Plus ca change…

Change Letters

I went to bed on Thursday night knowing that on Friday morning there was going to be a lot of fuss and a lot of head scratching.  It seemed that the polling companies had massively misjudged the mood music and the level of hatred for the so-called “nasty party” was in fact more accurately described as grudging respect.   After five years of austerity and cuts the backlash at the Conservatives simply didn’t materialise.   Instead the Liberal Democrats were sacrificed on the altar of public indignation, the SNP became in every sense of the word the Scottish National Party, UKIP proved that the current electoral system makes it hard to translate support into seats and the Greens need better PR.

Much has been said in the last twenty fours hours about what this election means, why it went the way it did and whether it was fair or not.   The reality is we now have another five years of Tory government and as a result there will be more cuts, more savings made and life will for many be even harder than it is now.   Yet, do any of us have the right to say that the decision was wrong, that those who re-elected a Conservative government were selfish and uncaring to do so.

The result wasn’t what I wanted, I wanted a party elected that represents me and my values and are willing and able do something about my concerns.   For me that’s simple, to protect the current system of justice and no more cuts to the legal aid budget, and to throw out the idea of dual contracting in legal aid.

Why do I want that?

Two reasons; because I genuinely believe that access to justice and proper representation and the ability to protect my rights regardless of my means is a vital part of any civilised and enlightened society.  Secondly, because I work in criminal justice and reliant on a salary to pay my bills, service my debt and provide for my children and ex-wife.   Further cuts and the introduction of dual contracting puts that at risk.   It is the second reason that means we now have another five years of Conservative government.   Very simply, more people thought they would be better off with the Conservatives than with the other parties and that means they were re-elected.

Is that selfish?  Possibly.

Is it right?  That’s not for me to say.

Is it understandable?  Absolutely!

I’m reminded of the quote which has been widely (and probably wrongly) attributed to Voltaire “I disapprove of what you say, but I will defend to the death your right to say it.” and much used in various campaigns of late.  The fact that a Conservative government has been re-elected doesn’t give anyone the right to abuse others, to blame others for it.  We all made our choices, we all had our chance to have our say and the fact we didn’t get what we wanted doesn’t necessarily make it the wrong decision.

For me, for now I will continue to oppose the cuts made to legal aid and the attacks on the justice system across the board.   One thing is certain, having a Conservative government and the possibility of another five years of Grayling means there will be no surprises.   We know what is proposed and what he has on many occasions stated he wants to do.

Now we just need to decide how we continue to fight him if we value our jobs and access to justice regardless of who we are or how we voted.

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Once more unto the breach…

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Last week the LCCSA and the CLSA gave the Lord Chancellor and his Ministry a bloody nose using over the “consultation” on legal aid reform, using the process the Chancellor was himself keen to limit, judicial review.   The irony of that must be causing some discomfort in his offices at Petty France.

The skeleton argument and the text of the judgment were published on the LCCSA website.

We all suspected at the outset of the consultation process it stood as little more than a fig leaf of respectability in front of Chris Grayling’s plans, and that as with his consultation on judicial review itself the responses were unlikely to have much effect on the end decision.   As the process rumbled on the “concessions” apparently given as a result of the concerns raised seem to have been little more than bargaining tools.  Elements of the plan that the Ministry had no real intention of ever bringing forward, but that could be reluctantly discarded to show willingness to engage.   The LCCSA and CLSA and much of the profession saw through this, the Law Society it seems not so much.

The victory by the LCCSA and CLSA represents an important step for the profession and demonstrates what can be achieved when those with the appropriate commitment and passion challenge something that is patently wrong.

Despite the rather churlish tweet from the Ministry Press Office that the judgment showed up a “technical issue” in the process the Ministry were beaten on the point that the consultation was unfair.  The findings of the court were clear,  “The broad indications given in the consultation paper of the considerations which would determine the outcome did not, in my judgment, enable consultees meaningfully to respond. Something clearly did go wrong. The failure was so unfair as to result in illegality.”

