Tenth letter to the Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
22nd January 2014
Dear Lord Chancellor,
Following our emergency summit meeting in the Pontefract bunker before Christmas, can I take stock of the strategy we then decided?
1. Get rid of Lord McNally and replace him with anyone, simply anyone. Was Simon Hughes MP the best Nick Clegg could come up with? At least his first public pronouncement, asking Magistrates to double as defence lawyers to save costs, is the sort of madness that is in keeping with the MOJs hitherto direction of travel.
2. Publishing on the first working day of the New Year the earnings of all the leaders of circuits, in the Daily Mail. I see that Gregory Bull QC, former leader of the Wales and Chester Circuit, was named and shamed as earning £102,792 last year; well that’s the last we’ll hear of him, I hope. LOSER.
3. Publishing on the first working day of the New Year an ad hoc summary of criminal barristers’ earnings for 2012-2013 and then sending out Shailesh Vara to misrepresent them. It was clear from the statistics that the earnings median figure (before deductions) was £56,000 per annum and Vara managed to manipulate the media by saying that earnings were on average £84,000 per annum. That duplicitous maximisation confused a few people!
4. Delaying privatisation of the Probation Service, given the leaked risk register from MOJ senior officials saying that there would be a public safety issue if privatisation took place. The putting back of the deadline from 1st April 2014 to 1st June 2014 means effectively that the reality ‘go live’ date will be December 2014, leaving little time for anything to go wrong before the General Election in Spring 2015.
5. Reclassify the problem VHCC fraud cases to graduated fees. No barrister is working at the ludicrously low new VHCC rates you have set and so you have little choice about this. I don’t think, however, anyone has spotted that the reclassification reduces the fee even further. Long may that continue!
6. Meet with Nigel Lithman QC and tell him that your department’s cuts are writ in stone. There is a conference called the Deprivation of Citizenship on 14th February 2014 coming up at Middlesex University examining the power given to the Government in 2006 to strip some British citizens of citizenship. I see that Teresa May has used it 37 times since 2010. Shall I dispatch some imps to the conference to see if there are grounds for adding Lithman to the undesirable list?
7. Expand the Public Defender Service (PDS) to break the strike, split the criminal bar and leave the Government in control of criminal defence services again.
This last master-stoke, that I suggested to you and Vara in the bunker, needs some examining in a little detail. The PDS, a small part of the legal landscape is, as you know, a collection of criminal defence lawyers in the employ and pay of the Government who can be assigned to defend people charged with criminal offences. As we discussed in the bunker, they are not: members of the independent bar nor paid out of the legal aid pot. So the beauty of expanding the PDS is that we can instruct these tame barristers to defend the defendants charged with the VHCC frauds that haven’t secured representation yet. In a stroke we avoid the embarrassment in the department of that fraud trial being stopped by the judge. Second, we split the profession as criminal barristers jump on board the PDS to obtain the security of employment, leaving the others seething. Third, we punish those barristers who went on strike on 6th January for their impudence. Fourth we keep the system going whilst reducing the legal aid bill.
The strategy seems to be showing signs of working. Adverts for the PDS were placed in various media on 21st January 2014 indicating an attractive salary range between £46,000 and £125,000 per annum. I see that two silks have joined already: Alun Jenkins QC and Gregory Bull QC. The latter is a particularly fine silk and splendid fellow all round.
Now, as you know there are a number of problems with this strategy. But I don’t think anyone has noticed yet, and I am certainly not going to tell them the following:
• The PDS is 1 ½ to 2 times more expensive than the independent criminal bar. That figure comes from independent academic research published in 2007. This is obvious because on top of the salary to the lawyer, the Government has to pay pension and NI contributions and sick pay and paternity/maternity pay and travel and other expenses. But this is not about cost; this is about saving the face of the department after a series of disastrous policies have painted you into a corner.
• So whilst the cost to the taxpayer goes UP the legal aid bill goes down. Face saving all round!
• If the independent criminal bar is refusing to accept our cost cutting then no costs shall be spared in crushing their opposition. What could be more reasonable than that?
• Using Government figures, the South Eastern Circuit has shown that the cost to the taxpayer of an independent criminal defence barrister is £52,051 per annum; whereas the cost of a Senior Crown Advocate for the CPS is £91,129 (the rough equivalent of a barrister 10-15 years call). It is no wonder that the CPS is fast closing its HCA units and re-instructing the independent criminal bar as a way of SAVING MONEY.
• Some idiot in the Government said the following in June 2013: “If I were running a business and I had a choice between a group of people on my payroll… or a team of experienced freelancers, I’d go for the experienced freelancers every time.” I won’t tell anyone that it was you.
• A further difficulty is that some people may find it a bit on the unfair side that if you are charged with a criminal offence, the State chooses who prosecutes you and also chooses who defends you. It’s also inconsistent of you, because in abandoning price competitive tendering you gave the reason as: you wanted to leave client choice in place. The PDS removes client choice. Ho-hum.
• I particularly liked the MOJs most recent consultation reference to the PDS saying it was a “safeguard against market failure” given it is the MOJ that has created the market failure. Comic genius that man!
• In summary, it seems entirely reasonable to me that to stop legal aid costs spiralling out of control you should use an even more expensive solution. What could be simpler?
I see that Oxford Economics, independent consultants, reported on 13th January 2014 that given the number of criminal cases in the courts has fallen over recent years, the Government would save £84 million by 2018/2019, by doing absolutely nothing. You were quite right to reject the report outright. Doing nothing is not an approach that is going to win you brownie points with H.M. Treasury is it?
Finally I’ve read the report you sent me by the well-respected Government Regulatory Policy Committee (RPC) that examines impact assessments (21st January 2014) about the MOJs proposed increase in fees for litigants using the civil and family courts. It condemns the MOJs impact assessment as “lacking clarity” and “not fit for purpose” and “without any supporting evidence or discussion of the risk.” They have asked for a revised assessment given your’s lacks sufficient evidence. Fools, don’t they realise how you make decisions? Decide policy out of thin air, with a vague whiff of plausibility, and rue it all tremendously later. They should know by now.
Yours, in full flowing support,