My Response to the Next Steps “Consultation” – for what it’s worth.

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RESPONSE TO SECOND CONSULTATION PAPER: TRANSFORMING LEGAL AID – NEXT STEPS (PUBLISHED 5.9.13)

 

My views have not altered since I responded on 28th May of this year to the first “Consultation” other than that they have firmed up, and I am ever clearer that this Government, this Ministry and this Minister, have absolutely no interest in protecting our Criminal Justice System but rather act solely from political expediency and ambition.

 

Once more, I respond to this Consultation as a criminal practitioner of 19 years call. I am lucky to be a very busy senior junior, working in a wide variety of cases, in a wide number of court centres, for a wide variety of professional, solicitor clients. I have witnessed numerous changes to the Criminal Justice System in my 19 years, & I struggle to think of one that has been an improvement or to the advantage of justice & the public, in the long run. There is little in this Consultation, or within the Ministry’s approach to Criminal Justice, with which I agree or in which I can see any possible benefit for justice in this country.

 

Since the introduction of Graduated Fees in 1997 (2 years into my practice), retail prices have risen by over 54%, which means that the stasis of Graduated Fees, over the years, represents a real reduction in gross fee income of almost one third. It is worth noting that public sector pay, despite recent austerity measures, has increased over the same 15 year period by approximately 50%. The comparisons are stark, and rendered ever more so by the recent or current proposals that MPs pay be increased by 10%. As an advocate and putative wordsmith, I am nevertheless at a loss for words.

 

The syllogistic, false logic approach of the Ministry throughout the process is demonstrated by the purported comparisons of the cost of Legal Aid or Criminal Justice System – the terms seem to be interchangeable to suit the purpose of the Ministry – in the UK with other jurisdictions. It is the purist sophistry, based not on empirical data but on subjective and selective comparison of variables or figures that suit the purpose.

The reduction in MoJ budget of 1/3 is not dictated by public interest or the interests of justice but rather by political ambition and by Treasury-appeasement.

 

There is not proper basis for the claim that the “proposals represent a long term sustainable way forward both for the Government and for the professions.”

 

The proposals should be based upon a consideration of what it will cost properly to secure a Criminal Justice System in which there is proper and reasonable quality. That then, and only that, should inform the budget.  Rather than what has happened with this Government, which has been a consideration solely of what will be politically expedient for this Government, for this Ministry, for this Minister and his political ambitions. When that has been assessed, the Minister has set about hacking at the corpse of the CJS to fit it into the massively shrunken coffin that he, the Chancellor and the Prime Minister think that they can get away with.

 

The Minister indicates a desire further to “bear down on the cost of legal aid”. It has been borne down upon for decades. Any more bearing down and it will be fully subterranean – 6 feet subterranean, in fact.

 

The only reason for any possible / alleged public confidence concern stems solely and completely from the dishonest, misleading propaganda emanating from the MoJ, in the form of manifold press releases or masquerading as interviews (jaundiced and partisan) carried unquestioningly in the favourable, Tory-friendly press – of which Goebbels, Karl Rove and the Politburo would have been ineffably proud.

 

The fatuousness of some of the platitudes strewn through the foreword ill-behove a Minister of State, let alone someone who bears, but ill-deserves the title of Lord Chancellor.

 

The “Consultation” claims “value for the taxpayer, stability for the professions and access to justice to all”.

 

Value for the Taxpayer

The taxpayer already receives staggeringly good value from the Criminal Bar, and other professionals within the system.

 

·        If the taxpayers’ plumber cost 50% less than 15 years ago;

·        if their train tickets cost 50% less than in 1997;

·        if their elected representatives received 50% less salary and expenses (by which of course we mean legitimate expenses claimed in the correct {single} year) as those many years before, then they would consider that they received good value.

 

Not one of those has reduced by 50%; not one of those has in fact reduced at all; not one has even stayed static; no each and every one of those examples has increased substantially!

 

Stability for the Professions

The professions teeter on the stool with the noose ever tightening around their necks. Their positions have become increasingly precarious since 1997 and the systematic butchering of the CJS and their remuneration. This “consultation”, these proposals, offer a selection of ways in which the Government are kindly offering to kick the last remaining legs away from the stool.

 

Access to justice to all

This part would of course be correct if the all were qualified with the phrase “who can afford it”. Clearly a large part of these proposals are designed specifically to reduce and limit the access to justice (be it in the Criminal arena, the Judicial Review field or in prison law) of those that this Government do not like, do not wish to allow a voice and do not want to hear.

 

This summary of the “Consultation” by the Minister does perhaps more than the remaining 200+ pages to demonstrate the venality, dishonesty and canting hypocrisy of this Government’s and this Ministry’s whole approach.

 

 

 

 

Chapter 1 Introduction

1.2  There is simply no evidence to suggest that Legal Aid is not already properly targeted. There is evidence that the previously high standards are, in some quarters, slipping – but this is largely due to the Government’s interference with, changes to and attacks on the system, not least by successive direct and indirect cuts to fees and remuneration. The mantra that we “must reduce costs” is as simplistic as it is fatuous. If costs have already been reduced down below breaking point, they can be no further reduction. Anything further becomes a loss-leader – that is fine if you are Tesco, DFS or Vauxhall for whom the loss on item 1 leads to bigger profit on item 2, but for the Criminal Bar and other professionals in the CJS, those losses lead to nothing other than absolute loss – loss of livelihood, loss of future and in reality loss of the CJS. To be lamented and to be deplored.

