Weekly Round Up 25.03.13
Headlines:
- PCT: The Truth Slips out
- The CPS starts singing a rather different tune
- QASA: The Baroness Deech responds
- Justice For Sale : Meeting Wednesday 22nd May
- Andrew Taylor tells it like it is
- Wear your NO to QASA badge with pride.
- Do Right Fear No One; All questions answered
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PCT: The Truth Slips out
On Monday, the so called ‘defence community’ were invited to a round table discussion with Damien Green and Lord Tom McNally. No invitation was extended to the CBA, or to me as its Chair. This was a sop given the request to have proper defence representation on the Criminal Justice Board itself. Those in attendance were as follows:
Damian Green [DG]
Lord Tom McNally [TMc]
Shawn Williams SAHCA vice chair
Paul Kett, civil servant Criminal Justice Policy Group
Dr Elizabeth Gibbey MoJ
Hugh Barrett Procurement LSC
Keith Betts
Richard Atkinson Law Society
Robin Murray
Adam Makepeace
Neil Ross 15 New Bridge
Hamish Common 23 ES
Ash Bhatia
Mark Anderson
Rodney Warren
Paul Mendelle
It beggars belief that this Government thinks it can ignore the biggest constituent of the legal aid advocate fraternity simply because we have the temerity to speak the truth and predict with accuracy what they intend to do. Given the format of the meeting I am not permitted to publish the minutes.
By Wednesday however the truth was out. At a meeting at the Commons, where Dr Elizabeth Gibbey (senior policy analyst, MoJ) declared that the principle of PCT was not up for discussion in the consultation, only the model. Dr Gibbey will be saying nothing unless she has her Minister’s approval. There will be NO consultation on whether PCT will be brought in. It is a done deal! In other words, they have built the ship, it will be called Titanic, and we will only be consulted about the deckchair arrangements. If anyone thinks this Government is bluffing, think again.
This blog, from the Legal Action Group, goes into more detail.
So that’s it. They are sacrificing the publicly funded independent criminal Bar, on the utterly false premise of saving money.
Meanwhile, Karl Turner MP (Kingston upon Hull East, Labour)
Asked the Secretary of State for Justice “if he will publish a list of meetings a) he and b) officials in his department have had with (i) the Co-Op, (ii) Eddie Stobart and (ii) any other interested parties on best value tendering in criminal legal aid since 2010.”
The answer was due in by 18th March. Under threat that the Minister would be summoned by the speaker to account to the House for a failure to reply, an answer was given on Friday, provided by Jeremy Wright MP (Kenilworth and Southam, Conservative). It reads:
“The Lord Chancellor and Secretary of State for Justice, my Right Hon. Friend Chris Grayling, his predecessor, my Right Hon. and learned Friend Mr Clarke, and departmental officials have had meetings with a wide variety if interested parties as part of the process of policy development, both in direct meetings and in the margins of other meetings. The Department does not hold centrally a list of all meetings held by officials and to collate this information for the period requested would incur disproportionate cost. The Department publishes details of all ministerial meetings with external organisations, since May 2010, on its transparency website HERE.
What is deeply curious about this response is that if you go to the transparency website it takes you but 10 minutes to establish, that if the transparency website is what it says it is, no minister at least, has met with such parties. So why not answer the question asked, instead of throwing a classic politicians curve ball? The answer appears pretty obvious, Mr Grayling and his office have been in talks with these people.
On Monday, the speaker of the House will be called upon to bring Mr Grayling to the floor of the House to explain his answer.
You may wish to know the morality of some of those who Mr Grayling is planning to hand our legal services to. In February 2013, Tescos were fined £6.5m (it had originally been £10m, but was reduced on appeal) for fixing the price of milk in 2002. Read about it HERE. No doubt in Mr Grayling’s brave new world a regulatory finding against you for price fixing is no bar to being awarded a lucrative legal aid contract.
If all else fails I am preparing to fight the likes of Eddie Stobart on his own turf and see how he likes it:
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The CPS starts singing a rather different tune
The DPP, Keir Starmer QC has been remarkably quiet since we exposed the figures revealed by the inspectorate report into the CPS. As if by way of confirmation of what we have been saying, he effectively threatened his staff with the sack if they didn’t pull their socks up.
