Monday, 26 January 2015

The Tuesday Truth

Not the Global Law Summit – A Festival for Justice
Here’s a conundrum. 

Q: When is an anniversary celebration not an anniversary celebration?

A: When it’s the Global Law Summit .It’s billed as a celebration of the 800th anniversary of the Magna Carta but any connection with the Magna Carta ends there. Indeed the Prime Minister himself introduces the Summit as “yet more evidence that Britain continues to lead the way in promoting free enterprise, economic growth, and the Rule of Law around the world”.  The only possible explanation for thinking this guff has anything to do with the Magna Carta must be drink.

The first clue for that is they got the wrong date.  The three day Summit starts on 23rd February some four months ahead of the actual 800th anniversary. Only the most churlish would point out the real anniversary falls after the general election.

I have scoured the Magna Carta and nowhere can I find anything that strikes any chord with the Global Law Summit. Nowhere does it say in the charter that after nearly 800 years thou shalt organise the following:

  • As many of the richest Queens Counsel and business people as can be found to gather together in the City of Westminster to venerate and celebrate liquidity, leverage and free enterprise.
  • Chargeth £1750 per ticket for the privilege of ye olde worlde networking as truly the Summit doth provide a “valuable opportunity to meet and do business”. When thou does find that few men ( they are nearly all men ) want to forketh out such a princely sum , cut ticket price in unseemly panic and do mass ring round of legal community 
  • Assemble the top business monopolies including the Chairman of BAE systems who haveth such a proud record of building armoured fighting vehicles, combat aircraft and nuclear submarines to ensureth military personnel are ready for deployment, and understandeth first hand the effects of the rule of law having as recently as 2010 had to pay more than a Kings Ransom in fines for corrupt behaviour.
  • If that shalt not be enough inviteth a Managing Director of Goldman Sachs and a Company Secretary of Vodafone to marketh this Great Charter
  • Do not inviteth a single legal aid solicitor to speaketh as they be the scum of the earth and also they hath not even the reduced princely sum required to payeth the entrance fee.

In fact the real Magna Carta does not have that many remaining clauses, only three, of continued relevance including the most renowned which has a slightly different aspiration than the Summit -

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right to justice”.

One reason why the actual wording of the actual Magna Carta is not recorded at all in the celebration of the Magna Carta’s glossy brochure maybe that these words jar somewhat with what this government has been up to over the last five years. Access to justice has been decimated by the LASPO ‘reforms’ providing comfort to the Rackman landlord and bullying employer with legal aid all but removed for employment tribunals and halved for housing cases.

The Magna Carta was the foundational document of civil liberties and a vital defence  against the despot, King John (who had a penchant for taking his people into useless failing wars abroad). Today we have our own despot against justice, the inappropriately named Minister of Justice, who is picking on the most vulnerable in society, intent on decimating further basic rights of judicial review, and seeking the closure of 1000 criminal firms by ill thought out, rushed cuts, following ill thought out rushed privatisation of probation and court services. Everyone knows that miscarriages and injustice will become widespread. Many of us predicted the chaos that would ensue once the MOJ contracted for cut price interpreting and foresaw the nosedive in the quality of forensic  science evidence once the market was opened up to cut price experts. 

The only way to respond to the absurdity that is the Global Law Summit is to organise Not the Global Law Summit events. The Justice Alliance (formed out of the London Criminal Courts Solicitors Association) links together those who work within the justice system and those who use legal aid, charities alongside unions, grass roots campaigns and professional organisations. We are going to Runnymede on Saturday 21st February in order to deliver the Magna Carta from there  in a relay to the summit, from whence it was signed. Silly hats are probably compulsory; the infamous King John Grayling puppet is keen to attend. We shall assemble nearby the Summit at Old Palace Yard opposite Parliament on Monday 23rd February at 1pm. All lawyers, probation officers, civil servants, civil libertarians, protestors, and anyone who can’t afford the entrance fee to the Global Law Summit should come together in one mass non summit. From there a delegation will deliver the Magna Carta to the summit in the hope that someone actually reads it.

