Monday, 22 December 2014

The Tuesday Truth

The final Tuesday Truth of the year is written by Bill Waddington Chairman of the Criminal Law Solicitors Association.

It is hard to imagine that it is well over two years since the MOJ told the profession that it intended to change the system under which we operate.  No one could have ever foreseen all this time later   we would be where we are now with the situation still unresolved and fighting the Lord Chancellor’s proposals to completely change the landscape in what we consider to be a very dangerous way.

We would say   that all he had to do was to sit down with us and listen to what we had to say.  He would say that he has sat down with us – the problem is that nobody has been listening.

It seems like only yesterday, but in fact it is precisely 12 months ago, December 2013, when we were in much the same position as we are now.  For a quick trip down Memory Lane does everyone recall that we had worked during the course of that year on two full Consultation responses, the first to rid ourselves of the ridiculous and unworkable plan of PCT and the second to oppose the equally ridiculous and unworkable plan of two tiers?

We had done so under the strict time limits imposed upon us by the MOJ in order to respond.

 Their timetable you may recall was to respond in full by December 19th 2013. But they didn't and Christmas therefore was relatively enjoyable, but there was still the worry about what proposals would be when eventually  issued.

Their problem was that they could not  respond by the date they set themselves and it was over more than two months later when the belated response was published.  The simple reason for that delay, although this would never be conceded by the MOJ is that they had created a two tier monster which even their own loyal experts were not able to control.  When published the profession was stunned at what appeared to be and has subsequently been shown to be a wholly unworkable scheme .

Again, our invitations to the MOJ to sit down and talk to us went unanswered and they ploughed on regardless.

They ploughed on in a way which Burnett LJ described as being “so unfair as to be illegal.”

Do you remember it was December last year when a small group of solicitors from all over the country met on the windiest day since records began in Birmingham to agree to support the Bar’s half day of action on January 6th with our own training day?

Those were the days.

Do you remember it was March when the equivalent of 750 contract holders attended a meeting at very short notice in Manchester ?  That meeting was just 24 hours or so before the first 8.75% cut was made. We had  been given less than three week’s notice of this. 

It was a bitter sweet day.  I recall two solicitors approaching me after the meeting, both owners of small firms who had been going about their business for many decades and confirming to me that they were returning to their offices the following day to begin the process of closing down. They simply could not operate their business on fees of 8.75% less.  Many have since followed that route.  Many others have done so involuntarily.

But most suppliers are still here – clinging on by their finger nails to keep this system going and to keep their businesses going. That is what we people do .

I’m sure the profession will agree but we should not after all this time still be talking about two tier, a system conceived and developed by the MOJ in conjunction with just one ,perhaps  two of the old school from The Law Society who really had no business agreeing two tier as a way forward when all the Practitioner Groups had unanimously rejected the concept.  They should never have allowed themselves to be placed in that position .

We are so very grateful for the change of attitude and thinking by the new  Law Society leadership .

All the evidence points to the fact that the two tier system will not succeed.  Even the MOJ’s own experts have approached it with more caveats than the Lord Chancellor has had hot lunches. Well you would wouldn't you, if you were seeking to impose a completely new untried untested system and had no expertise in this particular market when trying to  replace one that has worked very well for decades?

Following  the most recent Consultation  (clearly prepared prior to and in anticipation of  the victorious Judicial Review), more than 4,000 responses confirmed to the MOJ yet again  that their conclusions in the response were flawed, unsustainable, unworkable, unnecessary and yet again our invitations to them to sit down and discuss a managed way forward were rejected.

There was no other choice but to issue this further Judicial Review . Our members require it . Our legal team was scrambled together once again to set the wheels in motion.  We very much welcome not only the financial contribution from The Law Society but also the fact that The Law Society itself challenges the Government’s latest decision by way of JR.

There was a brief setback on Friday when our application for interim relief was considered on the papers and rejected. 

I can now reveal that following a weekend of discussions with our legal team and consultation with our committees, instructions were delivered on Sunday night to our legal team to pursue an application for interim relief to a full hearing prior to Christmas.