 

1.3 The evidence on this topic demonstrates that the Government are intentionally misleading by a selective and improper use of statistics – comparing apples not with even pears or bananas but rather pencils, sofas or spark plugs. Before this Government repeats this disingenuous canard, it behoves them to conduct a true, like-for-like comparison of other jurisdictions and other systems, with consideration of all relevant variables. These claims are simply not true.

 

1.4 The legal aid scheme cannot be immune apparently. Not immune from consideration perhaps – but only if that consideration is fair and impartial. Only if there is fat to be trimmed can there be further cuts. If it is already reduced to the bone, then there is simply no more to take.#

 

1.5 The only thing damaging the credibility of and public confidence in the CJS is this Government’s persistent dishonest spin. That which will indeed damage the credibility of and public confidence in the CJS is to cut its funding past the bone, into the marrow, and then out of the bone the other side again.

 

 

 

1.8 Can the Ministry of Justice please provide a scintilla of evidence to support the claim that they “considered them all (16,000 responses) with care”? In the months since the last consultation ended, how many individuals spend how many hours reading and considering with care those 16,000 (doubtless lengthy) responses. To make an analogy with those wonderful VHCCs – we would have been asked / tasked / required to provide numerous work logs before we could be trusted to have done what we say we did!

 

1.10 “More efficiently”? Not by slashing funding even further from its already parlous and unacceptable level. What is needed to make the system run more efficiently is not a further attack on the professionals with whom you enjoy a quasi-monopolistic relationship.

What is actually required is (inter alia)

·        properly to fund the CPS – so that that prime source of inefficiency and delay is removed;

·        to reconsider, root and branch, the appalling interpreter contract fiasco – Dame Ursula Brennan’s fatuous assertion, that the situation was no longer of concern, appears to be based upon a proposition that going from catastrophe to mere calamity to simple disaster is a cause for deep and abiding celebration;

·        to reconsider fully the custody and transport “services” (that word used in the loosest sense) provided by the Government’s good, competent and wholly unfraudulent  friends Serco, G4S et al;

·        to permit the expenditure of restrained funds by a defendant to pay for their legal representation;

·        not to allow the State’s prosecutorial apparatus to be used by the likes of Microsoft (Alibhai & Ors, R v [2004] EWCA Crim 681 (30 March 2004)) or golf club manufacturer Callaway in Operation Augusta – at vast expense to the tax payer, but to the specific benefit of those multi-national, multi-million pound corporations.

 

 

 

 

 

1.11 With respect, your compelling case is predicated upon pleasing the Treasury with an offer of budget reduction, without any regard to what the CJS can actually withstand, and then working out how to hack further into the collapsing cadaver of the CJS.

 

1.31 As said before, the comparison of Legal Aid or SCJS with the other adversarial or even common law jurisdictions is simply misleading and flawed. The rhetorical / propaganda device of using the adjective “generous” is, with as much respect as I can muster, at once revealing and risible.

 

I simply do not have the time to read much more of the self-serving blather served up in this consultation, as to earn what I do, I have to work far in excess of a 37 or 40 hour week, most weeks well in excess of 60 hours, more like 80 hours in some weeks. Unlike the civil servants behind these proposals and our own dear Minister, I will work through the night, over the weekend, in most cases for no more remuneration, and if I am taking time over this political nonsense, I am not working and I am not earning – no luxury of a salary, expenses or even, ha ha, overtime. All of which is, of course, ignored in your misleading earnings propaganda, spouted by the MoJ and fed to its Mail, Telegraph, Express and Sun mouthpieces.

 

So I will now restrict myself to moving swiftly onto the questions.

 

Chapter 3

Question 1-        No

Question 2 –        No

Question 3 –        No

Question 4 –        No

Question 5 –        No

 

 

 

 

 

Chapter 4 “Reforming Criminal Advocacy Fees”

This is perhaps the strangest use of the word “reform” since Custer et al tried to “reform” American Indian relations and Saddam Hussein tried to reform the Iraqi Kurdish population.

 

Question 6 –        with respect, I have no preference to being beheaded or hanged – either will doubtless cause my ill-deserved and premature death. Both are predicated on a simplistic “cuts because we can” philosophy, neither is justified, neither is fair.

Question 7 –        You have not, with respect, begun properly, or at all, to assess the impacts of these proposals. This questions underscores the delusional, blinkered approach of this political artifice masquerading as a “Consultation”.

Question 8 –        Ditto

Question 9 –        Impossible to answer given the false premise of the preceding questions.

 

One does question how many thousands or probably even millions of pounds have been spent on these “consultations” and self-serving analyses.

 

However, my overarching response to the questions is that I do not agree that any of these proposals are acceptable, appropriate or workable in any way, shape or form. Savings are required for political reasons NOT because there is excess fat or even meat to be trimmed from the CJS. The Ministry’s approach is, with the utmost respect, disingenuous and politically motivated. I deplore it.

 

 

 

28th October 2013                                               Tim Forte

                                                                   3 Temple Gardens

                                                                   Chambers of John Coffey QC

                                                                   London EC4Y 9AU

 

                                                                                    020 7353 3102

                                                                                   

                                                                                    www.3tg.co.uk

                                                                                    tf@3tg.co.uk

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About utterbarrister

Long-suffering, hard-working barrister in Criminal Practice at Chambers of John Coffey QC, 3 Temple Gardens, London
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One Response to My Response to the Next Steps “Consultation” – for what it’s worth.

  1. Pingback: Save UK justice: The Blogs | ilegality

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