Tag Archives: two tier

Wassssup?!?

This is an intercepted (but entirely imagined) Whatsapp conversation. 

CeeGee: Bro!

The GoveMeister: sup

CeeGee: You seen my main man Davey C? Been tryin to bell him up but he ain’t taking my call, bro.

The GoveMeister: chill man. he been busy with that Euro crew. brexit be a wicked ting yano?

CeeGee: Is dat wicked bad or like wicked good man?

The GoveMeister: 😜

CeeGee: But it like he proper dissin’ me. It be like my time as his Lord Chancellor ain’t mean nuthin!

The GoveMeister: dunno watcha chattin about

CeeGee: All this prison reform BS. Proper showin me up, bro. Like I didn’t no shit when I was there doin the tough guy pose and dat “no nonsense” face. 

The GoveMeister: LMAO

The user CeeGee invited the user DC_PM to join the conversation

The user DC_PM declined the invitation to join the conversation. 

CeeGee: It ain’t funny, bro. U ain’t been any better.

The GoveMeister: man, it just business. i am just taking care of business. it’s all cool.

CeeGee: It wouldn’t be so cool if it was you he was sellin’ out bro.

The GoveMeister: i feel you. yano dat education ting don’t end so well for me. yo just gotta roll with it man. take the hits. be on the down low when it all come on top. you know what I be sayin?

CeeGee: Not really….couldn’t you just have kept one of my things real. Like the book ting. Or dat big house for the yute offenders? Or maybe that tings that totally fkd the solicitors. They were all cool.

The GoveMeister: sorry dude. they were not cool.

CeeGee: I aint gettin no respeck innit?

TheGoveMeister: word

CeeGee: Bro, I be like all losin face in the Westminster hood. Everyone is sayin I ain’t know nothin. Everyone is be like “CeeGee, he ain’t got a clue”

The GoveMeister: you aint. lol 😂

CeeGee: Bro, I am the Leader and don’t you go forgetting dat. Don’t make me come round there and smack you up.

The GoveMeister: you ain’t got the moves to worry me. i am the LC now. u know that bill of rights ting you started?

CeeGee: Bro, you know I love my bill of rights. It was pure CeeGee, dat. 

The GoveMeister: well it’s goin the same way as the saudi prison deal and the court charge. consider yourself well and truly out of the crew

CeeGee: Waaaaaaaaaaaaaaaaaaah 😢😥😪😭😰😿

The GoveMeister: talk to the hand ✋

CeeGee: I got a wicked idea to stop the press knowin when the Feds wanna talk to one of us.

The GoveMeister: 💩

CeeGee: U ain’t got no right to be like dat

The GoveMeister: now be a good boi and stop ur bitchin

CeeGee: Can you talk to DC? Put in a word.

…………

CeeGee: U there?

………….

CeeGee: Bro??

You are blocked by the user The GoveMeister. 

One Small Step

A little like Pammy and Bobby Ewing, Michael Gove has woken up, found common sense was having a shower and it is as if the last two years have just been a dream. 

Except it was not a dream. Grayling was, and remains, a grim reality for the legal profession. 

I thought that when….. no, if the day came when TT was abandoned and there was some positive news regarding the cuts I would punch the air and organise a street party outside chambers with trestle tables, egg and spoon races and a New Orleans Jazz Band. 

When the news came I found I had very little appetite for celebration. Why?

There are many factors. It is difficult to celebrate when I know many have already been lost to the professions due to the uncertainty and the financial peril caused by the cuts. A small proportion of the damage foretold has already been caused. And that has affected people adversely. If Grayling was capable of shame it should burn in his heart like the sun in the sky.

I also cannot help but feel this was a self inflicted defeat rather than a victory. I have no doubt that the various fronts of opposition have had their toll on the MoJ. I do not doubt that those with the ear of the new Lord Chancellor have been making a forceful and effective case. I do not doubt that Gove has an understanding of things better than Grayling was ever capable of. Yet I am left with the feeling that, had the MoJ been capable of organising a wine tasting in the Vintners’ Society, TT would have been introduced. And the damage has been escaped by happenstance rather than endeavour and . 

