Monthly Archives: June 2013

Sixth letter to the Lord Chancellor

Sixth letter to the Lord Chancellor, Secretary of State for Justice.

Mr Chris Grayling,

27th June 2013,

Dear Lord Chancellor,

How you must have laughed, as I did, when your Minister for Justice, Lord McNally, said two days ago “I am incredibly proud of this country’s legal aid tradition and the legal profession which underpins it.” This from the man who is rushing headlong into delivering Price Competitive Tendering that will sell off part of the criminal justice system to big business. This from the man who called legal aid lawyers, who had replied to the MOJ consultation paper, but before the consultation had closed or the responses had been read, “hysterical”. He is like the Duke of Wellington declaring how incredibly proud he is of Napoleon and of the entire French cavalry on the eve of Waterloo.

Anyway, thank you for your reply, containing the following enclosures:
1. MOJ statistics bulletin for 2012-2013, dated 25th June 2013.
2. Legal Services Commission (LSC) Annual Report and Accounts 2012-2013, dated 25th June 2013.
3. European comparison table on justice expenditure, from the 2012 European Commission report on the efficiency of justice.

I know that you said in a letter sent to Tory party members on 19th April 2013 that we had “a legal aid system that costs more than two billion pounds a year, far more than in any other comparable or developed nation” and I remember the time you said that legal aid expenditure had “spiralled out of control”.

I read Lord McNally’s article, published in the Huff Post on 24th June 2013, justifying the MOJ proposed reforms because “we inherited a legal aid system of around 2 billion pounds a year”.

I heard George Osborne, the Chancellor of the Exchequer in Parliament yesterday telling the House of Commons that the MOJ had agreed to a FURTHER 10% cuts as a department because, amongst other reasons, in this country “legal aid costs two times the European average”.

I purred when I read and heard these statements because, of course, they are important facts to keep repeating given they go some way to justifying the MOJ’s radical shake-up proposals that nobody supports. But the three documents you have sent me are highly troubling. First, the MOJ statistics bulletin shows that legal aid spending has actually been going DOWN year on year.

• Total legal aid is down £330 million (from £2,237million in 2010-2011 to £1,1917 million in 2012-2013).

• Criminal legal aid is down £155 million (from £1,130million in 2010-2011 to £975 million in 2012-2013).

The Bar Council, the Criminal Bar Association and the Law Society kept saying to you, the MOJ and the Justice Select Committee: wait until the cuts introduced in October 2011 and February 2012 work their way through the system, then you will see a significant reduction in expenditure. Unfortunately it seems that they were justified. Who knew that they were in fact right? For goodness sake sit on this statistical bulletin if you can. Just keep repeating the same old government mantra and surely these inconvenient statistics will all just disappear into thin air.

Secondly, you sent me this year’s LSC Annual Report and Accounts. As you know the legal services commission administers the legal aid payments on behalf of the MOJ. The report/accounts reveal:

• The auditor general has qualified the LSC’s accounts (that is doubted that they are “true complete and fair”) due to irregular payments of about £30 million. That’s not a promising start!

• In addition the LSC’s administration costs have RISEN by £29.1 million between 2011/2012 (£82.1 million) and 2012/2013 (£111.2 million). But let’s look on the bright side, that unfortunate increase in cost to the taxpayer can be used to help justify further cuts to legal aid expenditure.

I suggest you ignore this completely; I’ve spread the report with marmite and the accounts with jam and fed it to my imps. It is no more.

Thirdly, the European comparison table is also inconvenient. As we in the know, know, the international comparisons touted around by you and other members of the cabinet are, of course, misleading. The inquisitorial system on the continent and the adversarial system in the criminal courts of England and Wales are fundamentally different. So to compare the defence legal aid costs of both systems is to compare apples with pears. On the continent much more is spent on judges and prosecutors who do much of the pre-trial investigating for BOTH sides. Also the system is so good in England and Wales (at the moment) that there are comparatively few appeals, (in the UK Supreme Court there are 12 judges, in the equivalent French Court of Cassation there are 125). The fairer comparison would be to look at public spending per inhabitant for all courts, defence legal aid and public prosecutors. Alas someone has done just that:

Public spending per inhabitant on courts, legal aid and public prosecutor (in euros).

Switzerland 167.1
Luxemburg 137.1
Netherlands 118.0
Sweden 93
Spain 91.4
Norway 89.5
Belgium 86.2
Austria 84.6
England/Wales 80.8
Italy 73.0
Ireland 61.1
France 60.5
Poland 44.5

This is, you will agree, a much fairer and more meaningful comparison. You must ruthlessly supress it or George Osborne will have to apologise for misleading Parliament, and you and Lord McNally will be made to look like mendacious berks.

