Tag Archives: Legal aid

Tenth Letter to the Lord Chancellor

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. Continue reading



Filed under Law

Seventh letter to the Lord Chancellor

Seventh letter to the Lord Chancellor, Secretary of State for Justice,

Mr Chris Grayling,

2nd July 2013.

Dear Lord Chancellor,

Congratulations, the U-turn you have announced on client choice for criminal defendants on legal aid is a master-stoke. As we discussed last week, in your bunker under Pontefract Castle, the concession has had a number of very positive advantages:

1. The hostile members of the Justice Select Committee have been thrown off balance and now have only 24 hours to develop a new tack for questioning you when you give evidence tomorrow. It may help restore your reputation as a more sure-footed politician, after being hopelessly outmanoeuvred over the last few weeks. Your letter to Sir Alan Beith on the issue yesterday almost made you sound statesmanlike: “However, I have heard clearly from the Law Society and other respondents that they regard client choice as fundamental to the effective delivery of criminal legal aid. I am therefore looking again at this issue, and expect to make changes to allow a choice of solicitor for clients receiving legal aid”. No wonder you were able to write in the letter to Sir Alan “I look forward to discussing the proposals with the committee.” Ha! That’s not what you said to me last week in Pontefract (when I ran out of tissues trying to dry your self-pitying tears).

2. Further, it confuses those who stated that the consultation was a sham.

3. Those Conservative MPs who spoke against your plans at the Parliamentary debate in the Commons last week, which you wisely elected to avoid whilst electioneering in Bedford, have been brought back onside (and therefore back into the broad church of Grayling supporters in advance of any future party leadership campaign). The potential candidates on the right of the party, remember, are few so your toadying to the Treasury on cuts in the spending review and your right wing ideological plans for privatisation of some of the courts are crucial to you now. By saying “the rationale for proposing this change [the removal of client choice]…is not a policy objective in its own right” shows to the party faithful that it is not a real concession but merely a little tweak.

4. Also, the petition having reached 100,000 signatories has been dealt with. It was worded thus: “The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the Solicitor of their choice.” You were never going to abolish legal aid and you have conceded on the right to representation by a solicitor of choice. Job done. The petition may have become an irrelevance.

5. And best of all it has divided the opposition. The Law Society could see your concession as their victory and then concede on everything else you want. (Ken Clarke made some minor concessions to get the bulk of the LASPO proposals through; this has the potential to be your pacifying decoy.) Our Pontefract strategy would then have worked! In the last 24 hours, since your announcement, duty solicitors have turned on small solicitors firms, small solicitors firms have turned on the large firms. All have turned on the Law Society. There is the delicious danger that they will all fight like rats in a bag for their livelihood and wages. Before, the opposition was united on the ground that removing client choice was not in the public interest (for the simple reason that it was not in the public interest). And you saying to the Commons today, at Justice questions, that the Bar Council did not show “the same degree of constructive engagement” as the Law Society can only enhance this divide and rule strategy.

The beauty of all of this is that the other objectionable parts of your plans will be able to pass through unhindered and unnoticed:

• The ‘residence test’ which leaves the Government free to act unlawfully anywhere outside Britain, with its victims denied access to justice. And provides those trafficked into this country and forced to act as prostitutes with no redress if arrested.

• Prisoners (including children) in custody will not be able to challenge unjust Government decisions affecting their incarceration.

• The lowering of experts fees by 20% (on top of the reduction from 2011) that will have the effect of reducing experts of the highest calibre being available to the courts, as criticised by Her Majesty’s Council of Circuit Judges.

• The fee tapering proposals which sets the same fee for guilty plea as for trial that will provide a financial incentive for some lawyers to ignore their clients best interest and pressurise them into pleading guilty, even if they are innocent, described by the Bar Standards Board as a “high risk strategy”.

• The reduction in the use of QCs and junior counsel for serious and complex cases, even though the Recorder of Leeds Peter Collier QC said that, in his experience as a judge who presides over murder trials, two counsel often “saves time and money”.

• The 17.5% cut in fees across the board, that totally ignores the 71% of the public who are concerned that the proposed legal aid cuts will lead to innocent people being wrongly convicted (ComRes poll 21st May 2013).

