Monday Message 06.05.13

Headlines:

Eddie Stobart’s breaks cover.
Unity within the professions: Justice for Sale
Stephen Bird crunches the numbers.
Serco hits the jackpot.
Our old friend Roger Smith learns lessons from abroad.
Current proposal to breach UN guidelines.
A whistleblower uncovers the method behind the madness.
Interviews with your Chairman.
How the Unions are affected by these proposals. Does Mr Grayling have a secret agenda?
Do Right Fear No One; Chairman’s Comment

1. Eddie Stobart’s Breaks Cover

When we first started warning of the take over of publicly funded legal services by the likes of Eddie Stobart’s many thought we were crying wolf. We were not and never have been. They broke cover last week to confirm what we have been warning of all along as the Law Society Gazette revealed HERE

Maybe now, if there are any doubters left, they will pay heed to our predictions. With Stobart Law will no doubt come the ethos that has already crept into the CPS namely “we start at 9 am and clock off at 5 pm”. Presumably under the Stobart regime their briefs will need to tack a break ever 4 hrs to conform with their taco graph rules.

2. Unity within the professions

On Monday I attended two historic meetings. The first at the Law Society, where around the table were, myself together with representatives of the Law Society, The Bar Council, The CLSA, LCCSA, BFG ( Big Firms Group ), LAPG, SACHA and BEM. There was complete and utter condemnation of the Government’s proposal and an agreement to stand firm together in the face of these proposals. The full agreed strategy will be unveiled at the Justice for Sale Meeting, Full details HERE. Please note that the Justice for Sale Meeting has barely 200 of 1010 places left, so you better get booking. From there I went to a meeting of South London solicitors attended by 150 or more. Once again there was complete resolve to stand united.

3. Stephen Bird Crunches the Numbers

Stephen Bird of Bird and Co, a superb solicitor and lover of the legal profession took the time last week to reveal to all the economic absurdity of bidding for a contract HERE.

The figures he produced are in respect of the 18 contracts up for grabs in London. If there are any Chambers still labouring under the notion that a contract bid is viable, they would do well to pay attention to Stephen’s analysis.

4. Serco hits the jackpot

Serco, not wishing to be out shone by Capita Solutions in the competition for “Worst provider of Services in the Western World” played a card on Thursday which has made them the new favourites for the competition.

The scene: The Old Bailey.

The Event: 9 handed cut throat murder and firearms trial.

The Timing: Defence speech 3 of 9 about to commence.

And then:

Serco had become concerned that the quantity of defendants’ documents in the dock-jury bundles, phone schedules, maps and, of course, their proofs, notes on the evidence etc- were “health and safety”. Without consulting anyone Serco decided to clear out the documents. They were all shoved into 2 transparent bin bags at random. The result was that no-one could retrieve any documents for fear that a defendant or his lawyer would see privileged material relating to another defendant. Independent counsel has had to be instructed to sort through the jumbled documents in the 2 sacks. The court tried to tried to proceed by getting duplicate documents for the dock so they could at least follow D 3’s speech while the mess was sorted out in time for defendants to discuss the points they want the remaining counsel to make in their speeches. Because of the complexity of the documents (coloured phone schedules and the like) this copying could not be done today. Most of the day was wasted.

We must congratulate Serco, we admit, even if we had entered the competition, we never could even have thought of such a move. Makes you proud to be British!

