Monday Message 15.04.13
- Do Right Fear No One
- Grayling misleads the public in preparation for the fight
- The BSB plays the Bar for fools – again!
- Transforming Legal Aid: The Consultation
- The Main Proposals (Crime)
- What these proposals mean in real terms
- What to do next and Justice For Sale: Meeting Wednesday 22nd May
- Justice Select Committee Report into Translation Services
1. Do Right Fear No One
I was told this week that the CBA was (a) marginalising the criminal Bar and (b) making practitioners despondent, because it was giving them no hope. I do not believe this to be the case, but if I am making you despondent, please tell me. I believe that, on the contrary, the CBA has placed the criminal Bar in the forefront of the fight to save our noble profession, and given it a voice. As for giving you no hope, again, I plead not guilty. If what is proposed in the Green Paper comes to pass there is no hope. We must fight to ensure that it does not happen. I make no apology for telling it like it is. The fact of the matter is that there is a tsunami heading our way. It is my duty to warn the profession, and to do what I can to prevent the catastrophe that will otherwise occur. In the past, the Bar has been ill-served by its leaders, who have been complacent, and have, as a consequence, led us to the edge of the precipice at which we now stand. I am not going to simply stare into the abyss. I am going to lead the fight back, but I need your help. The CBA has a strategy for dealing with the threats we face. It will take courage on the part of all of us, but we can and we will prevail because right is on our side. We owe it to the public we serve, when we prosecute and when we defend, to preserve the legal professions of barrister and solicitor. So, we will continue to call it as we see it, unless of course you would prefer to go to your demise in blissful ignorance of what is about to happen to this great profession?
Meanwhile, there has been some disquiet about Twitter. Whilst I agree that the language from the CBA twit should at all times be appropriate he / she has been quoted inappropriately and out of context in those few complaints. They have my full support. We could not say it better than Simon Myerson QC in his blog HERE.
If the Bar cannot stand up for freedom of speech in what we call a democracy, no one can. Let us get on with the real fight.
The rest of this message will focus on the latest PCT consultation. It is vital that you read the Green Paper, understand what the government proposes to do, and what we propose to do by way of response. Whatever you do, do not ignore it.
2. Grayling misleads the public in preparation for the fight
As expected, and in order to make the public think that it was a good thing to destroy, the legal professions, Grayling went to town in the press last week. He used the Daily Mail to publish the old fat-cat story, in an attempt to mislead the public as to what we earn. It is the government’s weapon of first resort when it wants to ‘bash the Bar’. Read it HERE.
There was, of course, no mention of those barristers on income support, particularly young barristers who start their legal careers saddled with debt, and who struggle to make a living, always working long hours for rates of pay that would offend against the minimum wage legislation were they employed and not self-employed.
However the most crassly ignorant statement he made was that no barrister should earn more that the Prime Minister’s salary of £142,000 – as if that is all the PM earns. Matthew Scott demolished this wholly misleading comparison in an article in the Times last week. I reproduce his article in full:
“The Lord Chancellor, Chris Grayling, has announced that he is to take yet another “axe to the criminal legal aid budget”. Despite the fact that legal aid fees paid to criminal barristers have already been cut by 13.5 per cent since 2010, and are planned to be cut further, his new idea is that no barrister should receive more from public money than the Prime Minister’s salary of £142,000.
But Mr Grayling’s assertion that the Prime Minister’s overall remuneration should be the measure of a top criminal barrister’s earnings only works in his favour if we ignore Mr Cameron’s actual earnings.
To earn the equivalent of the Prime Minister’s salary of £142,000 before tax a barrister would have to have a turnover of at least £200,000 in legal aid fees, a sum all but unheard of on a regular basis, and completely unattainable to 99 per cent of the Criminal Bar.
And Mr Grayling’s principle breaks down completely when one remembers that the Prime Minister’s salary is just a small part of his remuneration. Of course no-one begrudges Mr Cameron No.10, with its 100 rooms including a choice of pillared, terracotta or white drawing rooms, each furnished with either Chippendale or Robert Adam furniture and decorated with a selection of Turners and Constables; nor would we want him to forego his half an acre of garden (with gardener included), and it is of course a good thing that the maintenance costs (just over £680,000 since the last election) are paid by the public, but it does amount to quite a generous package. A quick check with primelocation.com reveals nothing remotely comparable in the immediate vicinity, although Foxtons do have a more modest six-bedroom apartment available not too far away in Knightsbridge for an annual rent of £2,592,000.
Then there is Mr Cameron’s 11-bedroom holiday home, Chequers, which would cost at the very least £10,000 a week to rent, let’s say £500,000 a year (without the staffing costs).
Nor should we forget Mr Cameron’s pension, an index-linked annual sum of £71,250. To pay this would require a pension fund of at least £2,750,000, and given that Mr Cameron is only likely to be Prime Minister for at most about five to seven years this equates to an annual contribution of something like £250,000 per annum.
