Groundhog Day

I know a lot of very good people who work in the criminal justice system (CJS). They have been treated quite appallingly by one government (and one Lord Chancellor) after another. Yet they have kept coming back for more. I’ve lost count of the cuts that have been imposed over the years. I know they have been big and I know they have been frequent. Now this government will introduce more. It might think we’ve cried wolf so often that it can ignore us as they have ignored us in the past. If that is what they think they are wrong. Funding has been cut to the bone. There is nothing left to cut. The system is as close to failure through underfunding as I have known. It would grind to a halt were it not for the goodwill and hard work of the legal profession. They deserve better. The government was told 7 years ago in Lord Carter’s report on Legal Aid Procurement that PCT was unacceptable – and that they should stop treating the legal profession so badly. They got a pretty strong reminder in 2010 too.

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It would be understandable if the public felt that lawyers complaining about the Government’s current proposals for legal aid were trying to keep their snouts in the legal aid trough. There’s been a general antipathy towards lawyers dating back to the time of Shakespeare; that alone might possibly have been overcome. The government’s deployment of its oft-repeated myths that criminal barristers earn more than the Prime Minister, and that fat cat QCs are paid £500,000 is deliberately designed to arouse public suspicion and distrust of anything and everything we might say.

Newspapers print headlines about barristers earnings and the Lord Chancellor deliberately refers to earnings as he launches the consultation. The tone is one of ‘towering fees’ coming from ‘taxpayers hard earned money’. We shouldn’t be surprised. We’ve been here before. They have used these tactics before, and they will no doubt do it again. For the consultation launch, MoJ issued a press release that included the following

‘In 2010-11 just three Barristers were paid legal aid fees over £1.5million, with some top earners receiving more than the Prime Minister or a top judge.’

Please consider the sentence –

• 3 barristers: Just 3. There are thousands of advocates working alongside those 3.

• £1.5m: The figure includes VAT, so it really should be at most £1.25m.

• were paid:  Being paid in a year is very different from earning every year.

and these conveniently omitted facts –

• Delays in payment mean that they might have worked for 2 years or more for that money. As I write, I’m fighting to get paid for work done 2 years ago.

• As for the PM and top judges – they have the security of employment, which includes pension provision, sick pay etc. Barristers don’t because they are self–employed.

What’s cunning is that the ‘facts’ in the sentence might be described as being ‘true’; but the sentence does not tell the whole truth. Deployed effectively (towering fees, taxpayers hard-earned money) it positively misleads. This is the art of spin. My friend Neil Hawes QC described it as ‘polluting the debate’ in his excellent letter to Sir Alan Beith. He’s quite right; that is precisely what it is designed to achieve. This is disturbing behaviour by a Lord Chancellor. An advocate deliberately peddling such misleading ‘facts’ in court might expect to be disciplined or disbarred. This is not the art of persuasion but the art of spin; it is calculated to mislead. The misleading nature of the statistic has been pointed out to government often enough.

The MoJ relies regularly on such spin so that our sincerity will be viewed as self-interest, so that people won’t listen when we shout about what is coming. If you’re reading this, I guess you already know that these proposals will be catastrophic for the CJS, because you’re probably a professional yourself. By and large we are shouting and tweeting to one another, though some, commendably, have managed to have letters published in newspapers. Getting the message to the public is the battle.

Lord Carter considered price competitive tendering (PCT) in his ‘Review of Legal Aid Procurement’ in 2006. He rejected it and exposed its shortcomings. He worked closely with practitioners and their representative bodies for almost a year preparing his report. He was impressed and decided to say so. Elsewhere in the report he went on to warn government about the mistrust their behaviour engendered; and how repeated cuts in funding would eventually cost them our goodwill.

He wrote this about us –

“I have been impressed by the deep dedication and integrity of the professionals involved in legal aid work, and their real commitment to the principles of legal aid. They should be proud of their hard work on behalf of their clients, and acknowledged rightly as a credit to the legal profession.”  

