What Mr Grayling doesn’t want you to know…

images-28

As the e-petition started by Rachel Bentley reached 60,000 signatures over the weekend, the Ministry of Justice posted a response to it as they are apparently entitled to. Clearly written by a member of staff in a hurry, “pubic” rather than “public” creating a few laughs, the response does little more than re-hash the information and the arguments put forward by the Ministry and Grayling over the past few weeks.

The same arguments that Ministry staff were unable to answer when questioned by lawyers all over the country in the recent engagement meetings (if this is engagement, the wedding is going to be fun). The same arguments that Grayling has trotted out to the press and which some of the press have simply lapped up and printed verbatim and in particular the Express and Daily Mail. The same arguments that have been forensically dismantled by a great number of lawyers, blogging, speaking and engaging with the public.

The reality is Grayling has decided that he will make cuts, he has decided how he will make those cuts and even agreed the amount of cuts he will make with Osborne, if yesterday’s headlines are to be believed. The consultation is, as I said in my first blog on this subject, a sham, fig-leaf of respectability. The Lord Chancellor has said over and over again that PCT will come in, and with PCT comes the removal of choice, the dumbing down of the profession, the greater risk of miscarriage of justice and the loss of most of the independent bar.

If the proposals are beyond reproach, beyond criticism and are so very necessary then The Lord Chancellor need have no worry about a debate as he would be able to show to us all and his colleagues how well reasoned they are, where we who actually do the job and appreciate the realities of it are wrong. As it stands there will be no debate, the proposals will never be subject to scrutiny and more importantly for us all as lawyers, no-one will test the evidence.

Let us for a moment then consider what the Ministry have said on the petition.

Mr Grayling tells us that we have the most expensive legal aid system in the world, with over £1billion pounds of tax-payers money spent on criminal legal aid. Both facts are untrue.

In comparing legal aid systems the Government fail to account for the fact that we have an adversarial system, pitting one view of the evidence against the other. Other legal systems use the inquisitorial system, evidence based but by a tribunal seeking the answers. Both have their advantages and both have their disadvantages, an adversarial system costs more for lawyers, an inquisitorial system costs more for investigation and judges/courts. If this is taken into account the net effect is that we spend on average the same as most other criminal justice systems in the world.

Mr Grayling doesn’t want you to know that.

The £1billion plus figure is an old figure. The figure for last year is less than £950 million, for the next year likely to be less than £900 million. In fact the criminal legal aid budget has been reducing for some time. Cuts already imposed, the lessening of work through the courts, the introduction, removal and then re-introduction of means testing in both the Magistrates and Crown Court have all seen the figures reduce. Fees in the Magistrates and Crown Court have not increased in over ten plus years, and many have been reduced already or removed all together.

Mr Grayling doesn’t want you to know that.

The proposals seek to remove the right to legal aid from prisoners that want to complain about conditions, categorisation and the like. This is an easy target for the Ministry and sure to gain support from the members of the general public. Why, after all should the people who have committed a crime be allowed to complain about the conditions they are held in?

As Grayling said in an interview with Catherine Baksi reporting in the Law Society Gazette that “We know the people in our prisons and who come into our courts come from the most difficult and challenged backgrounds.” If we accept at face value this comment, and see it as recognition of the problems in prison rather than a perjorative description then that the fact that is recognised and yet the government still seek to limit access to justice is very worrying.

Surely, it is for this very reason that those serving a prison sentence who have issues as to their conditions, sentence and categorisation should be allowed access to legal aid to challenge these decisions. The fact that they need to seek legal advice is indicative that the complaints system has either not been working for them or simply doesn’t address the needs of the prisoner. Why would a person imprisoned by the State feel that the very system that they are complaining about would take their complaints seriously?

Mr Grayling doesn’t want you to know that.

High value cases swallow up millions in tax-payers money. Really? Bears relieve themselves in woods, and the Pope is Catholic. This is hardly news. Difficult cases mean lengthy prosecutions, which means in many cases lengthy and complicated defences. Is it right that a complicated case should have legal aid restricted, refused because it costs too much money? Should the right to properly test a case and explore a legitimate defence be compromised because it swallows up money.