We must bear in mind that the phrase used “unfair as to result in illegality” is the test that the Judge had to apply following the clearly set out precedents.   This is important because it does not reflect the courts view on the proposal itself, simply the method it was reached.   What it means is that the Ministry have to be able to demonstrate that their processes, and that the consultation they have based their decisions on are fair and give all interested parties an opportunity to comment on them in an informed way with all the relevant information to hand.

This is what the Ministry have done yesterday, launching a further consultation limited to the Otterburn and KPMG research.   In this way they have corrected the unfairness that led to the illegality, and ultimately quashed the decision.

It is now up to us again.  We cannot simply sit by and hope someone else will let the Ministry know what we think.   It is our profession and our cause that we are fighting for.   We must all respond to that consultation and show the Ministry why a limit to the number of duty contracts is wrong.

Responses need to come from the management of ours firms, they hold the figures and know the knife-edge we sit on on a daily basis; from the individual duty solicitors who spend their days and nights doing the job with passion and conviction; from the representative groups of the profession and from the Bar.

A feeling that it will make no difference, that this is simply another fig-leaf and that the Lord Chancellor is simply paying lip-service to courts finding is understandable.   That may well be the case but where will the next challenge come if we don’t at least take up the opportunity that the LCCSA and the CLSA have fought for?

Once again we need to show the Lord Chancellor he has this wrong, to show him that we care enough about what we do that we will fight for it with dignity, with intelligence and with a belief in ourselves and for those that we represent.   We have three weeks to respond to the consultation let us all make them count.

The consultation documentation can be found here.

Transforming Legal Aid – The next step is into the unknown…

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When I first started blogging about the legal aid reforms proposed by Chris Grayling I referred to them as an extinction event for the profession. The proposals as they stood at the time were likely to drive all but a very few providers out of business. It was envisaged that the reforms would result in widespread firm closures, job losses and a devastation of the junior Bar. Nearly a year later the situation is no better, and arguably a lot worse.

The Ministry of Justice posited the need for the reforms as being effectively out of their control; like countless others before him Grayling relied on “just following orders” claiming he had to make his books balance after a spending review was imposed on him from above. What he didn’t do was fight his corner and fight the level of cuts required of his department.

After that he went on the offensive, briefing and briefing hard against the profession. Whenever the reforms were discussed by the Ministry the same old phrases were trotted out; most expensive legal aid system in the world, £2 billion of hard earned tax-payers money spent last year, reforms designed to ensure a stable supplier base and protect access to justice for all.

Those reasons have, over the last twelve months been shown to be at best inaccurate, at worst intentionally misleading. Little surprise there, from a Minister who has a track record for being openly dishonest with facts and figures. Both sides of the profession have time and time again highlighted how the Minister has got his figures wrong and why the proposals were not just wrong but incredibly short-sighted and did nothing to enshrine access to justice.

Last Thursday the Ministry of Justice released their response to the last consultation on Legal Aid. Two months later than it had been originally promised and totally ignoring the concerns raised by the varying factions of the profession. It is perhaps a measure of quite how bad the proposals are that there are no winners in these reforms, only losers, some heavy losers and some very heavy losers. There is nothing in the proposals that will give heart to the smaller firms, and very little that give heart to the likes of the Big Firm Group. More worrying to all of us as legal aid lawyers is the fact that access to Justice is the biggest loser.

If we are honest with ourselves, and to be blunt as a profession we rarely are, these cuts were signposted a long time ago and we blindly carried on hoping the day would never come. Lack of leadership from the Law Society, the protection of vested interests and the minutiae of just doing the job meant we carried on regardless.

We showed the Ministry that we could stand together and managed to stage a half day of action, but in the peculiar way that the profession seeks permission for everything we wrote to the courts and the sitting Judiciary and politely asked that our clients cases be adjourned or put back in the list. The courts kept going and there was very little chaos and the wheels of justice simply ground a little slower for three or four hours.

The consultation response was expected in December, the fact it was published over two months was the first example of irony in the document. The Lord Chancellor wants the profession to demonstrate they can work efficiently, quickly and cost effectively; aims he clearly doesn’t expect of his own department. The delay might be excusable if the proposals had genuinely considered and actioned the proposals put before him. What we got was in reality the worst possible compromise.