5. Our old friend Roger Smith learns lessons from abroad.

Roger Smith (previous director of Justice) exposes the current proposals and highlights the fact that Chile attempted such a foolish system before learning that quality was more important than price. Just maybe the MOJ would like to do a bit more research (one can only hope).

http://www.rogersmith.info/legal-aid-the-cuts-the-context-and-the-challenge/

http://www.rogersmith.info/ten-lessons-for-legal-aid-contracting-from-chile/

6. Current proposal to breach UN guidelines

It will not surprise you to learn that the current proposals in our view stick two fingers in the direction of the United Nation guidelines on legal aid. No wonder there is talk of withdrawing from the UN Convention altogether.

the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems

7. A whistleblower uncovers the method behind the madness

Under cover of darkness we received this revealing internal memo:

TOP SECRET: ON NO ACCOUNT MUST THIS DOCUMENT BE DISTRUBUTED BEYOND PARTY MEMBERS (IN PARTICULAR NOT TO COALITION “COLLEAGUES”)

GUIDANCE TO MPs ON HOW TO RESPOND TO QUESTIONS ABOUT CONSULTATION PAPER CP14/2013, “TRANSFORMING LEGAL AID: DELIVERING A MORE CREDIBLE AND EFFICIENT SYSTEM”.

1. When this government came to power in 2010 we inherited a “justice system of which we can be proud and which justly deserves its world-wide recognition for impartiality and fairness”. Plainly that lamentable state of affairs cannot be allowed to continue and the sooner that system is dismantled the better. Our researches suggest that the system in the USA is considered, even by its own citizens, to be one of the worst in the Western World, so we have decided that it should be our model. We therefore intend, over a period of years, to replace the current system with that of “public prosecutors” employed solely by the state whose ethos will be to obtain a conviction by any means possible as long as it is cheap; and “public defenders”, likewise all employed by non-lawyer “providers” selected exclusively on the basis of offering this service as cheaply as possible.

2. Obviously, if our plans “get out” there is likely to be a lot of ill-informed opposition to all of this. It is therefore crucial that our actual objectives are “dressed up” as “reforms” and a “transformation” and “improvement” of the existing system. With this in mind we have taken the novel step of appointing a non-lawyer as Lord Chancellor. Chris (“Pimlico flat”) Grayling will be well-known to you all for his sterling work as Shadow Home Secretary which caused all that fuss about statistics “likely to mislead the public”, (per Sir Michael Scholar of the UK Statistics Authority), and as he was never actually prosecuted for the expenses scandal he cannot be accused of waging any form of vendetta. He therefore seems to be admirably suited to the role and will be spearheading the “reforms”.

3. The first point to note is, please do not be misled or concerned by the title of the “Consultation Paper”. In the unlikely event that many people manage to respond to it in the very limited time allowed, we can assure you that their various bleatings will have no effect whatsoever on the new scheme being implemented. The responses will not even be opened. It is simply a fact that a token “Consultation” is nowadays mandatory to avoid some “fat cat” lawyer seeking Judicial Review and delaying implementation of policy.

4. Secondly, some of you may be disappointed to see that we have had to put on ice our plans to put out Crown Court advocacy to tender. There is no need to be perturbed. That will come in soon enough, but whilst we thought that we can easily persuade the public that Competitive Price Tendering was acceptable we felt that we may need to do a bit more work before we can convince them that Eddie Stobart in a wig would be entirely satisfactory. Some people, no doubt having watched too many episodes of “Garrow’s Law”, still have a pathetic faith in the notion of an independent criminal advocate, fearless of the state or the judge, taking on the establishment to ensure that their client gets a fair trial. Well, thankfully, and not before time, that sort of nonsense will soon be history, but before that can be achieved some further public “education” is still required.

5. In terms of destroying the criminal barristers’ profession a lot has already been achieved. Criminal fees have been frozen now for over a decade so barristers in real terms are getting about two-thirds of what was originally imposed upon them. In addition, this government has followed the lead of our predecessors by reducing those depleted amounts still further, (by about a half), and as you will see from the consultation we have in mind another 17% cut. Our figures, quoted in the Consultation paper, suggest that most criminal barristers, (about 65%) are already receiving less than £50,000 per annum. However as that includes VAT that reduces to £41,666 and they then need to pay about a third of receipts on chambers expenses, clerk’s fees, travel, insurance, books, professional levies and professional insurance. That takes them down to on average £27,777 but in many cases a lot less, and obviously they then have to pay income tax on that so we can be pretty sure that the majority are already at breaking point. No other profession has graduates of twenty years experience on figures anything like as low as that. Most commercial solicitors pay their trainees a lot more. A train driver gets on average between £30-47,000, and a tube driver about £40,000, so we are already well on track in grinding them into the dust.