Experience has shown me that attempts at constructive dialogue with government have consistently resulted in us being shafted. Positive suggestions about saving money are ‘banked’; other sensible, constructive suggestions about government policy, preventing stakeholder funding wars and other such cost drivers are shrugged off or ignored. The attack on fee levels continues unabated. The cuts have been relentless, imposed unilaterally, completely against the spirit of any previous agreement or understanding. Lord Carter recognized the consequences of this and reported to the then Lord Chancellor –

“An atmosphere of mistrust and suspicion has been allowed to build up between suppliers and the government, and implementation of the reforms would be significantly helped if stakeholder relations were strengthened with the legal profession and other agencies operating in the justice system. A new structure of stakeholder engagements should be put in place. This will be a platform for improved and constructive relationships between DCA, the Legal Services Commission and the key stakeholders that are essential to a sustainable settlement for the long-term.”

Lord Carter took the trouble to identify the problem and to recommend what government should do about it.

Did they even try following the 2006 report? Nigel Rumfitt QC’s letter sums up for me where we were 4 years later.  (He made his resignation letter available on the CBA website. I saw it yesterday for the first time. I hope he will forgive me for reproducing it in full here.)

CHAMBERS OF SIMEON MASKREY QC,

7, BEDFORD ROW,

LONDON WC1R 4BS.

 

 The Right Honourable Jack Straw MP,                     

Secretary of State for Justice,

102, Petty France,

London SW1H 9AJ.                                                                                                                                                                                                  30^th March 2010.

Dear Straw,

                   I am writing this letter to inform you of my decision to resign as a Recorder of the Crown Court. It is several years now since I actually sat as a Recorder. That has been a deliberate choice on my part, prompted by my resentment at the manner in which negotiations between the Bar and the government over remuneration for Crown Court advocacy have been conducted. I have now decided that this state of affairs compels me to resign altogether.

The criminal justice system in England and Wales has long relied upon the goodwill and public spirit of the Bar for its effectiveness. The high standards of advocacy and integrity for which the Bar has long been renowned have resulted in a strong bond of trust between the judiciary and those who present cases before them in the Crown Court. That bond has been reinforced by the presence of members of the Bar in the courts, sitting part time. I was greatly honoured on the occasion of my appointment as a Recorder. Although I have never had any desire to sit full time as a permanent judge, I regarded sitting as a useful contribution which I could make both as a citizen and as a barrister. Many of my colleagues take the same view of sitting as a public duty, often at considerable financial sacrifice.

Goodwill and cooperation from professional men and women should never be taken for granted. In the past it was not. Members of my profession were treated with respect and consideration by those who ran the criminal justice system. Not any more. We have been abused as “fat cats” by, of all people, Lord Irvine. There has been a sustained campaign of vilification. Planted Parliamentary questions are used as a vehicle to release dishonest and misleading figures about our income from public funds to the Press. Negotiations with the leaders of our profession about our remuneration are conducted in a deceitful manner; promises are repeatedly broken. The sorry saga of the VHCC dispute, still unresolved despite your own protestations about conducting yourself in a more open and honest manner than your unlamented predecessor, is a classic illustration of the breakdown in relations between the Bar and the administration.

Your government has wasted immense sums of money on useless IT projects in the courts, on the creation of the incompetent and expensive quango which is the LSC (recent developments serve to emphasise what a wasteful error this was) and on the inefficient private contractors who are supposed to get defendants from custody to court. Add to that the legislative dysentery which afflicts this administration; the deluge of poorly drafted, ill thought through and, often, populist legislation; the quagmire of complexity which has swallowed up the law on sentencing. It is not hard to see where the real cost drivers in the criminal justice system are, especially when one factors into the equation the inefficiency of the CPS and the endemic unpunctuality which characterises the conduct of business in the Crown Court. Nevertheless, it is always the defence lawyers who are to blame; only the defence lawyers who have to bear the cuts. Now we are threatened with the abrogation of the agreement which underlay the Carter scheme and with actual cuts in the levels of remuneration in the Crown Court. This is a gross breach of faith. The demoralised atmosphere within the profession has led to the high levels of hostility between those who administer the criminal justice system and those who practise within it which have been remarked upon by Parliamentary committees investigating the working of that system.

The breaking point for me has come with the farcical “consultation” with the Bar over VHCC and the future of the graduated fee scheme, which has now led to legal action against your department by the Bar. Whether or not it is the intention of your department to destroy the independent Bar and replace it with salaried hacks prosecuting and defending in the Crown Court, the effect of the present imbroglio will be to do just that. It is a tragedy that a fundamentally sound system in need of sensible reform and change has been brought to its knees by this combination of incompetence and bad faith.

Against this background I have decided that there are more useful ways for me to spend my time than giving it voluntarily to support a system which treats my profession in such a contemptible manner.

