The Rt Hon Christopher Grayling Lord Chancellor – holder of the oldest legal office in the known world, bearer of a tradition of centuries of hard-fought-for justice – has written in The Times today. The article has escaped from behind the paywall and I want to respond to it.
The pose is that this is a difficult and painful decision. I find it difficult to accept that is a genuine view, because:
- Mr Grayling refuses to meet the Criminal Bar Association. That is not in keeping with this being a difficult and painful decision. If it were a difficult and painful decision, there would be an obvious anxiety to spend time with each stakeholder and interested party.
- The consultation does not focus on the Ministry of Justice at all. Only lawyers’ fees are targeted. No efficiency savings are even discussed.
- If the difficulty and pain were genuinely recognised, the consultation document would have to say something about quality and justice. It talks about neither. Moreover, responses are sought with “the overall fiscal context firmly in mind”. Assuming this to mean anything at all, it means that the consultation is not a consultation about the difficult and painful issues but about money.
The article – which is drafted as a statement rather than an interview and must thus be taken to be the Lord Chancellor’s expression of his own views in his own words – then proceeds to list a number of snide assumptions. That Mr Grayling considers this to be an acceptable way to deal with serious issues does him no credit. These snide assumptions include:
- That lawyers are responsible for confrontational divorce. “I have seen many constituents over the years have their lives wrecked by a court-based system of confrontation which has led to huge legal bills…”. It’s odd – I had always assumed Tory philosophy to be based on taking personal responsibility, but apparently when faced with divorce, normal people immediately succumb to “a court-based system of confrontation”.
- That immigrants use legal devices to avoid returning to the countries they came from. Or, put another way, that potential refugees and asylum seekers ask the law to assist them. The late Margaret Thatcher once said that the one act she was involved in that really made a difference, was when her family accepted a Jewish child from Nazi Germany. Or – as the Lord Chancellor puts it, “is it really right to provide financial help to people who have no right to live in Britain to use every legal device they can to avoid returning to the countries they came from?” Maybe we just can’t afford to be compassionate conservatives, or even compassionate?
- That crime is falling sharply. Ummm – up to a point Lord Copper. When even rapists are cautioned, when police are encouraged not to charge and when financial crime is largely ignored (ever tried to report one lately? I have. The police say to look to the regulatory body) you can get a situation where “activity in the criminal courts is falling sharply.” But of course, whether that situation reflects reality is quite different. Still, good news for bankers.
- That price competition is about quality. Actually, even the Lord Chancellor cannot quite bring himself to say this. He says, “Price competition effectively throws the challenge to the legal industry to work out how best to deliver quality services at a lower budget.” Note the subtle difference. The challenge is to deliver quality services for less money. And if the challenge can’t be met? The MOJ has no plan B because the Lord Chancellor – in a quite breathtaking display of chutzpah (definition: the man who kills his parents and then throws himself on the mercy of the Court because he is an orphan) – says, “if anyone has a better idea about how we reduce the criminal legal aid budget by an equivalent amount, then I’d be glad to hear it.” Remembering that he will not meet the Criminal Bar Association.
- That barristers should work part-time. Apparently, although new practitioners arrive with enormous debts and are expected to work all the hours God sends in order to allow a Court to start at 1030 am (whilst only being paid for a 7 hour day) they should not regard the Bar as entitling them to full-time occupation. Why? Because the Lord Chancellor justifies his plan to make a 30% reduction in Very High Cost Cases (that is, the most complex and difficult work that exists in crime) on the basis that, “they provide lawyers taking part in them with extended periods of work.” Righty ho then – obviously I should pay for the privilege of such an extended period of work (lucky, lucky me) by working for less. If I were a Junior Barrister – for whom these changes are good news according to the Lord Chancellor – that will be £2.67 per day. As most VHCC cases involve fraud it won’t need me to tell you that this is 0.6% of the minimum wage per day. But I’m telling you anyway. The Lord Chancellor wants you to work for less money than must be paid to the foreign people with no connection to this country (other than a desire to live and work here) that he is so keen to deport.
- That notwithstanding that after you have bought your cup of coffee you will have spent your whole day’s pay, you will still be prepared to hurl yourself into the challenges of defending (or prosecuting – where the defence lead the CPS follows) as if you were being paid, say, a fee that covered your food, travel, expenses, pension contributions (Lord Chancellor’s pension: £106,000 pa unearned), holiday pay and all the other things that barristers’ fees cover without allowing for your actual profit. That must be so because the Lord Chancellor says, “Those opposed to change have accused me of ignoring justice, of not understanding the importance of my office and of wrecking an international quality system. They are wrong.” So, if the system isn’t being wrecked, we must all be prepared to go on as before. Quality systems depend on quality people, motivated to do well. Isn’t that a Tory belief?
