Guy Gozem

QC at Lincoln House Chambers | Tower 12 | Manchester

Lord McNally’s balloons

Law in action full programme

Justice Committee transcript

Justice Committee Video

Forgive us, Lord, if we have failed to understand what you wanted.

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Lord McNally, I listened to Joshua Rozenberg interviewing you, and you seemed to get quite upset about the consultation responses we sent you. At first I couldn’t understand why you were so cross, but I’ve been thinking about it, and I thought I’d share my thoughts with you. I know you’ll be too busy to reply, but I won’t let that upset me.

The first question that came to mind after listening to you, was this – Did you really want us to work together on finding ways of saving money all along? Why didn’t you just say so?

And if you tried, why did we get our responses so badly wrong?

Here’s the thing. We’re a pretty unsophisticated lot. We tend to be preoccupied with evidence, facts, inferences and conclusions. It’s all that stuff that goes on in court, you see; it’s what most of us do. We’ve been trained to look at what people say and do and to use that as some sort of evidence of what they mean, what they want, and what they intend.

There’s even an Act of Parliament that explains how a court or jury should take all that stuff into account in deciding what somebody intends.

That’s when it struck me; we were all missing the point about politics.

Maybe where we’ve gone wrong is in failing to understand politics and politicians. Politics is rather different, isn’t it? It’s just not like real life. The same rules don’t apply. Politicians should never be subjected to the same sort of scrutiny as the rest of us. Politicians can’t always say what they mean, or mean what they say.

Maybe it’ll help if I illustrate what I mean by ‘politics is not like real life’.

Now, please don’t take this personally; these are just examples that you might recognise. For instance, you said

We will celebrate Magna Carta because it is our first great assertion of the rights of the individual against the power of the state – the first great affirmation of the rule of law as the basis of government…

Your bio says

He pledged to position the Liberal Democrats as “the voice of conscience and reform on issues such as civil liberties, human rights, changes in the legal system and access to justice”.

Your own party’s policy on Access to Justice includes this section –

Reject any changes to Legal Aid which lead to significant reductions in access to justice, a lack of sustainability of public funded legal services or false economies as a result of knock-on costs to public funds of cuts to legal aid.

It couldn’t have come as a great surprise when

at a key internal meeting of leading Lib Dem parliamentarians, Lord McNally, who was responsible for steering the LASPO Bill through the Lords, was told ‘the bill failed all tests of Liberal Democrat policy’..

This is where I think politics and real life start to part company. For regular Joe public, most lawyers would probably call that being caught “bang to rights” and advise an early guilty plea as the best option, and – music to your ears – ‘the most efficient resolution of the case’.

But most lawyers would be overlooking the fact that you’re a politician and the rules clearly aren’t quite the same. It wasn’t that you hadn’t said those things; but being a politician, you were entitled to say – and did –

it was a ‘Saturday morning resolution, which cannot mean that parliamentarians have to follow it’

I suspect not a lot of people knew that about weekend resolutions, including your party, who should stop wasting their weekends debating and passing pointless resolutions. But it seems you believe you have a defence based on weekend resolutions, and so wouldn’t consider copping a plea. This of course is where your brilliant ‘taper fees’ come in. Perhaps you’d like a lawyer to make you cop a plea, in the interests of efficiency.

But I’m getting hysterical again, aren’t I? Back to the point – why and how did we get our responses so wrong, when what you really wanted was us to debate and discuss and help find ways of saving money? How come we got so het up about PCT?

One of the first things was that a rumour spread like wildfire that Dr Gibby had said this –

the consultation would not be on the principle of competitive tendering; but would seek views on a proposed model…

and then shortly afterwards the document confirming what she’d said was published.

On 20th May 2013 the Lord Chancellor was interviewed in the Law Gazette –

‘The consultation represents the MoJ’s ‘clear direction of travel’, Grayling adds, but he is at pains to point out that the consultation process is ‘genuine’…  ‘unless somebody’s got a stunning alternative to PCT’, it will go ahead in some form. The fiscal imperative remains and ‘not saving the money is not an option’.’

Now – and I’m only guessing – I think a lot of people might also have been duped by the questions in the consultation. They nearly all said –

“Do you agree with the proposal…..  Please give reasons.”

I missed the question implying “we’re in a negotiation about spending public money with those that receive it”,

You said to Mr Rozenberg –

we were willing to discuss with the legal profession, the most constructive way that we could make those hard choices.

I don’t think many of us got that client choice (“a little bit rum” as you put it) was just a discussion point. We thought you were dead set on the removal of choice, so that you could introduce PCT and allocate guaranteed numbers to providers, rather than letting people (20 year career criminals) choose their solicitor.