 

                                                        Yours sincerely,

 

                                                       Nigel Rumfitt QC.

CC. Lord Chief Justice.

        Mrs Justice Macur.   

His letter superbly articulates what many of us felt, and 3 years later, continue to feel. I resigned as a Recorder too; I regret that my letter of resignation wasn’t couched  in such powerful or explicit terms. Has anything changed for the better since? The situation is even worse. Expressions of mistrust anger and resentment are to be heard in every conversation in solicitors offices, robing rooms and chambers. Despite everything they have thrown at us, the courts continue to function because the anger is not directed at them, or clients, victims or witnesses. The courts are running on that goodwill, but the tank is nearing empty. Such goodwill is being further abused. Nigel Rumfitt QC’s letter was written in 2010. This is 2013. There have been cuts in those 3 years.

There will come, sooner rather than later, the straw that breaks the camel’s back.

Stakeholders have separate budgets and feel obliged to guard them jealously. All too frequently there is competition to shift costs which results in delays in court, and in turn increases costs. Those anxious to see justice proceed swiftly will frequently step in and take the hit; their goodwill is thus further abused. Lord Carter identified this problem too, and he challenged them to address it –

“I was surprised to discover at the outset that the relationship between the various legal aid stakeholders was often adversarial and sometimes hostile. This has resulted in a fragmented system that has not historically recognised a duty to deliver justice at an acceptable overall public cost. I am pleased to see a growing recognition that a new co-ordinated and collaborative approach is required in which it is no longer acceptable for one part of the system to act in a way that imposes a disproportionate burden on another. This is, however, a broader theme that will require reinforcement by you and the rest of government.”

Yet government continues to behave as if legislation has no bearing on the length or complexity of cases. Here is a quote from a report called ‘When laws become too complex’, published on 16^th April – 

‘..there is no compelling incentive within government or Parliament to avoid generating further complexity. As in any complex and inter-dependent system, any change to the overall body of law will cause an exponential increase to its overall complexity’. 

Between 1983 and 2009 parliament approved more than 100 criminal justice bills and more than 4,000 new criminal offences were created.

Yet the government maintains that the problem is with our fees, and proposes cuts so savage that many will turn their backs on the work they have loved. When I’m asked why I do this work, I’ve often called it an addiction. There comes a time when an addiction is doing you too much harm and you have to stop.

Judges know the contribution lawyers make. They know that the courts would grind to a halt if lawyers worked a 9 to 5 day and they know very well that we put in whatever hours are needed to keep cases on track. Many of them used to do it themselves. Let’s hope they respond to the consultation and let government know.

But there is worse to come from the proposals. Beyond the direct administrative cuts in fees for work in the Crown Court are the PCT proposals for contracting. Applicants are allowed to apply to deliver services in more than one CJS area, but can only have one share in each area, which automatically gets them  an equal share of the cases in that area. Clients have no choice in the provider to whom their case is allocated and are required to stay with that provider for the duration of the case.

If you take choice away from the client, then competition exists only at the moment of bidding. The moment after bidding, any necessity for competition disappears. Why should a provider compete with any other provider? It won’t bring any more clients in. Clients are delivered up under the contract (either alphabetically or by date of birth); like the hotel in California, once clients are in, they can never leave. They can’t go to a better provider even if they can find one, which seems unlikely. Access to Justice (if Justice doesn’t turn out to be a complete misnomer) will be in the gift of the lowest bidder.

The lowest bidder, should one emerge, may well be a business which believes it might make this model pay. Names like Tesco Law and G4S are frequently mentioned; I have no idea. Should any such ABS ultimately become involved in the administration of justice, financial considerations will come to the fore. Hard-nosed businessmen, investors and shareholders will want a return on investment. How many good outcomes they secure will be an irrelevance. The time spent (or wasted?) on cases with difficult or disadvantaged clients will be critical to securing the best RoI. Who will know? The Lord Chancellor describes these proposals as a

‘package which is designed to ensure that we’ve got a system that people can have more confidence in’.

Lord Carter described the competitive system succintly –

At present, suppliers do not compete on price, but firms compete with one another to gain new clients or retain existing ones, and therefore the income generated by clients. Competition tends to be on the basis of reputation. Similarly, barristers compete with one another to demonstrate to those firms, and their clients, that by instructing them they will receive the best advocacy service.