A CPS spokesperson said: “Speaking to more than 100 managers in CPS London, CPS Chief Executive, Peter Lewis, called for improvements to CPS performance in London. Although there has been some encouraging progress, quality case progression in the capital needs to improve. Mr Lewis is supporting the work of London’s Chief Crown Prosecutor, Alison Saunders, to ensure standards are raised. Work on a major re-structure and joint improvement with the CPS/MPS has provided a strong foundation for CPS London to drive through the necessary improvements.”
My sources tell me that those present were told in terms they had 2 years to save their jobs, or the work would be handed back to the police and, by implication, the independent Bar.
It is very sad that a man as bright as our DPP undoubtedly is, cannot recognise that the CPS, as an organisational model, is broken. And where he does find fault, he seems either unable, or unwilling, to fix it. The CPS is subject to the same budgetary constraints as other civil service departments, and has consequently had its funding severely cut. These cuts affect barristers, whether they prosecute or defend – that is why, when you prosecute, you are unlikely to be attended by a caseworker to copy documents, to edit interviews, etc – but more importantly, the CPS is selling the public short. The public relies on the police to catch criminals, and the CPS to prosecute them robustly (and fairly) and the public is being let down by the CPS. No one else will tell the public what is going on, but we will.
It is not the individuals but the culture and contractual model as this example from the coal face proves:
The Venue: Snaresbrook Crown Court. A CPS in house advocate is prosecuting. A skeleton argument is required from the prosecution overnight. The prosecutor tells the judge that he will not be doing the work as he is not paid to work after 5 pm. He appears the following day having not provided the necessary skeleton submission.
I have brought other examples of this behaviour to Kier Starmer QC’s attention. He tells me that his staff our under instruction to do such work, if the court requires it, and maybe they are. The problem clearly is that if they are not paid overtime they will not do the work. And, frankly, given their pay structure, why should they ?
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The Baroness Deech responds
She went to Legal Futures, rather than us, to publish a reply to our campaign. HERE:
She has the bare faced cheek to label us a “noisy minority” and ‘naïve’ and ‘confused’ to boot. One is driven to wonder how barristers who are naïve, confused and ‘foolish’ (per HM Attorney-General) ever manage to make a living! The BSB have failed to publish the 350 or so responses they received to the QASA consultation. I do not believe a single one was in favour of the QASA model as it stands. Equally she may wish to visit our blog or twitter site to gauge just how much of a majority we are.
If she clicks here, as we invite you all to do,
She will see detailed and cogent responses from three silks, the indomitable Ian West, and Christopher Amis. Each, in their own individual style, dissect and demolish her spurious, and frankly offensive, arguments
Here is but one example of the responses on Twitter; there are thousands. “@borobarrister: #ff to @TheCriminalBar who have become a strong fighting force for us criminal barristers. Best I’ve seen them in 17 years at the Bar.”
The Bar Standards Board’s Twitter account has now been silent for six days. That silence speaks volumes. Publish the responses to the fourth consultation and we will be able to gauge whether the BSB’s claim of support for QASA is in any way valid.
The BSB constantly dodges the question whether QASA, as it stands, is in the public interest. Baroness Deech, Sir Geoffrey Nice QC, and Sam Stein QC, have all gone on record to say that it is not. We know that QASA is a necessary stepping stone to PCT (Price Competitive Tendering) or, as it is now re-branded, BVT, which we have called OCOF. They all mean the same thing.
The reason, as we have pointed out a hundred times, is that BVT is needed as a defence-mechanism against the inevitable complaints and appeals that will flow from the cheap, bad, advocates that price competition will surely deliver. Client choice will go. An accused person will be offered a suitably- graded, QASA-badged advocate for their case, and the government will have done the minimum it needs to do to fulfil its obligations under the HRA to provide legal representation to the indigent. This is what lies behind the LSB’s desire to get rid of the Cab Rank Rule. It is, in effect, the introduction of a Public Defender system such as exists in the United States, and we all know what a disgrace to democracy that is.
Meanwhile the newly appointed Patricia Robertson QC believes she can persuade the Bar by blogging us with dis-information. You will have followed her insistence that QASA has no link with PCT. You only have to look at the words the Rt Hon Lord Justice Thomas in his written evidence to Parliament to know that QASA has always been linked to PCT.
