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.