Mr Cameron also receives his £65,700 MP’s salary on top of everything else, and will receive in due course the very generous MP’s pension when he leaves office. I am too polite to discuss Mr Cameron’s parliamentary expenses (although not so polite that I won’t mention that Mr Grayling, who now poses as a stern guardian of the public purse, used his to pay the mortgage for four years on a Pimlico flat, despite having a constituency home just 17 miles away from Westminster).
So adding together his salary, perks and pension it seems as though the Prime Minister receives the equivalent of well over £3 million from the public each year.
Nobody at the Criminal Bar could possibly come within spitting distance of this sort of money in legal aid fees, so Mr Grayling’s pronouncement that their fees should be capped at the level of the Prime Minister’s income is absurd, and unless Mr Grayling is a very stupid man indeed he must know that it is absurd.
The vast majority of criminal barristers have taxable incomes far, far below the sort of six-figure sums that Mr Grayling’s department likes to pretend, with even the most experienced and hard-working rarely earning much more than about £60,000 to £70,000 after expenses, while many others are lucky to earn even half of this. Their incomes have been dropping for years. They do not have grace and favour residences to live in, or publicly funded pension pots, index-linked or otherwise, to cushion their retirements. The idea that they are growing fat on public money may play well with the public, but it is utter nonsense.
Far from having incomes equivalent to the Prime Minister, most criminal barristers already earn considerably less than the police officers they cross-examine, and their incomes continue to fall. Despite this the Ministry of Justice regularly issues press releases about wholly exceptional individual barristers’ earnings as though this in some way justified the continual reduction in fees for all.
Instead of tennis at Chequers or croquet at Dorneywood followed by an ermine-cushioned dotage, criminal barristers – and solicitors too — now face bankruptcy and ruin as a combination of legal aid cuts, absurd regulatory changes and plans to tender criminal work to the lowest bidder, destroy a central pillar of our criminal justice system.
Any previous Lord Chancellor would have been appalled by this. Mr Grayling, seemingly unaware of the dignity of his office, appears to revel in it.”
Matthew Scott, of Pump Court Chambers
3. The BSB plays the Bar for fools. Again!
The Baroness Deech took dissembling to new heights (or should I say, depths) last week HERE.
On the publication of the Green Paper, she immediately declared that it demonstrated that QASA was not linked to PCT. She said that was so, because the word was not mentioned in the consultation and the Crown Court was not, at present, in the ring for PCT. We have explained the purpose of QASA a hundred times. Its purpose is to con the public; to make them believe that the Tesco or Co-Op advocate allocated to them, and whom they were not allowed to choose, is ‘independently-certified’ (by the BSB!) as competent to conduct their case, because they have a QASA badge made from a box-top. The Green Paper proposes, precisely as we predicted, that the client will have no choice of as to which solicitor represents them, notwithstanding that they may have had a professional relationship over many years.
Please do not be fooled into thinking that the Bar has won some kind of reprieve by Grayling’s ploy of ‘limiting’ BVT to the magistrates’ court. These proposals will mean that there will be no high street firms of solicitors within two years. The contracts in each area will inevitably go to the big commercial operators such as Tesco, G4S, etc, who do not rely on providing legal services as their sole source of income. They can afford to bid low in order to win the contracts and to make a loss for the first few years until the competition has been seen off. Then, of course, when the first contract renewal comes up, the price will shoot up, and the ha’porth of tar that Grayling saved in 2013 – 14 will be but a distant memory. There will be an outcry, the Treasury Select Committee will look into it, and no doubt conclude that it was an expensive mistake, but it will be too late – the solicitors and barristers will have gone forever. Of course, Grayling cares nought for this: he will be long gone from the Justice Department. There may even be a different government, and it will all be somebody else’s problem. It will be no satisfaction for us to say “We told you so”: We must make the government, the public, everyone realise the consequences of what Mr Grayling is proposing to do. It would be a serious mistake for any barrister to think that because it is the solicitors who have been selected to be hit first, that the Bar is safe. Grayling has seen the boycott of QASA gathering momentum, and has sought to buy off the Bar by pretending that BVT will not affect them, hoping that we will meekly sign up to QASA.
We will not fall for that. We must stand with the solicitors and defeat these pernicious proposals together, in the public interest. In the meantime, the battle over QASA continues. We must make the boycott effective. We will be inviting the solicitors to join with us in fighting that battle. Grayling’s haste has thrown us together: we must show him what we can do when we are united.
The BSB is meant to be an independent regulator. The fact that, time and time again, it seeks to mislead both the Bar and the public proves it is not.
4. Transforming Legal Aid: The Consultation;
Timetable for Responses: 8 weeks. Closes 9th June
- Consultation doc HERE
- Impact Assessment Price Competition HERE
- Impact Assessment Criminal Fees HERE
- Questionnaire Doc HERE
- Link to MOJ website HERE
5. The Main Proposals (Crime)
Civil legal aid is hit as hard as ever, but forgive me if I concentrate on the highlights affecting criminal legal aid.
i) Legal Aid for prisoner complaints to be removed.
ii) Introduction of £37,500 threshold limit for criminal legal aid.
- This is to be subject to a hardship provision on application.