That is not to say that the efforts of all those involved should not be applauded. The various Chairmen, Chairwomen, Presidents and Officers are all owed a debt of gratitude that cannot be properly expressed in words. As are the activists, those that marched, those that funded, those that took action, those that returned briefs, those that did not accept the returns, those that organised and even those that did no more than sign one petition. Win, lose or draw you are all a legion of heroes

The most significant factor is the state of the CJS. Gove’s statement was a giant leap for solicitor-kind but a small step for the delivery of a just justice system. It was a positive but one that did not stop the papers being served late/incomplete/not at all in countless cases today. It did not suddenly cause the videolink equipment to work in the vulnerable witness’s case in the Crown Court at Breaking-Point-on-Sea. It did not inject the funds required to properly investigate, prosecute and defend cases. 

And that is why I cannot celebrate. We have so many more battles to fight. So many more victories to win. And we cannot always rely upon those in the wrong shooting themselves in the foot. 

The Candidate

A room in the Legal Aid Agency. It is in the early summer months. A long serving civil servant, Bryan Loyal, sits behind a desk. Sitting opposite him is a nervous looking man in a slightly ill-fitting suit. He is Jobe Seeker and has been sent for this interview by an employment agency. 

B LOYAL: Thank you very much for coming in today. My name is Bryan Loyal, I’ll be interviewing you for a role within a very important Governmemt procurement process which is all a bit hush-hush at the moment. Now, first of all, please do not be put off by Gonzo here (Bryan Loyal points to a flame haired Gonk on his desk) I took him to my Civil Service exam with me for luck and he has been with me ever since whenever I’m doing something important….which is probably why I never got the Foreign Office gig….can’t have Foreign Heads of State seeing a 70s plastic toy “apparently”. So here I am, interviewing you for this hush-hush job. Not that I was meant to be interviewing you of course. Mrs Jones was meant to be interviewing you, but she is poorly today. So, to be honest, the job isn’t that hush-hush, it’s just that I don’t know much about it. Something to do with Legal Aid and some contracts. But we are not going to let that hold us back, are we?

JOBE SEEKER: I guess not. 

BL: That’s the spirit. You’ll go far in the LAA with an attitude like that. A little bit of knowledge is a dangerous thing, better to have none at all!

JS: If you say so…..

BL: Not only do I say so, but Gonzo says so too, don’t you Gonzo?…. (Bryan picks up the strange troll-like figure and mimics a nodding movement)…. Right, first question. (Bryan reads from a sheet of paper in front of him) Do you have any experience in the Legal Sector?

JS: Not really. 

BL: Anything will do…..

JS: Nope. Sorry. 

BL: Come, on! You seem like a nice fellow. Gonzo likes you. Give us something to work with!

JS: Well I did watch that Silk thing on the telly….

BL: That’ll do!

JS: I was joking!

BL: There are marks available on the form for “having observed the working of a legal practice” so you are off and running on the score sheet. Next question. Do you have any experience of procurement?

JS: Well, my dad reckoned he procured his flat screen telly from Dodgy Dave down the pub….

BL: Not sure that’s what we have in mind. 

JS: To be honest I am not sure what procurement actually is….

BL: Basically it is all about comparing the available service providers in an area and then choosing which best meets the needs of the Government. 

JS: I did help my gran switch her gas supplier through that website …..

BL: Wonderful! Top marks!

JS: And I once had a job with those meerkats who sell car insurance to Arnie.

BL: Might leave that one out. Don’t want you to seem over qualified.

JS: I was only packing cuddly meerkat dolls and sending them out to customers….

BL: We’ll definitely give that one a miss. Delivery is strictly a different department. Now – do you have any experience of marking against a set criteria?

JS: Errr…well I did draw up a pros and cons list as to whether I should ask my girlfriend to marry me. The cons came out way ahead.

BL: That’s good practical experience. And it helped you come to the right decision. 

JS: We got married six months later.

BL: Oh. Right. Well, congratulations……

JS: We got divorced within 18 months……

BL: There we go then. Your rigorous marking system was proved right in the long run. She was a nightmare. Should have trusted your list.