“The scheme will be up and running before the introduction of price competitive tendering, and will cover publicly funded criminal legal aid litigants in the first instance. Such a system will be essential when the scheme becomes subject to competitive tendering.”
Blog you way out of that one Ms Robertson and stop treating us and the public like complete fools.
If you want to know more about that, follow this link to Dan Bunting’s blog:
However our stance against QASA is stand alone. All we have ever argued for is a quality assurance scheme which is just that, and does not give a quality badge to those who do not deserve it. You only have to look at how a similar system that is operating in respect of in-house advocates within the CPS to understand how it will be used to con the public that they have the appropriately qualified advocate.
Understand this, Baroness Deech. If PCT were not on the cards, and all we had to contend with was watering down our excellence with a so-called quality assurance scheme which is no such thing, we would still set sail against it. We expect to be regulated by an organisation that regulates us in the public interest. If our own regulator accepts that the scheme is not in the public interest, do not expect us to support it, and thereby lend our aid to what will be nothing more than a fraud upon the public.
4. Justice For Sale : Meeting Wednesday 22nd May
I announced last week an initiative by the CLSA (as opposed to the CCSA as I was calling them last week). My apologies to Bill Waddington, Robin Murray, and Paul Mendelle QC who tried to put be right. This meeting will take place at the Friends’ Meeting House in Euston, London on Wednesday, 22nd May, from 1.30 pm to 5.00 pm. The Venue holds 750. It will be a meeting attended and addressed by all branches of the legal profession. Booking details will be published next week. This is a wonderful opportunity to show strength in unity. Put it in your diaries now.
5. Andrew Taylor tells it like it is
Our friend and colleague on the Wales and Chester Circuit has been doing his bit to get the message out there. I think you might agree he has done it beautifully;
6. Dumbing Down the Legal Profession: ILEX Sues for Parity
This week CILEX, the institute of Legal Executives, applied to the Legal Services Board for independent practice rights. We are sure that will appeal to Mr Edmonds’ complete lack of understanding of the legal profession, and pave the way for a judiciary with no legal qualifications whatever. Legal Executives occupy a valuable position in our system but if you are not qualified in the law you need to be under the supervision of someone who is. The mere fact that you work in a nuclear physics laboratory does not make you a nuclear physicist.
7. Grayling muzzles free speech yet again.
This appeared in the Guardian on Friday, click on headline to see whole story.
Justice Minister gags probation officers over critical tweets
Chris Grayling, the Lord Chancellor, has told probation officers, via Michael Spurr, the chief executive of the National Offender Management Service, that they risk disciplinary action if they publicly criticise, on Twitter or other social media, the government’s plans to outsource 70% of their work with offenders.
The Guardian, 22/03/2013, p.29
Perhaps Mr Grayling might speak to his cabinet colleague, the Secretary of State for Health, who has recently declared that Health Service whistleblowers are to be revered, not hunted down like dogs. These bully-boy tactics have no place in a democracy. It is exactly the attitude he has shown to the CBA, telling me time and time again, through various messengers, that he will not meet me, and to shut up. So little does Mr Grayling care for democracy, he has denied the CBA a place on the Criminal Justice Board, the MoJ’s new forum for discussion of the criminal justice system at ministerial level. We are sidelined. Whilst he continues to act against the public interest our voice will only get louder.
8. Wear your NO to QASA badge with pride.
Badges with this logo
will be coming your way from 28th March via your chambers CBA rep. Wear yours with pride, and we will show Baroness Deech just how much of a minority we are.
9. Do Right Fear No One; All questions answered
i) Has Our Campaign merely been a wrecking ball?
On the contrary. We have demonstrated that the policy of CPS in-house advocates, and of outsourcing, and privatising parts of the CJS, to the likes of Geo-Amey, G4S Capita, ALS etc, is not saving the tax payer any money, but is, in fact, costing them a great deal more. The CPS has been stung by our criticism and has reacted to it. HMCTS – the Courts Service – seems less inclined to listen.
