Tuesday Truth

This week's guest contributor to the Tuesday Truth is Ali Parker experienced Solicitor from Saunders Law and member of the London Criminal Courts Solicitors Association Committee.

This is my first attempt at writing the Tuesday Truth. Initially, it was superbly authored by Paul Harris and Rhona Freidman. But they both went to ground shortly after the Lord Chancellor announced plans to increase sentencing for internet trolls to two years imprisonment.  I am assured this is a pure coincidence.

Last week, Greg Powell proposed a logical, holistic and financially honest solution to the legal tensions arising between a democratic state and its citizens. Anybody who tells you that the ‘legal aid brigade’ cites problems but proposes no solution should be directed to this.
This week my theme is about breaking records, because we now live in momentous times. It is all moving very fast and, like Ferris Bueller, I think we ought to stop and take a look around because otherwise we might miss it.

1. The Latest Consultation.

The big news must be the thousands of responses flowing in to the third Ministry of Justice consultation on consolidating and cutting the provision of criminal legal aid. This was a monumental effort in such a timeframe and shows the strength of feeling.

It follows that my first ‘record’ is one of speed. I suspect a three week period is truly Guinness-worthy as the shortest government consultation ever. If anybody can name a shorter one in any democratic country, do please let me know. In fact, please name that consultation within 9 seconds, after which I am sorry, but your input will not be considered.  

2. The Otterburn Identity

Secondly, Andrew Otterburn and Vicky Ling of ‘Otterburn report’ fame took the record-breaking step of responding to the legal aid consultation based on their very own data. They did so to point out that their findings and figures had been misinterpreted, and that they do not accept the MoJ’s market assumptions provided to KPMG. I have never heard of such a step before. Can we safely assume this has been said in private ever since February 2014 when the MoJ’s conclusions were published? Would Otterburn and Ling have spoken up if, heaven forbid, the CLSA & LCCSA had lost last month’s judicial review?

3. The Law Society: Two Tier, or not Two Tier?

My third record goes to the Law Society for most dramatic ‘Road to Damascus’ conversion. To paraphrase our professional body:
October 2013: “We welcome the MoJ’s revisions to price-competitive tendering, but further modifications will be needed to ensure a viable market.”
October 2014:  “The entire scheme needs to be abandoned.”

I welcome their change of heart - and let no one pretend that there has been no change. In fact, it is all the more surprising because unlike everyone else, the Law Society was privy to both Otterburn and KPMG reports throughout.

I could speculate about what caused these transformations, but I will not. I fear that to engage in wild speculation without any hard evidence is at best irresponsible, and at worst might open up a career path within the Ministry of Justice.

In fairness to the Ministry, one could argue they been entirely consistent: They are trying to patch up one sham consultation by launching another one.

4. Human Rights Hokey Cokey.

My fourth record goes to the new Conservative position on the European Convention of Human Rights. They have previously talked of a ‘British Bill of Rights’ (will it apply only to Britons?). Now we also know they would not only repeal the Human Rights Act 1998, but they will also overrule Strasbourg Court judgments by UK Parliamentary majority. So my fourth world record would go to the UK: potentially the very first nation to subscribe to international human rights, unless its politicians decide to ignore them. This is truly the first time the Strasbourg Court has been made legally subject to the ‘Daily Mail test’.

Still, at least this will stop all those serving prisoners voting in our elections. Pardon? What do mean there aren’t any?

5. No Food for Thought

The fifth record is the ground-breaking failure to renew many Crown Court catering contracts, meaning all parties involved in trials must dash to local cafes/ newsagents/ kebab houses to grab a bite at precisely the same time.  According to the resident judge at Oxford Crown Court “It is a potential problem that concerns us because if everyone is going to Tesco and local cafes, chances are you are going to be standing in the queue or sitting next to someone in the case and people sometimes talk without thinking.”
I fear there is not only a danger of eavesdropping or loose talk. There is also a real danger that when jury discussions start informally early (which we know they do), if there is only one convenient place to eat, you might actually find the trial witnesses, the investigating officer, and even the defendants chipping in with their views on the evidence.

When the government explained their cuts by saying “We’re all in this together”, I had no idea this extended to jury deliberations. 

6. You know who.

My final record, fittingly, goes to Mr Christopher Grayling MP himself as the first non-lawyer to become Lord Chancellor.
Mr Grayling said this week that he considers it a positive benefit to the legal system to have a non-lawyer in charge of it. Judging by his chirpy disposition before the Constitutional Affairs Select Committee, he considers each adverse judgment (they are mounting up) as a positive badge of honour.

