Monthly Archives: May 2013

Third letter to the Lord Chancellor

Third letter to the Lord Chancellor, Secretary of State for Justice,

Mr Chris Grayling,

28th May 2013,

Dear Lord Chancellor,

Thank you for your reply and especially for including the very interesting list of Ministry of Justice contracts with outside suppliers/contractors for 2012. I looked, on your behalf, at all the entries and I agree with you, not one item of expenditure (out of the 1219) seems to have been inappropriately spent by the department and absolutely no savings can be made. In particular:

• £110,00 was spent in 2012 on breathalyser testing of prison staff (item 205). I agree entirely they cannot be trusted to be professional enough to arrive at work sober.

• The MOJ spends £1,132,550 a year on dog food (items 219 and 752). I have to admit I’m not quite sure why there are dogs within the MOJ (prison governors’ pets at work maybe) but wherever they are and whatever they do, they’ve got to be fed.

• There are three entries for hairdressing services: HMP Hindley £18,000, HMP Liverpool £43,680 and HMP Kennet £22,500. I think that the MOJ spends this total of £84,180 of taxpayer’s money wisely here. The staff at these institutions must be used to their perms being paid for by you in London by now. You surely can’t take that perk away.

• It is a bit surprising that £5,143,709 was spent by MOJ staff on taxis for 2012. But I see no savings here either. I suppose the MOJ could buy its own vehicles and reduce the cost, but taxis are much cosier aren’t they? And you don’t have to do the actual driving. (See items 10, 11, 12, 54, 58, 77, 85, 111, 113, 140, 150, 171, 262, 282, 332, 455, 559, 653, 657, 680, 696, 724, 758, 811, 818, 1007, 1011 and 1073).

• Members of staff are surely entitled to Cognitive Behavioural Therapy on the department at £654,000 per year (item 168).

• £10 million was spent on mobile phone denial work in the London area. That is so much easier than searching everyone before they enter prison to make sure they don’t smuggle a mobile phone inside.

• The spending of £720,000 on professional actors for pre-employment role play scenarios seems fine (item 966). How else are people going to be properly assessed for the suitability for a job at the MOJ? CVs and interviews are so old fashioned, don’t you think? A good role play scenario for a potential governor of a prison with actors playing prison staff and prisoner is much more inventive, and fun.

• The water softener for the West Midlands at £137,000 seems very good value (item 261).

• As is £192,000 for the press cuttings service (item 291). How else is the department meant to keep track of how it is viewed in the media? It’s not as though they could monitor twitter and Facebook, or anything.

All in all, this spending seems watertight to me. But, just a word of advice, it might look bad if this list was released more widely. So I return it securely to you: http://t.co/1I8C2jAIHv , but for goodness sake do not let it be seen outside the department.

Secondly, your plans to privatise HM courts and tribunal service and transfer 20,000 staff from the government’s payroll, as revealed in that leaked memo to The Times on 27th May 2013, is a master-stroke if I may say so. That should put a rocket up these troublesome civil liberties people who think that justice in the courts should be about nothing but fairness and the rule of law. Don’t they see that profits can be made here? The two fingers up at Magna Carta “we will sell to no man, we will not deny or defer to any man either Justice or right” shows them that you mean business.

Not many people understood the ramifications of your speech to Parliament on 26th March 2013 when you said “We should be proud of [the English courts] international reputation and the contribution they already make to our economy” and how you wanted to explore “appropriate vehicles” to generate additional revenue for the UK plc. Once private companies and corporations are running the courts, especially the courts dealing with civil law, then the opportunities for private enterprise are very interesting.

The private companies who will own and run a particular court centre should be able, of course, to charge litigants a pretty sum for using their service. It may mean only wealthy people have access to justice, but it will speed things up by clearing away the clutter. The courts that have attracted extensive business can then invest to improve the facilities and so even higher fees can be charged. In time courts with “good outcomes” (i.e. welcome result for complainants bringing the actions) will be favoured by litigants shopping around for courts that provide such a service. All those Russian oligarchs and French libel hunters and German divorcees. And in time the courts with “poorer outcomes” for complainants will fold. It will expand the compensation culture, so hated by the tabloids, but think of the tax revenues! And remember the poor will not be able to afford the higher fees to bring cases and so at least those troublesome litigants will be refused entry. Remember your motto of service as Lord Chancellor: “In England justice is open to all, like the Ritz.”