The Not the Global Summit Festivities will continue in the evening with a Stand up for Legal Aid, justice just got funny night at the Union Chapel ( , where the words free enterprise are banned, it may not be funnier than the real Summit but a ticket is less than 1% of the cost.

by Matt Foot with historical  inaccuracy guaranteed by Rhona Friedman



Monday, 19 January 2015

The Tuesday Truth

2015: A defining year for Criminal Justice

Dream a little dream

Although there is not much of January left I still feel entitled to set out some New Year’s resolutions (unrealistic dreams) for those involved in the delivery of Criminal Justice. I feel particularly strongly about this as I have already abandoned all of my own New Year’s resolutions, yes I admit it, I am eating big chocolate buttons again, putting sugar on my cereal and am back on the non fruit mid morning and mid afternoon snacks.

Constructive Engagement with the MOJ 
Obviously I hope the LCCSA, CLSA and Law Society win their judicial review against the MOJ duty solicitor contract proposal but really this wish is merely the tip of the iceberg. We need to be able to properly engage with the MOJ, in particular the civil servants who devise these proposals 
Surely their primary purpose should be to facilitate a fair system for legal aid which preserves access to justice, and which depends on quality litigators and advocates. This engagement needs to take place without the spin and the misinformation and in the context of a longer period of review and research and engagement.

Re-engagement with the Bar
 A year ago the National Justice Committee was set up comprising the leadership of the bar, solicitors, and legal executives. It ended on a Tuesday in late March with the non bar members sitting round a table in EC1 wondering where the bar had got to. The answer was revealed two days later, they had been in meetings with the MOJ.  Six weeks before that unhappy split I spoke at the Bar Council Legal Aid event on behalf of solicitors and spoke of the importance of the independent bar and unity between the professions. At the same event Sarah Foreshaw the then leader of the South Eastern Circuit suggested that we lobby the Bar Council and the Law Society not to support the Global Law Summit in February 2015 marking  the 800th anniversary of the signing of the Magna Carta. Well actually the 799th and 8 month anniversary, the shindig having been brought forward seemingly for purely political reasons.
I will spare us all from a further rehearsal of all the historical details but currently the relationship between the Bar leadership and Solicitors leadership is tense and untrusting. A year ago the Law Society was the MOJ’s darling and the Bar was the rebellious irritant that had the nerve to oppose the MOJ and organise industrial action. The Bar condemned the Law Society in strident terms for its lack of fight and unsuccessful appeasement policy. Today it is the Bar leadership enjoying the cosy relationship with Petty France whilst Chancery Lane is instructing Dinah Rose QC to fiercely interrogate the lawfulness of the two tier proposals in court. What a difference a year makes.
So my New Year’s hope for the Bar and Solicitors is that we find a forum to resolve the issues that divide us and focus on the many more issues that unite us. The issues that divide us are being gloriously exploited by the MOJ both in public and private. My personal view is that the resolution of such issues must be in private through the establishment of a body of the relevant leaders to address the difficulties over referral fees, the issues around the independent bar and solicitor advocates. Whilst it may take difficult negotiations to resolve the problems between ourselves, this can be done.  We must address these problems head on and then devote our time to the bigger threat, the attack on access to justice.
I can hear many of you saying “Paul don’t be so naive, we had a working group  last year and look what happened” or “Do you want to give up all those Tuesday nights again for those pointless meetings, hours and hours of your life that you will never be able to recover”.
I don’t want to give up what free time I have but I believe it has to happen. As with the Law Society there will come a point when the Bar’s relationship with the MOJ hits the buffers.  There may be a new party in power and suddenly the leadership of the Bar may need solicitors to help in fighting its corner and by then it may be too late. There are probably enough people of similar mind within the leadership of the Bar and the Solicitors so let us make it happen and let us end 2015 presenting a united front to the Ministry of Justice.