What Mr Grayling wants you to believe is that lawyers have been wasting your money on cases that you might find morally or ethically repugnant, cases like Abu Qatada who has spent over £500,000 of your hard earned tax on legal aid defending deportation over the last ten years. Yes, that is a lot of money, no it’s a huge sum of money. Whatever you might think of Qatada, his views and his politics he faced extradition and was entitled to contest it, within the law and using the law. The Government were entitled to try and extradite him, they lost not because of the legal aid being spent, but because the law was against them. It’s not, contrary to what Mr Grayling would have you believe, the defence lawyers that bring these cases. It’s the Government, it’s the prosecution of offences committed when someone allegedly breaks one of the laws that the Government have passed.

If Mr Grayling really wants to cut the legal aid budget simply make nothing illegal, no crimes, no criminals and no need for lawyers. Now that’s something I don’t want Mr Grayling to know.

Legal aid and the access to justice it allows is not something we can choose to give to one because we sympathise with their views and actions and refuse to others because of their views and actions. Justice is only justice when it is applied in an even handed way.

Mr Grayling doesn’t want you to know that.

Mr Grayling also targets high paid counsel, who shock horror were paid more money than the Prime Minister and some senior civil servants, and of course more than him. Some were paid nearly £500,000 in one year! This is clearly designed to offend the readers of the Mail and Express who all pay their taxes and contribute to society. How dare someone be paid well for a job of work.

Except the headline figure does not explain the detail of where that money may have come from, how many cases, how many years those cases ran on before conclusion. It also fails to say that counsel are self-employed. That figure if £500,000, and only a very very few earn at that level in any one year and virtually none consistently is not money in the bank. From that money, tax will have had to be paid, National Insurance, VAT, Chambers rents, clerks fees, travel costs, books and materials to allow the work to be done in the first place. There will have been no holiday pay, no sick pay available.

Mr Grayling doesn’t want you to know that.

Under the reforms those who do not have a strong link to the UK will not qualify for legal aid. Essentially those that have been in the UK for less than a year will not be eligible to legal aid. This will mean that those who seek asylum will be unable to access legal aid for the first year they are in the UK, after which they will likely not be in the UK. Those that have been trafficked into the UK by criminal gangs cannot access legal aid to ensure and preserve their rights. Perhaps an extreme example but if applied, the baby who is the subject of care proceedings cannot have a lawyer to represent their rights, because they haven’t been in the UK for a year. So it may save some money, but where is the justice?

Mr Grayling doesn’t want you to know that.

Under the proposals Mr Grayling tells us that you will still have access to quality duty solicitors and lawyers. He doesn’t tell you that three in four current firms are likely to disappear over-night. He doesn’t tell you that the firms that will take your case will be allocated to you and you will not be able to choose the lawyer you trust or want. He doesn’t tell you that you will not have the right to change the lawyer allocated to you if they don’t provide you an acceptable service.

He doesn’t tell you that the fees he will be prepared to pay give the lawyer an incentive to settle a case early, and in criminal cases that means pleading guilty. He doesn’t tell you that firms like G4S, Stobarts and Tesco have all indicated that they would consider bidding for a contract. These are all companies who are listed on the stock market; all companies who are accountable to share holders and not you, the public or their clients.

The fact a lawyer will be available to you is not Mr Graylings choice, a couple of years ago the Government seriously considered the possibility of removing face to face access to a solicitor in the police station if you were arrested. It’s only a matter of time before Mr Grayling thinks about this again, before he thinks of another way to “save” your tax and without a committed and broad base of defence lawyers available, who will stop him then?

Mr Grayling doesn’t want you to know that.

The petition needs 100,000 signatures for the issue to be considered for a debate in Parliament. Mr Grayling doesn’t want that to happen, as he knows he cannot fudge and bluster his way through the questions that have and need to be asked as he and his Ministry have done so far.

If you value justice, if you value accountability, if you believe that spending on criminal legal aid a sum equal to less than 0.5% of all the money the Government spends annually is a price worth paying for a fair and just legal system then please sign the petition to help ensure a debate.

Over the past few weeks many people have written so many very good reasons why the reforms are fundamentally wrong and why they need opposing, and should not be imposed. You can, and please should read them here. and Mr Grayling really doesn’t want you to know that…

Advertisements

Time to listen…

images-26

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 price of everything, the value of nothing…

money_2196794b

Let me make one thing very clear from the outset, I and my colleagues increasingly vocal opposition to the proposed reforms to criminal legal aid have nothing to do with the risk it poses to mine and their lifestyle, the loss of our jobs and incomes. We all appreciate that we do not hold any high position in society that means we are entitled to a job for life.