Notice was given on Monday 22nd December in the morning. The hearing will be tomorrow at 10.30am. We wish the legal team every success.

Again, it is something that absolutely MUST be done.  We could not as representative organisations sit back and let the opportunity for an application for interim relief pass once we knew it was possible that such an application could be heard before Christmas.

The advice we can give to the profession for now is twofold:-

 1.       Hang fire on your contract renewal notice.  The time limit for this is 12pm 23rd January 15   and there is no need to rush.
2.       Hang fire on your tender application if you are making one.  We predict that many will for the simple reason that you have to in order to survive.  There is no other choice.  However, whether the application for interim relief succeeds or not, the full claim is to be heard on the 15th and 16th and there is certainly no need for any tender application to be lodged prior to that day.  The deadline is of course 29th January 2015.        .

For now, most of you will be preparing for a Christmas break.  Unlike many walks of life however, there will be one/two people from each office up and down the land who will be on call on Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day and the holiday days in-between.  We do this because we consider it  our duty to do it.  It is part of our job, the job we chose to do and the job we would all like to keep on doing if only the MOJ will stop interfering .

Those far less fortunate than us , need us . The people we represent. If we did not do it the system would grind to a halt.  If we were not here the system would grind to a halt.  That is something the Lord Chancellor ought to bear in mind.

On a personal note , I would like to say this .

Thank you for the considerable support you have provided to both organisations and your own profession in continuing this fight. 

Thank you to The Law Society for its financial support and legal support with this latest JR.

We will need more financial support, that is for sure and I ask you to consider digging deep and donating through to the JR fund.

It is the festive season and the season of goodwill and peace to all.

With those thoughts in mind , I would like to conclude with three suggestions.

I would like to invite the Lord Chancellor to take seriously the suggestions we have made for months now about alternative ways forward.  Ways which will not mean two thirds of the profession disappearing.  Ways which will not mean the creation of advice deserts.  Ways which will not mean that this profession follows what has happened in the world of civil legal aid and the backlash that we now see flowing from the ill-conceived LASPO cuts.  The Govt ignored all the warnings about those cuts before they were made. They pressed on regardless and now look at the mess, the injustices and the broken system.

To ignore those warning was foolhardy. To press on with the ill conceived and unworkable reforms for the criminal justice system would nothing short of  reckless.  No Govt department should behave in that way .

It is perhaps appropriate as well to call upon the Labour Party and perhaps even the Liberals  if they feel secure expressing an opinion which is contrary to the Govt's

Now is the time for them to condemn the two tier system and for them to understand that if they inherit this then they will have a dog’s breakfast for a criminal justice system. 

I would like this profession and the Bar to support the fund in any possible way they can. We know many have and thank you for that. But more is needed. The Bar has  to wake up to the dangers posed to the professions and the Criminal Justice system if these proposals become reality and the MOJ succeed in the plan kill off  two thirds of the solicitors firms by introducing what is effectively PCT by the back door .

Happy Christmas to you all and the very best for 2015 (and fingers crossed for an Christmas present  on Tuesday ).

I wonder what the message will be in the build up to Christmas next year. We know what it should be.






Monday, 15 December 2014

The Tuesday Truth



One of the most depressing aspects of the Government’s proposal to sell off 527 duty solicitor contracts is that most of the agencies in the Criminal Justice system and most of the public are unaware of the likely consequences of such proposals.

The disastrous consequences of this ill thought out restructuring will be exacerbated because it will coincide with substantial changes to procedure in both the Magistrates and Crown Court.

In the Magistrates Court, Transforming Summary Justice will be rolled out. In summary some of the highlights of this proposal are that:

1) Likely Not Guilty pleas will be listed 28 days after charge,

2) Prosecution preparation is to be front loaded so initial details of prosecution disclosure will be available in advance of the hearing,

3)  There must be a prosecution lawyer with decision making power at the first hearing

4)  Primary disclosure will be served on that date

5)  There should be greater scope for engagement between the defence and crown in advance of the hearing and proper progress

6) Guilty pleas to be listed 14 days after charge


In the crown court the traditional PCMH, which has effectively become the centrepiece for case management will be sidelined for an earlier Case Management hearing, probably 28 days after sending or allocation, there will also be a national early guilty plea scheme.

