear Damian

Dear Damian,

August is traditionally seen as the silly season in the news cycle so it was a perfect time for you to launch your policy concerning magistrates and making the criminal justice system more efficient. By that I mean such a vital policy should not be lost under the morass of other policy announcements, rather than it fitting nicely alongside stories concerning Katie Price or that nice chap with the hair in One Direction.

So my friend, you have identified one of essential problems at the heart of the criminal justice. It is important that magistrates “are routinely dealing with serious and complex cases, within their powers, rather than committing them to the Crown Court for sentencing” and that you find a way of “unclogging magistrates’ courts, for example, by dealing with the 500,000 or so simple road traffic offences out of the traditional process, freeing-up time for magistrates in courtrooms to deal with more serious offences”. Serious and complex cases are exactly what the magistrates is for, not for dealing with cases where someone is prosecuted by the state for driving matters – I mean that is virtually just an exercise in revenue raising by administrative act so should not have that whole “burden and standard of proof” thing anyway. You speak of these hearings being dealt with by a single magistrate in an office. Too right. No need for decisions that can lead to fines, points on driving licences, economic impacts on the individual’s ability to get jobs and insurance and decisions that may ultimately lead to a driving ban to be taken under public scrutiny in open court at the heart of the community. That’s not what the lay bench are for at all.

This is why your policy announcement rises above the normal silly season fare. You are restructuring the whole criminal justice system as we know it. You envisage a magistrates’ court that “routinely deals with serious and complex cases”. The Consolidated Criminal Procedure Rules currently advise magistrates “where cases involve complex questions of fact or difficult questions of laws….. the court should consider committal for trial”. So your policy signifies changes to be made that are far reaching and fundamental. No wonder you would want them to knock Simon Cowell’s love life off the front page. This is not something to try to sneak in under the radar.

In your press release announcing your brave new world you draw the attention of the press to the comparative costs of dealing with a case in the magistrates and the Crown Court. Can I suggest a simple way forward? Get some of those vans. You know, the “immigrant go home” vans? They have proved a bit controversial so get them repainted with the slogan “your worship, accept jurisdiction” and drive them in the vicinity of all magistrate courts. Magistrates have to realise they are volunteers, unlike those expensive Circuit Judge types. They are the very definition of the Big Society. And that means not committing people for sentence is cheap. Bloody cheap. I know that the Consolidated Criminal Procedure Rules state “the court should never make its decision [whether to commit] on the grounds of convenience or expedition” but it doesn’t hurt if we hammer it home to the bench that it is cheaper. The CCPR doesn’t say they can’t base the decision on costs. They probably should not say in open court but no harm giving them a nudge in the right direction is it?

One of the things that you point out is that in 4 out of 10 cases that are committed to the Crown Court for sentence the defendant receives a sentence that is less than the maximum available to the magistrates who committed him/her for sentence. So only 6 in every 10 get more than 6 months in custody when they have been committed save for pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. This is what I like to call the 666 factor (it’s an omen, Damian, an omen).

So we have the situation where a magistrate will often take the decision that they would have passed a higher sentence than is ultimately imposed by the troublesome full time, legally qualified judiciary. Not just an isolated incident but in just under half of all the cases committed. I even understand that, not infrequently, the Crown Court judge will impose a community order in cases where the Magistrates thought their powers insufficient. There are only two answers. One is to up the maximum sentence available to the magistrates. I see in your speech you dangle that tantalisingly before them. But what is much better is just to get them to rein it in a little bit. Have them think “well I would hammer them, but if I just knock a few weeks off I can squeeze it under our maximum and keep him away from that namby-pamby bleeding heart liberal soft arsed Judge and save loads of money in the process”. So we save costs and probably get a nice jump in the prison numbers. Lots of lovely short term prisoners who have little access to rehabilitative work in custody just banged up for hours on end playing Playstation. Get them in custody and get them out again to get them back in again. It is devilishly good.

Admittedly most of those defendants will probably elect to use their automatic right to appeal that sentence to the Crown Court. So the cost saving may be subsumed in to another part of the budget. But I am sure you have a plan for that. Like take away the automatic right to appeal (the devil is in the detail, Damian). It may not be justice but (to quote Franklin Sinclair) it’s not your job to care about justice. Well technically it is, but let’s not quibble over job titles.

Keep up the good work. Perhaps with all the money you are looking to save in streamlining the system you could put some money back in to fees?….. Only joking!!

Yours admiringly,

The Gardener

PS my favourite Kylie song was always “Better the Devil You Know”.

PPS it may interest you to know that if you Google “Damian Green” one of Google’s suggested search terms is “Damian Green Fiddle”. Was a little worried it was going to be one of those tricky expenses misunderstandings like your boss Chris “Split the Bill” Grayling but turns out there is a violinist called Damian Green. Funny.

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.