The same cannot be said, however, for former colleagues and industry experts who are finally turning against his policies. Every politician needs allies, but Mr Grayling is getting ever more isolated. New critics include the former Attorney General Dominic Grieve QC, the previous Justice Secretary Ken Clarke QC, and the Spectator Magazine.  I can now almost picture Mr Grayling, on reading his consultation responses, wheezing: “Et tu, Law Society?”

To clarify: I do not personally subscribe to the view that the Lord Chancellor must be a lawyer. But I do feel he or she should be able to think like one. Every Lord Chancellor should subscribe to a logical, intellectual honesty and rigour which will always expose political ideologies as simplistic, and even childish. Ideologues have neither the empathy nor the basic will to understand their opponent. They tend to make bad lawyers because they can only see one side and, whatever the evidence put in front of them, they repeat the same thing over and over again until even their allies start to tap them on the shoulder.

Is any of this starting to sound familiar?

 

The Tuesday Truth

 

Otterburn Gambaccini and Magna Carta

 

PLEASE RESPOND TO THE CONSULTATION ON LEGAL AID WHICH CLOSES TOMORROW. THE LINK IS:

 

https://www.lccsa.org.uk/transforming-legal-aid-crime-duty-contracts-consultation/

 

We do not apologise for reiterating the need for everyone involved in criminal justice to respond to this Consultation.

The Ministry of Justice website states as follows “We are now consulting on the reports undertaken by Otterburn Legal Consulting and KPMG (including MOJ’s response to the analysis) of findings, assumptions in their analysis, as well as a number of duty provider contracts that should be tendered in the forthcoming procurement exercise by Otterburn Legal Consulting and KPMG.”

 Amazingly, Otterburn Legal consulting whose report is the subject of this Consultation, have taken the highly unusual step of responding to the consultation itself. This demonstrates not just the degree of professional dismay that the expert authors have clearly experienced but also the high stakes involved in the Consultation; no less than the fate of criminal defence in England and Wales.

 In the report,

http://www.otterburn.co.uk/141008%20MOJ%20consultation%20questions%20-%20AO_VL%20response.pdf

Otterburn state that the Duty Provider Contract Additional Information published by the Legal Aid Agency in February 2014 included a reference to the findings from Otterburn that bidding organisations would employ at least one full-time fee earner with relevant experience of crime work for every £83,000 of the indicative contract value.

 Otterburn state in their response that this was not the finding of their report, this was a calculation made by the Ministry of Justice based on certain figures included in the Otterburn report.  Otterburn state that they do not agree with the way that the figures have been calculated which imposes an artificial constraint on firms’ ability to develop different operational models.

 Otterburn then comment on the assumptions adopted by KPMG. Otterburn make clear that they had no input into the design of the KPMG financial models or the underlying assumptions that these were based on.  Otterburn say that they were very clear that the assumption that firms would give up 50% of own client work if awarded a duty solicitor contract “was incorrect and would not happen”.   Of course not as all firms rely on their own clients to generate the majority of their profits.

 Otterburn also describes as unsafe; the KPMG assumption that work levels would remain constant for the purpose of modelling future contract sizes.

 They also take issue with the MOJ’s assumption that a 5% profit margin was unnecessary, and call it “highly imprudent”. They accuse the MoJ of adopting a “high risk assumption”. 

 All of the above may appear boring and technical, but it is of real importance. Of greatest significance is the fact that Otterburn whose Report we are being asked to respond to have now undermined key figures, analysis and assumptions which underpin the Consultation.  This is a damning verdict not only on the narrow issues the MoJ wants us to consider but also more crucially on the validity of the model that the MoJ wants us all to accept as a fait accompli.

 Otterburn has had the integrity to speak truth to power. We must honour that integrity by responding.

 THIS MEANS IT IS EVEN MORE IMPORTANT TO RESPOND

 Police Bail

This week the police announced that they will be taking no further action against Paul Gambaccini who had been on bail for nearly a year.   There were the usual indignant voices in the press complaining about the injustice of this man being on bail for so long  without knowing whether he was going to be charged with criminal offences.

 Paul Gambaccini is the thin edge of the wedge.  There are many, many more on bail for very long periods of time, their lives effectively on hold, and for every suspect who is on bail for months at a time there are victims equally subjected to the agonising wait, not knowing whether they will be giving evidence or not, not knowing what is going to happen to their case.

The Law Society has recently been extremely vocal about how extended bail periods, and I read recently that even where a decision is finally made and suspects are charged some cases are being listed in 2016!

 We need to stand up for every part of the criminal justice system that is under threat; for prisons, for probation, for victims, for suspects, for defendants, for the police, and for the courts.