The consequences of the Crown Court changes are that defendants will probably have to enter their plea much earlier than now and potentially on less disclosure. Again the Crown will be asked to frontload their preparation so as to ensure these new deadlines are complied with.

Both these new schemes are linked and it is recognised that both will fail if the Crown cannot deliver.

However whilst all these changes in culture will be taking place the government will be awarding 527 duty solicitor contracts following a tender process. Firms can apply for more than one contract and therefore it is likely that no more than a third of the current firms will get a duty contract.

The Government’s own economic evidence suggests that most firms will not survive without a duty contract.

How does that affect the criminal justice system, the administration of justice and society at large?

Its simple really:

Many clients will not be able to choose the solicitor they trust as they will have gone out of business

The solicitor they are allocated may have more work at a lower price but that will mean they can only exist by using less experienced staff to provide important advice which could affect reputation and liberty

The vulnerable , mentally ill and young will be much more exposed to miscarriages of justice with the quality of their protection reduced

The traditional defence model will be replaced with a factory type model and the increased pressure to be ready for an earlier case management hearing at the Crown Court will come at a time when the defence will have the least experienced resources hence reducing proper engagement.

Clients who might plead guilty normally with a lawyer they trust may delay their plea hence increasing the number of hearings not reducing them

There will be an increase of litigants in person with experienced clients unwilling to be allocated a lawyer if their normal firm no longer exists

 The Government proposal is predicated on an assumption that firms getting a duty solicitor contract will give away 50% of their own client work, so really client choice may end up being an empty promise

The Government proposal also has a sub theme the deskilling of the defence. There is no longer a reference to the “duty solicitor”, instead  the “duty lawyer” who does not in fact even have to be a solicitor.

 The effect of these proposals is that over a period of time many experienced lawyers will either leave the profession or be consigned to “managing” far less experienced fee earners who through the forced economics of the proposal will be the front line fee earners.

For many years the contribution of solicitors has not been given the credit it deserves, these proposals will so restrict them financially that the whole system will suffer at a time of real change in process in courts

Whilst there is a desire to hasten the process in the crown court more defendants may delay a likely guilty plea increasing uncertainty for victims and increasing hearings.

The combination of the changes in process in court procedure and the allocation of duty contracts may well lead to chaos, unrepresented defendants, victims forced to wait longer than they might and giving evidence where they might not have needed to, the exact opposite of what the aforementioned schemes are designed to achieve. Justice in meltdown.

The Government think they can get away with this, it is not an issue that particularly engages the electorate and by the time the damage has been done it will be too late and Grayling will be wreaking havoc in another department

The tender process is a disgrace, Marks and Spencer would have trouble completing it in time let alone a small firm whose fee earners spend most of their time servicing their clients Big firms, medium firms and small firms have all complained about the tender.

The limited period for submission , the fact that it is over Christmas  and the confusing and unnecessarily demanding nature of the questions are all probably partly motivated by the fact that the LCCSA, CLSA and now at last the Law Society will not play ball.

The two representative organisations have announced they will JR the proposals and have forwarded a letter before action. The Law Society has done the same.

It is great that they are now involved and still offering financial support to the associations. Nevertheless it is crucial that the LCCSA and CLSA are parties to the litigation. Our position to the law society is similar but not identical in relation to our claim. The history of the discussions that have taken place between the MOJ and Law Society, many of the minutes of which I have seen, demand that should there be any negotiations at a later stage the LCCSA and CLSA MUST have a seat at the table which is only guaranteed by being a party to the litigation.

So I am afraid we need a bit more money, we secured most of our costs in the last JR, but it cost slightly more than anticipated and this JR with a wider ambit together with an application for interim relief will be more expensive.

The LCCSA and CLSA have led the profession in their fight against these proposals and it is partly this leadership and the victory in the JR that places us in the position of going into this litigation with the Law Society by our side. The claimants have instructed excellent solicitors in Kingsley Napley and Bindmans respectively and outstanding leading Counsel in Jason Coppel QC and Dinah Rose QC, a bit like Pele and Cruyff in their prime.