There are in reality two schools of thought as to what we as a profession, and by we I am talking about solicitors, wanted from the consultation. The big firm group wanted extreme market consolidation which would give increased volume. Although they oppose the cuts in fees they could make them work if the volume was there. The rest, oppose market consolidation and cuts in fees and want a totally open market for own and duty clients. If we fail then we fail because of ourselves and not because of some half-baked attempt to engineer the market. Now many of us will fail because of a way of working has been imposed on us that takes no heed of what we do and why.

The Ministry of Justice smiled, nodded and politely listened to what we had to say. They met with some us, they snuggled up to the Law Society and took large parts of what they had suggested and then added a huge cut in fees. So what we get is market consolidation, dual contracting and a cut in fees that means no one can do the job and work with a guarantee that their future is sustainable. What we have is not enough market consolidation that allows the BFG enough volume to survive fee cuts; too much market consolidation to allow the smaller firms to even open their doors.

The Ministry of Justice has done exactly what it intended to do when it first published the initial consultation document. Client choice is academic if there are no firms able to do the work. The reality is that unless you secure one of the duty contracts then you cannot really open the doors to the own clients. If you don’t have a duty contract then at the end of the day where are your own clients going to come from in the future, what happens when your own clients grow up and stop offending, and most do?

So what do we do now?

There will be no immediate climb down by the Ministry of Justice. Chris Grayling is a man with a mission, and like zealots and missionaries before him he is blinded by the cause he follows. Politics is a cruel mistress, but for politicians it is a mistress that must be followed and appeased. He is well aware that he may be in post for less than another 18 months. If he loses his position after the next election and finds himself in opposition he wants to be able to say to his political masters that it’s not his fault, he made the cuts asked of him, he has shown that he will not bend to whims of this he represents, he did not cave under the pressure.

I was talking the other day to a client who has some extreme and frankly unpleasant views on a lot of political issues. He said “Campaigns for change only work when you can convince those other than the activists to care about what you are campaigning for”

In the context of lawyers fees, legal aid and access to justice this is the key for us. We strike to raise awareness of the issue and protest the cuts. In doing so we must ensure the public know why, and we must gather the momentum of their support, to do anything else it all becomes a pay negotiation and we all know it is so much more than that.

As we stand outside the courts we usually stalk through make sure you tell those who ask why.

The truth, the whole truth and nothing but the truth…

There is no room for politics in justice and no justice can be found in politics.

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The opposition to The Lord Chancellors “reforms” to the wider criminal justice system and to legal aid particularly has been on very many fronts; lack of choice, diminution of quality, damage to the long term sustainability of the profession, the destruction of the junior bar and the inevitable lack of talent from which the senior judiciary are chosen. The justification for the reforms has been pretty one-sided from the Ministry of Justice, principally cuts in expenditure must be made, should be made and will be made. As a country we have the most expensive legal aid system in the world and most of the profession are paid far too much money.

If I was in court presenting the case against cuts it would be at that moment that I might pause, look at the Minister, tilt my head to one side and ask him whether he seriously believed what he was telling the court? Pressing him further, I might go on to remind him that he had sworn on oath to tell the truth, that he was deliberately setting his face against the overwhelming evidence against him and was simply choosing to ignore a number of inconvenient truths for political purposes?

Politicians of any political colour have one simple aim, to stay in power as long as they possibly can. I am sure that most politicians enter the fray with the grandest of ambitions and the loftiest of intentions. That they genuinely believe that what they are doing in our name is for the best, that they have a plan to improve the lot of those who elected them and that if only they had the time they could carry it through. How depressing it would be if our politicians simply wanted to get elected for more mundane and sordid purposes, because power begets power and money, for Directorships, speaking positions, consultancies and the myriad way that venal men seek reward. The reality is of course that there are no votes in preserving a vibrant and diverse legal system, that no politician wants to be seen to be the one that pays the lawyers, that no political party wants to be seen to expand or even preserve the rights of the so called “criminal class”, the benefit scrounger or anyone who doesn’t quite fit to the Daily Mail ideal of a decent British chap.