Finally, on an existential note, a seminar has examined whether you actually exist or not. The Judicial Independence Project convened on 12th June 2013 on the tenth anniversary of Tony Blair, when Prime Minister, abolishing the office of Lord Chancellor, accepting the resignation of the incumbent Derry Irvine and creating a justice ministry instead. The House of Lords insisted that the title of Lord Chancellor be retained. But, although retaining existence as a name, the office was shorn of its judicial function and the speakership of the Lords. The only remaining role was the duty to uphold and protect judicial independence. Michael Turner QC said that your reforms will inevitably lead to a reduction in quality talent available to the bench in a few year’s time, and now the Lord Chief Justice has sent a letter to you, dated 9th May 2013, setting out judicial concerns about the court privatisation proposals saying, in an attached document, “no governance or funding models should be countenanced which threatened the independence of the judiciary”. You seem to be disintegrating the only remaining role that defines the Lord Chancellor’s existence. Some people at the seminar argued that the Lord Chancellor does not really exist anymore. Just a ghostly insubstantial figure remains.

Yours, disappearing with his two imps through a crack in the ground,

the intrigant

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Fifth letter to the Lord Chancellor

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

Mr Chris Grayling,

11th June 2013,

Dear Lord Chancellor,

Don’t get paranoid but everybody seems to be deserting you. Thank you for your reply and yes I did watch those troublesome and articulate lawyers give evidence to the Justice Select Committee today. They seemed to have answers for everything, the bastards. I too am very worried about you being summoned before the committee on 2nd July 2013 as Andy MacDonald MP said you were to be afterwards, and Sir Alan Beith with his “when we have the justice secretary in front of us” and his snide “you can take it that this committee knows all about the MOJ contracts that have gone wrong”. I too remember with embarrassment the last time that you gave evidence to that committee, on 28th November 2012.

Your evidence ranged from the bafflingly contradictory:

• On how you defined your role as Lord Chancellor: “The key is that it is my job to defend the rights of the judiciary to take the decisions they do, even if sometimes I might privately think those decisions are daft….my job as a legislator if I don’t like what the judge does, is to change the law”.

To the gung-ho:

• On why you don’t believe in pilot schemes: “In government, if you are going to be a reformer you have to bite the bullet and reform”.

To dissembling in the majestic third person:

• On who the real Chris Grayling is; “The answer is that he is someone who believes in a justice system the public have confidence in”.

To the prophetic:

• On legal aid: “I suppose my first priority is to stop the situation where legal aid is going to people in a position to pay for their defence anyway”.

On that occasion the MOJ moles on the committee Nick de Bois (C, Enfield North) and Rehman Chishti (C, Gillingham) fed you some good planted questions, for example inviting you to praise IDS’ work on gangs and youth violence, and asking how you felt about Sky TV for prisoners, and whether you were thinking of reducing foreign nationals in prison. Chishti at least asked today’s planted questions, which I personally gave him in a brown envelope on the Edgware Road last night: (1) doesn’t a choice of lawyer simply benefit repeat offenders, and (2) defendants are not good connoisseurs of legal skills are they? But the effect was TOTALLY spoiled when, after a good bluff up front, he crumbled and said they were “not necessarily my views”. Thereby disclosing we’d planted them and showing how untrustworthy he is. I’ve heard of witnesses cracking under the pressure of questions, but this is the first time I’ve seen a cross examiner crack under the pressure of answers. However all is not lost because when you give evidence next time my imps will be under the table feeding you baffling replies and I’ll be under Sir Alan’s chair with a spike (in case it all goes belly up). And that labour member Yasmin Qureshi (L, Bolton S.E.) couldn’t understand the difference between questions and evidence, so she won’t be any trouble.

Who else is deserting you? 150 Treasury Counsel, the panel of lawyers who represent the Government in the law courts, have published an open letter to the Attorney-General saying “we consider that the proposals in the consultation paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular.” One of your Conservative predecessors as Lord Chancellor, Lord Mackay, said that if your proposals were implemented then standards would plummet.

In other news, all the papers are, one by one, coming out against the MOJ’s proposals. Over the last few days the following have been critical of your plans: Peter Oborne in The Telegraph and Chris Henley and Clare Montgomery in the Financial Times. The Sunday People quoted the leaked CPS email warning that their employees will face disciplinary action if they criticise your plans to their MPs. The Express, today, described the MOJ as the ‘Ministry of Waste’. They drew attention to the MOJ spend on taxis (£4.3 million) hairdressing (£84,000) and actors (£720,000). It seems that they have read my third letter to you! How the devil did that happen when I intended it to be completely secret?