Not the Global Law Summit   
Following on from the above we need to pull together to fight for legal aid as a principle not as an ever decreasing cake where we are all competing for a slice. In this regard the Justice Alliance (headed by Matt Foot, Rhona Friedman and others) is organising a number of events and demonstrations to illustrate that the Global Law Summit celebrating 800 years of Magna Carta is a cynical commercial stunt organised by the Tory party for lawyers for the rich to tout for international work whilst the true principles of Magna Carta of access to justice, state accountability and civil liberties are ruthlessly being eroded by the government in the name of austerity. Civil and criminal solicitors and barristers must pull together to fight for access to justice so that by the end of 2015 we have reversed LASPO and have reminded the government that in a proper functioning democracy its duty  is to provide proper access to justice. In this respect I understand that Tony Cross Chairman of the Criminal Bar Association has agreed to speak at the Global Law Summit (Tory marketing party). Paying lip service to the rule of law at these types of events is not good enough, if you cannot say it as it is then in my view do not go as  presence potentially gives credibility to this sham of a celebration.
The Probation Service has been savaged by this government, part sold off, split in two; many valuable members of staff dispensed with, their work unnoticed or undervalued. The Ministry will say these reforms save money and improve efficiency. But greater inefficiencies are created, risk management is undermined and any cost saving in probation is ultimately a false economy creating extra costs elsewhere. I hope by the end of 2015 there will be a greater appreciation of the work done by probation service and steps will have been taken to reverse the reforms undertaken by the MOJ.
The number of inmates is growing whilst prison staffing levels are reduced to the point when officer morale is at rock bottom, they spend their days fire fighting the results of cuts and overcrowding and allowing inmates a regular shower let alone useful rehabilitative work is beyond them.   If the government is allowed to continue to sell off the prison system we will end up with a US style system in which the companies who own prisons are incentivised by how many prisoners they can lock up and there is no motivation to rehabilitate as they need the repeat custom to appease the shareholders.  Savings from the prison budget are a true false economy not just financially but in the price society pays for a system where for the majority incarcerated there is little prospect for rehabilitation. So yes Mr Grayling there is a prison crisis and the Lord Chancellor’s resolution should be greater investment and understanding of the role the prison might play for the 21st century prisoner in terms of rehabilitation

Many of the liberals and lefties who read this blog might raise an eyebrow at me mentioning the police who have also been savaged by cuts and unwelcome reforms. However if they do not have the resources to do their job properly there is a knock on effect on everyone else in the system. Theresa May is suggesting a new law where a suspect cannot be bailed for more than 28 days without a decision being made re charge. I support this idea but believe that some of the delays in investigation are caused by lack of resources caused by Ms May’s own government, so I think the police should have the appropriate resources to do  their day to day job.

I could say much the same regarding  the court service and the CPS but some of you may  have had enough so I will finish as I started on a personal note, this time next year hopefully Spurs will have just qualified from the group stages of the Champions League for the knock out that is dreaming.


Monday, 12 January 2015

The Tuesday Truth

This week's Tuesday Truth is written by Hester Russell of Harthills Solicitors and committee member of the Criminal Law Solicitors Association
Why can't we live together?
Dear Chris
Well, here we are again.  Court (again) on Thursday.  I don't think that anyone can believe that it's actually come to this. We have a very expensive legal system (you say); you want to make things easier (you tell me).  You know what Chris, change the bloody record!  Do you think I'm stupid?  I've seen those figures you've been pretending you haven't seen, I know that you are not being entirely upfront about all of this.

Do you remember how things used to be? I was so carefree in those wonderful, heady days. Remember?  Remember how it was before Chris, in those days when a fixed fee was almost enough to justify those years of student debt and those sorrowful searches for a training contract; when victims of domestic abuse could access help safely without "evidence" that they were victims, when prisoners could read books sent in by caring family and when interpreters always came to court when required and interpreted!  Where did it all go wrong Chris?  You must, surely, ask yourself the same question.

You wouldn't see sense Chris, don't say that I haven't tried.  I asked for mediation, remember?  You say you like mediation; it's cheaper, it's less stressful, keeps the bloody lawyers from interfering!  Yet I tried, I asked for mediation and you just bloody ignored me.  Like I wasn't even there and like I didn't mean a thing to you.  I sent you letters, e-mails!  We should have a very close relationship Chris; we should be working on this together, maybe even as a team.  Of course you've largely ignored me, or got your "mates" to send me emails telling me you don't want to speak to me.  Worse, you send your mate to court and in her statement she says that nothing I say would make any difference anyway!!  What is wrong with you?  We are in this together Chris and vulnerable people depend on us both.  I just want you to understand how much damage you're doing.

Think of the children Chris, that really is the very least that you can do.  When they keep asking why they can't see they can't see their daddy Chris, when their daddy can't get a solicitor because he's held down a modest job... well that's not my doing.  I'm not sure that these children will ever recover from this ordeal Chris and I think you should be ashamed of yourself.

Seriously, what is going on?  I can't find a solicitor within a thirty mile radius who deals with housing work, I'm struggling.  Thank you for funding the local students at the advice centre by the way - they were lovely.  They weren't qualified and they told me so but we really did have a nice chat.  I hope that nice young woman will become a solicitor one day; she said she always wanted to be you know, but she says there just isn't the work these days.  What a loss.  Says she's most likely going to try and get waitressing work when she graduates unless she can find work in a commercial firm.

