The Bar has a tremendous ability to tear itself apart. There is not a single speaker here today who would dream of charging a speakers fee for an event like this. Nor would they appear if the organisers were making a single penny piece. I do not intend to embarrass any of the contributors by listing their pro bono contribution to the Bar and to wider society over the years. Rather than aiming fire at those who seek to make a difference, the Bar needs to unite with its brothers and sisters in the solicitors profession and protect the rights of this country’s citizens from having a corner stone of its democracy stolen from it. What I do want to do is give you an insight as to what you face from Government of whatever political persuasion.
In the past 3 years this Government has continued with a theme started by the last. It has taken millions out of the legal aid budget, the ostensible reason being to save the tax payer money. Given the devastating effect that this removal of funds has had on our system you would want to be pretty sure it is doing what the Government pretends. Sadly it has done no such thing.
It costs at a very conservative estimate £110 per minute to run a court room with a jury. This figure is now 10 years old and based on a two barrister case. That is £6,600 per hour, £52,800 per day £264,000 per week. Delays that are so endemic in our system. Delays caused by a system of disclosure that is now broken almost beyond repair. I was invited to discuss with the Directors Office modification to the Criminal Procedure Rules.
I was present with Brain Altman QC (The Senior Treasury Counsel) and a senior solicitor. They informed us that it was their intention expand upon their system that only one lawyer would be tasked with understanding the non disclosed material in a given case. That lawyer would not be trial counsel and would invariably not be present during the trial. We pointed out that it those circumstances the Crown’s continuing duty of disclosure could never be met. Their response was to enquire whether we could suggest any modification to the Criminal Procedure Rules which would cure that situation. You can guess our response.
Delays caused by translators who cannot speak the language of the defendant provided by Applied Language Solutions, now bought out by Capita, a private company that employs translators without qualification or CRB check and who obtained the contract by falsely claiming they had reputed translators on their books when they did not. One journalist submitted two applications to this company one in his own name and one from his cat, the stated language being “ancient cat”. He was not invited for an interview his cat was.
Delays caused by a partly privatised prison service which has cut so many corners to maximise its profit it has one van servicing five court centres. In the case I finished before the summer break, the privatised company charged with bringing the defendants to court GEO-AMY were so incapable of delivering the defendants to court on time, 4 whole days were wasted. The problem was only solved by making three of the defendants CAT A prisoners so that it was the prison service that took the responsibility.
Who picks up the tab for those delays, the tax payer of course, it is simply on another balance sheet that is hidden from the public glare. The reality is that the millions cut has saved the taxpayer not a brass farthing. Indeed it has almost certainly cost them more money than before. The Government is currently proposing to return half of all magistrates prosecutions to police officers. Some of us in this room are old enough to remember how disastrous that system was some 30 or so years ago, which led to the formation of the Crown Prosecution service.
Every time you scratch beneath the surface you find that the Governments cry of saving the tax payer money is false. G4S retains the contract for front of house court security. It has the contract for 60 months. Which is worth £175 million. It pays its employees £6.45 per hour, it receives on the other hand £11.49 per hour, per employee from the Court Service. That is a daily profit of £40.32 per employee. Its web site tells me it has 800 employees within the court service. The gross profit to G4 S over the life of that contract is a staggering £41,932,800. Can anyone sensibly argue that represents a saving to the taxpayer. Of course not. That figure itself is small beer for G4S who receive annually £759 million in respect of its contracts with Government. Watch closely to see how many civil servants and government ministers find themselves sitting on the board of G4S in retirement.
If money is not this Governments motivation, what is it that is causing them to devastate one of the best legal systems in the world. One that they are proud to promote abroad but destroy at home. To answer that question you must look at the other pieces of legislation and regulation that accompany the cuts introduced by this Government and the last.
The last Government effectively muzzled the judiciary, banning them from speaking in public on any topic other that through the Judicial Press Office or through pronouncement through the Lord Chief Justice. The effect of that has been to allow both the press and politicians to criticise the judiciary when it suits without reply.
I give you but two examples;- when they pass sentences that it perceives the public do not like “ soft judge gives rapist two years” you know the kind of thing, but in doing so the judiciary are merely putting into effect what ill considered legislation has required of them.
In the case I did before the summer break, the triple murder arising out of the Birmingham riots, we had an exemplary Judge, Mr Justice Flaux. On the day the jury were due to retire the BBC wished to screen two documentaries about the riots. On the day of the screening they produced the discs of the programmes and the transcripts. Those making the application knew nothing of the case and had not troubled to speak to their own journalists who had followed the trial. The Judge, mid summing up read the transcripts. It was obvious to anyone who had followed the trial the material was devastatingly prejudicial. The judge granted a qua timet injunction preventing them going out.