I see that the Supreme Court already has a You-tube channel. That can be extended to the privatised courts and you could make the more sensational libel and celebrity divorce cases pay per view. Judges gowns are ideal for displaying sponsorship logos (discretely of course, like snooker players) which will enhance brand awareness for the firms that are kind enough to invest in our justice system. In time High Court Judges who are not providing good outcomes for their customers can be sacked and their function outsourced to the Indian High Court in Kolkata. It should be relatively easy to have them give judgements and rulings via video link, and that should save some money.

In the US recently, a county court judge called Mark Ciavarella Jnr took bribes from a company that ran a private youth prison and then savagely sent many youths there, some as young as 10, on the most frivolous pretexts. That kind of conflict of interest cannot be seen to happen here. So as part of the reforms I advise that you make sure the judiciary are independent of the companies owning the courts by putting all judges under government supervision with a Royal Charter. Then politicians can monitor all judges to see that they are not acting inappropriately.

Returning to the thorny subject of your legal aid reforms: I see that Dominic Grieve, when he was shadow Attorney-General, said at the Conservative Party Conference in Bournemouth in 2004 “there are ideas creeping into the system that treat legal aid as if it just about the economic provision of a service. That approach will lead to problems with lowered standards.” What he and many others (including those 90 QCs who have written today stating their objections to your plans in a letter to the Telegraph) fail to see is that the lowering of standards in criminal court is the solution not the problem. They fail to understand that the government’s austerity programme is just the excuse that is needed to make it look as if the system is being ‘reformed’, whilst actually politics is being played in the background. How on earth did Grieve end up in the cabinet? And well done agreeing to even further cuts with HM Treasury for the spending year 2015. It used to be traditional for ministers to fight hard with the Treasury on behalf of their departments to avoid cuts, but given the importance of your wider, and more subtle, strategy you were right to lie down like a lamb on this one.

Yours, with no astonishment

the intrigant.

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Second letter to the Lord Chancellor of Great

Second letter to the Lord Chancellor of Great Britain, Secretary of State for Justice,

 

Mr Chris Grayling

21st May 2013

 

 

Dear Lord Chancellor,

Thank you for your reply. Yes, I’m as surprised as you are by all this opposition to your plans. Who knew every criminal solicitor and barrister in the country would be against them? I can see why you are feeling so low, pioneer visionaries like you are never understood.

Look old man it’s not like you to be so down about things: keep your chin up. It’s not your fault you are not a lawyer and that you have no experience of the justice system and no feeling for the rule of law; remember it was the Prime Minister himself who appointed you to this ancient and honourable post. Your current attitude is not the Chris Grayling I knew who ran that communications division of the television company in Gerrards Cross before entering Parliament. The skills you learnt there were all excellent preparation to be Lord Chancellor, whatever everyone else says. When they say you are the first non-lawyer to be Lord Chancellor since 1673, they say it as though it’s a bad thing. At least you are not burdened with the knowledge of how justice is decided and the importance of the rule of law; you can step back from that and take a more pragmatic view. You have the vision to see that the government’s austerity programme trumps that kind of theoretical clap trap. 

I agree that being told about section 27(4) of Legal Aid Sentencing and Punishment of Offenders Act 2012 was something of a shock. I didn’t know either that Parliament had legislated last year that any defendant “may select any representative” (that is a solicitor/provider) when choosing legal aid. Nor that Jonathan Djangoly, the under-secretary of state for justice at the time, is quoted in Hansard as giving an “unequivocal assurance” to Parliament that the government’s intention was to allow defendants to select their legal aid solicitor. How were you expected to know the law, you’re only the Lord Chancellor for heaven’s sake. But remember you do have the freedom to choose a QC to advise you how to get round that legal stumbling block.

Let’s see if I can give you some constructive suggestions to help your resolve. Take Question 18 of the consultation document: “Which of the following police station case allocation methods should feature in the competition model? Please give reasons” Now it is clear to me that Option 1(b)- “case allocated based on the client’s day of month of birth” is much the best one. As we know it is not to be an option that a defendant can simply choose a solicitor. That would be most unsuitable for the reasons I congratulated you on in my last letter (16th May 2013). Option 1(b) should be the new method but slightly adjusted thus: allocated to a solicitor based on a defendant’s sign of the zodiac. So for example in Kent, where there are to be only four solicitors firms/providers, all defendants under the sign of Aquarius, Pisces and Aries can go to provider number one and Taurus, Gemini and Cancer to provider number two etc. Defendants would thus be equally allocated between the four providers in the arbitrary way that you so desire. (In fact while you’re at it, why not oblige custody sergeants to brand them with their actual zodiacal sign? Then next time they are arrested the booking in procedure will be speeded up.) 

