Tuesday, 15 September 2015

The Tuesday Truth

By Jon Black President of the LCCSA

Jeremy Corbyn wasn't everyone's choice of leader, but the sheer size of his victory clearly demonstrates the level of support he enjoys. Whether you voted or not, whether you welcome his election or not, one thing is for sure, he is a non-lawyer who is and always has been fully engaged in Justice Issues.

On 22nd May 2013 he spoke at the rally before the famous Friends meeting house event, he spoke at the first ever Justice Alliance rally and he was a fastidious critic of government policy as part of the all-party group on legal aid. He maintained that The Government were wrong to demonise hard working and dedicated lawyers as part of its attempt to dismantle and discredit this vital pillar of the welfare state that was created with the intention  to enable equal access to justice regardless of means.

Whatever it is you may not like about the new leader of Her Majesty's opposition, (and although politics should never be about single issues), he gives a damn about justice.

I didn't vote for him but I recognise that he has brought a renewed political energy. Hours after his election as leader he emailed the party membership inviting those he represents to provide instructions for PMQs . I have drafted a series of questions which I would invite him to pose to Mr Cameron given that we have a leader who is well briefed with justice close to his heart.

Here is what I would instruct him to ask the Right Hon David Cameron MP:

1. With scores of magistrates resigning and the judiciary ignoring the punitive court charge , which financially  penalises those who seek to clear their name , can the government afford to continue to place the courts in this legislative straight jacket ?

2 Why do the government continue to attack our legal aid system in the name of austerity without any proper review of the effects of those cuts in particular the knock on costs in other areas of the Public Sector?
3.In whose interests is it to pursue  a mechanism whereby over 1100 of the current providers of criminal legal aid will be forced to close down , causing not only financial ruin for those firms but substantially removing client choice and therefore access to justice?

4. The Lord Chancellor's publicly stated position is to move away from a two tier justice system, yet his actions exacerbate such a gulf, how do the government intend to bridge such a gap?

5. Why has the government failed to learn the lessons of the disastrous cuts to civil legal aid?

6. Why have the government chosen to ignore the warnings of its own economic experts as to the viability of a scheme that carries so much social and economic cost?
7.The government welcome the Leveson reforms, and intend to implement the same, how can they work if there are no quality firms and experienced lawyers available to implement them?

8. What provision have the government in place in the event of the market collapsing?

9. Why don't the government prioritise quality over market forces in situations whereupon an individual's Liberty and character, and therefore future prospects are at stake? Is justice that cheap?

10. How can the government justify an expensive and anti-competitive recruitment process for its own PDS when private practices will close as a result of these reforms?

11.What is the cost of firm closure and if the market is being artificially controlled, what financial and practical assistance are the government going to give those firms forced to close as a result of the reforms?


Monday, 7 September 2015

The Tuesday Truth

The Court charge is now becoming somewhat of a comedy as Her Majestys judges do not seem to be taking seriously the laws passed by Her Majestys government.  One Judge having apologised to the defendant for having to impose it then ordered him to pay the mandatory £900 court charge at £1 per month. We will have to wait until 2090 for full settlement of that debt. One District Judge imposed the court charge and then deemed it paid by virtue of time served something which he did not have power to do. Another Magistrates Court forced to impose the mandatory court charge refused every Prosecution Application for costs.

All of these Judges/District Judges/Magistrates have to swear an oath when taking their judicial position to enforce the laws of the land so it is particularly embarrassing for the Ministry of Justice as their Judiciary appear to be violating the very spirit of the oath they have sworn to adhere by.

It will be interesting to learn which company has the contract for enforcing these debts, and whether the cost of enforcement far exceeds the amounts recovered. Call me a frustrated conspiracy theorist but I just wonder whether there are any links between the company and the government. Surely not?

Is there more comedy ahead with the future reforms planned by the government to criminal legal aid?

As many will be aware the action commenced by the Solicitors bodies and the bar has been suspended as a good will gesture following constructive dialogue with the MOJ. Of course the profession now wait and wait for a response by the Lord Chancellor to this gesture. With the award of contracts due by the end of the month and further cuts in January this is a very uncertain period for Solicitors and the bar and by the time the Lord Chancellor conducts his review next July of these changes (you know shoot first and ask questions after) there may not be many of us left. Not so much a survey than a body count.