A Third Letter to Lord McNally

Dear T-Mac (I have decided you are now worthy of a soubriquet which is down with the kids, feel free to reply to Biggie-G),

So much water has passed under the bridge since last I wrote. Things have gone so Peter Tong (as the kids say) since our last interaction I am not in the least surprised that you have not had the time to respond. And I should imagine that you are spending so much time reviewing who should remain in your Linked-In profile that I can understand that you have not yet had the opportunity of adding me to your network.

I should imagine one easy choice was pressing the “delete” option for that turncoat Grayling. Such a quisling. It would seem that in the last 7 days he has been everywhere, and I mean EVERYWHERE, declaring that he isn’t anti-choice after all. And not only has he been saying he isn’t anti choice he has been saying that he wasn’t ideologically bound to a removal of choice. It was, apparently, only a means to an end. And, furthermore, he realised very soon in to the consultation process that he had got the whole choice thing wrong and that his instinct told him that it was wrong. It is just a pity his instinct didn’t share that with you. Or that other pedagogue of jurisprudence, Bob Neill.

If, for one moment, the Lord Chancellor had shared with you his doubts about restricting choice there is no way you would have, and pardon the expression, bared your arse on Law in Action with “No To Choice” tattooed across your buttocks.

When you appeared as part of the Bar Council’s Legal Aid Question Time you made it clear where your beliefs lie “The idea that a 20 year career criminal should have a brief of his choice is not right.” That was a plain and unequivocal statement of your belief. You state categorically that it is not right.

So when Chris Grayling wrote to Sir Alan Beith and said “One specific point in the consultation which has attracted significant response is the proposal to remove client choice in the model for competition for criminal litigation. The rationale for proposing this change was to give greater certainty of case volume for provides, making it easier and more predictable for them to organise their business to provide the most cost-effective service to the taxpayer – it is not a policy objective in its own right,” that could not be a clearer statement in contradiction to your beliefs.

What a pickle you find yourself in. It would seem the Lord Chancellor changed his mind very early on in the life of the consultation that your view on client choice was contrary to a fundamental aspect of the effective administration of the Legal Aid system. The consultation closed on 4th June and yet on the 11th June (Law in Action) and the 20th June (Legal Aid Question Time) you were expressing your deeply held principles about how wrong client choice truly is. So how early was the change of heart by the Lord Chancellor? One week? Two weeks? If he announces it in a letter dated 1st July then you would have thought he had made his mind up well before you were announcing your, clearly independent, view.

If we are left in any doubt when he appeared before the Justice Committee and said “I actually decided this a little while back, but you cannot make changes in mid-consultation. I had to go through the process of allowing the consultation to be completed, and looking at some of the responses to make sure that I got it right. It would have been irresponsible of me, and probably illegal, simply to take a decision without considering the issue, but I accelerated consideration of that issue post the end of the consultation, because my instinct was that it was the right thing to do.” he makes it clear he doubted the removal of choice before 4th June but just needed to double check before declaring removing client choice was wrong.

If we are to believe the Lord Chancellor then two things arise. Firstly he did not change his mind shortly before his appearance before the Justice Select Committee simply to avoid the embarrassment of having to defend this position but because he realised very early on that denying defendants choice in their legal representation was wrong. Why did he not share this with you? If he had simply been faced with the prospect of an uncomfortable time before the Committee and changed his mind because of this that would be a very feeble u-turn.

Secondly this had not been a statement of principle by him. He was not denying defendants their free choice as a result of an ideological belief that it was wrong. He was not doing it because that was one of the elements of the Legal Aid system that caused the public to doubt its credibility. Denying client choice was not, in itself, something he thought right, it was a sacrifice he was making as a favour to lawyers in order to trade off the cuts for certainty of volume. Compare and contrast this with his recently stated views on the availability of Legal Aid for prisoners.

All of this leads us to one conclusion. He has to go. Well, it has to be either you or him. I know friends are supposed to be able to disagree from time to time. But you are not friends. You’re in Government together. You are bound by collective cabinet responsibility. You have publicly advanced removing client choice as a cause, as being in the public interest. Turns out that was never the case. You still went on to beat that drum after the Lord Chancellor was working with those he trusted to abandon that proposal.

So I am excited by the prospect of your resignation and move to bring a motion of no confidence in the Lord Chancellor. I know you are a man of beliefs. And I don’t mean by that you are a man capable of holding a multiplicity of beliefs. All that changing of political parties must have been because each time you decide on matters of principle you stick to them. So given that both the Deputy Prime Minster AND the Lord Chancellor are opposed to your view I guess another change in party membership is due. UKIP perhaps? Monster Raving Loonies?