Defendants would believe that the stars are assisting them in some mysterious way and that will provide them with much comfort. Because as you know all defendants in our justice system are pig ignorant aren’t they? I really admired it when you told the Law Gazette in that interview published on 20th May 2013 that “I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills.” The minimum income level for obtaining legal aid is to be £37,500, and you were spot on that anyone with a job that pays below that level is too stupid to be capable of distinguishing between the qualities of two different solicitors. Although that includes many police officers, nurses, teachers, university lecturers, firemen and social workers.  I agree that these are people with absolutely no judgement whatsoever. In a way it’s simply a kindness to take their free choice away from them, isn’t it? When they intuit that the stars are moving in harmony with their legal problem, they will feel a lot better, as they sit in their cells waiting for trial. 

Now another thing, you have got to get a grip of the MOJ officials at these road-shows. Under questioning from the audience they have:

  • admitted that Crown Court advocacy is to be outside the PCT scheme only “at this stage” (London).
  • admitted that removing client choice of solicitor will lead to a “different level of quality” (Leeds).
  • explained that there is no government contingency plan if, after the changes are brought in, there follows a total market failure.

I know the MOJ officials are fed up. I know they keep complaining about the poor brief you have handed them. I know they can barely keep a straight face when they seek to defend these proposals. I know they couldn’t believe it when you pulled out of a radio interview on the ground that Michael Turner QC from the Criminal Bar Association was there to debate with you and you didn’t want to answer his difficult questions. Just send them out again and tell them they must answer the difficult questions and remind them that the department’s and your reputation are at stake.

In particular they are having difficulty in answering this question: where is the evidence of the loss of confidence in the legal aid system by the general public that the Lord Chancellor says justifies these root and branch changes? That assertion of yours has been severely tested by the opinion poll published by ComRes today, 21st May 2013. As you no doubt are already painfully aware, the poll shows (1) 71% of the public are concerned that your criminal legal aids cuts will lead to innocent people being wrongfully convicted, (2) 67% said that legal aid is a price worth paying to live in a fair society, and (3) 68% said that legal aid is a worthwhile investment in our basic freedoms. Do you know I think now might be the time to release that letter you’ve been keeping back, the one from the Conservative constituency chairwoman asking why Abu Qatada was granted legal aid to fight his extradition from the UK. That should do the trick.

Something else the MOJ officials have struggled with is the figures you’ve given them. I see that you declared that the criminal legal aid budget you seek to reduce has “spiralled out of control” to £1.1 billion per year. That is what it was in 2011/2012 whereas the Legal Aid Agency says the expected spend for 2013/2014 is £941million. You were wise not to let on about that £159 million reduction, if people knew about that they may not think the figure of a further £220 million in savings, which you have plucked out of the air, was a necessary reduction. And now some bright spark lawyer has spotted it and mentioned it at one of the MOJ road-shows. They really are members of the awkward squad aren’t they? One way you can get back at them is to plant stories in the Daily Mail and The Times about fat cat lawyers (you know where the paper quotes the gross figure that masquerades as ‘income’, but is wholly misleading because it includes VAT due to be repaid, and doesn’t take account of chambers expenses, travel to court, insurance, pension and sick pay etc.) Although the bulk of criminal legal aid barristers are on modest incomes, the public can be easily misled about that!  Do you remember when as Shadow Home Secretary you were criticised for quoting dodgy figures on violent crime by the Chairman of the Statistics Authority, Sir Michael Scholar, who, after an official investigation, rebuked you and said that the figures you used were “likely to mislead the public” and “likely to damage public trust in official statistics”? Don’t worry I’m sure nobody else remembers that now.

