Weekly Round Up 11.03.13
Headlines
In light of the crisis facing the profession and in consequence the public this will be a single issue Monday Message.
Do Right Fear No One: Chairman’s Comment
The Justice Minister, Chris Grayling, announced last week that he was bringing forward the consultation process on so-called Best Value Tendering (BVT). His announcement was as follows:-
The Lord Chancellor and Secretary of State for Justice (Chris Grayling):
The Chancellor’s Autumn Statement made it clear that further savings must be found from all areas of public expenditure. Through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 we have already reduced what we spend on legal aid for civil cases by targeting resources on those most in need. Criminal Defence represents by far the largest element of our remaining legal aid spend, where we are still spending over a billion pounds a year. We are committed to ensuring that the criminal legal aid scheme of the future continues to protect people’s fundamental right to a defence. However, against a background of continuing financial challenge, we need to ensure we target our resources in that area too.
We are working to improve the efficiency of the criminal justice system as a whole, to move towards swifter resolution of cases before the courts. We also need to look again at ensuring that defendants who can afford to contribute to their legal costs do so and that the legal aid system commands the confidence of the public. We are already taking steps in this regard to strengthen the effectiveness of the Crown Court means testing scheme which, from July 2013, will include powers to seize and if necessary sell a defendant’s motor vehicle if subsequently convicted. This is one of a raft of measures we are announcing today to help ensure that defendants contribute towards the cost of their otherwise taxpayer-funded defence.
In addition, we must consider how to achieve best value for money in the way we procure legal aid. We have already made clear our intention to introduce price competition in the criminal legal aid market, as the best way to ensure long-term sustainability and value for
money. In a Written Ministerial Statement laid on 1 December 2011, we set out our intention to consult on proposals for competitive tendering in autumn 2013. Given the need to achieve savings as quickly as possible, we have decided to accelerate that timetable.
We therefore intend to publish an eight week consultation on further reforms to legal aid in April 2013, which will include proposals to both improve the credibility of the legal aid scheme and reduce its cost to the taxpayer – one of these being price competition in criminal
legal aid. The revised indicative timetable for the development and implementation of our competition strategy is, subject to the outcome of consultation, as follows:
Consultation paper published: April 2013
Tender opens in competition areas: Autumn 2013
First contracts go live: Autumn 2014
The new contracts that we anticipate will be awarded in Autumn 2014 will require contract holders to work digitally as part of the move to a digital criminal justice system.
QASA & OCOF/BVT
It could not be any clearer that QASA is precisely what we said that it was: a fig-leaf of respectability for the cheap, bad advocates that OCOF/BVT will deliver, and a fraud upon the public. The Criminal Bar has never been afraid of quality assessment. We are tested on a daily basis in the court room and by the open market. What we, the CBA, have argued for is for a Quality Assurance Scheme that ‘does what it says on the tin’ and does not award badges of respectability to those who do not deserve them.
The Minister’s announcement did not give any details of the shape of the scheme to be ‘consulted’ upon, but the language is redolent of Lord Carter’s Report in 2007, and papers that have emanated from the MoJ and its predecessors, since. If so, it will have at its core an end to the ring-fenced fee for the advocate, and presage ‘one case, one fee’ (OCOF) for a ‘cradle to grave’ criminal defence service from police station to Crown Court disposal. OCOF contracts will be awarded to those who bid lowest. There will be a limited number of providers in each area.
Choice?
The erosion of choice has already started. From next month, in multi-handed cases, accused persons will have no choice as to the solicitor to advise and represent them. They will be required to share the solicitor selected by the first to be arrested and charged, unless they can demonstrate a clear conflict. Never mind that they have used for years, and trust, a particular solicitor. They will be given no choice. The recent attack on the Cab Rank Rule is a further indicator of the direction of travel with regard to advocates.
The timetable
It is a genuine concern from the announcement that this will not be a genuine consultation, entered into with an open mind: the announcement sets out the timetable for implementation, with tendering opening in Autumn 2013. That is why the consultation period – on a matter that strikes at the heart of our criminal justice system, and threatens the continued existence of a profession that has existed for a thousand years – is a ridiculously short 8 weeks. The real fear is that the ‘consultation’ is itself a fig-leaf of respectability for what has already been decided.
Does the timetable allow solicitors or barrister a meaningful opportunity to apply for and obtain contracts? We will not even know for certain the shape of the scheme proposed until April, or know the result of the consultation process before August at the earliest. How does that give time for either the bar or solicitors to assess the viability of a tender? Of course, it doesn’t. The timetable is not only designed to exclude the profession, it is designed to favour the corporate bidder. The fact that there is a year between tender and contract can only indicate one thing. Those who will win the contracts have not the infrastructure to go live immediately. Naturally, the corporate bidder does not want to put an infrastructure in place unless and until it knows it has won the contract.
