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 IdentitySecondly, 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 ThoughtThe 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?