We need everyone to donate however small or large and we need these donations now. Anyone who has any type of investment or interest in a fair and accountable justice system should contribute. Please also forward the link for donation and this blog to others .

The fight cannot end here, please lobby your MP, your local Crown Court Judge, please forward this to your friends.

Tell them that if they are ever accused of something and cannot afford representation the options are bleak.

Tell them if they are the victim of a crime they may still have to experience lengthy and inappropriate delay

Tell them that if they care about access to justice ACT NOW BEFORE IT IS TOO LATE

Monday, 8 December 2014

The Tuesday Truth

Carry on Doctor

On the 31 October 2014, Fiona Woolf resigned as Chair of the Government’s child abuse inquiry.  Her resignation was due to her previous links with the Westminster political establishment, and more specifically to a Home Secretary who may come in for criticism and further scrutiny.   In other words perhaps belatedly for many , Fiona Woolf realised that  the  public is  entitled to expect that the person appointed to this role is entirely independent and cannot have her impartiality undermined by previous associations and links.
At the end of last month it was announced that former Law Society Corporate Affairs chief, Dr Patricia Greer, has been employed by the Lord Chancellor to conduct a review of access to legal services.   It appears that her role is to investigate ways to improve the affordability of legal services’ Greer was part of the small Law Society team who worked with  the Ministry of Justice during last year’s discussions over the two tier  own solicitor/duty solicitor contract scheme. The Law Society’s approach to the Consultation process and their public pronouncements regarding the model adopted triggered the vote of no confidence in the Law Society.

Much of the economic evidence available suggests that firms not securing a duty contract (likely to be in the region of two thirds) will go out of business, thus effectively removing client choice by the back door.

One of the raison d’ etre of The Law Society as reaffirmed with rather more vigour under its new President is to promote access to justice and preserve client choice. The Law Society under its new stewardship has very clearly come out against the final model of the two tier contract because it will reduce access to justice and constrain client choice,

Therefore, we now have a situation in which an official very much at the centre of a much derided restructuring of the criminal justice system has now taken herself off to the other half of the two tier equation.  

Presumably there is potential for Ms Greer to actually be working on access to legal services issues arising out of representations and arguments which may be the reverse of arguments put forward whilst she was at the Law Society.  It  is also possible that whilst working at the Law Society Ms Greer may well have gleaned confidential information from and about practitioners and about The Law Society that were pertinent to negotiations with the Ministry, material which she takes with her to the Ministry. This is not about casting imputations on her integrity as to whether she would deploy that information, rather that there appears to be a strong possibility of a conflict of interest. .

For those who have forgotten, the Judicial Review was about the non-disclosure of reports including one by KPMG who were tasked by the MOJ to address crucial questions of modelling.

The contents of the KPMG report and its key assumptions have come in for sustained criticism with some of the kinder comments describing it as economically illiterate and displaying a critical lack of knowledge of the market.

During the course of the Judicial Review, through disclosure, we discovered that P A Consulting had also prepared a report for the MOJ stating in summary that it was not really possible to achieve the economies of scale that would make the MOJ’s preferred restructuring approach sustainable.

Throughout the period leading up to the announcement and disclosure of the proposal and the disclosure of these reports the Law Society was forced to sign up to various confidentiality undertakings which meant that they were unable to disclose them to the very people they represent.

It is no doubt a coincidence but the MOJ blurb released to mark her new position revealed that Ms Greer had previously held positions with KPMG and PA Consulting Group. It’s a small world , the world of revolving doors.

Her appointment will strike many as entirely inappropriate because of the kind of professional associations that lead to accusations of conflict of interest.