Our fight for the future and the public interest
What are we doing about all of this, you rightly ask. Let me tell you:
• A strong committee, formed by the CBA, and chaired by Stephen Hockman QC, has been meeting for some months now, anticipating the BVT consultation, starting to formulate our strategy and shape our response. The ‘consultation’ period may be short, and we may be sceptical about whether our representations will be listened to at all, but we will be ready when the paper is published. You may be assured that we will make powerfully the case for the retention of the ring-fenced advocates’ fee and with it the continued existence of our profession. So ahead of the game is the Hockman committee, that the Bar Council has adopted its work.
• The Circuits, and Heads of Chambers, have been meeting all around the country, considering and discussing our response to QASA, and hear from you. The last of those meetings will take place on the Midland Circuit in April, two weeks after the BVT consultation document is published. The CBA has said that QASA and OCOF/BVT are inextricably linked, and we have made clear our stance on QASA. The feedback we are increasingly getting is that practitioners are angry and want action. We want you to tell us. There have been 15 postings on the Blog. Read Ian West, NE Circuit rep’s blog post HERE. Find out what your colleagues up and down the country are saying, and have your own say HERE.
• When all of the Circuits have met, we will reflect on the results, and decide on the way forward. That may be an EGM, or a ballot/survey, or both. Direct action, and the form it might take, to deflect the government from this madness is, I can assure you, under active consideration. All options remain open.
• We are already lobbying MPs. I met with Karl Turner MP, a Labour whip, this week. You may have seen his Twitter posts. He is very understanding and supportive of our position on BVT. In the next week or two, we will publish a list of every MP’s email address, so you can lobby your own constituency MP. Meanwhile I continue to meet with politicians across the political spectrum – the issue of our criminal justice system is not a party political issue, nor should it be.
• We will take legal advice on the prospect of judicially reviewing a consultation process which seems to be nothing but a sham, and is designed to effectively exclude the established legal professions from the bidding process.
• We have asked, and will continue to ask, parliamentary questions (PQs) through our contacts in the House of Commons and the Lords.
• We will continue to try and get our message out to the press. This is not easy, as you will have seen from the article in the Times last week and the letter in Saturday’s paper. We have some way to go in demonstrating to the public that which we all know; we are not ‘fat cats’ and that we perform a valuable public service – prosecuting as well as defending – at very reasonable rates.
• We have dramatically raised the numbers of our membership, which is 4,000 strong, and rising. We are setting up a comprehensive database ensuring that we can all communicate with each other at the drop of a hat. We have a CBA representative installed in every set to ensure lines of communication are 100% effective. This initiative has raised our funds and made us a cohesive unit, able to independently pool and voice our disgust and energies at what the government are doing.
• We are contacting Heads of Chambers from non-criminal sets to invite and urge them to link arms with us in our cause. The protection of the quality of the independent Criminal Bar is integral to all walks of law. The Family Bar know that they are next in line for virtual extinction. Commercial sets appreciate that the hitherto first class worldwide reputation of the Criminal Bar is often key in attracting international private work to the English and Welsh Bar from other countries.
• We have encouraged unity in the face of the storm. It has taken a little time to achieve it. The solicitors’ profession and the Bar are as one on this issue. SAHCA’s, new acting chair Shawn Williams, has linked arms, issuing the following statement:-
“Best Value Tendering (BVT) will not lead to ‘best value’ representation but instead will be like all those ‘value’ beef ready meals that were, in reality, filled with horsemeat. BVT will result in poor quality, in the cutting of corners and ultimately in miscarriages of justice which cost the state and society far more in the end.
The way to ensure the best quality and value for the public is surely by the government establishing proper relationships with suppliers of legal services whose selection is based on thorough quality driven research and not via some farcical Dutch auction. Suppliers so selected should then be paid a fair profit commensurate with the quality service they provide.
We are fully aware of the pressures and constraints upon the public purse but are absolutely certain there are numerous areas within the criminal justice system where legitimate and significant savings could be made, which as yet do not seem to have been addressed.
SAHCA shares the concerns held by The Law Society, the CLSA, the CBA and others. We intend to fight side by side with those groups against this unprecedented threat to the quality legal service that the public is entitled to expect.”