So what is to be done when confronted with a larger and larger body of evidence, cogently and persuasively argued by those who know a thing or two about their profession, the principles of justice and the importance of independence?

Very simple, lie of course, tell little lies, big lies and outright whoppers. Keep telling them, create figures that demonstrate your point, brief sympathetic media and simply shout down those that oppose you. After all it’s the lawyers who have first class tickets on the gravy train, they are the ones that represent those that as a society we all fear, the ones that governments have been trying to protect you from. They are the ones that support those ridiculous human rights, rights for prisoners, asylum seekers and those work shy malingerers that those wonderful people from ATOS say are well enough to work but choose not to.

Ever since the first legal aid consultation was announced the Ministry of Justice have sought to brief the press and persuade the public that the legal aid system is the most expensive system in the world, that the majority of barristers and solicitors are paid huge unwarranted sums of money from the public purse and that any complaints we might make are just the cries of a fat cat being squeezed.

Yet the evidence does not stack up. The facts repeatedly show that we as a profession work harder, longer and more effectively for ever diminishing returns.

The £2 billion figure which is still unbelievably clung to like a four year olds comfort blanket is a lie. The cost of criminal legal aid has fallen year on year and continues to fall, costing the taxpayer less each year. The Ministry of Justice even underspent the budget last year.

The majority of barristers last year didn’t get to take home £84,000 but a much more average figure of £34,000. For many of the junior bar £34,000 seems like a lottery win and an unattainable goal. Saddled with debts from student loans and professional fees incurred as they were sold an impossible dream of triumphantly striding through the Royal Courts of Justice whilst desperate defendants petitioned them to take on their case, the figures bandied about by the Ministry are frankly insulting.

If you want the truth then look at this which sets the record straigh

The legal aid system costs the taxpayer approximately £32 per person per year. This ranks us tenth in a list of comparable countries and systems. This is not by any estimation the most expensive system in the world, but to tell you otherwise would be to expose the lie that the Ministry are trying to sell you.

In a system that is based on the pursuit of truth from the very outset to the closing of the case, the biggest lie sold to you by Chris Grayling and the Ministry of Justice is that his reforms are designed to ensure we preserve the best system of justice in the world. Perhaps we had such a system, sadly we cannot lay claim to that title any more.

A system that has been stripped out from the top to the bottom cannot be the best in the world. A hollowed out police force, a probation system sold to the private sector, the daily lottery of whether the interpreter booked for court will even attend, a system of payment that would rewards a guilty plea rather than a trial and a prison service that simply warehouses those it incarcerates in ever bigger sheds.

There is no room for politics in justice and no justice can be found in politics.

Time to listen…

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As the deadline for submitting a response to the Governments legal aid consultation draws nearer, the Lord Chancellor has agreed to meet with members of the profession this week. I would like to think that he may be willing to listen to the arguments put forward and see the sense behind the opposition to his proposals. That he would understand that the financial basis of the reforms are based on figures that are out of date. That the real consequences of the proposed reforms will be a downward slide in the quality of advice given, which may very well cost more money in the long run.

Sadly, I am less than convinced that this will happen, and the meeting is simply an exercise in public relations.

His department have made it clear that there will be significant cuts made, that the model of price competitive tendering has been deemed as the way forward; and opposition is simply the attempt of the profession to save it’s own skin.

Joshua Rozenberg reported last week on one of the engagement meetings run by the Ministry of Justice and concluded that the Ministry are open-minded as to proposals for the reforms on Legal Aid.

The head of legal policy at the Ministry stated, “We appreciate that the proposals are causing deep concern and people have genuine worries about aspects of the model. That’s why we genuinely want to hear from people. I know people often think that responding to government consultations is a waste of time. All I would say to you is that we want to hear your views. We want to hear your suggestions.”

What was not made clear from that statement is that the consultation paper does not ask for proposals, suggestions and comments on the issue as to whether PCT is the rights way forward. It seeks suggestions as to the best way of allocating clients, the nature of the procurement areas and so forth. There is implicit in the document that PCT is going to be imposed regardless.