Our opposition is to the very real loss of access to justice, choice and fearless representation that will inevitably follow if these proposals are allowed to go ahead. The loss of protections afforded to the people that need it the most and because we see these proposals as a further step down the road to the end of a justice system that is rightly regarded as one of the best in the world. My concern is that these proposals will simply be nodded through without any real consideration of the long term effects and once in place will become almost irreversible.

Of greater concern is the lack of general awareness to the whole issue by the general public as to how it may affect them and the fact that they are being fed an argument that I initially thought was ill-conceived but now believe is intentionally misleading.

Examine the various press releases over the past few months that have come from Chris Grayling, nowhere does he refer to persons appearing in court as defendants or the accused. Instead he uses the term criminal, criminals and offenders. He refers to legal aid as profligate, lawyers as racking up huge fees for cases that run on and on, that the system is the most costly in the world, that the hard-working public pay for legal aid and that they (the public) have lost confidence in the system. In this way any attempt to amend the proposals, any opposition to the proposals by lawyers appears to be an attempt to preserve our own little fiefdom.

It does not matter that the figures used in the consultation are over a year old and no consideration is made to the reductions in the budget already achieved by a lowering of fees, the downturn in work through the courts. It does not matter that the huge fees are incurred in a very small number of cases dealing with the most serious of crimes, including terrorism and the like. These cases will always exist, these cases will always cost vast sums of money, and if you are charged with an offence then you must have a right to defend yourself and if you cannot afford to pay then there must be a way for the state to provide you with that right. You can’t have “Justice Light” for those people you don’t like or don’t want.

The argument that we have the most costly legal aid system in the world is and always has been a red herring. You cannot compare systems across the world and say that one is cheaper without highlighting the differences in approach. We have an adversarial approach which means the work is done by lawyers, in an inquisitorial system the work is done by the Judges. It costs the same amount of money; it’s just put against a different budget.

In my opinion these reforms will not have any effect on restoring public confidence in legal aid, far from it. The eventual effect will be dissolution in the reputation of the profession and the belief that justice has been disregarded in favour of price. The real problem is that affording “criminals” rights to a defence and a choice if it costs money is simply not an attractive proposition and that as a member of the public no-one believes it can ever happen to them.

Access to justice is not just about catching the bad man and punishing them. Justice is about the righting of wrongs, of balancing the scales and of ensuring what is right is done. Access to justice means that the single Mum has the ability to properly fight for contact with her children. Access to justice means that a decision by a body of state can be challenged by anyone and their views heard and explored. Access to justice allows the recently dismissed shop worker the right to have advice as to whether he was sacked lawfully without having to worry about the cost. Access to justice means that the prisoner serving a sentence can challenge the decision of the parole board to not release him as he has not completed the courses necessary when they are not available to him. Access to justice means that those accused of a crime can approach a lawyer of his choice who knows him, understands him and wants to properly advance his case. Access to justice means that a man accused of a crime can take advice from a lawyer he trusts and respects to give him the right advice and enter a plea in a timely fashion.

On 1 April the reductions in legal aid entitlement set out in LASPO came into effect, removing at a stroke legal aid from a huge number of people. These cuts were opposed by me and others and received debate time in parliament. The coming few months will show just how damaging cutting legal aid can be as those cuts bite.

On 9 April 2013 the Ministry of Justice announced further cuts in the proposal document “Transforming Legal Aid”. These proposals will not have any debate time in parliament; these cuts don’t need legislation to implement. These cuts herald an extinction event for the criminal profession and the rights to access to justice. There is still time to try and avoid the damage these proposals will make. We need as a profession to stand together and not protect our own self interests. The proposals, together with the QASA proposals are designed to set Counsel against Solicitor. If we don’t stand together then we risk being written off as simply lobby groups. We need as a profession to highlight these proposals to the public; to let them know what is at risk, we need to show that the Government know the price of everything but the value of nothing.

Do not be fooled by the use of the word consultation. A consultation involves a dialogue, a discussion between interested parties, at the end of which you will hopefully reach an agreed way forward. This is not a consultation; a decision has already been made as to how the MOJ will proceed. What is being consulted on is the manner of the demise. The current process is a sop, a necessary delay in order to ensure there are no available challenges to the policies to be implemented.
If evidence is needed of this take a look at how the response questions are worded. There is no question asking whether PCT is an appropriate way forward, no questions seeking a viable alternative or whether cuts themselves are even necessary. In essence it’s akin to asking the chicken “Would you prefer Sage and Onion, or Lemon and Thyme?” Either way the chicken is going to be stuffed.