I know some lawyers compare his dome-headed, cold-eyed appearance to Lord Voldemort but in this instance perhaps true believers like you, Bob and I should start referring to him as Lord Volte-face, or He-Who-Should-Be-Ashamed. I tell you something else, the Prisoner of Azkaban did not get Legal Aid to complain about the softness of his mattress and nor should the Plumber of Azerbaijan if he hasn’t been here twelve months (if you can’t keep up you either haven’t read enough JK Rowling, a single mum but otherwise really quite acceptable, or you haven’t read the consultation). He performed a u-turn, now is the time for you to send him round the u-bend!

I pledge my support to the cause. I reckon the way forward is an e-petition, some badges and dressing Bob Neill up as a badged badger. All proclaiming your “No to Choice” mantra. We will win. We must win. Our cause is right and just.

Yours, as ever, and with increasing affection,

The Gardener.

PS Successive Home Secretaries spent £1.8 million on the legal fight to deport Abu Qatada then achieved it through diplomatic and political means. It really is terrible when clients run litigation isn’t it?

PPS In your motion of no confidence you might want to ask the Lord Chancellor how he is going to deliver PTC without removing choice? And how is he going to make his cuts without guaranteeing volume? And how does he guarantee volume without removing choice?

For a look inside the mind of Lord Volte-face read my Iolanthe blogs. You can also read the first letter and the second letter to our hero.

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.

Iolanthe Part 1

On Friday evening a group of barristers and solicitors met the Lord Chancellor. This is my report of the meeting interspersed with my commentary [in italics]. I am going to try to provide as much detail as possible so will split it in to three parts posted over the next few days. Part 2 is now available here.

I have met three Lord Chancellors in my time at the Bar, Lord Mackay, Lord Irvine and Chris Grayling. Who is the odd one out? That’s right, Chris Grayling. Why? No, it’s not because he is not a lawyer but because he is the first Lord Chancellor who has consulted and then engaged with me personally about fee proposals. If you have read my previous blogs then this may come as a surprise to you but last night I was impressed by Chris Grayling.

Pick yourself up off the floor. This may seem like heresy so let me explain. I have not suddenly changed sides. I have not suddenly changed my view of the proposals. I am not suddenly blind to Chris Grayling’s faults. I have not suddenly donned a short skirt and a tight fitting tank top emblazoned with the initials CG to wave pompoms as the Minister’s chief cheerleader (and there are many reasons we can all be grateful for that).

Yet I confess I was impressed by Grayling on Friday night. I was impressed that he bothered. He did not have to come along and talk to a room full of lawyers in the Town Hall at Altrincham. I appreciate he may have been doing local MP Graham Brady a favour. I appreciate he was in the area. I appreciate that he was not meeting Mike Turner (and more of that later). I do however, appreciate that he came, talked and listened.

The fact that he did do has given me a greater appreciation of what legal aid practitioners face. It has allowed me a greater understanding of where he is wrong and why he is wrong. It has also allowed me to appreciate that we are not opposing some fool or some ideological bound bureaucrat. He was well briefed. He understood his brief. We underestimate him at our peril.

So let me report what happened. The meeting was organised by Neil Usher from Lincoln House Chambers in Manchester via his constituency MP, Graham Brady. The meeting was attended by barristers and solicitors in the constituency, although Neil did manage to sneak in one or two interlopers such as myself.

The meeting began with the Minister describing how this consultation did not come about from a desire to reduce the Legal Aid budget out of some ideological crusade but because a combination of previous and recent spending reviews means that the MoJ budget will reduce by roughly 12% by 2016. He sought to explain that Ken Clarke had concentrated on civil Legal Aid and now it was the turn of crime. He described how the Legal Aid spend needed to be reduced by 10% and that was consistent with other reductions within his remit in prisons, probation and court services. He made it clear that this was not an “and/or” situation. They were looking at all aspects of the Criminal Justice System such as restrained assets, offenders paying more towards the cost of cases, efficiencies gained by digitalised courts etc.

[Having heard this opening statement from the Minister I am quite satisfied that he will not view alternative proposals about saving costs such as put forward by the Bar Council or the CBA as being sufficient. I have no doubt he is looking to make such savings. It was also clear that he did not view that as an alternative to savings from Legal Aid. So let us make no mistake – at the end of the consultation process there will significant cuts to fees.]

He continued “I am very much of the view that when you are driving down costs you actually have to reform as well or otherwise in the end you slice and services fall over and so therefore, in part, particularly for the solicitors side of the profession, the challenge is very much to me about how we ensure that costs can be brought down but at the same time we do that with an evolving structure that is able to cope with a cost reduction and doesn’t actually lead to small business who do not try to change falling over or we end up with areas where we have no contractual levers and we have no more provision.” He went on to say that he “can’t change the overall direction” and that he had engaged in very constructive discussion with the Law Society and individual lawyers about how to change the system.