However you will remember that in 2010 the MOJ commissioned a private company (ALS) to manage the provision of all interpreters in our law courts. The National Audit Office, the Justice Select Committee and the Public Accounts Committee all published highly critical reports of the MOJ. The process was described by Alan Beith (chair of the Justice Select Committee) as “shambolic”. The particular criticisms were:

  1. The MOJ did not “have a sufficient understanding of the complexities”.
  2. There was no pilot scheme.
  3. After the consultation process was completed there were only minor changes to the scheme.
  4. There was not sufficient due diligence on ALS as to whether it had the ability to deliver a good service.

Let’s hope no one anticipates that all of the above will be repeated with your proposed changes.

The Legal Services Consumer Board have criticised your proposed criminal legal aid changes (which is slightly embarrassing as everyone on the board is appointed by the Lord Chancellor). Responses are awaited in the next few days from the Criminal Bar Association, the Law Society, the Criminal Cases Review Commission, the Bar Council and all of the circuits of England and Wales, and no doubt many more learned bodies. They are all likely to be highly critical of your plans. But just remember this: it is perfectly possible that you are correct and everybody else in the entire legal world is wrong.

 

 

Yours, with resolve,

The intrigant

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May 21, 2013 · 12:03 pm

Letter to the Lord Chancellor, Secretary of State for Justice

A letter to the Lord Chancellor of Great Britain, Secretary of State for Justice

Mr Chris Grayling.

16th May 2013

Dear Lord Chancellor,

Can I congratulate you on your splendid proposals for reforming criminal legal aid, set out in the Ministry of Justice (MOJ) paper on 9th April 2013? I see that after the so-called ‘consultation period’, you propose to change the law by signing a statutory instrument and thereby circumventing both Houses of Parliament. I agree that they can’t be trusted on a matter of such importance.

When you first proposed (1) price competitive tendering for criminal solicitors’ firms and (2) the removal of every defendant’s right to the legal aid criminal solicitor of his/her choice I was surprised and worried. I could see one practical reason for it. By forcing each defendant to have the criminal solicitor allocated to them by the state, it guarantees a high volume of defendants to the small number of firms who have a contract. How else could the government make a bid worthwhile (given the winning bidders would have to bid at such a low level) except by guaranteeing a high volume of work? But we Tories stand for choice don’t we? Aren’t we in politics to reduce the size of the state and increase the private sector? We try to allow the market to flourish by encouraging people to choose between providers: choice of GP, choice of school, choice of hospital etc. That is the Tory way to drive standards up, I said to myself. Surely client choice is the most effective quality control in the system? But your proposal removes all choice and, for good measure, makes it nigh-on impossible to change criminal solicitor after you’ve been allocated one.

Then I thought the implications through. If every solicitor knows they don’t have to attract new or repeat business from defendants by providing a high standard of legal work, they will simply do the bare minimum (and perhaps not even that). Any solicitor with a contract will know they don’t need a good reputation to attract work because they are guaranteed to be allocated defendants by the state. Brilliant! On top of that firms will only have contracts because they have bid the lowest price to secure them, so their costs will have to be driven down by their (probably ever more junior) lawyers being given large workloads by their managers. The standard of work will drop and, after a relatively short while, the defendant community alive to this will do everything they can to avoid even getting legal aid lawyers. They will either go private or represent themselves at their trial. That will dramatically reduce the legal aid budget! I began to see these proposals are pure Tory genius. The private sector will flourish after all as that is the only way a defendant can get the solicitor of his/her choice. Sneaky! For those on legal aid you will achieve a cut-price service with profits going to big business whilst the ‘customer’ receives a barely adequate service. And for those not on legal aid, you have created a market for private defence services. Your own official at the MOJ recognised that the only way a solicitor attracts custom at the moment is through a high quality of service and that if there is no need to attract custom at all (because the state allocates it to you) then quality will be reduced. That official nearly let the cat out of the bag in the Government’s Impact Assessment when he stated at paragraph 23 “the removal of choice may reduce the extent to which firms offer services above acceptable levels”. Let’s hope no one saw that!

I understand that the newly named ‘Stobart Barristers’ (not of course barristers at all but an off-shoot of the well-known logistics firm) are intending to bid for contracts and saw that their legal director, Mr Trevor Howarth, spotted these implications early on. In an interview when asked about the proposed removal of choice from defendants who apply for legal aid he said “I don’t think lack of choice is damaging…No one is stopping them paying for their own choice of solicitor”. That left wing rag the New Statesman described your proposals as ‘illiberal’ in an article written by David Allen Green published on 23rd April 2013, but in one way they are classically liberal: freeing people from the heavy hand of the state (legal aid) and forcing them to pay privately to avoid jail.

