Eighth letter to the Lord Chancellor,
Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
10th November 2013,
Dear Lord Chancellor,
Well, I’m back. I have just returned to the UK after, as you know, a few weeks travelling on your fact finding mission to Zimbabwe, Somalia and North Korea. I will provide you with my full report into the benefits of their criminal justice systems in due course. But in summary I can inform you that no legal aid need be provided at all for a criminal justice system to function very satisfactorily indeed.
However I am concerned to find on my return home that your splendid legal aid reforms are still being opposed by intelligent and well-informed people who are not remunerated by legal aid, and so are entirely impartial. On a more positive note I see that able and experienced criminal barristers are leaving the profession daily. The second MOJ Consultation: Transforming Legal Aid period has just closed (on 1st November 2013) for responses to your proposals to cut both the methods of paying criminal barristers (the VHCC scheme and the AFG scheme).
1. All the Treasury Counsel have signed an open response stating that “There is no demonstrable need to further cut the very low rates for advocacy under the VHCC scheme” and that options to reduce the AGF scheme is based on a “flawed analysis”. They argue that further cuts will reduce the quality and supply of criminal advocates.
2. The CPS response is still posted on their website and states that it is essential for there to be a viable, sustainable and highly qualified self- employed criminal bar, not least because the CPS uses them and expects to rely on them for advocacy services in future.
Had you proposed a cut to the fees that the Government pay these people, its own lawyers for goodness sake, they may have been less treacherous to their pay-masters. But the savings to the MOJ budget are not to be found from their pockets, you have perhaps unwisely decided. Why can’t they see that if the defendants they prosecute are not represented by adequate defence counsel then convictions will be obtained much more easily? The prosecutors in North Korea aren’t so wet, I can tell you.
The legal aid cuts in family law made in April 2012 are beginning to bite. Experienced and able family practitioners are leaving the family bar. Lady Hale, Deputy President of the Supreme Court, in a recent speech about the cuts to legal aid for litigants in family law said “how can there be a real possibility of going to court to settle matters fairly if legal aid is not available to the one who cannot afford a lawyer?” What does she know about fairness, she’s only a Supreme Court judge? Does she not realise that the MOJ hoped that as a result of the cuts more potential litigants would enter mediation instead? Lord McNally said that one way to save money, and do some good, and avoid litigation in family cases was to encourage mediation. Mediation in divorce cases has a success rate of settling 2/3 cases and also reduces the emotional cost of contentious litigation whilst saving the public money as well. How on earth did Lord McNally get it all so wrong? The number of divorcing couples using out of court mediation since April 2012 has virtually collapsed. In April 2012 there were 12,415 people who went to the formal meeting to explore mediation and by April 2013 this had halved to 6090. Before the reforms it was a pre-condition of obtaining legal aid that potential litigants must go for a formal exploration of mediation. And that’s not all; there has been a corresponding increase in people applying to the family courts (without lawyers) and representing themselves. The courts are clogged up, hearings take longer, the cost to the taxpayer is increasing and the benefit to couples of mediation is lost. So the MOJ legislation has at a stroke practically cancelled the savings made by the cuts and led more divorcing couples into acrimonious litigation. Lord McNally really failed to brief the department properly on this one didn’t he?
Lord Justice Moses chided the Prime Minister in a recent speech for not knowing the real meaning of Magna Carta. He lampooned the MOJ’s attempts to encourage international business into the London legal world to resolve litigation and criticised the proposed cuts in legal aid at the criminal bar as a reform that will lead to an inevitable reduction in advocacy quality. In identifying the dangers of falling standards he said “if lawyers are not to provide services of a quality above a level specified by the state, why should judges?” So I salute your riposte to Moses LJ when you announced a global summit in London in 2015 on the 800th anniversary of the signing of the Magna Carta. The world knows it as a document that has provided a long history of freedom and justice for the English from the arbitrary authority of the state. Nevertheless you, Lord Chancellor, see 800 years of Magna Carta as “a tradition that still provides the foundation for the best commercial and legal environment for business to flourish” and can be therefore celebrated at “a world class conference showcasing the UKs unrivalled legal expertise”. You, leading the way yet again, see it as a promotional tool for impartial legal services for Russian oligarchs, Saudi Princes and other foreign business litigants for global corporations. Moses LJ seems to have absolutely no sense of business justice, does he?
Who do Lady Hale and Moses LJ think they are? You are the Lord Chancellor and the Secretary State for Justice, for heaven’s sake, not them. These judicial trouble makers must be neutralised. When I was in Kenya I examined their recent legislation: Vetting of Judges and Magistrates Act 2011, and it makes interesting reading. Can I suggest you study a copy with a view to introducing it to the British Parliament? There was a symposium at the American Society for International Law on 7th November 2013 about this vetting. Judicial vetting was described as the screening of behaviour of individuals and assessing their integrity and stability. Lady Hale and Lord Justice Moses cannot be described as stable if they disagree with the Lord Chancellor of England and Wales, can they? A Board convened under the new Act in Kenya has sacked four out of their nine Court of Appeal judges after they were found to be “unsuitable”. All I’m saying is: have a look at it, it may be just the ticket.
One of the other benefits of your legal aid cuts is the decimation of the members of the awkward squad: the trouble makers who still have the temerity to continue to challenge the power of the state. Tooks Chambers (who existed on 90% publically funded work) dissolved on 27th October 2013: well done. Their barristers represented, amongst many others, the Birmingham six, the families of Stephen Lawrence and Jean Charles de Menezes and families at the Hillsborough Inquiry. These barristers were a thorn in the side of our police and security services weren’t they? Always remember: if troublesome lawyers can’t expose miscarriages of justice, then by definition there won’t be any miscarriages of justice (at least not reported in the newspapers). As Secretary of State for Justice you should know that well enough.
And on a similar theme I see that the Government has introduced clause 151 into the Anti-Social Behaviour, Crime and Policing Bill (due to be debated in the House of Lords next week). If passed it would prevent victims of miscarriages of justice from obtaining compensation for the time they spent wrongfully in prison in this country. Ministers hope to amend section 133 of the Criminal Justice Act 1988 which currently allows such compensation and restrict it to only those who can prove that they are “innocent beyond reasonable doubt” (reversing the burden of proof). If passed it is anticipated the change will save £100,000 a year and has the additional advantage of allowing these victims of the state to know that they have made their small contribution to the reduction of the financial deficit of the state.
The extra £100,000 saved by clause 151 being enacted can go to the exchequer for some more appropriate purpose. I see that the new justice minister, Shailesh Vara, is quickly on message in his article in the Huffington Post on 8th November 2013. He said that legal aid cuts are needed to create a system that “protects those in need of protection whilst also commanding the confidence of taxpayers who fund it.” I see, by the way, that he had to repay £1,531.98 of his Parliamentary expenses for claiming expenses BEFORE he entered Parliament. He’s is just the sort of Parliamentarian to restore the confidence of the taxpayer. The £100,000 saved by clause 151 can go to many such disserving causes.
So on this Remembrance Sunday, let’s reflect on the sacrifice of those brave men and women who fought and gave their lives in the Second World War to save justice and freedom from the threat of authoritarian states, so that you could turn it into a business opportunity.