• Denying legal aid for judicial review for cases until they achieve permission (justified on those figures shown to be inaccurate by the Bingham Centre for the Rule of Law), a proposal that has been called “unconscionable” by the 150 Treasury Counsel in their letter to the Attorney-General.

Let us hope the broad coalition opposing your legal aid plan doesn’t step back and re-concentrate on your remaining unjust proposals. Let us hope the above proposals, that are clearly NOT in the public interest, slip through the net. Let us hope that the opposition argues within about who was, and who was not, present at the Law Society meetings with you and who is stabbing whom in the back. Let us hope that they don’t get a grip, calm down and concentrate on the proposals you are still standing by that are wrong in principle. Let us hope they don’t see the woods for the trees.

I see that you’ve been sent a letter by the Information Commissioner’s Office asking you to obey the law following your website being spotted as one that may have unlawfully gathered the data of visitors without their consent (via computer cookies). How on earth are you expected to know the law, you’re only the Lord Chancellor for heaven’s sake? My imps are scurrying within the internet server at the MOJ offices in Petty France now to resolve the issue. Whilst there, as you asked me to arrange, they are frenetically deleting emailed responses to the consultation paper. It is a bit awkward, I agree, that some of the lawyers who responded to the paper ‘tracked’ their emails so that our deleting them has now been spotted. Anyway the MOJ press release claiming technical glitches and you saying you are ‘confident’ seems to have held the line, for now. You keep telling people to re-send their emails and we’ll keep deleting them. These lawyers are a deviously suspicious bunch. How could they not have confidence in your confidence?

My chief imp has, at your request during the Pontefract bunker summit, placed the musty robes of one of your Lord Chancellor predecessors on eBay for £454. The late Earl of Kilmuir (Sir David Maxwell Fife, when he was Attorney-General) was a fine predecessor of yours (Lord Chancellor 1954-1962). He refused a plea made to him by Derek Bentley thereby allowing him to hang, despite the jury recommending clemency and a similar petition from 200 MPs, and Bentley having a mental age of 11. Those were the days! That, my friend, is how you deal with a troublesome petition. However he was not all good, I see that he was one of the people who drafted the European Convention on Human Rights. So you are quite right to dump his robes, as poetic inhuman and degrading treatment, onto the market place for dressing-up clothes. Spend the £454 wisely.

Finally, my imps are, as we speak, delivering favourable planted questions in brown envelopes to Nick De Bois (C, Enfield North) and Rehman Chishti (C, Gillingham) your two most favourable henchmen on the Justice Select Committee. Good luck tomorrow.

Yours, already in position under Sir Alan’s chair with a spike,

the intrigant.


Filed under Law

Sixth letter to the Lord Chancellor

Sixth letter to the Lord Chancellor, Secretary of State for Justice.

Mr Chris Grayling,

27th June 2013,

Dear Lord Chancellor,

How you must have laughed, as I did, when your Minister for Justice, Lord McNally, said two days ago “I am incredibly proud of this country’s legal aid tradition and the legal profession which underpins it.” This from the man who is rushing headlong into delivering Price Competitive Tendering that will sell off part of the criminal justice system to big business. This from the man who called legal aid lawyers, who had replied to the MOJ consultation paper, but before the consultation had closed or the responses had been read, “hysterical”. He is like the Duke of Wellington declaring how incredibly proud he is of Napoleon and of the entire French cavalry on the eve of Waterloo.

Anyway, thank you for your reply, containing the following enclosures:
1. MOJ statistics bulletin for 2012-2013, dated 25th June 2013.
2. Legal Services Commission (LSC) Annual Report and Accounts 2012-2013, dated 25th June 2013.
3. European comparison table on justice expenditure, from the 2012 European Commission report on the efficiency of justice.

I know that you said in a letter sent to Tory party members on 19th April 2013 that we had “a legal aid system that costs more than two billion pounds a year, far more than in any other comparable or developed nation” and I remember the time you said that legal aid expenditure had “spiralled out of control”.

I read Lord McNally’s article, published in the Huff Post on 24th June 2013, justifying the MOJ proposed reforms because “we inherited a legal aid system of around 2 billion pounds a year”.

I heard George Osborne, the Chancellor of the Exchequer in Parliament yesterday telling the House of Commons that the MOJ had agreed to a FURTHER 10% cuts as a department because, amongst other reasons, in this country “legal aid costs two times the European average”.