 In February 2015, Mr Grayling seeks to showcase our legal system to the world, the flim flam of pageant a mask concealing the dismantling of our justice system.

We must show the world the current state of our justice system, a 21^st Century edifice with early 20^th Century access to justice.

Mr Grayling has degraded or traduced every element of our justice system including the panoply of rights that the post war generation introduced.  Independence, rigour, access and choice all gone or going. This is what the world needs to hear.

 

 

 

The Tuesday Truth

By Rhona Friedman and Paul Harris

 

Ten Reasons Why You Must Respond To the MOJ Consultation on Criminal Legal Aid

1. To preserve access to justice
2. To preserve client choice
3. To prevent the robust  justice system we are proud of being eroded away
4. To preserve the rule of law
5. To allow communities to retain access to their local solicitor
6. To prevent a reduction in quality of advice as substantial fee cuts and expansion costs force firms to employ inexperienced and under qualified fee earners
7. To prevent 75% of firms going out of business
8. To prevent the independent Criminal Bar losing 75% of its suppliers
9. To provide a future for junior barristers and solicitors
10. To prevent the inevitable fiscal waste of a future Government having to fix the mess caused by the MOJ ignoring the stark conclusions of its own experts and warnings from all professional bodies about the folly of this doomed plan

 

The Ministry of Justice- Its own evidence

Otterburn report

The Bullet Points

• Few firms will survive in the medium term without a duty solicitor contract
• Few firms could afford to invest in the structural changes needed for a larger duty contract
• Rural areas need a different approach by the MOJ for Duty Solicitor Provision
• Hardly any firms could survive the overall reductions envisaged
• A profit margin of 5% is required for a firm’s  sustainable future
• Fee Reductions should not take place before consolidation

 

The PA report (the one they suppressed):

 The Bullet points

• Legal aid fees declining since 1994
• Firms who only derive 50% of their revenue from criminal legal aid may survive for a time but will only operate on a 1.6% profit margin
• Firms who are more reliant on criminal legal aid are unlikely to survive
• Firms who derive less than 50% of income from criminal legal aid are better placed BUT report acknowledges that the effects of cuts in fees and scope in other parallel areas of practice have not been factored in  
• MOJ vision of super firms hoovering up contracts is undermined because big is bad for sustainability and the market will be so sickly that outside entrants like Eddie Stobart and Tesco Law will not want to enter
• Scaling up difficult because of lack of access to lending
• Restructuring in the way envisaged by the MOJ  difficult in short and medium term because of existing commitments regarding premises, IT etc and time needed for mergers
• Likely consequences of firms being unable to scale up is a gap in provision in major urban areas such as London and Manchester, the West Midlands and West Yorkshire

 

KPMG

The Bullet Points

• The assumptions
• Modelling based on constant volumes and on 2012-2013 data
• Modelling based on break even point rather than safety net profit margin.
• In order to have capacity to scale up for duty contracts firms will surrender 50% of their own clients because duty work offers commercial certainty
• Firms can scale up because they have 15% latent capacity i.e. could take on 15% more work through reorganising existing structures
• The reorganisation would include “reallocation of some staff (likely to be fairly junior) from other areas of the firm to work on criminal legal aid work”
• Consolidation unlikely to occur in the manner required by the MOJ model
• Firms are cash poor calling into question the ability to invest in the way required
• Threat to long term sustainability of firms because of low profit margins in the model
• In 30 of the 53 procurement areas outside London and in all the London areas  KPMG was unable to find any size of contract that would be economically viable

Round peg square hole. Small children capable of learning from experience, or from watching and copying those who have mastered feats of logic married with application; abandon attempts to forcibly impose their will on structures that are not amenable to brute force. The MOJ appears incapable of this kind of considered thought, intent on ignoring calamitous economic base lines, experiential knowledge and expert forecasts. This is the work of crazed wreckers, an Alice in Blunderland approach which would be alarming enough if it was merely the imposition of another doomed central IT project or privatised support service.

 

Please Respond!

We must shock the Ministry into sanity by our responses to this Consultation otherwise we all witness the MOJ’s headlong run down the rabbit hole taking our criminal defence system with it.

“In another moment down went Alice after it, never once considering how in the world she was to get out again.”

You have until 15th October. Please Respond. 


The links: the LCCSA and CLSA HUB (please respond through this).  This has all you need: the consultation paper and the three reports.  It also guides you through your response, and will email it to MOJ once your happy with the content.

Wednesday 8th October:

LCCSA London Event re: Responding to the Consultation


Greg Powell from Powell Spencer explains the Consultation


Book here.