Ninth letter to the Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
19th November 2013,
Dear Lord Chancellor,
Thank you for your letter, or should I say cri de coeur? Who knew being Lord Chancellor would be so difficult? I think you are correct when you state that Lord Chancellor and Secretary of State for Justice are totally incompatible posts. I see the key problem you identify: (1) the Secretary of State for Justice is a political role that requires a hard hatchet approach to reduce the spending of the MOJ (on behalf of the Treasury), whilst (2) The Lord Chancellor is a quasi-judicial post that requires the upholding of justice and judicial impartiality and the defence of the rule of law. The choice of the first is to cut legal aid whereas the duty of the second is to defend it from cuts. I also see that your strategy hitherto of stating that you are defending justice whilst actively undermining it is becoming less easy to pass off. Some of your triumphs in office as Secretary of State for Justice:
• Cutting access to judicial review for those trafficked into the UK and dealt with illegally by the Government.
• Removing access to justice for domestic violence victims (who are unable to satisfy the strict and narrow evidence criteria for legal aid), thereby endangering vulnerable women and children.
• Removing legal aid for claims made on behalf of children in prison, even when the Government acts unlawfully and wrongly.
• Slashing the rate at which divorcing couples enter mediation, and correspondingly increasing contentious litigation.
• Making it much harder to judicially review the Government’s decisions, even when they are unlawful and wrong.
• Removing funds and thereby forcing law centres to close (Birmingham, Leeds etc.)
are scarcely compatible with the oath you took on becoming Lord Chancellor:
“I, Chris Grayling, do swear that in the office of Lord High Chancellor of Great Britain, I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”
Even God can’t make the incompatible compatible. And this thorny path has been walked by you, leading your department, to the edge of a precipice once you announced the unilateral government cut to criminal legal aid on 31st October 2013.
You propose reducing it to such a low level that no criminal barrister would work at these new rates. A case heard last week at Southwark Crown Court illustrates what is looming. The charges were white collar fraud and there should have been 16 defence barristers for the many defendants: in fact only two barristers were there. A solicitor (Lee Adams from Hughmans) for the unrepresented defendants told the judge that he had tried, in vain, to get barristers to accept the instructions. He had tried 17 chambers specialising in fraud and could find no one willing to work at your new rates. If replicated across the country in other cases, then the system will grind to a halt. The annoying thing is that the criminal barristers have acted (in refusing to accept the case) entirely legally and within the rules of the Code of Conduct of the Bar of England and Wales. No barrister need accept a brief if it is below the fee acceptable for the work. These barristers have done nothing wrong at all. You have found the floor below which no practitioner will work.
Unless you do something about it, you have set the conditions that will bring the criminal justice system to its knees within weeks. There is talk of paedophiles and murderers being let out, and all because of your arrogance, impetuosity and refusal to listen. Des Hudson, CEO of the Law Society, got it very wrong when he said that only a few QCs would refuse to work under the new rates. It’s no wonder there is a special meeting to decide a motion of no confidence in him and his fellow officers of the Law Society on 17th December 2013. If he loses his job then I will be your only supporter left outside the Government; how relieved you must be, on the edge of this precipice, to still have me standing right behind you with my guiding hand in the small of your back.
You must have hoped that the criminal bar would not refuse to work at the new rates. Well Saturday must have been a shock when the news came from the Criminal Bar Association’s National Delegates Conference. Criminal barristers from all over the kingdom descended on Lincoln’s Inn (the ancient site of the former court of the Lord Chancellor, no less) and agreed, amongst other resolutions, to refuse to accept briefs in cases that pay the Government’s further reduced rate.
Delegates at the conference pointed out the unfairness of your unilateral criminal legal aid cuts:
• The current rates are already significantly below the levels they were in 1997.
• There has already been between 30% – 40% cuts since 1997 (13.5% in the last 3 years).
• MOJ figures show that 65% of criminal legal aid barristers earn on average less than £30,000 a year.
So the publically funded criminal bar has already taken several reductions in fees and so heavily contributed to the reduction of the national debt.
The proposed cuts:
• The VHCC scheme (terrorism, fraud etc) is to be reduced by a FURTHER 30%.
• The AFGC scheme (rapes, murders etc) is to be reduced by a FURTHER 17.5% (subject to ‘consultation’).
Your audacious bid is to squeeze the lemon juice out of an already squeezed lemon.
Some anomalies after the proposed cuts:
• In some VHCC cases a junior will receive £98 per day in cases sitting ‘Maxwell’ hours (3.5 hours or less per day) and led juniors £80 per day. Given 2 hours preparation in the evening is deemed part of a court day, a led junior is working at £10.90 per hour.
• A juror in a case lasting more than 11 days is entitled to claim a daily rate of up to £129.91 plus travel costs. So a barrister in such a trial on day 11 and every day thereafter is being paid less.
• Public Order cases in the Magistrates Court will be paid in 2015 at a rate less than in 1978.
• In a three day grievous bodily harm Crown Court trial (section 18) the fee will be reduced by 53%.
• Murder cases are being paid at 50% less.
No profession could do otherwise than refuse to work at these levels. I know that the Government is trying to return to the basic principles of legal aid when it was introduced in 1949. It’s a stroke of your comic genius that the actual prices are to be near 1949 levels as well.
Given that almost all chambers were represented at the conference and 95 % of criminal barristers have said that they will refuse instructions at the proposed reduced rates the Government has no prospect of enforcing these cuts. So, this is a crisis. You could be Secretary of State for Northern Ireland by Christmas, or worse. I invite you to join me in the bunker under Pontefract Castle for another summit meeting. On the agenda will be two items:
1. The looming strike of the criminal bar you have forced, and
2. What to do with the body of Richard III following the judicial review of your decision not to consult when deciding that Leicester was an appropriate town for the final resting place of a King of England.
Yours, stock-piled with Pomfret cakes,