I purred when I read and heard these statements because, of course, they are important facts to keep repeating given they go some way to justifying the MOJ’s radical shake-up proposals that nobody supports. But the three documents you have sent me are highly troubling. First, the MOJ statistics bulletin shows that legal aid spending has actually been going DOWN year on year.

• Total legal aid is down £330 million (from £2,237million in 2010-2011 to £1,1917 million in 2012-2013).

• Criminal legal aid is down £155 million (from £1,130million in 2010-2011 to £975 million in 2012-2013).

The Bar Council, the Criminal Bar Association and the Law Society kept saying to you, the MOJ and the Justice Select Committee: wait until the cuts introduced in October 2011 and February 2012 work their way through the system, then you will see a significant reduction in expenditure. Unfortunately it seems that they were justified. Who knew that they were in fact right? For goodness sake sit on this statistical bulletin if you can. Just keep repeating the same old government mantra and surely these inconvenient statistics will all just disappear into thin air.

Secondly, you sent me this year’s LSC Annual Report and Accounts. As you know the legal services commission administers the legal aid payments on behalf of the MOJ. The report/accounts reveal:

• The auditor general has qualified the LSC’s accounts (that is doubted that they are “true complete and fair”) due to irregular payments of about £30 million. That’s not a promising start!

• In addition the LSC’s administration costs have RISEN by £29.1 million between 2011/2012 (£82.1 million) and 2012/2013 (£111.2 million). But let’s look on the bright side, that unfortunate increase in cost to the taxpayer can be used to help justify further cuts to legal aid expenditure.

I suggest you ignore this completely; I’ve spread the report with marmite and the accounts with jam and fed it to my imps. It is no more.

Thirdly, the European comparison table is also inconvenient. As we in the know, know, the international comparisons touted around by you and other members of the cabinet are, of course, misleading. The inquisitorial system on the continent and the adversarial system in the criminal courts of England and Wales are fundamentally different. So to compare the defence legal aid costs of both systems is to compare apples with pears. On the continent much more is spent on judges and prosecutors who do much of the pre-trial investigating for BOTH sides. Also the system is so good in England and Wales (at the moment) that there are comparatively few appeals, (in the UK Supreme Court there are 12 judges, in the equivalent French Court of Cassation there are 125). The fairer comparison would be to look at public spending per inhabitant for all courts, defence legal aid and public prosecutors. Alas someone has done just that:

Public spending per inhabitant on courts, legal aid and public prosecutor (in euros).

Switzerland 167.1
Luxemburg 137.1
Netherlands 118.0
Sweden 93
Spain 91.4
Norway 89.5
Belgium 86.2
Austria 84.6
England/Wales 80.8
Italy 73.0
Ireland 61.1
France 60.5
Poland 44.5

This is, you will agree, a much fairer and more meaningful comparison. You must ruthlessly supress it or George Osborne will have to apologise for misleading Parliament, and you and Lord McNally will be made to look like mendacious berks.

Finally, on an existential note, a seminar has examined whether you actually exist or not. The Judicial Independence Project convened on 12th June 2013 on the tenth anniversary of Tony Blair, when Prime Minister, abolishing the office of Lord Chancellor, accepting the resignation of the incumbent Derry Irvine and creating a justice ministry instead. The House of Lords insisted that the title of Lord Chancellor be retained. But, although retaining existence as a name, the office was shorn of its judicial function and the speakership of the Lords. The only remaining role was the duty to uphold and protect judicial independence. Michael Turner QC said that your reforms will inevitably lead to a reduction in quality talent available to the bench in a few year’s time, and now the Lord Chief Justice has sent a letter to you, dated 9th May 2013, setting out judicial concerns about the court privatisation proposals saying, in an attached document, “no governance or funding models should be countenanced which threatened the independence of the judiciary”. You seem to be disintegrating the only remaining role that defines the Lord Chancellor’s existence. Some people at the seminar argued that the Lord Chancellor does not really exist anymore. Just a ghostly insubstantial figure remains.

Yours, disappearing with his two imps through a crack in the ground,

the intrigant


Filed under Law

Fourth Letter to the Lord Chancellor

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.

  1. 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%. 
  2. 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.
  3. 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.
  4. 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.
  5. 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”.
  6. 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


the intrigant.    



Filed under Law