Look Chris, what I'm trying to say is that I'm tired of all this.  I'm tired of fighting when I could be doing better things, I'm tired of spending time and money that I don't have taking you to court.  I hope and I pray that that the Judge will see through you again next week Chris but look - whether he does or he doesn't - can you just stop.  Will you please listen, will you please engage.  Believe it or not I want out of this awful relationship just as much as you do; but for the sake of us all, for the sake of the future please, please listen.

The Solicitors United xx


Monday, 5 January 2015

The Tuesday Truth

This week's Tuesday Truth, the first of 2015 is written by Jon Black, President of the London Criminal Courts Solicitors Association

Cutting a Deal

This week I have been asked to "hold the conch" following on from previous esteemed
authors. The beauty of the Tuesday Truths is we can tell it as it is and deal with those
"elephants in the room".
Please do not read this piece as a declaration of war upon the bar. That is not the intention, like most of us I see the survival of an independent bar as being as crucial to our justice system as is the survival of sufficient firms to provide access to justice and client choice. Just as we would hate to see individual barristers on the poverty line we do not want to see firm closures and mass redundancies for our colleagues in solicitors firms. The two tiers and indeed the second cut due in July 2015 will achieve precisely that which is why both must be opposed.

In the High Court on 23rd December 2014 the thrust of the MOJ's opposition to our application for interim relief was that it was vital to adhere to the tight timetable as dual contracts and forced consolidation are enabling devices for firms to absorb the second cut which must be implemented in July. Counsel stated that without consolidation firms who suffer the second cut will otherwise be complaining that they cannot survive. This was the first that we had heard that the second cut was a certainty. At the time of the much maligned deal in March that the bar made with the MOJ, we were told that not only was the AGFS cut to be delayed until summer 2015, but that the second cut for litigators and lower work was to be considered subject to the findings of the Jeffrey and Leveson reviews.  

By the time the Consultation response was published on 27TH November 2014 we were told that litigator fees and lower work were to be the subject of a further cut in July 2015 subject to review. Curiously no mention was made of the postponed cut to AGFS. Enquiries were made as reported in a recent Tuesday Truth.  We were told to our surprise that the AGFS cut was subject to a number of separate criteria including crime rates and expenditure.  
It seems the MOJ consider that the second cut for solicitors is now inevitable regardless of crime spend or other criteria. What is the rationale for this different treatment of the two sides of the profession?
We have seen the correspondence circulated between the Bar Council and The Lord Chancellor about referral fees and giving the client choice of advocate.

Whilst many have said an assurance from the Lord Chancellor is not worth the paper it's written on nevertheless questions arise as to how this vital assurance came about, its underlying motivation and what was offered to obtain it.
Imagine that there have been on going talks between the Lord Chancellor and the Bar leadership, the content of which was withheld from the majority of the bar. Imagine if in the weeks up to 27th February 2014 the MOJ agreed to implement the first cut for litigators on 20th March 2013 but not implement the same for advocates until June 2014 with the proviso that it could then be argued that the savings following the fee cuts impacted upon the need for a cut to the AGFS. The timing of any cut for advocates could then be postponed to the summer of 2015. 
In return for an abandonment of the very effective bar action to withstand the assault on justice the AGFS fee cut becomes a can which repeatedly gets kicked down the road. One wholly predictable effect of the litigators fee cut and the ring fencing of the advocates fee has been a further increase in house advocacy which in turn has led to pressure on the  bar leadership.
Rather than a return to fighting the disease not a symptom imagine that the Bar leadership had continued to negotiate over fee structures including the imposition of separate criteria for implementing the July 2015 cuts leading to a dichotomy in which the solicitors cut must happen for no other reason than it had been announced, but the advocates cut is subject to other considerations.
Imagine that as the second solicitor's cut became an inevitability (as stated by the MOJ in the High Court on 23rd December 2014) the Bar leadership sought via its special relationship with the The Lord Chancellor to reassure members that they were fighting their corner by addressing the perceived problem of referral fees and seeking a means by which clients would be  advised that they can instruct an  advocate of their choice.
It is depressing that whilst the majority of the profession is trying to promote and defend access to justice and the principle of legal aid itself the Bar leadership remains committed to its public campaign of getting solicitor advocates out of the courts. Whilst I respect and recognise their concerns about protecting members of the independent bar these difficult issues would be better resolved through direct discussions and negotiations with solicitors bodies and The Law Society. Instead the course being followed simply enables and encourages the Lord Chancellor to exploit disunity.  
Referral fees may be a problem but they are not so prevalent that they could lead to the destruction of the independent bar. If there are abuses going on which may even amount to criminal behavior on the part of a tiny minority of lawyers (both solicitors and barristers) and those who administrate cases then this is an issue both sides of the profession can agree to address after we have fought off an existential challenge in the shape of the current Lord Chancellor.
In any event the referral fees issue ranges from at one extreme rumoured back handers to clerks and to a few individuals to commercial agreements to split fees. If bar rules preclude the latter then and clerks and barristers should be saying no.  