6. When the Graduated Fee Scheme was brought in, in 1997, it represented a reduction in fees to be compensated for by payment within 7-10 days. We have reversed that policy, (although obviously not the reduction part!), so now no barrister is paid promptly, and great efforts are made to avoid them being paid at all. The advantage of that is its obvious effect on their chambers’ viability. In reality, we are confident that pretty soon only those of private means are going to be able to stand much more of these “reforms”. Luckily a lot of criminal barristers have already left the profession and recruitment has virtually dried up. We are therefore fairly sure that when, as promised, we eventually allocate to Eddie Stobart and our other backers the Crown Court work, there will be very few barristers left to complain about it.

7. That will be the final coup-de-grace. When we incorporate their fees for conducting Crown Court trials into the Tendering process Tesco and GS4, by then in a monopoly position as all of the High Street firms of solicitors will have gone under, will be able to pay barristers as little as they can get away with. The few who remain will be so desperate they will just have to put up with it. Of course Luddites and other ill-informed opponents of our “improvement” of the system might query with you how an accused facing a serious charge is going to get a fair trial if he is represented by some under-qualified starter barely out of bar school. The short answer is, “Who cares?”. If the net result is that the conviction rate shoots up, all well and good. Of course it might, in due course, mean that we will need to adjust the early release scheme to avoid the expense of building new prisons, but in truth we probably won’t still be in office by then, so it won’t be our problem.

8. Some Frequently Asked Questions and how to address them:

(i) Why should barristers have their fees reduced again when no other public servants have been asked to accept a cut in pay, let alone a series of cuts year after year?

There is no good answer to this so we suggest that you side-step this one by changing the subject to how “Fat Cat” QCs get paid far too much. “Pimlico” will regularly release totally misleading and unrepresentative examples to the media to assist on this spin. Luckily the public hate lawyers and will uncritically accept any old garbage that we churn out as long as it fits a perceived stereo-type.

(ii) Does the government intend to put Crown Court work out to competitive tendering?

Please see above. The truthful answer would be “yes” so please reply, “of course not, we are fully committed to retaining an independent criminal bar”.

(iii) Will the effect of the government’s “reforms” of the legal system lead to the end of an independent criminal bar?

Please see above. The truthful answer would be “yes” so please reply, “of course not, we are fully committed to retaining an independent criminal bar”.

(iv) If these “reforms” are fair why is there talk of the first ever barristers’ strike?

Again, we suggest that you change the subject. Obviously a strike by middle-class professionals who have, over the last 10 years put up with more than would have tried the patience of Job, will be pretty embarrassing, and might well expose our deceit, but we’ll just have to cross that bridge when we come to it. We have tried to defer that problem by the “divide and rule” stunt of temporarily excluding the Crown Court work from competitive tendering. It is probably best if you simply cross your fingers and answer confidently, “there will be no strike”.

(v) Previous government initiatives to put out public services to private tender, e.g. court security; prison transport and interpreting, have each proved to be a complete disaster with the “providers” making embarrassing profits for obviously inadequate services and the massive knock-on expenses of trial delays, adjournments, etc all falling on the taxpayer. Is there a risk of that re-occurring?

Obviously it is a bit embarrassing that under one of their existing contracts G4S are charging the government £11.49 per hour to provide staff paid just £6.45 per hour with a potential annual profit to their share-holders of £41,932,800 but if an astute businessman can’t make a modest profit without people criticising them then what has the world come to? After all G4S proved their worth at the Olympics and if necessary we can bring in the army to provide defending officers in the courts. However, we think it wise if you simply avoid this question by saying it has absolutely nothing to do with anything and is not even one of the questions set out by the government in the “Consultation” paper.