Even the Mail on Sunday (yes EVEN the Mail on Sunday) has turned on the MOJ. In an article last Sunday they criticised your proposals and did a hatchet job on one of your last remaining supporters, Eddie Stobart’s legal director, Trevor Howarth. They reminded their readers that a High Court Judge, having examined a case brought by Howarth against the Gwent Police for judicial review, declared in the judgement that Mr Howarth had no legal qualifications and was “consistently slapdash” and had a “cavalier approach” to case preparation. When Mr Howarth was prosecuted at Bristol Crown Court in 2008 for Doing an Act tending and intended to Pervert the Course of Justice he paid for the defence services of Mr Robert Smith QC. He thus neatly proved two of your most important principles at stake in one blow: (1) if you want to be able to choose the best legal skills pay privately and (2) if you have a borderline judicial review you will have to pay privately too. The business model of Stobart Barristers is to charge for putting members of the public in touch with a barrister (registered under the Direct Access scheme) who any member of the public could access directly and for free. It is the equivalent of Eddie Stobart charging shoppers to enter a Tesco’s car park; that is charging a fee but providing no extra service. It was fitting that Mr Howarth said to the Mail on Sunday when defending this business practice “our business model is in line with government thinking”. Who needs treacherous friends when you have Mr Howarth to support you?

So, to the sound and smell of all these fleeing rats, my advice to you is as follows:
1. Get your chums at GCHQ to divert their Prism programme to McGowan, Scott-Moncrieff, Waddington and Turner. We need all their private email and mobile phone traffic so as to get ahead of the game. We must know what the opposition are doing before they do. And remember because they have done nothing wrong they have nothing to hide and so that makes it all legal. Your knowledge of the law will teach you that.
2. Make sure someone leaks from the MOJ your written ministerial statement (of 11th June 2013) on pre-trial cross examination pilots in Liverpool, Leeds and Kingston-Upon-Thames. You’ve got to get the press talking about something else.
3. Get Nick de Bois and Rehman Chishti sacked from the Select Committee. Is Tim Yeo available?
4. Remember that you are right whereas 600 judges, 90 QCs, 150 Treasury counsel and everyone else who is not in favour of the government in their response to the consultation are, in Lord McNally’s measured word, ‘hysterical’.
5. Distrust everyone (except me) because everyone is out to get you.

Yours, with 100% loyalty

the intrigant.

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Fourth Letter to the Lord Chancellor

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

 

Mr Chris Grayling

 

5th June 2013

 

Dear Lord Chancellor,

 

Thank you for your reply and for allowing me access throughout last night to the MOJ building at 102 Petty France in Westminster. My two imps and I were able to do the initial sift for you of the responses to your consultation on transforming legal aid. Who knew there would be tens of thousands? Anyway I have identified some particularly problematic responses for you and list them here for your perusal.

  1. Legal Services Consumer Panel. The panel concluded that because of the heavy focus on price in the tender process there was a “series of risks that quality may deteriorate due to the reforms” (paragraph 22) and that there is “no incentive on providers to deliver services exceeding the minimum standards” (paragraph 23). Their response relied on evidence provided by the Office for Fair Trading and its own Panel’s Tracking Survey. It challenged your comments that defendants are not connoisseurs of legal skills by showing in chart 2 from their survey that legally aided clients shop around between solicitors in 40% of cases, but privately funded ones in only 25%. 
  2. Council of Her Majesty’s Circuit Judges. The Council is critical of the proposed reduction to expert’s fees of 20%. Between paragraphs 113-126 they say that the proposal is premature as there is insufficient data or analysis and consequently no justification or supporting arguments in favour. It is worried about the impact on the quality and supply of experts in many cases, such a clinical negligence birth damage cases where experts of the highest calibre are needed. They point out that the reduction in October 2011 of expert’s fees has already reduced the pool and there are, for example, only a handful of paediatric radiologists nationwide for an area where expertise is widely needed.
  3. The Bingham Centre for the Rule of Law. This response was written by academics headed by Dr Mark Elliott a Reader in Public Law at the University of Cambridge. The legal academics were concerned “about the incompleteness of the statistical evidence upon which the proposals are based” (paragraph 17) With the figures for legally aided judicial review (JR) for 2011-2012 that they did have, they examined with care the MOJ suggestion that it was because as many as 56% of legal aid JR cases end before permission is sought that legal aid funding should be removed. The Centre showed in its response that in fact legal aid JR application were five times more likely than privately funded JR applications to receive permission from the court to proceed. And overall privately funded JR cases were less likely to succeed in the end than legally aided ones.
  4. Howard League for Penal Reform. This response stated that the proposals if implemented are counter-productive to the MOJ’s commitment to the rehabilitation of offenders.   The League also argued that it is wrong to have a blanket ban on legal aid for vulnerable prisoners, such as children, who suffer abuse whilst being detained by the state. Further they are concerned at the loss to the country of quality specialist prison law firms in the tender process.
  5. Bar Standards Board. The Board’s response touches only on its regulatory remit. It states that the proposals are a “high risk strategy” and in particular criticises the fee tapering proposals that sets the same fee for guilty pleas as trials, and thus provides a financial incentive to new providers to ignore their clients best interests and pressurise them to plead guilty.  As legal regulators they “may not be able to mitigate that risk since it cannot safely be assumed that abuses will necessarily come to light”.
  6. HH Judge Peter Collier QC, the Honorary Recorder of Leeds. He has a particular interest in dealing with applications for multiple/two advocate cases, and he attaches his well-known guidance to lawyers to his response. He is of the view that QCs are of importance and value in serious and complex cases and that in his experience they save time and money. He has some constructive suggestions to make about applications to the court for two advocates and is in support of the proposition that more litigation support should be made available to counsel at trial. He asserts that resident judges along with trial judges are best placed to assess the appropriateness of any applications. He finishes his response thus:

