Twelfth Letter to the Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
16th March 2014
Dear Lord Chancellor,
Don’t fret about the wide use of the new term ‘grayling hearing’ (n. court hearing abandoned because of absence of a defence advocate). All publicity is good publicity for your stab at the leadership of the Tory party after the next election. The key thing is to avoid a meltdown of the criminal justice system in the run up to the General Election (in May 2015).
First of all, let’s examine what has happened in the last few days.
1. The solicitors all took a ‘training day’ on Friday 7th March 2014.
2. The barristers all went on strike on that day.
3. The MOJ massaged the figures and befuddled everyone with the lie that 71% of courts were working.
4. The bar and many HCA solicitor units are refusing to do returned cases for a month (from 7th March). That is cases where the original advocate is genuinely overbooked and no substitute advocate agrees to cover. It’s maddening because the advocate in refusing to cover is not in breach of any code of conduct – the fees are now so low that no advocate is obliged to accept the return. No one can be held to account for it. In the past the good will of the profession and the efficiency of clerks kept the show on the road. No longer.
5. Several hearings had no defence advocate turning up at all. The CBA conservatively estimates 200 grayling hearings in the first week.
6. The Public Defender Service is being expanded to cover emergency cases. It has sent Gregory Bull QC up to Liverpool to cover an historic rape case that had no defence advocate. The fee paid to him will be higher than under the legal aid rate.
7. The Attorney-General has briefed counsel to act as amicus curiae (friend to the court) in the Southwark VHCC fraud case that cannot find a defence barrister willing to work at the new rate. The fee he will pay is higher than under the legal aid rate.
8. The new reduced legal aid rate scheme is set to start later this week on 20th March 2014 (for every new defendant coming into the system).
9. At least you still have the redoubtable Des Hudson supporting you. He’s not going anywhere.
In short, it seems the lawyers are revolting and the MOJ’s response has been too costly and ineffective. I’m not surprised that you cannot find Simon Hughes MP in the department anywhere, have you looked into the stationary cupboard in the underground bunker? Mr Bull cannot solve this problem alone; although he is your patsy he is not omnipresent. You were right to send the Attorney-General, Dominic Grieve QC, to the bar council meeting on Saturday 15th March 2014 to threaten them all. He is the leader of the bar and he told the meeting that if barristers didn’t go back to working normally and at the new rates then the government may be forced to bring in OCOF – one case one fee. (I’m not sure how many leaders lead by killing all their followers, but there it is). However since it is perceived that your ‘reforms’ will kill off the independent criminal bar for good the threat carries no weight. The point of no return has been reached. The A-G’s threats remind me of Voltaire: It is dangerous to be right when the government is wrong.
The main danger I foresee is solicitors and barristers refusing to accept cases at the new rate set by the MOJ. For solicitors that is from 20th March 2014 and for barristers July 2014. The MOJ still cannot find anyone to defend the VHCC fraud case in Southwark and there are now another 8 VHCC cases in the system that cannot find defence counsel. The problem for you is that no lawyer is doing anything wrong by refusing to accept these briefs. The government has set the price too low for them. There is market failure, you have caused it, and no lawyer can be blamed. So if all solicitors declare they are not accepting cases at the new rates from 20th March and all barristers do the same from this July then defendants will not have representation and the system will be in crisis within a very short time (especially in custody cases). That melt-down will require answers from you at the cabinet table and in the tabloids: political disaster. The VHCC lock-out by defence advocates has shown the profession which way to go to defeat you. The MOJ’s attempt to solve that problem has failed: declaring them not VHCC at all (still no takers), asking the Northern Irish bar to come over (no joy), sending in the Public Defenders Service (not enough cavalry) and lastly the Attorney-General (ineffective threats). Let us hope that solicitors and barristers will put short term gain first and work at the new rates – then you can bluff it out until the General Election (not long now!)
So let us turn away from unpleasant matters and review some of your successes as Lord Chancellor instead:
• G4S and Serco are currently being investigated by the Serious Fraud Office for overcharging the MOJ by £178 million on tagging contracts.
• 70% of the probation service is being outsourced to G4S and Serco and others.
• Solicitors’ fees are being cut by 17.5% and more than 2/3rds are being removed from the police station duty scheme, leaving the market open for larger providers such as G4S and Serco and the like.
• Barristers’ fees (having already been cut by 38%) are being cut be a further 14-30%. The average criminal barrister now earns half what a GP earns and many are leaving the profession, leaving the field open to HCAs working for the big providers (G4S and Serco etc.)
‘The private sector comes first and justice will take care of itself’: that has been your commendable philosophy as Lord Chancellor, and who can sensibly argue with it? I want you to ignore the findings, this week, of the Public Accounts Committee that government departments, like yours, have a terrible track record of outsourcing services to these private providers, who hide behind commercially confidential contracts when things (inevitably) go wrong.
Last week David Blunkett apologised for the injustice that was caused by the introduction, by the government in 2003, of IPP sentences (where prisoners were deemed to be dangerous and so had later to prove to the parole board they could be released from prison). These were imposed in many cases for the commission of trivial offences and Parliament changed the law in 2007, as it was recognised as the cause of injustice. It has led, as you know, to thousands of prisoners (sentenced to IPPs between 2003 and 2007) who have passed the point of normal sentence release still being detained because they cannot prove they are fit to be released. Parliament made a right cock-up over this didn’t it! In a Kafkaesque nightmare many prisoners cannot do the pre-release courses to convince the parole board they are fit for release because they cannot read and write, and others are still on the waiting list to do the over-subscribed courses. There are 3500 IPP prisoners whose tariff expiry date has already passed and are trapped within the prison system. There is a simple solution to this injustice: the Lord Chancellor could, if he chose to do so, exercise a power given to him by section 128 of the LASPO Act 2012 and amend the public protection test, and let out all IPP prisoners who have served their tariff (or even twice their tariff if he preferred). This would, as Joshua Rosenberg has pointed out, save the cost of 3500 prison places, the cost of the pre-release courses, and the additional costs of the parole board. However I do not recommend this course of action (savings to the department though there would be) as it would go against your right-wing hard-line image – it’s your job to gain votes for the party, it’s surely not for the Secretary of State for justice to worry about a little bit of unfairness.
As one of the spokesmen for the government can I point out the joyful fact that given there are 29 members of the MOJ head office earning over £100,000 per annum, and 3 earning over £143,000 per annum, and you entitled to £227,736 per annum, we have one of the most expensive justice departments in the world.
Yours, helping as best I can,