Of course, it means that even innocent defendants will have to pay for their lawyers, and those on legal aid will have a reduced quality of service, but it will reduce the size of the budget in your government department and that is what matters most, right? These people should never have got themselves arrested, should they! It was a bit mean of you to change the law recently to prevent defendants being repaid their legal costs on acquittal, so even the innocent will be seriously out of pocket, but hey life’s unfair right? It’s not the job of the Secretary of State for Justice to resolve that.

I see that a few London ethnic minority solicitor firms have stated that they will go out of business when the larger providers (Sobarts, Tescos, Co-op and Serco) come into the legal market. They say that the defendants they currently represent from ethnic minorities will be forced to go to solicitors from these firms with lawyers whom they don’t have a relationship and have not built up any trust. Lawyers also say that the building up of trust over the years between a client and legal advisor can reduce delays and help ease the burden on the vulnerable. Those are reasonable arguments given your plans, but don’t let that put you off: keep your eye on the wider goal. You never know it may bring back to us some voters lost to UKIP.

One of the things that amused me was the idea that G4S are said to be planning to bid for a contract. (Notwithstanding that embarrassing business over the security for the Olympics.) They probably will be awarded one, given contracts are allocated on price. As you well know they currently run some private prisons and drive defendants in their security vans to and from the courts where they guard the docks in the court rooms. I read that they are to be awarded a contract to cover some police services in some police areas. So there is the deliciously ironic prospect of a security firm helping to prosecute a defendant, then providing his legal representation at court and then imprisoning him. It will even be in G4S’s interest to get a defendant to plead guilty to provide ‘customers’ for its own jail. Even I balked at that! If, heaven forbid, your career goes belly-up I suspect a consultancy with G4S or Serco will provide you with a post-politics sinecure.

One other benefit, I’ve thought of is that given the quality of defence representation will go down, prosecutions will be more easily secured. Win-win! Those barristers who prosecute in the Crown Court will run rings round a demoralised overworked contracted lawyer who misses relatively easy defence points or doesn’t prepare for trial well enough in advance. But on the other hand I also foresee a snag here. Criminal barristers survive financially by prosecuting and defending. Once these cut-price contracts are secured by solicitors’ firms they will only be made cost effective by the managers obliging their in-house lawyers to undertake the Crown Court work as well, so criminal barristers will not be able to survive and will leave the profession. How will the CPS cope with that tidal wave of desertion of specialised prosecution talent that do 70% of the prosecuting in the Crown Court at the moment? The guilty may then be walking free in large numbers after trials. The DPP’s problem I suggest, not yours, after all his additional costs would not fall within the MOJ budget. Won’t it add to the budget of the Home Office or the Attorney-General? Anyway, you won’t get the blame.

And as for the inevitable miscarriages of justice and the consequent necessary appeals to the Court of Appeal and all those retrials, well, although the future costs to the MOJ will be large, at least the department’s headline savings over the next two years will look impressive at the 2015 General Election.

You declare that your aim for these proposals is to reduce the legal aid budget by £220 million over the next five years. I see that crime figures are down and that means, of course, fewer court cases and so the legal aid bill would reduce even if you did not bring in these changes. You have been wise to keep quiet about that. We all know that the police have not been charging defendants even where they have the evidence to secure a conviction, and then either cautioning them or letting them go scot free. How else are the police to reduce their budgets as required by the Home Office for heaven’s sake? I don’t think the public are alive to the fact that victims are being denied justice to help the government get the public finances under control; long may that ignorance continue.

Finally, you said in your forward to the consultation paper that these proposals are being introduced because legal aid has “lost much of its credibility with the public”. Despite requests (from some awkward quarters, like SaveUKJustice) you have not been able to provide evidence for that assertion. Once these proposals have been signed into law, by you sitting at your desk, the evidence of loss of confidence in the system will soon be there to satisfy these people. But hopefully you will have been promoted from the MOJ by then and someone else can clear up the problems. Perhaps you will be given the Home Office and can begin, at long last, to introduce payment by results for the police service and price competitive tendering for the UK Border Agency.

Yours, with admiration,

The intrigant.

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