This appears to have become standard operating procedure for the political class. We learnt recently that, Stephen Dorrell MP has just taken up a post at KPMG. The firm is considering bidding for a one billion pound deal to manage the medical records of all patients.  He only recently quit as Chairman of the powerful House of Commons Health Select Committee.  Although he will step down at the next general election as MP, he will be employed by KMPG and be in the House for the next 6 months.
Two Tier Fee Cut

In March of this year the Ministry of Justice announced that prior to any further fee reductions for litigators and advocates the MOJ would consider a number of criteria. Bill Waddington chairman of the Criminal Law Solicitors Association has pushed the MOJ for disclosure of these and has discovered amazingly that the criteria for litigators and advocates although similar is different in two very significant ways

For litigators the criteria are the Leveson reviews, CJS reforms (eg digitisation) and the impact from earlier remuneration changes. For advocates, there is also the Leveson review and CJS reforms, but in addition there is the Jeffrey Review, any impacts on legal aid spend from falling crime rates, and an analysis of income and earnings of criminal advocates including effects from changes in recent years.

There seems no reasonable explanation for the difference which is clearly important. Litigators are obviously equally affected by falling crime rates and must be equally entitled to have their income and earnings considered in light of recent changes. Des Hudson, Chief Executive of the Law Society informed practitioner groups in March 14 that the review would be based on the same criteria. Have the bar secured these additional favourable terms as part of a deal? To be honest, I have no idea and no evidence to suggest as such, but we deserve an answer to this difference which on the face of it favours advocates and contradicts what we and The Law Society were told in March 14. I understand that both the President of the LCCSA, Jon Black and the chairman of the CLSA, Bill Waddington will be making further enquiries of the MOJ and seeking an amendment of the criteria so that both litigators and advocates are subject to the same factors in any further reviews.

In conclusion the MOJ appear anything but a fair and transparent body.  It is  proceeding with a tender that on their own evidence is likely to cause market collapse. It talks  austerity but means ideology and its governing ideology involves restricting  access to justice. After all if it was austerity how could the Ministry justify the vast increase in the expenditure in external legal advice in 2012/13 £34.2m up from £21.9m the year before. The spend for 2013/14 will be similarly eye watering bearing in mind its sequence of losing judicial reviews as a result of unlawful policy and procedural decisions.

This is a Ministry that foists destructive reorganisation on others but in its own secret deal making, appointments and spending demonstrates a business as usual approach, don’t do as we do, do as we say. .

If there is to be a meaningful and open review of the justice system that should start from the top , physician heal thyself.  



Monday, 1 December 2014

The Tuesday Truth


They know not what they do or do they?

On the 20 November 2014 the National Audit Office stated that a lack of understanding from the Ministry of Justice of its own legal aid reforms meant that the reforms “cannot be said to have delivered better overall value for money to the tax payer”.  Margaret Hodge, scourge of tax avoiders and dissemblers who also doubles as Chair of the House of Commons Public Accounts Committee said that the Ministry of Justice is out of touch with reality and showed no understanding of the wider costs.

A week later on the 27 November 2014, the Ministry of Justice demonstrated its delusional lack of engagement with life as it is lived by announcing that it intended to pursue the two tier contract proposal, and immediately commenced the tender for 527 duty contracts.

The MOJ indicated that the second cut of 8.75% may still be introduced in July 2015, and that the duty solicitor contract proposal would commence in October 2015.

This announcement follows a 3 week consultation on the reports of KPMG and Otterburn.

The response to the consultation by the Ministry of Justice is in my view insulting and patronising to the profession.   Many others will write much more lucidly and coherently about the response, but I will simply make three points: -

1.Duty Contracts        In the Ministerial foreword to the Ministry of Justice response the Lord Chancellor states that these proposals comply with his duty to provide access to justice, and that this proposal provides firms with the certainty of more work.  This is simply nonsense.   As he is well aware obtaining a duty contract does not guarantee a volume of work or any particular type of work, it effectively guarantees the possibility of work, the quantity and value of which is unknown.  Additionally, as his own evidence indicates there is limited scope for economies of scale and therefore the second proposed cut in July 2015 is unlikely to be one that most businesses can absorb.    Furthermore, because of the massive cut in fees – 17½% over 15 months – for firms to stay in business they will have to ensure that the majority of fee earners carrying out this work will be far less qualified and experienced.  With the cut price race to the bottom factory approach that Grayling is effectively creating through this model those vulnerable through mental health issues, disability and addiction, will receive even less attention than they do with the current system.