“Judge bars BBC documentaries without even watching them was the headline”. It has effectively prevented them from getting publically involved in this debate, giving the impression to the public that our judges approve of what the Government is doing. Then they seek, on so called public interest grounds, to introduce secrecy into the Court Room. Curtailing an ancient tenet of our law that justice should not only be done but seen to be done. Kenneth Clarke who protests he is a great libertarian and now Chris Grayling who makes no such claims, plead that without such secrecy the Government will not be able to defend the outrageous civil claims brought by those suspected of terror from whom confessions have been extracted during a gentle chat over a cup of tea. You know that is bunkum, the Civil Courts have always had the power to withhold documents on Public Interest grounds and to hold in camera hearings when it is in the public interest to do so.
So what is the real reason? To hide from the public the disgraceful conduct of our politicians in taking us into an illegal war, in indulging in extraordinary rendition and extracting confessions by torture. That that is accurate was confirmed when the Guardian revealed the internal impact assessments on the Justice and Security Bill. Top of the list of benefits of the legislation was to protect the Government from bad publicity. Which is precisely why they set up IHAT (Iraqi Historic Allegations Team), an internal inquiry which the Court of Appeal ruled lacked the necessary independence to fulfil the complainants Article 3 rights.
Churchill said that “ the nature of a democracy is defined by how it treats its prisoners”. Of course if you do not know how a democracy treats its prisoners you are not in a position to judge it. Which of course is the point. Keep the plebs in the dark and they will believe all is well. One shudders to think what he would have made of how far we have regressed. It is that philosophy which in part is driving them to rid itself of the Bar.
The independent Criminal Bar has only ever been driven by the mantra to do right and fear no one, which is why collectively over the years we have been instrumental in exposing some of the worst excesses of those who seek to wield power. Now we are on the brink of extinction. It has been a long and subtle process.
It started with the year on year publication of the so called fat cat list. The public being encouraged to believe that barristers milked the legal aid fund for all it was worth. “ Top QC earns £750,000 per year” These kind of figures were in fact manufactured by the system the Government had themselves created because in reality that figure represented 3 – 4 cases and 3 years income which happened to be paid up in the same tax year.
Did anyone bother to enquire how much the barrister paid out in overdraft fees whilst waiting for their money? It created a sufficient screen to reduce barrister earnings to less than plumbers rates.
They have now started publishing the earnings of the likes of John Kelsey Fry QC, under the pretence he is funded by the Tax payer. He as we all know has not done a publically funded case for years and is entitled to every penny he earns in a competitive private market.
The Government themselves have pretended that the earnings at silks level should equate to a consultant surgeon. There are few if any criminal legal aid silks whose earnings equate with that of a GP let alone a consultant and the recent GP’s strike has highlighted exactly why.
The Government forgot to tell the public that no one funds a barristers pension pot, no one subsidises the training of the next generation, no one pays for their working accommodation, their administration staff or computer support. In real terms we earn nothing like a GP and at junior level many earn less than cleaners.
Now Mr Grayling is telling the public that all leading juniors are merely silks in waiting and that most silks are over the hill. That piece of mis-information is being put out to pave the way for murders to be prosecuted by juniors, which is happening throughout the country to disastrous effect. A number of recent such cases have collapsed necessitating a silk to come in and prosecute the re-trial. A false economy if ever there was one. The Commercial Bar, who have been so supportive of us in recent times told me why it was they valued the Criminal Bar so. It is your reputation world wide that causes so many from abroad to seek redress and assistance in the United Kingdom. No Government has ever recognised that substantial contribution we make to the economy.
Slashing our fees is just part of a long term strategy designed to ultimately destroy the publically funded Bar. The Government know full well that the Bar funds its own training without subsidy. It admonishes the Bar for not providing the pupillages required for the 1700 bar students who qualify each year, yet it knows the Bar can no longer afford to train, they have to live. Ultimately the Government knows that if you starve the profession of its youngsters it will wither on the branch. That has another side effect. Those from disadvantaged backgrounds who turn to the professions to showcase their skills are being shut out. In the past we were allowed to re-dress the balance a bit by positively discriminating. Now we are told that that it itself is discrimination. It seems to me that unless you have an equal opportunity from Cradle to Job interview, you have to have a way of levelling the playing field.
The Government knows full well that it has enshrined a system where bribery for briefs is common place. Edmonds who heads up the LSB thinks it is fair competition. Public money being used by barristers to pay solicitors to instruct them, solicitors paying clients to instruct them. It is not fair competition, it is a crime under this Government’s own legislation the Bribery Act. But that does not concern them if it suits its hidden agenda.
What is the morality of a Government that allows companies such as Wonga.com to flourish. A company whose annual interest rate has 4214 % , to borrow £100 and pay it back after a year will cost you £ 4214, borrow £1000 and that will be £42,140, an interest rate that would have made that charged by the Krays look positively charitable.
