QC at Lincoln House Chambers | Tower 12 | Manchester
We’ve achieved a tremendous amount as a united profession since the publication of the consultation on 9th April. Here are just some highlights –
We must keep the pressure on; we need the profession remain united in opposition to PCT and the cuts.
There is even some expectation that PCT might not see the light of day. But Lord McNally has already said (at Westminster Policy Forum) that equivalent cuts – i.e. a minimum 17.5% reduction will be imposed should PCT fail.
The challenge issued by government to the profession on 9th April amounted to this: read our proposals. If you don’t like them, come up with another way of saving £220 million. In 8 weeks. Or else.
Nobody knew it was going to be £220m. Looking at the published figures, £220m might be more than is needed; will the government insist on £220m or will the figure be modified? Nobody knows. People are working flat out to try and make sense of the ‘old’ figures in the paper and some new data recently published. It is madness; it is chaotic. People who could have made a sensible, valuable contribution in an iterative process over a period of years are left scrabbling for information in response to a government ‘diktat’ that grants only 8 weeks.
‘You have 8 weeks or else’ is no way to treat a profession; importantly, it is no way for a responsible government to approach an issue that bears so directly on the rule of law. More importantly still, it is inappropriate conduct for a Lord Chancellor for a number of reasons. Section 1 of the Constitutional Reform Act 2005 specifically restates his existing constitutional role in relation to the rule of law; his oath of office includes these words “I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.” And finally, s1 of the Courts Act 2003 provides “The Lord Chancellor is under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of…the courts”
These responsibilities are fundamental to justice. We face a Lord Chancellor who wants to deliver massive savings quickly. A strong, effective Minister doesn’t necessarily make for a good Lord Chancellor. In his haste he seems content to return to a discredited policy like PCT that was rejected years ago, and which is utterly inimical to the principles of ‘Choice, Diversity, Decentralisation, Fairness and Accountability’ that David Cameron trumpeted as being fundamental to the coalition’s agenda on public services.
Yet the MoJ says it will listen. Really? When the LC met with the Circuit leaders he told them – ‘I have tried to protect the bar. I hope that the bar will not bite my hand off. I do not believe that these proposals will lead to the end of the independent bar. It is very important to maintain an independent bar. I will continue to give that message out.’ But he added: ‘If the bar does not co-operate I may introduce PCT in the Crown court.’
Reports from the MoJ roadshows are no more encouraging. There is little point in civil servants listening if the Lord Chancellor won’t. [http://www.guardian.co.uk/law/2013/may/08/legal-aid-tendering-moj]
What we need is proper dialogue, but we don’t currently have it. It’s take it or leave it, like it or lump it. Co-operate – or else.
The government has been told by Lord Carter and more than once by Sir Alan Beith’s Justice Committee that a sustainable settlement will only be achieved by proper engagement with the profession and others. This isn’t proper engagement.
They have behaved like this before, but 2 things are different this time. We have never been so strong and they have never been so wrong.
They haven’t got a shred of evidence to substantiate the alleged ‘inefficiency’ of advocates; neither have they any evidence of the public ‘lack of confidence’. We could recommend efficiencies far more realistic and effective than their insulting financial incentives to make clients plead guilty. We all see inefficiencies on a daily basis. The majority are outside our control. They require consideration and development that can’t be achieved in 8 weeks. Most of all, they require an acknowledgement from the MoJ that fees are not the only driver of the legal aid budget. This is fundamental to a sustainable settlement, and one that could well save more money.
It requires a proper iterative process. You can’t hold a dialogue with a man who says co-operate or else; and you certainly can’t remap the CJS in 8 weeks. There are some very good ideas emerging; but there is just too much at stake, as leading and prominent figures are reminding the Lord Chancellor, for his ‘take it or leave it’ stance to be remotely acceptable.
As Mike Mansfield QC said in his article http://thejusticegap.com/2013/05/time-to-take-a-stand/ , “Negotiating for the crumbs that might fall from the table is also not an option.” He is right. Negotiating for crumbs would be to disregard the fact that so much is at stake; how much has been achieved, and how much could be achieved.
We do have a strong case. The goalposts are moving, and will continue to move. Ideas are emerging – for example – why not tackle big frauds involving directors or officers of companies by making legal expenses insurance compulsory? See Lord Marks from Hansard, 9th May – http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/130509-0001.htm#13050924000704
While there remains the possibility of making progress, of engaging parliamentarians and the public, of developing ideas, there is no reason to treat these cuts as inevitable.
The profession must remain calm, keep the pressure on, and stay united.
It worked for Wigan.