But further than that, we have put forward positive ideas for where they find all the money they need to run the ‘Rolls Royce’ criminal justice system that we presently have in this country. Here are but a few:
a) A Levy on the Banks
We are told that a disproportionately large part of the criminal legal aid bill is expended on a very small number of cases, many of which are frauds perpetrated within the banking sector. It is the banks’ own regulatory systems, or lack of them, which allow these frauds to proliferate. Why should the tax payer pick up the bill for a banking sector which refuses to put its house in order? The criminal cases (and the confiscation proceedings) almost always come before the civil claims, and so the tax payer is picking up the tab, allowing the banks to minimise their costs when recovering the stolen assets.
b) Returning the Magistrates Court to the Magistrates’ Courts Association.
In 2005 the Magistrates’ Courts were taken into the MOJ at a cost of well over £1 billion. Hitherto, the Magistrates Courts Association had provided the country with the best example of David Cameron’s big society in action. Indeed this, as I understand it, was David Cameron’s policy in the run up to the election. Why did it change? The saving to be realised by returning the magistrates’ courts to local control would equate to half of the entire budget for legal aid – criminal, family and civil (or what will be left of it after April 1st).
c) Use of Restrained Assets
It has taken a two year campaign to get the Government to see the sense of this proposal and they have finally adopted it. Let us hope they don’t manage to cock it up.
d) Zero Rated VAT on all publicly funded cases.
The practice of charging VAT on publicly-funded cases is an unnecessary and costly merry-go-round. The administrative savings to be made by this simple change to VAT law would, we anticipate, be vast.
e) Scrap the Criminal Defence Service
The CDS currently charges the tax payer £8 per call (plus VAT, no doubt) a service which the ‘ordinary’ high street solicitors being paid a Litigator’s Graduated Fee, presently do for nothing.
f) Scrap the Victims Surcharge
A prime example of both insulting the victim of crime and wasting the taxes payers money is the “Victim Surcharge”. This scorns victims and brings the administration of justice into disrepute. When sentencing an offender to life imprisonment for the murder of a son/daughter a judge is required to order the defendant to compensate the victim family to the tune of £120. Nothing could be more insulting. It then wastes the tax payers’ money by charging civil servants with the duty of pursuing the recovery of what is invariably impossible to collect.
Some of these ideas save more money than others, but if you implemented just the first two, you would save a sum equivalent to the entire yearly legal aid budget of £2 bn.
ii) Is there a deal to be done with the MoJ, i.e. scrap PCT in exchange for a further cut in graduated fee scheme, for example?
No, there isn’t. I have already referred to Dr Gibbey’s opening gambit: BVT is coming, it’s just a question of the shape. The whole point of what we have been doing is to demonstrate, time and again, that the Government does not have to hack at the front end of the legal aid system, a cornerstone of the welfare state, and a mark of a civilised society, in order to save the taxpayer millions. They can find the savings elsewhere in government, whilst preserving a criminal justice system that serves the public well – better than the public, and better than the government (though it really ought to) realise. What we suggest is surely: ‘Win, win’ for the Treasury, if only the Chancellor will engage in a little joined-up thinking, and permit the MoJ to engage with us, and do it. They won’t, and consequently we refuse to buy in to the Government’s mantra that there have to be cuts to legal aid, when we have given them a blueprint of how to do things properly.
iii) Is it fair to attack the CPS, which has many CBA members working within it?
I am not attacking individual lawyers within the CPS. I am attacking a system, and a culture, which places CPS staff, lawyers and caseworkers, in a situation they should not be in. Many of the in-house advocates simply do not have the experience to operate at the level required of them. They haven’t volunteered for this role; they have been forced into it in the misguided and ill-founded belief that it will save money. We cannot really complain that employed lawyers will not do unpaid overtime. What we can do, however, is point out that the culture that results in hard pressed, underpaid and overworked staff refusing to do overtime because it is unpaid, is selling the public short. Barristers in independent practice work all hours – evenings and weekends – because they take professional pride in what they do, and because they compete in a diminishing market for every brief. Only barristers who are willing to work hard in the pursuit of excellence survive. Unlike some salaried advocates – and I re-emphasise that there are many lawyers and others in the CPS who are not clock-watchers – barristers in independent practice do not go home at 5 o’clock and forget about work until 9 o’clock the following morning. Our dedication is something you should value, Mr Grayling, for I suspect that you will not find that it is abundant when Eddie Stobart and Tescos are providing the legal aid defence lawyers in your brave new world.
iv) Is the CBA’s campaign to wide? Should we not just concentrate on the problems of the Bar?