In the competitive market poor providers of criminal legal services are driven out because their reputation doesn’t bring them enough clients. A good thing for the consumer, and for client confidence. These proposals are purely cost driven and quality is to be kept as low as government can get away with – ‘acceptable’.

Today’s survivors are those who’ve managed to deal with all that Government has thrown at them. Men and women of the sort Lord Carter met – professionals of deep dedication and integrity, with real commitment to the principles of legal aid, who should be proud of their hard work on behalf of their clients, and acknowledged rightly as a credit to the legal profession. They are being rubbished and attacked again.

Under the proposals, these survivors who have a solid client base built on reputation will probably disappear. Ironically, their very success will be their downfall. It appears impossible for the largest firms to retain the market share their reputation has brought them. The local contracts on offer to them are just too small, and they are only allowed to bid for one in their area. Firms will be decimated. Years of building reputation based on quality of work, quality of service, dedication and integrity will have counted for nothing. The High street solicitor will be wiped out. The model proposed envisages 1200 of them will no longer have any access to criminal work. This is because the MoJ finds it too difficult and expensive to process their bills. Ideally, they would like to deal with just one nationwide provider.

This is just one effect of PCT. The detail is complex, but the idea is very simple. Cheapest wins.

Every member of the public needs to understand what this will mean to them. Here’s a summary in case any layman has got this far and is still reading. Good quality preparation of your case will disappear. Anything above an acceptable level of preparation of your case will not be required of your provider. It is regarded by Government as too expensive and an unnecessary luxury. Baked beans in a dented tin may remain acceptable, but cases are not  as uniform as baked beans. Lawyers provide a service, not a production line. A service provider tries to meet the needs of the individual and the demands of the case. The practitioners who currently do so will be driven out of the market.

The proposals will result (though the Bar Standards Board steadfastly refuses to accept this) in advocates and cases being divided into 4 bands and  (if there are enough approved advocates still in practice) you’ll get one who’s in the same band as your case, regardless of reputation. God help you if the State brings a lengthy case against you, and I wish you the very best of luck finding an advocate to conduct it for you. He or she could be earning £14 a day towards the end of your case. This is an example of what the MoJ calls ‘efficiency’. Although the length of case is largely driven by the volume of prosecution papers, or the number of defendants involved in it, the MoJ likes to imagine that cases of length arise because of defence advocates spinning them out. This is spectacular nonsense. Judges recognise when they see such a thing happening, and they don’t see it very often. When they do, they stop it, usually with a few well chosen words.

Judges also have powers to penalise any advocate who persists in such behaviour by making a wasted costs order against them. In nearly 40 years I can’t remember being in a case where a wasted costs order has actually been made. Nevertheless, the MoJ knows better than me – and the Judges. By reorganising fees in this way it believes cases ‘will be conducted more efficiently’. The MoJ thus implies that Judges are permitting cases in their courts to be conducted with such inefficiency that they, the MoJ, are obliged to penalise every defence advocate who is involved in a long trial or who has failed to make their client plead guilty. This outrageous proposal must have the full support of the Lord Chancellor. One imagines, even if he isn’t a lawyer, that he has read the proposals and understands their implications.

To the question of ‘client choice’. As a member of the public, if you are afflicted by ill health you are entitled to make many choices relating to where and by whom you are treated. Should you be accused by the State of committing an offence, you are no longer to have any such entitlement. Suppose the State decides to arrest you; to charge you, and then to remand you in custody to await your trial. Even if you have little or no confidence in the lawyer to whom you and your case were randomly allocated – then tough. There is not a damn thing you can do about it. You will have no choice of lawyer.

Lord Carter dealt with the question of client choice. He said –

‘Choice is also seen as an integral part of the legal system. The right for clients to choose their legal representative is considered to be critical to both the commercial viability of suppliers and the confidence and co-operation of clients in the justice system.’ 

Yet the Lord Chancellor claims his reforms are about restoring public confidence in the system.

Lord Carter considered and rejected PCT. His report set out the options considered and the reasons for rejecting them. In summary –

Option 1– immediate move to price competition

There are significant risks associated with purely price-based competition. Some suppliers might set unrealistic prices for their services so as to gain market share and subsequently have to breach their contract and leave the market. This could lead to supply problems. There is also a significant risk associated with quality; contracts would need to be awarded on the basis of price and capacity only. There is also the potential for a significant negative impact on the wider justice system as quality is undermined and suppliers left in the legal aid market fail to perform effectively. This could have a particularly negative impact on the running of the courts.

