Tag Archives: transforming legal aid

Iolanthe Part 3

The last in an occasional series where I meet the Lord Chancellor…..

Now people, don’t be lazy. Please read Iolanthe Part 1 and Iolanthe Part 2 before reading on in order to get the full context.

A recap. In Part 1 I reported how the Lord Chancellor was asked if he could give an early reassurance on client choice and his response was to say he was listening but could do no more at the moment because he was in the midst of a consultation that he had to let run its course…..three days before he was widely reported in the press giving an early reassurance on client choice. In Part 2 I told you how the Lord Chancellor revealed he had been talking to people who thought they could provide a service within his “financial envelope” of savage cuts……which turned out to be the Law Society.

In Part 3 you will hear some of the Minister’s views on lawyers, fat cats and Michael Turner. And when you hear how some of those views are expressed you may also find out what his opinions really are!

So the next topic covered was the eligibility criteria for criminal legal aid and the £37,500 income threshold. In what you may view as a socially awkward moment the Minister asked the questioner if he understood the income threshold. He then went on to explain, speaking very slowly so we could keep up, that it was disposable income that was the determining factor and not income. He then went on to explain what disposable income was. We were all managing to keep up. He then went on to explain that it basically meant that someone had to be earning a six figure salary before they would be caught by the income threshold.

[I am just going to interrupt at this point. He had been doing a good job up to now of telling us what we already knew. But his protestation that it basically only captured those on a £100K salary did, perhaps, reveal something he did not know. It is household disposable income. So two headteachers, married to each other and their work, would in many instances have a joint income in excess of six figures. If it was the case that one of them was the subject of a malicious allegation by a disgruntled or emotionally vulnerable pupil then they may well not get legal aid to assist them through one of the darkest hours of their life. This income threshold does not just capture the wealthy. It captures many a hardworking household.]

However the Lord Chancellor then went on to reveal the things he really did not know. He was asked how many cases that were granted Legal Aid last year would now be excluded by this threshold? He did not know. He was asked how many households fell in to a bracket that would be excluded by this threshold? He did not know. He did qualify the restriction by saying that there would be a discretion to allow Legal Aid in certain cases.

[I presume by this he was not simply referring to cases where the public would quite like the defendant to have Legal Aid but was a reference to financial hardship etc. Let us for a moment just imagine that the Lord Chancellor was right and this provision only captures those in the very highest bracket of earnings. In these circumstances I would imagine a high proportion of people falling in to that category are prosecuted for fraud or commercially related offences. Those are often the more complex prosecutions. Not made complex by the lawyers but by their very nature. Hence they are often quite costly. So costly that most people’s disposable income would be dwarfed by the cost of the case. So they would be exempted and receive Legal Aid under a hardship test. So all we have achieved is the added cost of the whole process of eventually granting them Legal Aid with all the administrative cost and delay that will entail. Brilliant.]

The most junior practitioner in the room, a barrister conducting publicly funded family work, then addressed the Minister. He described the increasing reluctance for practitioners to undertake publicly funded work. He described his own regret at having followed this path already. He eloquently told the Minister, “the Bar is not making up the fact it is under threat – it IS under threat”. The young barrister then deplored the fact that the consultation introduction drew unfair comparisons with the salaries of public servants and the press statements relating to the income of the Prime Minister.

[Hold on to your hats….] The Lord Chancellor responded, “If somebody is deriving their income from Legal Aid work, in my view, rightly or wrongly, then I struggle to see why, taking in to account chambers fees, VAT, pension contributions, why someone’s actual personal income from criminal Legal Aid should be more than the Prime Minister earns and the truth is at the top end of the scale we have people earning considerably more than that.”

[I am making no comment. The fallacy of this argument has been dealt with elsewhere in an excellent piece by Matthew Scott.]

He continued, “I have been accused of saying that barristers are fat cats, I have never said barristers are fat cats.”

[You may never have used those words. It is just an unfortunate coincidence that those words appear in newspaper stories that report your view that barristers should not earn more than the PM whilst we are treated to another photograph of you, arms folded, looking tough in a prison. I await your complaint to the PCC.]

And then, “Look, financially and logically we should just go for one case one fee. It is obvious. It makes perfect sense. Its easier to operate. It creates a streamlined system but I don’t do it because I didn’t want to destroy the Bar. I have had colleagues say I should do it but I didn’t want to because I want to preserve the Bar.”

[And in that moment we have both reassurance and a threat. I feel cared for like an orphan being called “my dear” by Fagin.]

Yet the words of support kept on coming, “I don’t think the Bar is in trouble per se. I think the Bar has a big challenge because of the number of people in it and the number of people trying to come in to it. I recognise coming in to the publicly funded Bar is much less financially attractive than coming in to the commercially funded area of the Bar but that’s the decisions we take. That’s why I became a member of Parliament instead of carrying on with a job where I earned £60,000 per year more than when I became an M.P. You do it because you want to do it.”