(vi) Once Eddie Stobart, G4S and Tesco have acquired all the contracts is there not a risk that they will provide a cut-price, stack-em-high service, then try to whack up their prices by exploiting their monopoly positions?

The truthful answer is “yes, probably” but we suggest that you throw in a bit of impenetrable waffle about quality being assured by the new QASA scheme and swear blind that the tax-payer will be better off with the “improved” system. For the reasons set out above, this is unlikely to be our problem as we will be long gone. People complain that this government has achieved very little but at least we can go down in history as having destroyed the independent criminal bar.

(vii) Why is the quality of the service to be provided irrelevant to the bidding process? Surely, in most legitimate bidding processes quality is quite an important consideration? If a firm of solicitors has extensive experience and a proven record of providing a high quality service does that count for nothing against a truck driver or grocer with no experience at all of providing such services?

This is another tricky question best side-stepped. In truth as far as this government is concerned the shoddier the service the better. We are committed to trying to achieve as near as we can to a 100% conviction rate so anybody trying to put up a proper defence for people who the police have already decided to charge, and therefore presumably are very likely to be guilty, is simply an irritant to be removed and certainly not encouraged. The other great advantage of having people in charge of the providers with no legal training at all is that they will be totally ignorant of any rules about ethics or conflicts of interest; the importance of obtaining proper disclosure of material that undermines the prosecution case; how to run a proper defence or investigate an alibi etc. In any event, at the rates being offered, those luxuries will the first out of the window. However, the above is for your eyes only. Please answer as per Question (vi) with some drivel about quality being assured.

Richard Bendall

pp Department of Misinformation

HMG

(Ricardus Bendall est in causidicum Furnival)

8. Interviews with your Chairman

Your Chairman was busy trying to get the message out there with interviews last week in Justice GapHERE (The photo here does not do him justice ) and a Pod Cast with well-known legal blogger Charon QC HERE. (A rather better photo me thinks)

9. How the Unions are affected by these proposals. Does Mr Grayling have a secret agenda?

I learnt last week the very real affect these proposals will have upon the Unions. Many of their members are above the joint income threshold for legal aid. Consequently, the Unions will have to give serious consideration to funding the defence of their members who face criminal prosecution. If they do so successfully, they will only claw back about a quarter of what they have to pay out, thereby devastating their funds. Of equal concern is that these proposals will effectively wipe out their solicitor base. Their solicitors are based around the country and rely on legal aid in addition to union work to survive. Without a legal aid franchise ( and none of those firms will be in a position to bid ) those offices will disappear and along with them the legal support so valuable to all Union members. The Labour party would do well to note that those who founded their Party will be some of the worst affected by these proposals. This impact is a little added bonus to Mr Grayling’s plans to destroy the Legal Profession, of which not doubt, Maggie Thatcher would have been proud.

10. Do Right, Fear No One

There was intense activity last week on a number of fronts. You must trust us if we do not reveal all just yet. There has never been such cohesion in the professions and there is a true sense that we will stand together, not only to see off this fight but hopefully forever more. It must be apparent to you all that with these proposals will disappear the solicitor firms with any sort of specialism within the criminal field, and although we all know there will be a massive increase in injustice cases they are unlikely in times to come, to be revealed as such. Who will ever be interested is pursuing such causes on a pro bono basis in the future? Our Judiciary should know by now that we are fighting this fight on their behalf as much as the publics. The functioning of our democracy relies on a well trained, independent judiciary. What price that independence and training, when our judges will in the future be plucked from the ranks of Stobart Law ? It is a chilling thought. Whilst to preserve their independence our judiciary must stay out of the political arena, does that really encompass measures which will in fact destroy the independence of the judiciary and therefore our democracy itself ? Whilst that may sound like an interesting debate for a moot, there is no time to kick that particular football around for long. We urge the judiciary to consider where the public interest lies and to act accordingly.

Recte Faciendo Neminem Timens

Michael Turner QC

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