Maybe, being lawyers, we took the Guidelines on Consultations too seriously:

Transparency and feedback 

Being clear about the areas of policy on which views are sought will also increase the usefulness of responses.

In fairness to you, perhaps you did drop a hint that we shouldn’t take you lot at the MoJ too literally or too seriously. You were reported – but not very widely – in February as saying this

Outspoken comments about the cost of defence advocates by the Justice Secretary Chris Grayling have been raised by LAG with justice minister Lord McNally. He said his boss ‘liked to pop balloons’ to get attention and added: ‘What Chris is trying to do is to provoke, by perhaps using flowery language, a debate.’ He agreed that the state could not insist on a ‘Rolls Royce service’ for itself as prosecutor but deny this to the defence, but argued that a discussion was needed on how best to spend the legal aid budget.

I didn’t find that quote without doing quite a bit of research. Must do better. There’s a lot that’s important in those two sentences, so I hope you weren’t speaking on a Saturday, and that you meant what you said. It’s a shame it was drowned it by ‘your boss’.

Perhaps we should have known that it was just ‘Chris’ popping a few balloons to get attention and provoke a debate. After all, we know what a jokey rascal he can be. We got it wrong (when we read the Daily Mail headlines) because we assumed that the MoJ was deliberately duping the public, and gunning for us with all those misleading figures they were using.

Assuming that you meant what you said to Joshua Rozenberg (and there’s the rub) I’m sure we’d all be happy to have a civilised discussion about alternative ways of saving money. I heard Michael Turner QC, Maura McGowan QC, Lucy Scott-Moncrieff and Bill Waddington say as much to the Justice Committee this week. I’ll give you the link. You should watch. Two of them were representing the ‘supposedly responsible professional bodies’ – the Law Society and the Bar Council – and they didn’t come over as being in the least hysterical – they were full of constructive ideas and suggestions.

Happily in fact, if you were to take the time and trouble to read their responses in full as I have, you’ll find that they are full of constructive suggestions. Nearly all of the published responses that I’ve read do make positive and constructive suggestions. That’s largely because the bodies you describe as irresponsible encouraged all solicitors and barristers to be constructive, as well as critical where necessary. But when it comes to the questions you’ve asked, they almost all deserved the critical answers they got, particularly about PCT. There has been an absolute torrent of criticism about PCT from all quarters – but read on, get over it, and you’ll find that what you are asking for is there.

But there is one thing you and ‘Chris’ are going to have to accept. PCT is a seriously bad idea, quite incapable of being turned into a good idea in 8 weeks. Or even in 8 years, which is how long Government has had it under consideration without improving it one iota, or solving any of its problems that led Lord Carter to reject it.

It’s difficult to avoid the conclusion that the ‘tone’ hasn’t been quite what you’d hoped for during the consultation period. A bit loud, unseemly demonstrations and so on. You might want to reflect on who started it, who set the tone and who united us. Have a word with ‘Chris’.

Ask him to stop popping the balloons.

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6 comments on “Lord McNally’s balloons

  1. utterbarrister
    June 16, 2013

    Guy – superb (no surprise there!) Bit disappointed in the lack of mythical beasties – other than I suppose the “scrupulous politician” or the MoJ minister with integrity…..

  2. jaimerhamilton
    June 16, 2013

    Reblogged this on A view from the North and commented:
    Excellent piece by Guy, highlighting the way the reforms are being driven by political expediency at the expense of justice.

  3. Will
    June 16, 2013

    I think they did a deal with the Tories.

    Sir Humphrey Appleby: To put it simply, Prime Minister, certain informal discussions took place, involving a full and frank exchange of views, out of which there arose a series of proposals which on examination proved to indicate certain promising lines of enquiry which when pursued led to the realization that the alternative courses of action might in fact, in certain circumstances, be susceptible of discreet modification, leading to a reappraisal of the original areas of difference and pointing the way to encouraging possibilities of compromise and cooperation which if bilaterally implemented with appropriate give and take on both sides might if the climate were right have a reasonable possibility at the end of the day of leading, rightly or wrongly, to a mutually satisfactory resolution.
    James Hacker: What the hell are you talking about?
    Sir Humphrey Appleby: We did a deal.

  4. criminalbarassociation
    June 16, 2013

    Reblogged this on criminalbarassociation and commented:
    Well, were WERE after all accused of being hysterical! Guy’s response is a perfect counterpoint to Tom McNally’s rant on Law In Action

  5. Mary Clarke
    June 16, 2013

    Meanwhile the consultation has blighted those of us who do legal aid work. We are frozen in time whilst we wait for this nonsense to play itself out. It is damaging the defence profession now and not just in the future.

  6. Pingback: Save UK justice: the blogs | ilegality

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