[Now reader, wipe away that tear. Stop the gratitude swelling your heart for the selfless sacrifice to public office made by Chris. When he became an M.P. he had the prospect that the more successful he became his income would increase in proportion to the responsibility of his role. He also had the safety net of the potential for a pay rise. I have no such comfort. He was able to emply his wife on a salary of £37,500 per year, paid for by the state. I am sure if I could employ a member of my family as my clerk and have the State pay for it, I would find my income would go that little bit further. He has the State contribute towards his living expense for a second home, despite his proximity to London. When I go to Bristol next month to do a trial, I will pay for my hotel out of my fee. If he is voted out of office at the next election he continues to receive an income from the State as he continues to receive his salary. If all my solicitors go out of business in the autumn I receive an income from the State. But it is means tested and called Job Seekers Allowance. So Lord Chancellor, although I began in Part 1 saying I was impressed by you, this is the point when you started to lose the room completely. This was the moment when we were treated to the duplicity that lies behind the cuts.]

But he did go on to reassure us that he “knew junior publicly funded barristers are not earning a massive amount of money and are not fat cats. I have never suggested they were [my dear]

It was probably for the best that the discussion turned at that point to the unintended costs of litigants in person becoming more prevalent. The Minister was adamant there was no evidence of that. [By that he meant statistical evidence, we can ignore the experience of the Judiciary.] He also stated that he was not worried about not being able to find suitable experts as “we still pay experts £70, £80 or £90 per hour so they are not going to be impoverished as a result of it.” [ Can I be paid £70 per hour? Can I be paid for my preparation and my attendance at court? Please Lord Chancellor, can I?]

As the allotted time neared it’s conclusion we were told, ” We are going to take decisions as sensitively and as thoughtfully as we can. Every decision we’ve taken has been taken for a reason. We may have got some of those reasons wrong but that is why we do a consultation and looking at what people have said and being smart enough to spot when someone says you haven’t got that right and work on it through the summer.” [Except when it comes to client choice, which he will decide upon immediately before appearing in front of the Select Committee because that could have just been embarrassing.]

And then came this gift, “I promise you I do listen and try to talk to people. It is said Chris Grayling never talks to lawyers. That is simply not true.” Which allowed Paul Becker to immediately pounce with, “Well why haven’t you met with Michael Turner?”

Answer……”Michael Turner had a meeting last week with my colleague Lord McNally. There are a lot of people to meet, we are not each meeting with everyone. I have met with the Bar Council, the Law Society, Circuit Leaders, Law Society regional committees and about seven meetings like this with lawyers. Lord McNally saw Mike Turner a couple of weeks ago. Maybe three weeks ago, so we are not ignoring anyone.”

[I probably need make no comment. And yet I cannot resist a little word or two. The list of people the Lord Chancellor had met was impressive. The name Mike Turner is a glaring admission. When dealing with a consultation that includes swingeing cuts to the fees paid to members of the Criminal Bar who would you have at the head of the list that the Lord Chancellor should spend his Friday evening talking to? Me, a criminal hack, or Mike Turner, the voice of the Criminal Bar Association? The idea that this is as a result of Mike Turner having been met by Lord McNally instead of the Lord Chancellor was just too delicious for me, as anyone who has read The Wizard of Epsom will understand.]

And with that, following a photo opportunity which was, for reasons I will not trouble you with, personally hilarious, the Minister was gone.

So what did I get from the meeting? It made it clear to me what we face. As has been demonstrated in the last 48 hours there will be changes and modifications along the way. However I am convinced that he still considers it necessary to introduce catastrophic changes to the system. Yes he will ameliorate the proposals by altering client choice. Everything else is still in the mix. I cannot help but think reducing access to justice is as troubling as ignoring justice. I cannot help but think headline grabbing capital is being made out of things like a residence test for eligiblity. I make no bones about the fact that the perceived need to reduce fees is dangerous, unfair, unthinking and just wrong. I will not apologise for feeling that the work I do requires adequate remuneration. I do not think it is self interest in wanting skilled, not just competent, advocates and lawyers to be present to play their part in the prosecution of the culpable and the protection of the innocent.

Those who oppose these changes oppose almost every aspect of them. The brutal truth is that the Lord Chancellor sees himself as a reformer. Transforming Legal Aid is his crusade. A petition alone is not going to defeat him. Articulate argument is not going to defeat him. Demonstrations with lawyers carrying the coffin of legal aid are not going to defeat him. Strongly worded letters to the Times will not defeat him. Vaguely amusing blogs will not defeat him. But defeat him we must. He has to be forced to see that cuts are unsustainable. He has to be forced to see that the concept of justice is not about unit price, or mere competence, or commerce but is about excellence. I cannot think of anything that underpins our nation in terms of its spirit, rather than just a flag, more eloquently than a sense of right and justice.

Everything that has gone before in terms of opposition has to be redoubled. The petition needs another 100,000 signatures. We all need to keep sharing our thoughts and information. We need to keep the clarity and force of our arguments in the public conscience. In a coalition of thought as disparate as those who oppose these plans there will be difference of opinions but we need as much unity as we can muster in line with our individual beliefs. We need to be prepared for the fact that, in due course, the Government will introduce a series of changes which are unacceptable. And then we must prepare for action. Direct action. And in that we must be bold, unswerving and skilfully led. I know my enemy. I do not underestimate my enemy. I know we can win.

PS it really bugged me throughout the meeting who the Lord Chancellor reminded me of. Then it struck me. His incessant use of “Guys” was reminiscent of Cliff Richard in Summer Holiday…..

Thank you for reading. If you have not done so already, please see what else was said in Iolanthe Part 1 and Iolanthe Part 2.

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