Consider also the recommendations contained within the Carter Review of Legal Aid in 1996. All of the primary recommendations with the exception of BVT and Single Case Fees have been implemented. It is these two proposals that form the basis of this consultation.

Although there are a number of worrying proposals within the document the biggest and the one that will have the greatest effect is PCT, or Price Competitive Tendering. That will mean providers bid against each other to provide advice at the police station, and representation for all litigation in the Magistrates and Crown Court at a fixed price per case. Inevitably the lowest bids in each area will be awarded a contract for a minimum period of three years, extendable to five.
The Government believe that market forces can be made to apply to anything from the bulk purchase of hammers to the provision of professional advice. The problem is buying a bulk load of hammers is quite a different proposition to the purchase of professional advice. Sometimes market forces simply cannot be left to decide how something is provided, and particularly when the Government are the purchaser.

More pertinently the Government don’t want market forces to decide how and at what price criminal legal aid is provided, hence the need for the Government to “rig” the market in the first place.

If pricing were left exclusively to the market then as a whole the price would go up, we would no longer work for the current pay rates as it does not reflect the cost of doing the work we do. We already work at a significantly lower rate than we used to and that we could charge.

So the Government need to set a price cap, a maximum amount of money they will pay for the services to be provided. They have set that cap at a rate 17.5% less than the current fee structure. This is to prevent the providers holding the Government hostage on price. So already providers have even less incentive to bid for the work. In order to make it worthwhile the second stage is to cap the number of providers in any given area and then guarantee those with a contract a certain percentage of the available work. What was a free market with anyone able to compete and offer their services is now a closed market with a price cap. The proposed system does not allow for growth, it does not allow for new entrants, it encourages stagnation and the slow inexorable demise of the independent profession.

At the present time there are approximately 1600 contracts for the provision of criminal legal aid, serviced at one end of the spectrum by sole practitioners working from the spare bedroom, to at the other end very large firms with multiple offices servicing large geographical areas. This means that the Legal Aid Agency have supplier relationships with each provider which creates paperwork and administration, which in turn costs money. Under the present system as long as the contract provider meets the necessary quality criteria and can fulfil contractual requirements then they are able to carry out publically funded work.

Quality criteria is important, it means on a most basic level that the person you see is being audited, that someone is happy with their ability to provide the advice and representation you need. More importantly reputational quality is in the current system a massively important benchmark. You may be able to fill forms out and pass tick box audits but if you are no good in court, give poor advice and achieve bad results due to lack of ability or commitment then who would instruct you? Conversely, if you are good at what you do, show commitment and understanding to your client and are able to provide a consistently excellent service then your reputation will increase and inevitably you will get more work. Clients will choose to come to you, and will avoid the others. This is where at present the market is deciding.

In the new regime there will be 400 contracts conducted by a lot less than 400 providers. There will be no sole practitioners, there will be no niche specialists; they will no longer be able to survive let alone be in a position to bid for a contract. Instead there will be large firms and in time national providers such as G4S, Serco et al. The High Street lawyer will no longer exist. I do not think that the large multi-national public service companies will come in on the first bid round. They will want to see how it all works out, and whether there will be a further reduction in supplier base. I do think they will come in, perhaps on the next contract when the Government introduce a full public defender service run by one of those companies, after all they could then operate a full cradle to grave service; investigated by them, represented by them at court and rehabilitated by them at a prison or a probation centre. The justice system as we know it will then truly be dead.

Smaller firms will be unable to bid due to constraints on budget, logistics and so forth and the cost of scaling up. Larger firms may not bid, as the bid price will not be worthwhile. Legal Aid partners at law firms have a hard enough time justifying their existence on the margins we currently operate; imagine taking that discussion to a share-holders meeting. More importantly is the restrictions the regime will have on the growth of a firm or provider. If you are guaranteed no more than a percentage of the work available in any given area then the only way to increase that percentage share would be for a further reduction in the number of suppliers. It’s something that simply cannot happen if there is to be true independence and avoid the unavoidable client conflicts. Further, you can’t rely on repeat business or recommendation. Cases will be allocated on a rota basis at the police station, own client ceases to exist.