“What a tragedy it would be to dismantle the system which is currently providing in Leeds an efficient and effective criminal justice system to find in 18 months’ time that the savings would have been achieved without dismantling the system.”   

 The main problem for you with these responses (and many others like them) is:

  • They come from people who know what they are talking about.
  • They deal with specific areas of the proposals that lie within their area of expertise, rather than mere generalities.
  • They are made by people with nothing to gain financially from the proposals being not implemented. None of the authors are paid by legal aid. They stand to gain nothing by defeating the proposals.
  • They often rely on research, statistics, case law and other material and evidence that both contrast with the MOJs bald assertions and take apart the MOJ statistics that there are.
  • They build up together to provide a convincing case that the MOJ has lost the argument on these proposals.

Remember the golden rule of government: Don’t waste time winning the argument win the PR battle. How wise you have been to release the legal aid figures for lawyers for publication in today’s Daily Mail.  I laughed when I saw it. The consultation is as you know almost exclusively about the Government’s criminal legal aid spend, but by including the legal aid payments for family lawyers, civil lawyers and lawyers from the Leveson Inquiry the public will be beautifully befuddled. Quoting that the criminal legal aid solicitors firm Tuckers earned £8.27 million last year was particularly good as they are likely to earn more than that if they successfully tender for one or more of the 400 new contracts. 65% of junior criminal legal aid barristers earn less than £50k per annum; your figures in the Mail will conceal that! Also you are quoted as saying that the opposition to your plans come from lawyers who are using an “evocative and creative defence” against the MOJ’s plans. It is quite right for you to keep the public’s eye on the lawyers who stand to gain financially from defeating the proposals and not the arguments of the other legal experts, who do not. You must simply ignore all of the good arguments and keep repeating the mantra that lawyers are paid too much.

 

In fact my team and I have shredded all of the above responses. Let’s hope that they never get out into the public domain. We have burnt some, ripped up others, pasted a few backwards onto the wall of your office and fed some to the MOJ dog (although frankly he was pretty large already). The thousands of responses from solicitors I have bundled together, and I have done the same for those from all the barristers. They can be treated as simply two responses as you can declare that they all say the same thing.  Also I searched diligently, as you asked me to do, for some positive responses. I found one! I had to write it myself, but it is there. It simply says “You are right and everyone else is wrong” in capital letters in answer to each of the 36 questions. I have photocopied it 30,000 times. Some of the questions were genius. They required the respondent to choose between options within the model of PCT and allowed no option for disagreeing with the model. So: Mr Turkey, do you vote for Christmas on 24th, 25th or 26th of December? However I could find no response from Mr Bob Neill MP, he must have missed the deadline.

Finally, can I congratulate you for persuading someone in the CPS to issue a dictat disallowing all CPS employees from signing the e-petitions to save UK justice? Although it was arguably harassment, bullying and almost certainly unlawful, if it avoids 100,000 signatures being reached, it will save you from having to answer the substantive arguments against your proposals in Parliament. Your safest ground, as always, is not in the theatre of argument but over a cup of coffee having a cosy chat with a tame Daily Mail journalist.

 

Yours, with no dismay

 

the intrigant.    

 

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