[I find this an interesting dilemma for the Minister. He recognises that solicitors cannot withstanding any further cuts. He recognises that if solicitors fail he will be left with gaps in the provision of essential services. His roll of the dice is that PCT means that they will not fail. It is an almighty gamble. It is also a gamble where the consequence of failure is catastrophic. If a provider gets it wrong and collapses post PCT there are less providers in place to plug the gap. I also cannot see why he sees that the solicitors have been cut to the bone but cannot see it is exactly the same for the Bar]

When the Minister then turned to the Bar he indicated that the focus was on VHCC costs but that for the most junior end of the profession the changes would produce a static level of income and, in some case, a small increase.

He then moved on to the consultation. He, curiously, stated that they had received 16,000 responses but that 5,000 were individual response with 11,000 being templates [and no, I have no idea what this actually means]

He was asked by a senior solicitor present whether he could give an early reassurance over client choice. The answer took some getting to! He began by stating that he was not interested in “all price and no quality” but that he had to “achieve the financial envelope”. He was “not interested in someone who turns up with a bunch of law graduates for a tenth of the price, that was not the game”. He outlined how there were three stages. He needed people to demonstrate they were able to operate at 17.5% lower than currently. Then they had to demonstrate that they could provide quality solicitors providing a quality service which was viable. Then, he described this as the “tie-break” they would look at who is the more efficient. Finally he turned to choice and told us “if we’re asking firms to amalgamate, invest in new systems or takeover small firms or whatever it may be we need to offer some degree of certainty around volumes, and this seemed to be the best way”.

He then explained to us that there were two categories of defendant, “offenders” who had been in the system before and “accused” who were first time entrants in to the system. The Minister stated that “accused” customarily opted for the duty solicitor and “offenders” went back to the solicitor they got when they were first an “accused”. He said that the proposal was to allocate cases in a way that just meant “offenders” were not guaranteed their choice of solicitor but were still allowed to select a barrister if they required the services of a specialist advocate. In relation to choice he stated he was listening to what the profession had to say about it.

It is clearly the case that as the consultation was still ongoing then he would not be able to give a definitive view at this stage. He described the proposal as a “starter for ten” and then said ” we have a road we have to travel down, a place we have to get to. If it requires us to modify the line of the road because the consultation comes up with a compelling argument that we have to one thing slightly differently compared to another I am prepared to do that”.

[This echoed a theme that was evident by the time the MoJ Roadshow came to Manchester. It was repeatedly said that they had heard what was being said on client choice. I, and this is purely a personal view, think they realise that client choice is an area of vulnerability. They realise it is an area which will cause opposition from many different quarters. However the profession should not view this as being the death knell for PCT. I have no doubt that they will spend the summer trying very hard to build as much choice as possible in to PCT. The Lord Chancellor spoke of a road. He is simply trying to get around a traffic jam. He is still trying to get to the same place. 17.5% cuts which he knows he can only do with PCT.]

I then had my opportunity to speak. I tried to explain to the Lord Chancellor that further cuts to advocacy fees would have an impact on quality as experienced skilled practitioners would turn their back on crime due to plummeting incomes. I gave him the comparison of what I earned per hour in a specific criminal case compared to how much I was paid in a particular regulatory case. I said to him that he would choose to do the regulatory case every day of the week if he could.

His answer troubled me. He began by saying that the criminal Bar had increased by 20% at a time when crime was falling. He understood that there were 3,000 people training and only 300 pupillages. His view was that there were too many people chasing limited work.

[Think about this for a moment. This is the answer when told someone with 20 years experience and a Level 4 prosecutor may cease doing crime – “there are 3,000 behind you waiting to step in to your shoes”. He believes there are too many at the Bar and therefore does not care how much experience or talent is lost, as long as some of us leave. In taking this approach he pays no regard to the ability of the advocate and scant regard to the value of experience. The implied view seems to be “if you want to take your skills and experience elsewhere…..good”]

Neil Usher tried to illustrate the point. He cited on individual who is known to be highly thought of but who is leaving the profession this year. Another barrister in the room of six years call told the Minister that he had just concluded a case whereby the taper proposals would have meant he would be paid £6 per hour for that case. Why should he continue to do crime? Someone else told the Minister that under the new proposals more solicitors would feel the need to undertake Crown Court advocacy to maximise potential profit and he feared the death of the criminal Bar.

The Lord Chancellor said these were reactions he struggled to understand. “If I were running a business,” he said, “and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”.

[I have to confess to a heckle at this stage. I could not contain myself. The phrase “Can you have a word with the DPP?” was out of my mouth before I could stop it. I wanted to embrace the Lord Chancellor to my bosom and thank him for finally understanding what the Bar had been saying to the CPS for years. I know many of you do not rate Chris Grayling as Lord Chancellor but I reckon he would make a fine DPP…. Alas it may only demonstrate how when it comes to Government and justifying budgets there is more than one absolute truth….]

TO BE CONTINUED click here to read more