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.
- 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%.
- 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.
- 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.
- 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.
- 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”.
- 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