For too many years the Bar have concentrated on themselves. It is short sighted and counterproductive. We cannot do it on our own. We are now united with the solicitor’s profession in our opposition to QASA and PCT. We cannot ignore those in other professions who are suffering the same fate as us i.e doctors, nurses, teachers, translators, probation officers, policemen, firemen, etc. The Bar has been afraid of its unpopularity in the public psyche; well, ask yourselves why that is? Very often it is the result of ignorance and the perception that we are uncaring ‘fat cats’. Since we have reached out the hand of friendship and concern for the plight of others, so they in turn have wanted to understand our problems, and their eyes have been opened to what is really happening within our world and how damaging it is to the public.
v) Are we going to take industrial action and if so when?
We have ruled nothing out, but what all must understand is that if the membership want industrial action it is a lot harder that just calling for it. No organisation will succeed with industrial action unless they have the basics in place:
(a) sufficient funds; industrial action is not cheap.
(b) a united profession of all who are concerned in such action. Every criminal barrister should be a fully paid-up member of the CBA, and able to contribute to the decisions we make, and play a full part in implementing those decisions, once made..
(c) an organisational structure, to communicate information and decisions both upwards and downwards, and, if necessary, to organise. This is our network of chambers’ representatives. If your chambers has not s/elected yours, do it now.
(d) advice and support from other organisations with greater experience of such matters.
(e) a fighting fund, to support its members.
As you know I have been seeking to put these basics in place, but I still need your help. Our paid up membership is still only 4,270. There are 7000 of you out there, and every one of you should be a member of the CBA. Many, probably most, and possibly every single one of those 7,000, supports what the CBA stands for, and is doing, on behalf of the profession. Still, many barristers think they are members of the CBA (because they once were) but are not, in fact. If you are in any doubt – if, for example, you don’t get the Monday Message directly from our administrator, Aaron Dolan, but only via it being forwarded to you from another member, you should check with Aaron, either by phone – 020 7242 1289 – by email: [email protected] or get your chambers rep to do it for all of chambers. If it turns out that you are not a paid-up member, Aaron will sign you up.
We are preparing for direct action in the form of a boycott of QASA, coupled with a refusal, by those not required to ‘sign up’ in the first tranche, to accept work that others are being precluded from doing – thus stopping BVT in its tracks. All circuits are meeting to vote on such action. We cannot call for such action unless there is solid support, including the pledge not to accept work on those circuits affected first. Those on the South East Circuit, must ensure that their chambers returns a concluded view on such action to the Leader of Circuit, Sarah Forshaw QC, or to me.
vi) Are we preparing a legal challenge by way of judicial review?
We have our JR lawyers at the ready and they will shortly be briefed accordingly.
vii) Have we considered seeking amendments to the PCMH form?
Last year we approached the Criminal Procedure Rules Committee backed by Lord Justice Hooper (as he then was)asking for a number of amendments to be made. We were rebuffed. You have got to realise that, although we would like the support of the judiciary, they are simply not brave enough to give it. We are on our own, which is why it is important to win other friends.
viii) Have we considered amending ours and the solicitors’ code of conduct to make PCT unworkable?
The suggestion being to make it a breach of the code to work for less that £x or £y. Whilst this is a nice idea, it is the BSB and the SRA who have the power over the Codes of Conduct, with the LSB as the oversight regulator. There are also complex issues related to competition law, a matter within the remit of the OFT.
ix) What can I do?
Spread the word. Use Twitter. Tell your family and friends and raise public awareness. Write to your MP –an example was used in last week’s Monday message. Above all pay your subs. We have to keep the pressure up. Our cause is just. We owe it to ourselves, and to the public we serve, to speak out against what is about to happen. We will prevail, because we must. The alternative is unthinkable.
In the week to come, have a good Easter break. Your next Monday message will be in two weeks’ time as I too need a little break too.
As always Do Right Fear No One.
Michael Turner QC
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