That is why as a profession there is so much concern, so much anxiety. The model for PCT proposed does not guarantee quality, does not ensure that rights are protected and fails to recognise the difficulties and peculiar nature of the provision of criminal advice and representation.

I am concerned that the consultation exercise is a waste of time, that the responses given will make little difference to the eventual outcome. I have this concern because the department and Chris Grayling has very recent form for ignoring the views and evidence put before him in a consultation document.

In the foreword to the departments response to the consultation on Reform on Judicial Review published within days of the legal aid conference he said,

“Last year, I published an engagement exercise which sought views on a series of proposals for reform of Judicial Review. The need for reform was driven by concern about the growth in the use of Judicial Review and the delays these proceedings create, in some cases frustrating plans for growth.

There was a body of support for my proposals, mainly among businesses and public authorities. But most of the responses we received were opposed to reform. There was criticism of the consultation procedure and the lack of evidence, and some saw the proposals as a serious attack on the rule of law.

I do not accept these criticisms.”

That consultation had twenty seven named contributors, all of whom had either a vested conmercial interest in judicial review being removed or being strictly limited, the ones he listened to. Or they worked with groups for whom judicial review was the last resort, those he ignored.

It is against that background that we seek to persuade him that the proposals put forward are wrong. The proposals are based on figures that do not take into account the significant reductions already made in the criminal legal aid spend, on bold assertions of fat cat lawyers making millions from the hard work of normal people, fail to evidence where the public have lost faith in the system.

Politics is I am sure a difficult game, and a balance needs to be acheived in what is done. Somethings I believe are too important for politics and the principles of justice, access to justice and a lawyer of your choice is one of them.

I hope my colleagues can persuade Mr Grayling of this later. In the meantime we can all send him a message…

Please sign the petition www.epetitions.direct.gov.uk/petitions/48628

Contact your MP http://www.parliament.uk/about/contacting/mp/

Respond to the Consultation (you don’t have to be a lawyer)

The person behind the file…

 

 

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The pile of files sitting on my desk at the moment represent to me the cases I have to deal with in the next forty-eight hours. For the people whose name is on the front of those files they represent a critical point in their lives. How I deal with those files, what work I do and how I present their cases could make a real difference in the outcome for them.

My first senior partner was an old school lawyer in every sense of the word. He was from a fortunate background which meant he didn’t need to work, and probably hadn’t needed to work for the nearly forty years he had been qualified. He didn’t need to turn out at 2am on a Sunday morning but he still regularly did.

I once asked him why he still flogged away at the coal face and he told me that he felt he had a moral imperative to speak up for those who could not themselves. He said clients would come to me to discuss their problems, their issues and put them all in an untidy pile on the desk in front of you. As their lawyer it was my job to try to sort through those problems, those messy issues and as far as I could make sure that the pile of problems and issues they took away were at least a bit tidier and a bit smaller when they went away.

As a legal aid lawyer this is what I have always tried to do; this is what in my experience my colleagues, friends and other legal aid lawyers try to do on a daily basis up and down the country. It may not always be appreciated, it certainly doesn’t pay well and it drives the accountants mad.

We are not angels, we are not crusaders, we are not all morally blind liberals. We just understand that clients should have a choice in who they put their trust in, who they want to make their problems a little more manageable. Quality advice makes a difference to the client, to the victim and to all concerned. We are committed to providing a quality service that we can be proud of.

This is what Chris Grayling is taking away, this is what he is trying to dismantle in favour of a cheap, efficient and acceptable service. This is why I and thousands like me have signed the petition against the reforms, why I submitted a response to the consultation and wrote to my MP warning him of the dangers.

If you want the right to choose the lawyer that will care about the name on the front of the file then please do the same. If you want the profession to wither on the vine then don’t do anything at all, sit back and hope someone else does something.

As lawyers we stand up every day and plead our clients cases, we ask for understanding of what they have done, we argue their case because they can’t.

As the MoJ prepares further spin, as the BFG explains why they are best placed to represent the needs of your clients, as the Law Society placate the MoJ with compromise, take a moment to remember it is the name on the front of the file that got you interested in doing it in the first place. All we do is measured against that.

#saveukjustice petition

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