JS: But then I realised we couldn’t live without each other so we get remarried next month…..

BL: BrillIant. Flexibility is key. Well done. Now we move to the quick fire round.

JS: I am sorry, can you just expl……

BL: No time! The clock has started. What’s the capital of Italy?

JS: Sorry, what’s this got to do with the job….

BL: No time for explanations. Just answer the question. Italy….?

JS: Errr….Rome.

BL: ABBA won the Eurovision with which song?

JS: Really?!?……errr, I don’t know… Dancing Queen?

BL: Who is Winston Churchill?

JS: He was Prime Minister.

BL: Who scored in Coventry City’s only FA Cup Final win?

JS: Look, I can’t possibly need to know that…….

BL: Just give me an answer!

JS: Oh I don’t know. Kevin Keegan. 

BL: And finally what is otherwise known as the Central Criminal Court?

JS: I haven’t the foggiest. 

(Bryan sits bolt up right in his seat. His arm mimics the second hand of a clock as he imitates the music from Countdown)

BL: Derr-derr-da-derr-derrrrr.  Derr-derr-da-derr-derrrrr. Derr-derr-da-derr-derrrrr. Derr-der, derr-der, biddly boo…….(as Bryan’s arm reaches the desk he rounds off with a crescendo of an explosion sound. Both men stare at each other in silence) ……..I am not going to lie, there is some room for improvement there.

JS: I know. I’d be surprised if I got more than two right…….

BL: Oh, don’t worry about getting them right or not. It was your timing. Five questions in 42 seconds. You’ll need to pick up the pace a bit if you want to win the Mars Bar.

JS: The Mars Bar?

BL: Yes, a Mars Bar. Helps you work, rest and shape the future of the criminal justice system. And now, the final question of the round – do you know the difference between Sussex and Cheshire?

JS: Errrr, I think so. 

BL: Briiliant. That seals it for me. I don’t mind telling you that, if it were just up to me, you’ve got the job….

JS: …..fantast……

BL: …….BUT……. It isn’t just up to me. Your scores from this interview have to go through moderation before any formal offer can be made. 

JS: Oh. Ok. 

(Bryan picks Gonzo the Gonk from the table and holds him to his ear. Several times he takes the Gonk from his ear and holds it as if the lucky charm is reading the piece of paper on the table. All the time Bryan is whispering both sides of the conversation with the Gonk)

BL: Congratulations Jobe, I am delighted to inform you that you’ve passed our rigorous moderation process and you’ve got the job!

JS: Oh. Thanks. I think. 

BL: There is just one final formality to go through. This is serious Government business.

JS: I totally understand. Do I need to sign the Official Secrets Act?

BL: No. I just have one final question for you……..have you ever contemplated blowing a whistle……..

                                                                                          

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. 

Best Mates

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

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

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

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

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

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

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

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

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

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

Please do not all shout at once. 

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

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

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

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

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

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

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

Love Me Tender

Dear Contestant,

We have some exciting news about your tender!

You will recall we promised you your choice of an alarm clock, a voucher for a leading high street store or an “Own Client Contract” just for applying. Unfortunately we have used all our stocks of alarm clocks and vouchers to compensate the Saudi Government for pulling out of our joint venture, “Flog It”, so we are pleased to enclose our promise to you that you can carry on representing your own customers (given to you for nothing, real value is nothing minus 8%).

However, the excitement does not end there. You and your firm have been selected by a rigorous process of quality assurance to win one of our shiny new contracts. Your contract has been selected in Cambridge/Cheshire/Cumbria (please delete as is appropriate to your location, the temp dealing with the “details” is not very good at geography).*

Welcome to the exclusive “Two Tier” club. Your membership of this exclusive group means that you are eligible for huge discounts off the current rates.** In addition to these discounts we are delighted to offer you a holiday.*** We are also pleased to exclusively provide you with the assurance of instability in the coming months as we play “In House Roulette”. Will you or won’t you be able to double your money?

What a fantastic prize. And yet there is more!

We are offering you the chance to enter our fun new game, The Pro Bono Bonus. The concept is simple. You Represent 1 Punter, Do One For Free. Everyone loves a R1PDOFF offer!

