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:
- The MOJ did not “have a sufficient understanding of the complexities”.
- There was no pilot scheme.
- After the consultation process was completed there were only minor changes to the scheme.
- 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,