2.         Own client work.    In response to the consultation the Ministry of Justice states that respondents felt that own client contracts alone would not be viable in the medium term in their own right.   This is in fact not strictly correct.   It is not just respondents who have said this. The expert evidence that the Ministry of Justice has obtained suggests that if a firm does not obtain a duty solicitor contract it is very unlikely to stay in business.  The Ministry of Justice response to this is to say that 1800 providers have applied for and been awarded an own client contract, which means therefore that they see this contract as viable.    However, presumably the author of the report is aware that in order to get a duty solicitor contract one needs to obtain an own client contract.  Furthermore, if partners of firms are contemplating leaving the firm or setting up another enterprise and/or employees are also considering setting up their own firm, then they also need to apply for an own client contract by the deadline.   Consequently their response does not make sense and conveniently bypasses the central issue.

3.         Evidence.     At various points during the response to the consultation the Ministry of Justice make reference to no new evidence being provided.   The response from solicitors and firms working on the coalface is of course evidence, in fact it is expert evidence.  Consequently when the senior partner in my firm who has been practising for over 30 years in a well established east London firm makes various comments about the effects of some of these proposals then he clearly is an expert, he clearly has far more experience than the people writing this response.

The consequence of these proposals will be devastating on Access to Justice and devastating for both solicitors and the Bar.

The London Criminal Court Solicitors’ Association and the Criminal Law Solicitors’ Association have before, during and after our Judicial Review attempted to engage with the Ministry of Justice to warn against proceeding with these dangerous proposals and to persuade the Ministry to embark on a proper process of engagement with the representative organisations to improve efficiencies, and to look at other areas of reforms which may lead to further savings.   We have reminded the Ministry on many occasions that they already have a cut, spend is down substantially, many would say to the obvious detriment of the system which is staggering on delivering a less efficient and most importantly less fair standard of justice.

The Ministry of Justice and the Lord Chancellor are simply not interested.  The reforms to interpreters have ended up costing the Ministry of Justice more rather than less. Prisons and probation are in melt down. All of these travails were predicted in advance by the real experts, those who do the job on a daily basis. The Lord Chancellor is not really interested in evidence, or evidence based decision making. He will go ahead if he can with these proposals and will be long gone by the time the devastating mess, with its attendant costs to the public purse and to public confidence in the justice system, is at its worst.

I am not sure all of the criminal Bar appreciate how devastating these proposals will be for the future.   I am a big supporter of the Independent Bar, but recognise that these proposals will have a devastating effect on the junior Bar, many of whom are already exiled far from a court room, scheduling for the SFO or for white collar firms.

If the solicitors are subject to a second cut of 8.75% then many will struggle to stay in business with or without a duty solicitor contract.

They will need more than ever the whole fee.  Whatever the Bar Council and Criminal Bar Association may or may not do to make it harder for solicitor advocates to appear in the Crown Court, I anticipate there will be a huge increase in in-house counsel.    Many junior barristers doing legal aid work may well find that being paid in-house with a salary is more financially beneficial than waiting to be paid fees at chambers and being subject to rent.  For criminal legal aid work the traditional chambers model as we know it may very well disappear for the majority.

I know that many individual barristers in the Criminal Bar Association responded to the consultation, I am not sure how many chambers responded in their own name, but quite frankly every criminal set who values doing criminal defence work, and every junior barrister requiring more legal aid work must now wake up, because if we do not stop this then in less than 12 months time, Grayling’s car crash of a criminal justice system will be in place.
The LCCSA and CLSA assembled an outstanding legal team when successfully judicially reviewing the MOJ in September 2014. This team has been assembled again and Counsel's advice is being obtained in pursuing a further JR.

All criminal solicitors in London who care about this must join the LCCSA and contact Jon Black, the President.  There has been a strong team of volunteers working very hard for the last 18 months on this campaign, we need more; we can do this.

All solicitors’ practices outside London should contact the chairman Bill Waddington and join the CLSA.  There are many other benefits of being members of both these Associations other than being involved in the campaign, and now is the time to give support.

We must fight this attack on access to justice not just  for the sake of our professional futures, but for all of us and for the sort of country we want to live in