Never mind the quality, feel the value. 

But the excitement goes on. Accept this once in a five year contract cycle offer and we guarantee to put some of your competitors out of business. These are things that usually only the Mafia can promise. And like the Mafia, this is one offer you can’t refuse. 

How can we top this? Well, if you reply today then we are instructed to exclusively offer you an additional contract in either Devon or the Isle of Wight for free.**** You’d be mad not to!

So reply now and start consulting your staff on redundancies, you lucky, lucky bastards. 

Regards,

Mikey “Lord Lotto” Gove

PS Look out for our latest game – Essex CJS.  Every entry is a guaranteed winner.

*This is entirely a game of chance, no skill required. 

**These discounts are only available off the rates you currently charge. 

***The reference to a holiday is a holiday period before further reductions kick in. 

****Successful applicants will be expected to pay their own additional expenses such as travel and accommodation. 

The U-Turn

I blame Thatcher. 

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

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

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

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

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

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

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

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

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

Ten Green Bottles

Ten green bottles hanging on a wall, ten green bottles hanging on a wall…..

It was anticipated that the announcement as to who had “won” (I use the word somewhat loosely) the new duty contracts pursuant to the Two Tier system was coming last Friday. Then it was not. It was put back to 15th October.

The MoJ informed those anxiously waiting that “(w)e regret that we will not be able to notify bidders this week about the outcome of the crime duty tender, as previously indicated. We understand the anxiety this could cause bidding organisations and are working hard to finalise the quality assurance required to make sure these important decisions are right.”

Now if one green bottle should accidentally fall…..

So what happened to cause the announcement to be put back? We do not actually know because the MoJ, despite their concern and their regret, have not actually deigned to tell those anxiously waiting what the hold up is.

It could well be that the delay is related to developments with a firm of solicitors called Blavo. It may be that it is  not. It may well just be one hell of a coincidence. 

For those that missed it in the middle of last week Blavo, a firm with a national profile and with areas of work including crime and mental health, announced that they were consulting on redundancies. There was talk of the impact of legal aid cuts and the need to restructure. The firm, it was said, was still financially secure.

Then the story took another twist with the LAA announcing that they had terminated all Blavo’s contracts and had referred the matter to the police

Now I do not know if Blavo had applied for a Duty Contract. Given the nature of their profile I anticipate that they have. I do not know if they were to be awarded a contract. And we have no way of knowing if they are on the brink of collapse, are financially secure or have done anything to justify the action taken by the LAA. And, because the MoJ are not providing information, we do not know if this has caused the delay. 

But let’s just imagine the worst case scenario for a moment. Let us imagine that they are really struggling. Let us imagine that there are some “irregularities” concerning their current contracts. Let us imagine they were just days away from getting one or more than one of the contracts on offer. 

Now that throws up a whole load of questions. If all of the above imaginings are correct what does it say about the application and scrutiny process? If they were about to be awarded a contract and it transpires that they were in financial troubles and circumstances existed to justify termination of their contracts how did they pass “the quality assurance” tests?

And what if these circumstances came to light after the award of the contracts? Would other firms who missed out not be able to question how it is that an unviable firm got a contract and their viable firm did not? What if it took nine months of the contract irregularities to come out? So the firm already had a number of duty contracts and now the LAA realise that there were problems with their previous contracts. Nine months after consolidation their rival bidders may have been consolidated all the way to the dole queue….

That prospect is of particular concern when the firm undertakes other areas of “niche” work. Let us say Blavo do most of the mental health work in a town. They have one competitor that also provides that service. Both firms have been finding it tough since the Legal Aid cuts. Blavo get a crime contract, the other firm does not. The other firm goes out of business as a result. Then the irregularities come to light and the LAA terminates all the contracts. Suddenly you have no provision for mental health representation in that area. That is an advice desert. That is the game of Russian Roulette the MoJ are playing with our justice system. 

Remember that the Duty Contract is no guarantee of long term security. There are more adjustments to the fees coming along. When I say “adjustments”, I mean cuts. Court closures can threaten the viability of firms (imagine Firm A have a healthy amount of own client work that tends to be in the court building just down the road from their office, when that court closes and they have to travel for up to an hour each way to represent these same clients that can suddenly impact upon the meagre profits they previously made). 