As I mentioned above the need to provide quality advice and representation now is implicit in what we do. A client will never instruct us if we are no good at the job. In the proposed regime the issue of quality is a concern. Once a provider has a contract, they have it for three or five years. Whilst certain quality controls may have been tested initially where is the imperative to ensure they are upheld? After all the work can’t be given to someone else, there will be no-one. I have no doubt that I and my colleagues will continue to work as we do and provide the quality of service that is to be expected by our clients.

That doesn’t mean that quality will not fall, budgets need to be kept, and targets met, that is bound to place pressures on what is done, and large new corporate ABS providers may not operate to the same standard The Government is aware of this and it is mentioned in the impact assessments. As a lawyer doing criminal work now it is insulting to think that someone believes I do not give anything other than 100% effort and commitment to my job or that I would not continue to do so.
In order to guarantee a percentage share of the work available in any given geographical area the new proposals do away with “own client” work. No longer will a client be able to choose who represents them at the police station or at the court if they want publically funded legal aid. This is a huge move and one that fundamentally attacks the principles of access to justice. More importantly, when set against the stated aims of the proposals to introduce efficiencies and cost savings to the fund it makes absolutely no sense. Yet without doing away with client choice, the issue of price competitive tendering cannot exist.

A client at the police station will be allocated to a provider if they ask for a solicitor. The proposed basis of allocation gives some indication as to how ridiculous this measure is. The consultation asks whether the clients should be allocated on initials, month they were born, sequentially, or on a rota basis. What happens if the client simply wanders into the office, as they so often do now, how can the Government ensure that one provider only does their percentage share of work.

The reality is that many clients are regulars, or they know a regular, or they have a friend of a friend etc. They trust the lawyer they choose to represent them and to give them advice. In that way I am able to tell my client, and he will trust me and believe me, that the game is up and he should plead to the particular allegation he faces that day.

I also know which one of my clients have mental health issues, have an alcohol or drug dependence, have a particularly difficult home life. I am able to use this information in their best interests and because I know them and they trust me I can put this information to the court quickly and effectively. If Mr X meets four different lawyers in four different cases of shop theft within a space of a week then he will need to tell each one his life history, many clients are reluctant to give information and only do so after a period of time. He may receive a sentence that is not right and more importantly there will be four separate fees. Under the current regime it would be clear those four thefts in a series of offences but only one case and therefore only one fee at court.

I have worked hard to build my reputation, as have my colleagues. A good lawyer, trusted by his client will always do a job quicker and more effectively and a client is more likely to accept the hard straight forward advice that is sometimes needed. A relationship built on trust between a client and his solicitor means that there is less chance of a pointless trial, less chance of clogging the system and more chance that justice is not only done but seen to be done by both the client and the victim.

It is bad enough now to try and convince some clients picked up as “duty solicitor” that I am independent of the police. With others there is the belief that the “duty solicitor” is not a proper solicitor and they will use me just until they can contact their usual brief. Imagine how these clients will feel when the only solicitors attending the police station are “duty solicitors” allocated to them on hair colour.

Finally, on this point, “Access to justice should not be determined by your ability to pay…” the opening remark from the consultation document. How can this possibly be held to be true and be believed if only those who can afford to instruct a lawyer of their choice are able to do so?

This blog has concentrated on the issues facing solicitors and the consultation process. There are equally dramatic effects proposed to the Bar and further reductions in their remuneration rates which I won’t cover here simply because I do not want to make this as long as the consultation.

There is one striking proposal that I do want to comment on, the reduction of pay the same fee for a short trial as a guilty plea. This is a dangerous proposal as far as public perception is concerned, and frankly downright offensive to suggest that clients are advised to plead not guilty simply to increase income. I have never met a barrister yet who has advised my client to plead not guilty just to get a trial fee. Please take the time to consider the blogs, articles and press releases put out by the CBA.

For a very long time we as lawyers at all levels have made the system work with our goodwill and hard work for diminishing returns and yet we all turn up to work and continue to do the job. Why? The answer is simple; we truly believe that access to justice is so much more than an ability to pay, that every person has a right to the best possible representation and that cheap and “efficient” is rarely synonymous with value and commitment.

If you are a lawyer of any branch of the profession speak to your clients, let them know what is going on and how they can respond. The Government may procure your services but the client is the one who needs your services. Nobody likes the idea of spending public money on “criminals” until they are the one who find themselves in a police station at 3am and the only friendly face is the lawyer willing to listen.

Sign the petition, write to your MP, write to your Police and Crime Commissioner and respond to the consultation. We are not just a foolish, noisy minority…we provide a voice for all of those who can’t speak for themselves.