Defence cost orders to be re-instated, but will only be awarded at legal aid rates.
iii) Tendering for all criminal legal aid, with the exception (at present) of Crown Court and VHCC cases
iv) A stated reduction of a further 17.5% for classes of work not
covered by price competition.
v) Under the competition model, contracts to be 3 years extendable for a further 2 years.
vi) Procurement areas to be set by current Criminal Justice Service Areas (CJSAs), with the exception of London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire.
vii) Warwickshire and West Mercia and Somerset, Avon and Gloucestershire to form two new procurement areas.
viii) London to become 3 procurement areas on boundaries as per CPS.
ix) Work to be available only to those who have won competitively-tendered contracts
x) Clients generally to have no choice in the representative allocated to them from the outset.
xi) Clients required to stay with their allocated provider for duration of the cases save in exceptional circumstances.
xii) Advocates Graduated Fee Scheme:
a) Introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial:
b) Reduce the initial daily attendance fee for trial by between 20 and 30 %
c) Taper rates so that a decreased fee would be payable for every additional trial day.
xiii) Very High Cost Cases (Crime) to be reduced by 30%
Click HERE to see the real effects of these proposed cuts on your fees.
6. What these proposals mean in real terms
The Green Paper suggests that the number of ‘providers’ of criminal defence services will reduce from approximately 1600 to about 400. Even on these figures, the solicitors’ profession will be decimated:. see para. 26 of Price Competition Impact Assessment, linked in para 5 above. In fact, the impact is likely to be even more devastating. If, as predicted, the contracts go to large companies with branches nationwide – Tesco, the Co-Op, Eddie Stobart, etc, it may be that there will be very few solicitors’ firms which succeed in winning a contract against such competition.
The client to be given no choice in the matter of representation, as in the American Public Defender system.
Barristers’ fees will be reduced to a level below the minimum wage, in some instances. The reality is that the chambers model of independent practice will become uneconomic. The Bar would not survive.
When the first contracts come up for renewal in three years time, by which time barristers will have been forced to choose between taking the Tesco’s shilling, or working from home, the contracts will be OCOF, and PCT will have come to the Crown Court. The ring-fenced advocate’s fee (paltry as will be by then) will disappear altogether.
We paint this appalling vision of the future not to alarm you, nor to lay the ground for being able to say in the future “We told you so.” We do so in order to make everyone understand what is happening. But it is not inevitable that it will come to pass. Far from it. We can prevent it from happening if we only recognise the danger and stick together in the pursuit of a strategy that will prevail. The CBA has a plan. It starts with defeating this sham QASA scheme. Without a QA scheme, BVT cannot happen. Do not let anyone tell you that they are not linked. They are. The boycott of QASA is progressing nicely. Three of the four Circuits have ‘taken the Pledge’. The SE will soon follow. With luck, the solicitors will join us. We are talking to them. They know that the Green Paper means the end for them, and they are as determined as we are that it should not happen. And they are ready to stand with us and fight for the future of our two noble professions.
7. What to do Next
The first step is that all circuits must now get their votes in on the two questions asked on QASA, the Pledge and the promise. There is no excuse to delay further, and I do not believe that any Circuit Leader will.
Everyone must understand the full implications of these proposals. To that end, meetings will be held around the country to ensure a proper understanding. Look out for these happening, and make sure you attend. We need to have at least one member of each criminal set of chambers at each meeting.
We will of course respond to the proposals and we have a committee headed up by Max Hill QC (immediate past Chair, CBA), Nigel Lithman QC (Vice-Chair, CBA) Ian West and others to do just that. We have given over the brilliant Stephen Hockman QC to the Bar Council to help them in their response. Stephen will continue to support the CBA, but it is simply not realistic to ask him to Chair two committees.
I have already said that we must stand shoulder to shoulder with the solicitors’ profession. We were disappointed by the announcement, on the day before the Green Paper, by Lucy Scott-Moncrieff, President of the Law Society, of a ‘consultation’ of her own HERE. We believe in assessing consultations before making pronouncements and consulting our members. The CBA does not intend to make the same mistake. We are looking forward to joining forces with the solicitors at the Justice For Sale Meeting on 22nd May.
Justice For Sale Meeting on 22nd May:
A meeting to consider the consultation document open to Solicitors and Barristers will be held at:
Friends Meeting House, Euston
22nd May at 2:00pm
Registration from 1:30pm
The meeting will be addressed by representatives of the CLSA, LCCSA, LAPG, SAHCA, The Law Society and the Criminal Bar Association.
Full details HERE
This is the opportunity for the Bar and solicitors to show solidarity against these proposals. We must seize the moment, and not miss the opportunity.
We are consulting on the possibility of Judicial Review.
Once we know both the strength of feeling, and know that we are united, it will be time to take all lawful action within our power to stop what is utter folly, for the victims of crime, for those accused of crime, and for the taxpayer.
8. Justice Select Committee Report into Translation Services
If, you want a good example of how the saving of a ha’porth of tar can spoil a ship, look at the disastrous effects of privatising translation services in the CJS. Read the Justice Select Committee report HERE
Do Right Fear No One
Michael Turner QCView more news