On top of that there is uncertainty about how firms are going to be able to keep work in house. I do not for one moment imagine that there is going to be some sort of ban on in house advocacy but there is, now, uncertainty. If a firm was banking on being able to keep a percentage of work in house, they cannot bank on it any more.

This is the precarious market that the MoJ seem to make more precarious with every step they take. Hopefully Blavo’s current problems are all ironed out smoothly. Hopefully this is only a warning to the MoJ. It is, however, a warning they should heed. It does not take much for there to be…..

……no green bottles hanging on the wall.

Horses with Parachutes

To misquote Hot Chocolate: “It started with a consultation, never thought it would come to this….”

It seems like a long time ago that we all responded to the first consultation entitled “Decimating Justice” or some such. Then we had “Decimating Justice: The Next Slaps in the Face”. Or something like that. And now we have a consultation about how we go about papering over the cracks that the Government have caused. 

I am all consulted out. I will, of course, respond to it in due course. Not now, however I do have a few immediate thoughts to share with you. 

We seem to be on the eve of the age of Two Tier. This is a dark day indeed. I would just take the opportunity to remind one and all that TT is not the Bar’s fault. It is important that we all remember that. I cannot think of one barrister or representative body that has said “Yeah, TT, that’s grrrrreat.” This was the product of the Government failing to place proper value on the work of criminal solicitors and then the Law Society trying to ameliorate the impact of “consolidation”, that being a euphemism for putting people out of business. 

What is more the Bar have tried to oppose Two Tier. Both in words and action. That opposition has not always been as direct as many of us would have wanted. That was quite hard to achieve without solicitors mounting a concerted effort to defeat TT. That is not to say that there were not concerted efforts by some. The JR was a tremendous effort in terms of energy, money and personal endeavour by many. Clearly many solicitors have forcefully argued against TT from the outset. 

When the Bar voted in significant numbers to return to direct action in order to support the action of solicitors, the underlying motive for many was to try to defeat TT. Sadly the collective will has never been there to directly oppose TT by means of direct deed, the most obvious direct deeds being not bidding, withdrawing bids or not signing. I understand the reasons why that has never happened. That does mean I think it should not have happened. It should. Time and time again the Government point to the fact that we work at those rates or we sign those contracts or we do the work. TT could have been avoided. But who knows what would have risen in its place!

So we are where we are. And the response to the consultation has to be with a view to protecting the administration of justice in a post TT landscape. And if you are at the Bar, it has to be about how to survive in a situation that is not of our making. 

The other most striking thought this evening is that this is all the wrong way round. It strikes me that the Government are now consulting on whether to introduce legislation to make the closing of stable doors mandatory when the horse is already in the next County. 

Lord Carter made it quite clear in his review that, before any consolidation in the market was attempted, a proper tested system of quality control needed to be put in place. It seems the Government are now thinking about how to ensure quality in a market that has been consolidated. That is folly in the extreme. What if the necessary quality assurance measures prove impossible to put in place? What if they are not put in place in time?

It is like jumping out of plane hoping someone will throw a parachute out after you. 

It also strikes me that this is all very unfair to those that did bid and those that did not bid. It is a distinct possibility that firms which have been relying upon an income stream from advocacy will have that curtailed or cut off. Which is why it makes more sense to do it the other way round. Establish the framework then get people to bid with the requisite knowledge. 

The current consultation keeps referring to the fact that the threat to quality is not the fault of the Government’s actions. It must just be a coincidence. It saddens me that the Government cannot see that the threat exists to the entire Criminal Justice System. Remuneration is a driver of quality in the police station, in the Magistrates’ and in the preparation of Crown Court litigation. Where is the consultation on how to maintain quality in those areas?

Yes or No

I invited anyone who wished to contribute to the debate to email their blog to me and I would be happy to host. Kent solicitor Oliver Kirk has done just that. Here is his contribution. 