Option 2 – price competition with a restriction on choice

In addition to the risks described in option 1 above, this approach has short-term drawbacks. It could result in an administratively complex system and may have a high impact on suppliers within a limited transition period. Moving to a price competitive market, whilst completely restricting client choice has short-term drawbacks. It could result in an administratively complex system and may have a high impact on suppliers within a limited transition period. The limitation on client choice and the removal of a significant proportion of the supply base could jeopardise parts of the justice system. The benefits of continuation, reputation and confidence of representation, e.g. for vulnerable or black and minority ethnic clients, may be lost and some rural areas could lose supply altogether.

Option 3 – progressive administratively set price reductions

This administrative option could lead to unmitigated and rapid change for suppliers, posing significant risks to both quality and access if rates are forced too low too quickly as described for option 2. Furthermore, continuous administratively set rate reductions would perpetuate long-term conflict and mistrust between the government and suppliers of legal services.

Having rejected PCT, Lord Carter ultimately proposed best value tendering (BVT). It was a model that was supposed to preserve both the quality of service and the client choice that PCT could not deliver. The BVT proposals were never implemented. They were met with overwhelming hostility by the profession as a whole. In particular the provider base, the solicitors (in 2008, if I recall correctly) were too economically fragile to survive its implementation. It is difficult to imagine that any of them is better placed in 2013. They’ve suffered further administratively set rate reductions. Banks are shut to most lawyers.

Other objections to BVT included  –

• Damage to quality, reduce choice, and harm diversity.

• BVT in the USA drove down quality and lowered the quality of representation.

• House of Commons’ Constitutional Affairs Select Committee, described BVT as ‘a breathtaking risk’

• Advocacy expenditure has been controlled for over a decade by the Advocacy Graduated Fee Scheme, and also by the recent introduction of the Solicitors Graduated Fees Scheme, initiatives which have stabilised legal aid expenditure.

• Damage access to justice for BME clients, as well as the diversity of the Bar and, by extension, the Judiciary which would not be in the public interest

Dominic Grieve MP, then in opposition, now the Attorney General said:

‘We really should be concerned about the lasting damage that could be done if we’ve got this wrong. It could permanently damage the provision of criminal legal aid.’

Government should know all about the disadvantages of PCT already.

The MoJ itself has piled cost onto the legal aid fund by its breathtakingly inept handling of the Interpretation services contract. In August 2011 they awarded the contract to the company whose tender was the cheapest by £50m. It has been a disaster. The MoJ’s handling of it was rubbished in 2 reports by the National Audit Office and the Public Accounts Committee;  the HC Justice Committee described it as shambolic; significant concerns had ben raised but ignored. Sir Alan Beith said of the MoJ that it –

‘did not have an adequate understanding of the needs of courts, it failed to heed warnings from the professionals concerned, and it did not put sufficient safeguards in place to prevent interruptions in the provision of quality interpreting services to courts. The MoJ’s handling of the outsourcing of court interpreting services has been nothing short of shambolic.’ 

On 25th April 2013 the MoJ announced an increase in fees for interpreters. Law Gazette reported – ‘

The MoJ could not immediately say whether the bill for the additional payments would be footed by the contractor or the taxpayer.’

The Lord Chancellor is now pushing ahead with his “Rehabilitation revolution” notwithstanding the commercial ineptitude of his Department. He told the Justice Committee he was cancelling pilots and going to direct to ‘rollout’  because

‘If you are going to be a reformer you have to bite the bullet and reform. There’s a danger you just pilot and pilot and nothing gets done.’

In the foreword to “Reform of Judicial Review: the Government response” [April 2013] the Lord Chancellor wrote –

“There was a body of support for my proposals, mainly among businesses and public authorities. But most of the responses we received were opposed to reform. There was criticism of the consultation procedure and the lack of evidence, and some saw the proposals as a serious attack on the rule of law.  I do not accept these criticisms.”

Another farcical consultation, then? What is truly frightening is that this self styled ‘reformer’ can simply say ‘I do not accept these criticisms’ and implement these proposals by secondary legislation. We are doing our best to make our voices heard, but he has shown he can and will ignore us.

Will MPs and government really stand by and watch as the CJS is destroyed?

They have been warned.

Again.