- That the Bar is safe because the Lord Chancellor hasn’t introduced one case one fee. Actually, this isn’t a snide assumption – it is a specific point. The Lord Chancellor says, “ It would also have been easy simply to introduce “one case one fee” for the Crown Court. But the Bar isn’t now in a position to compete and doing so would raise serious questions about the future viability of the Criminal Bar. So I am not proposing to do it.” But – and here I am imagining what might have been said by someone actually concerned to convey a truthful and accurate message – “But I am proposing to introduce competition for all Crown Court work which is not advocacy, so that when I include advocacy in the scheme next time – and please note I have not undertaken to preserve it as independent or ring-fenced – barristers will have had 3 years of fee reduction and will be in no position to compete for contracts, because those will be tied up by very large firms of solicitors or Tesco. The small community-based solicitors who might assist the Bar with the work the Bar does not do will already have been culled, as I am proposing that 1200 firms lose their right to earn legal aid monies overnight”.
And even all of this pales into insignificance when compared to the bull point, which is not so much a snide assumption as a joke. The Lord Chancellor says, “But I was also mindful of the financial challenges faced by the Junior Bar. So while barristers at the top end of the income scale will face fee reductions, my proposals would recycle some of the savings so the Junior Bar should see a small pay rise.”
This assertion needs unpicking. First, the Junior Bar is everyone who is not in Silk. That plainly isn’t what the Lord Chancellor means, because he contrasts the “junior bar” with those “at the top end of the income scale”. So let’s assume that he means the very junior people – perhaps those below 7 years’ call (a well-understood cut-off point from the Bar’s perspective).
The weasel words are so weasely that the MOJ should call in Rentokil: “That increase, which assumes that individuals continue to do the same mix of cases…” In other words, if you don’t progress in your career and do better work, you’ll get extra money. In the week that benefits are cut to stop people refusing work the Lord Chancellor incentivises barristers to stagnate.
But will you get extra money? No you won’t. You will only get the extra money if your clients plead guilty. Under the Lord Chancellor’s scheme, lawyers will be paid more if clients plead guilty. If you fight cases – if your clients, God forbid, assert their innocence – you won’t earn more money. You will earn much less money. This is how the Lord Chancellor apparently understands the importance of criminal justice and of not wrecking an international quality system.
I owe no fear or favour to the government and – professionally speaking – I do not care that it says my clients are guilty. I cannot be cowed by the Judge and I cannot be made to give my client advice the Judge wants. That being so, the government now proposes to penalise me if my clients want to assert their innocence and I do not persuade them to do otherwise. The position adopted by the Lord Chancellor – the Lord Chancellor! – is no different in principle from that of Mr Justice Howel in Bushel’s case where the recalcitrant jury were locked up without food, water, fire or a chamber pot until they returned the verdict the Judge wanted.
How justice is to be done when the state insists that payment will only be reasonable if a barrister can get his client to plead is anyone’s guess. How justice can be done when the prosecuting barristers are subject to the same regime is anyone’s guess. Presumably the Lord Chancellor has in mind some sort of dutch auction where I agree to get my guy to plead to an insignificant assault and the prosecution agree to drop murder. We get more or less properly paid – after all, what’s a further 10% cut, say, between friends? – and the public gets, if not justice, then something the MOJ can call justice. And the MOJ will call it justice – if these proposals can unblushingly be presented as good news for the Junior Bar then the MOJ can call tossing a coin justice.
The Lord Chancellor ends his article by asking for proposals for reducing the legal aid budget by an equivalent amount. That, in itself, shows that justice and quality are not the issues he is concerned about. But I have some answers:
- Cost your proposals properly, factoring in the delays to the system caused by depriving people of representation, their solicitor of choice and decent quality advocates (who will not work for £2.67 per day).
- Quantify the cost of policing the vigilante justice that will assuredly result from these proposals. Just ask the Americans.
- The see if the MOJ can save the £5 pa that will actually be saved. Perhaps it could use less paper for daft press releases?
- Consult on the key question of whether the 11p per day paid by each UK citizen for the criminal justice system is something that UK Citizens would rather see reduced by about 0.1p per day to see your proposals enacted. Avoiding that key question is simply a way of manipulating a public consultation to get the answer you want. It is a wholly dishonourable way to behave and you should be ashamed of yourself for behaving in this way.
- Instead of keeping monies confiscated from drug barons and fraudsters, and not prosecuting them with sufficient resources, do it properly and use that money to fund the Criminal Justice System. The Police estimate that of the £560m pa (5 times the value of the cuts you propose) available for confiscation, only £14m is obtained.
- Regard it as your job – for which you are paid a huge sum of money – to come up with a proper answer, even if it is difficult. The answer proposed in the consultation paper is evidently bad. It is not an excuse that it is the best you can do, because you are paid to do better.