 On occasion freelance advocates receive between 70-100% of the brief fee. Those lucky to receive 100% are better paid than those with chambers overheads. Those who receive slightly less are paying no more than counsel pay to their chambers to cover certain overheads. Whatever the arrangement this ought not to act as an incentive for instructing an advocate in a case which they are not equipped to appear in.  In any event the prize of 20-30% of any AGFS is surely not enough to risk the reputation of a good firm by providing poor service? Solicitors, especially those who fail to succeed in winning a duty solicitor contract will be primarily concerned about their reputations, they are not likely to want to let clients, upon whom they depend for continued instructions, be poorly represented. The specialist quality mark is a key factor that firms need to adhere to.

 Moreover, is the use of an employed HCA fee sharing by virtue of the fact that they are salaried? Where is the line drawn? If a barrister of substantial experience is employed in house is there a conflict of interest in the decision to instruct him or her in a case? Does the practice of some chambers in providing pupils for lower work for no fee on the basis the crown court work is returned to chambers indirectly amount to an indirect referral fee?

This concern expressed in the letter to the Lord Chancellor leads onto the bizarre call for clients to be advised that they have a choice of advocate. How exactly is this to work? A PCMH form where an advocate ticks a box stating that their client has been advised of the following menu?

a. Leading junior barrister

b. A barrister but with no guarantee that the trial barrister will be the one that has been instructed from the outset because of overrunning cases, double booking etc

c. A solicitor advocate / in house counsel with a working knowledge of the case

d. An inexperienced solicitor advocate / very junior barrister

 This all emanates from the concern that there is an uneven playing field for access to advocacy services and that firms cherry pick cases.  However, If the shape of the market is changing as a result of consolidation then more firms will be retaining advocacy in house, to be conducted one would hope by skilled advocates.

Over the last few years fixed fees for litigation services have meant that solicitors simply can't make it pay without also providing an advocacy service. Those negotiating to marginalise solicitor advocates would do better to take some time to look closely at the fees payable. Many of us have worked cases to the bone, employed experts and visited far flung prisons as part of the thorough preparation of the case. This preparation has been key to a successful outcome at court. Is it cherry picking if the solicitor advocate attends court to see the case through rather than hand it over to counsel who has only seen the papers 12 hours earlier? Would it surprise those lobbying against such "cherry picking " to know that the litigator fee for such preparation might be as low as £300, thus the only way in which such careful conduct approaches viability would be for the advocacy to be kept in house?

Conversely of course, we are not so myopic as to not be aware of those cases in which the solicitor collects the litigators fee, having allowed most of the preparation to be conducted by counsel. This is a sad result of plummeting fees and the pressures on firms.

The solution is clear; fair rates for proper, thorough conduct.  It is only when we all see beyond the issue of self preservation and are not fobbed off by the Lord Chancellor bearing limited, short term and self interested concessions, that we will overcome these problems. It is a much bigger picture than referral fees and choice of advocate. A focus on these narrow issues will do nothing to preserve either side of the profession in the long term. These twin obsessions are divisive and reductive diversions which play into a very crude and obvious MOJ tactic of divide and rule.

 If my analysis is incorrect then I invite a rebuttal, but I do so in the interest of unity and a desire for both professions to campaign jointly for a fairly remunerated legal aid system which ensures clients access to robust case preparation and advocacy.

It is time to refocus on what this campaign has been about from the start, access to justice and proper protection of our fellow citizens when facing the most coercive powers of the state to prosecute and imprison. Allowing it to be become a trade practice dispute does a disservice to those we are fighting for.

Jon Black