A response to Mr Myerson QCs response to Mr Csoka QC

I am writing this brief response, I hope to clear up what some see as ambiguities or inconsistencies in the position of solicitors, and to help those who may still be undecided in their decision on the current ballot.

In case it is not abundantly clear- many solicitors firms are currently in a precarious state: their futures uncertain awaiting the outcome not only of the current action- but also of their LAA bids- or indeed for the fall-out from their failure to bid. All are united in their uncertainty as to whether the new, significantly lower rates can possibly be financially viable. (My own view is that they are not.)

Why don’t solicitors withdraw their bids?

The LAA is the principal provider of work. The only show in town. So, if a firm either fails to bid- or withdraws a bid, then it is then condemned to rely only on private and own client work. In the case of most firms large enough to bid, those two sources of work are simply not a viable option.

Own client contracts are, by their very nature wasting assets- criminal clients often find themselves in custody for lengthy periods have difficult personal circumstances, which result in tragically early deaths, and of course some reform or were never guilty in the first place- all of which mean that repeat business cannot be relied upon. Furthermore, clients, as well as being fiercely loyal, can also be a perfidious bunch, meaning that it is never really possible to count upon return business. An own client contract alone may only provide an unstable and unpredictable revenue stream over any significant period of time. Unsurprisingly, most firms need the new blood of duty cases to refresh their client base.

Why not withdraw a bid to do economically unviable work? Once your bid is withdrawn- that is “Game Over”; if some form of improved deal is put on the table in due course- you won’t be part of it. If some firms withdraw their bids, and others do not, those who have withdrawn make their own situations worse, not better. Think of it in these terms as well: most owners of firms will have made significant personal investments in their businesses. The buck also stops with them if the business fails- their homes, and any other assets are quite likely to be tied up by way of personal guarantees to banks. It would therefore be personally and professionally reckless in the extreme to withdraw a bid in the hope that a better deal might emerge that the firm could be part of.

Bidding and getting a contract therefore becomes the only possible way of surviving- in a sort of “gruel tomorrow” pact that allows a firm so stumble on in the hope of staving off insolvency for a little longer. The alternative of withdrawing a bid would, for many firms mean the prospect of having to make significant redundancies at time when it is unlikely that the funds are available to pay even those.

Please consider also that many of the bidders may be consortia of smaller firms and sole practitioners, who have already invested many, many hours putting a bid together. To withdraw such a bid now after making such investments of time when to do so might be curtains for the firms involved is a gamble too far . This is especially so, when you consider how effective the current action appears to be in its early days in getting the MOJ to think again.

No-one should be under any illusions- the current rates of pay do not incentivise work. They do not encourage a “no stone unturned” approach to a clients’ case. They encourage the opposite. Equally, the current rates of pay are such that solicitors have been forced out of the lower courts into the Crown Court as a means of remaining in business.

If reduced rates and DC come in, various things will almost certainly happen:

1) A significant number of small “High Street” firms will pull out of Criminal Legal Aid altogether whether as a commercial decision or because they do not get a contract. Many such firms or departments are operating on such tight margins that the July cuts followed by the January 2016 cuts will finish them off before the MOJ even start their “2016 Review of legal aid rates”.

2) Other (probably smaller) firms who do not get duty contracts will soldier on with own client contracts- but with diminishing volumes and cuts to remuneration, will probably go under. I pause to ask myself whether it is these same firms who currently instruct the Bar?

Of course they are! These are the firms who instruct the junior Bar on a daily basis, whether to do their Magistrates Court trials or their Crown Court cases; the same firms who once discovered and instructed those who now lead the Bar. Those firms will wither and die.

3) Those larger firms who do get contracts undoubtedly keep as much advocacy in-house as possible. They will recruit from the ranks of an underemployed Bar who will be wondering where their instructions have gone….

So- when asking yourself Mr Myerson’s questions and deciding how to vote, please remember that if you are currently briefed by a solicitor- that firm may not be around for long to brief you if it has not applied for or does not get “awarded” a contract. As for those who apply for and get a contract the margins will be such that they will have to try to keep all their work in-house.

This is the Bars decision.

This is the Bars vote.

Make no mistake, this is for Our future.