Shawn Williams
SAHCA Acting Chair
8th March 2013
A member of the bar in a robing room expressed the view to me the other day that Mr Grayling was only threatening this scheme to try and get further cuts, and that BVT would never come in. That is dangerous talk indeed. Let us be clear about this: BVT means Armageddon for the independent criminal bar, and many high-street solicitors too. We must take Mr Grayling’s threat seriously. Both branches of the profession are under threat, and we must unite to defeat it.
The Cutting expenditure fallacy
This Government is spending just as much of the tax payers’ money on public services as the last, and yet those services are seemingly dying on their feet. In the sphere of criminal justice, government pays lip-service to the victims of crime, whilst betraying them by the use of cautions and penalty notices for serious violent and even sexual offences, undercharging to keep cases in the magistrates’ court, and, in the Crown Court, the use of less experienced, but supposedly cheaper, CPS in-house advocates to prosecute cases – often badly.
Since becoming Chair of the Criminal Bar Association, and having got much closer than ever before to the workings of government, might I suggest what is going wrong? The obsession of this Government (and the last) was, if a public service was doing well – the NHS, the railways, etc – to hive it off to the private sector. If, however, a profession such as the criminal bar is serving the public well, the government thinks it can get the job done better and more cheaply by civil servants. So the CPS, using flawed accounting methods, recruits HCAs to prosecute cases (well, the easy ones, anyhow) in-house. Well cannot be left alone. Both actions have the effect of being ruinous on both the service provided and the tax payers’ pocket. Giving public services over to the private sector works nowhere in the world, because the driver of the private sector is profit, and profit alone. The inevitable consequence is that wages are slashed, staff morale plummets, standards of performance and ethics nose-dive. The corporate fat cats cream the profit; the service crashes. The CPS have taken over huge swathes of prosecution advocacy, to disastrous effect. The disclosure system is broken, cases collapse or are delayed, on a daily basis all over the country. We pointed out last week that the CPS is almost certainly costing the tax payer at least £60 million per annum more than when it had no in-house advocates. That is a picture reflected in every area of public service.
Why is this happening? Ask any of your friends in the civil service. A newly-appointed, ambitious Minister comes up with a hare-brained idea for saving money. The civil servant knows it to be such, but knows that if s/he says so, they will be sidelined, and replaced by the willing lapdog coming up from behind. In consequence they agree. The policy is implemented, and a committee of MPs then examines (at great expense) whether the policy has worked. I give by way of example the scrapping of the Forensic Science Service, which has been a disaster. But when I attended the Commons Select Committee, the CPS gave evidence that everything in the garden was rosy. And so the deception of the public becomes institutionalised. Why is this cycle not broken? Because whistle-blowers are too frightened to speak up.
That this is true is evidenced by the number of calls and emails I received (but cannot publish) confirming that the policy revealed by the leaked CPS ‘tick/star’ email was well and truly entrenched. It is a vicious cycle which has the ability to destroy our society if we do not recognise it, draw a deep breath, and recognise that ‘what ain’t broke, don’t need fixing’. Listen to the person who does the job you are attempting to change so drastically. Perhaps then, we will get back on the right course. We are very far from it at the moment.
The judiciary
Last week, we finally heard some views on the attack on legal aid from our most senior judge Lord Neuberger, President of the Supreme Court. The judiciary were effectively muzzled by Labour, and are under instructions, it appears, to issue comment only through the judicial press office or by pronouncement by the Lord Chief Justice.
I am no constitutional lawyer, but does the separation of powers as between the executive and the independent judiciary require silence from the latter, especially on a matter concerning the administration of justice, and access to it? What is the tipping point when our independent judiciary feel able to speak out in defence of the rule of law and the public interest? Are judges required to stand (or sit) silently by whilst the government of the day perpetrates the fraud upon the public that is the QASA scheme presently proposed? Surely not. We have the best (and fairest) criminal judiciary in the world – not least because we have the best criminal lawyers as a pool of excellence from which to appoint them (trained for you pretty much for free, please note, Mr Grayling) – barristers who prosecute one day, defend the next. Are these judges required to watch silently as the independent criminal bar, from whose ranks they came, is dissipated and divided, into the salaried ranks of one side or the other, and the solicitors’ profession is destroyed.
Fear not. However depressing this vision of the future may appear, rest assured that the CBA will not allow the criminal bar to ‘go quietly’. The public need us now, even if they themselves do not yet fully appreciate that fact. They would miss us if we went. We cannot afford to let that happen, and we will not. If we are united – barristers in all parts of the country, and solicitors too – we can preserve our professions in the public interest, as well as our own. As Benjamin Franklin said: “We must, indeed, all hang together, or assuredly we shall all hang separately.”
Michael Turner QC
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