This is also a period of huge change in the delivery of Criminal Justice. The new Plea and Trial Preparation Hearing is launched in October which will replace all preliminary hearings and many PCMHS. Transforming Summary Justice is being rolled out all over the country and Criminal Justice is going digital.

Solicitors are key to the success of these proposals, I have said it before but it needs to be repeated. This Lord Chancellor has yet to publicly acknowledge our contribution. We have engaged in good faith with the Ministry over the coming months. That good faith has yet to be reciprocated. The time has come for the Lord Chancellor to make the gesture. It is simple! We are best qualified to advise on greater efficiencies and savings, we can deliver, we can stop the car crash that is coming, but with every week that we hear nothing that good faith is evaporating and our suspicion of the Lord Chancellor and his motives increase.

We want to hear from him today, not tomorrow, not next week or month, but now before it becomes too late.

We have delivered potential savings, we can provide more; Savings not cuts to protect Access to Justice.

We are also considering alternatives to the two tier model.  A  model that protects many more firms with far less risk of market collapse. I am not ideologically in favour of consolidation but recognise that any attempt to persuade the Ministry from pursuing the two tier scheme is based on a viable alternative.

There is much debate amongst Solicitors about the way forward. Some shout “Abolish the Legal Aid Agency, remove the bureaucracy and you will automatically deliver the savings you need”. I am not unsympathetic to that idea but it will not be attractive to the Ministry and not surprisingly the Legal Aid Agency may object to such a course. After all where else could you work in senior management and earn more than the Prime Minister and most of the senior judiciary.

I am not in favour of a model that sees the end of small firms, good quality practices serving communities and providing specialist individual advice, care and attention. However what is the definition of a small firm? Are the individual sole practitioners where the Criminal department is simply one fee earner with no other support necessarily the way forward? Not because consolidation should wipe them out but because in a criminal justice system which is becoming more and more codified the obligations on the defence are far greater. Its a poor analogy but banks and building societies are far less willing to deal with one man conveyancing firms because of the greater risk to abuse of funds through fewer checks. In many cases we are dealing with an individuals reputation and liberty, can someone with no other support in the long term comply with their obligations to their clients, the courts and much more in a growing bureaucratic maze?

Those reading the last couple of paragraphs will immediately be shouting “hes in favour of the BFG agenda” (if that even exists), but that is not true. I would happily go on as we are but if the alternative to two tier is a model which allows firms to be allocated slots through meeting various criteria over a period of time, this must be better than the random subjective tendering process we have. I am raising quality and security issues where there is limited capacity to perform the work comprehensively to a high standard.

It is truly self-defeating for the Lord Chancellor to empty bucket loads of flattery upon the Bar by praising  quality only to ignore the many firms of solicitors who set a bench mark of quality in 90% of cases which they conduct without the assistance of the Bar, at all levels as Lord Levesons ‘early engagers.  Quality should be the basis for change and adaption based upon those quality firms and they are the firms who are good enough to convert duty work into own clients not just surviving on holding down duty slots.  

Why cant we have a system where duty solicitor slots are allocated on a range of criteria over a period of time which allow firms to adapt to meet the criteria? So I might be saying in 6 months, you need to have a department with at least 3 duty solicitors, that could be the owner and 2 others, and such an entity has to turnover over a minimum amount per year or a certain number of new legal aid matters. At least that way if you are on your own with no one else you would have 6 months to do something to meet this criteria.

We need to get rid of ghost duty solicitors, review the duty solicitor arrangements; we need to address the unscrupulous activities of some of our profession and indeed the bar in attracting work.

A development of the above model will undoubtedly meet much criticism but it could allow all quality firms to survive with some measure of independence in an adjusted format.

The current plan may leave us decimated in 12 months and the bar similarly so with far less providers being forced to bypass the independent bar.

We have had a number of very promising meetings with the CBA executive and believe we can finally work together to protect access to justice and quality representation.

The question though that is paramount is whether we have a Lord Chancellor who wants to spend the next 5 years working with Solicitors or destroying the majority and fighting against the remainder..
Over the last 2 months we have demonstrated that effective action can be organised, but at the same time we have engaged, we have made the gestures, we have demonstrated what we can achieve; now it is over to you Lord Chancellor