As of yesterday they had brought it down to 1909%. How generous of them. Wonga’s riposte is that it is an individuals freedom of choice to pick their products. Borrowing at such rates does not indicate freedom of choice it is an act of utter desperation. When you realise that 90% of their loans are taken out to buy food, as the Telegraph revealed some time ago, it underlines the point. Any politician with an ounce of morality and interest in the public would seek to regulate those who feed off the most vulnerable in society, the loan sharks, the bankers, the supermarkets, the politician and the building industry. But rather it concentrates on regulating the doctors the lawyers and the press. I wonder why? You get a pretty good idea why when you see Stephen Luff, a senior adviser to our prime minister move smoothly from No 10 to Wonga.com. The spin put by some of this move, is that it represents a corporate raid on Downing Street. Sounds more like pay back to me.
The consultation on QASA, the Quality Assurance Scheme for Advocates has recently concluded. This scheme is not being introduced to protect the public from rogue advocates. It is being introduced as a necessary pre-cursor to One Case One Fee. The Government knows full well that once they hand the purse strings to a single provider the Bar will be offered a derisory amount to conduct a case. The result will be that many will give up. The public will complain they were not afforded an advocate of their choice. The response will be we never promised you an advocate of your choice. All we promised you was an advocate who had earned the appropriate grade to conduct your case. That this is the intention was underlined by a recent report on the cab rank rule commissioned by the LSB. The replacement they argue should be as follows:
borrowing a rule from the New York State Bar code of conduct and slightly smartening it up. This is the proposal:-
“10. You may not be refused representation on the basis of race, creed, colour, age, religion, sex, sexual orientation, national origin or disability.”
This rule is clear and unambiguous. It protects clients and it can apply to all lawyers, and we see an equivalent in the SRA Handbook. It has no need of exceptions and exemptions, which presently serve only to confound and confuse clients. For the purposes of the client and consumer, representation will be supplied and access to justice and the upholding of the rule of law would be ensured by the profession. It would be practicable, within the English context, to augment the rule by including references to type of client, the nature of the case/crime or the defence required. These would deal with the original aspects— unpopularity of clients and heinous nature of crimes—of the cab rank rule that have since been overshadowed by arguments over funding.
The difference between the Cab Rank Rule and the new proposal is glaringly obvious. One dictates that a barrister shall not refuse a case for a proscribed set of reasons, race, gender etc. The Cab Rank Rule requires a Barrister to take a case that is within their knowledge and expertise providing they are free to do so. There could be nothing clearer. It effectively outlaws any form of discrimination whether it is in the list or not. The advocates of the change claim the cab rank rule is breached on a regular basis. The only example that is given in the report prepared for the LSB is the refusal by specialist sets to accept cases which do not fall within their specialism, which is a breach of no rule at all.
The astute amongst you have already spotted that the replacement of the CAB Rank Rule with it’s supposed American counterpart, has once again got nothing to do with serving the public interest or protecting the consumer. The purpose behind it is to ensure that when the Bar is forced into work with the likes of Eddie Stobart, because they have the contract, the public will be forced to accept the barrister they are given, provided he or she has the necessary QASA badge. Freedom of choice for the consumer will disappear, which of course is precisely the situation with publically funded cases State side.
For many years the public and the Bar have been fooled into thinking that new proposals for the reform of our profession have nothing more behind them than the reform for the sake of the public interest. Everything that comes out of the LSB, BSB and Government is designed to achieve but one aim, and that is the wholesale destruction of both professions and its delivery into the hands of the private sector.
What the solicitors profession is facing is every bit as dire. We have already seen many small and extremely dedicated solicitors disappear or be swallowed up by what this Government is ultimately seeking to achieve, huge legal service providers who care nothing about quality but everything about profit, and handily are beholden to the government to approve its next contract bid in 3 years time. That will make sure they do not expose the government and the police when it is in their clients interest to do so. Thirty or so ABS’s (alternative business structures ) have so far been approved 39 more await approval. Not a single one is a solicitors firm or barristers chambers, they are the likes of G4S, Serco, Geo-Amy, and Eddy Stobarts of all people. No doubt you will get a free Yorkie Bar with your cut price legal advice. These are the firms that will get the contracts. If you do not believe me you should know that the Co-Op has recently bid for the entirety of London Care work.
Those of us who practice at the publically funded Bar, had a choice. I joined Cloisters as a civil lawyer, indeed I practiced civil law for six years. We chose publically funded criminal work whether we prosecute or defend because we thought it was important. The reality is that in 5 years time the public are going to wake up and find out that an important corner stone of their democracy has been stolen from them. They will never get it back. Once you get your young barristers being trained by Tesco’s you will get Tesco judges sitting on the bench. It is a terrifying prospect.
Those of you who choose to join this profession whether it be as a barrister or solicitor will do so for one reason and one reason alone and that is because you have the passion to do right and fear no one.