PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET

THIS IS THE TEXT OF A LETTER FROM A KENT SOLICITOR IN HIGH STREET PRACTICE IN THANET, TO HIS LOCAL CONSERVATIVE MP, AFTER A MEETING IN HER SURGERY.

IT MUST BE TYPICAL OF THE STARK ISSUES FACED BY THE SOLICITORS’ PROFESSION NATIONWIDE.

IT IS NOT JUST THE “FAT CATS” AT THE BAR WHO ARE TRYING TO DEMONSTRATE TO THIS GOVERNMENT THE NATURE AND EXTENT OF THE DISASTER THEY ARE ABOUT TO FOIST ON THE PUBLIC.

THE LETTER WAS WRITTEN BEFORE TODAY’S UNCHALLENGED ARTICLE WHICH THE TIMES HAVE PUBLISHED, SETTING OUT THE LORD CHANCELLOR’S CURRENT “ARGUMENTS.” NONETHELESS IT COVERS MANY OF THEM.

THE CRIMINAL BAR ASSOCIATION AGREES ENTIRELY WITH WHAT OLIVER KIRK HAS TO SAY. WE BELIEVE AND HOPE THAT THE VAST MAJORITY OF SOLICITORS SHARE HIS VIEWS AND FEARS. WE WELCOME SUPPORT FROM SOLICITORS WHICH WE IN TURN WILL DO OUR BEST TO RECIPROCATE.

WE ARE ONLY TOO WELL AWARE OF DIVISIONS IN THE PAST. BUT NOW, WE ARE WHERE WE ARE, AND WILL FIGHT TOGETHER WITH THEM.

PLEASE DO FEEL FREE TO RESPOND TO THIS HERE, AS WELL AS CIRCULATING IT AS WIDELY AS POSSIBLE

“Dear Laura, (Laura Sandys MP)

Thank you for taking the time to see me and discuss Legal Aid last week, following the release of the Government Consultation.

I have quite a lot to tell you, in the hope that you will understand and share my concern at the proposals, and that you will be able effectively to intercede with the Minister, in the hope that these proposals will be fundamentally reviewed before implementation, and a better, more efficient and just solution may be found.

BACKGROUND

At present, Criminal Defence Legal Aid is provided by 1400 firms across England and Wales. In Kent there are (I think) approximately 50 firms. These firms range from sole practitioners, to small to medium sized businesses. In Kent, there are no firms that cover the whole County effectively. In Thanet, there are 2 firms with offices, my own (BKRW) in Ramsgate, and Kent Defence who have an office in Cliftonville. There are another 10 or so firms who are on the local duty solicitor rotas, they have offices in East Kent also.

The Government makes much of the increase in Legal Aid spending over the last 10 years, and points to a need to be efficient. I do not disagree that efficiencies may be required, but it is worth noting that, although spending on Legal Aid has gone up, the amounts paid to lawyers to deal with criminal cases have not been increased since 1997. This indicates that the problem is not the costs of the lawyers, but the volume of work being done by those lawyers.

It is true that Prison Law advice has been a growth area, but also consider that over the last period, there have been significant new offences introduced, and new areas of evidence which can now be admitted at trial, which could not be previously (bad character and hearsay for example). These factors increase costs.

Out of a budget of £2 billion, the Government wants to save £220 million. Whist this is a significant sum, the method by which it is proposed to save this sum strikes at the heart of our Criminal Justice System, and will shake public confidence in that System. Please, bear in mind that the Rule of Law, and public confidence in the justice system is the cornerstone of a democratic society.

THE PROPOSALS

By necessity, I paraphrase, (the consultation document is over 160 pages long!).

The Government will invite tenders for Criminal Defence services for each area of the UK.

One such area is Kent. It is proposed that there should be 5 contracts awarded in this County.

The Government proposes to guarantee volume of work to these 5 “super firms” by removing the right of a legally assisted person to nominate a particular solicitor. Each detainee or person charged will have a solicitor assigned to them.

Of course none of this prevents a person choosing to pay his own lawyer privately, but if they do (assuming they can find lawyer happy to be instructed by a person in custody) their legal costs will not be refunded if they are never prosecuted, and will only be refunded in (small) part, should they be found not guilty .

RESPONSE/CONCERNS

1) In our meeting you asked how other countries manage to spend less on Legal Aid than we do.

I am not an international jurist, but it seems to me that the reason is that our European Partners have a fundamentally different legal system. Most have inquisitorial systems, most have very few cases decided by juries. Those that do have juries, have juries that retire with Judges to assist in their deliberations. Most do not recognise, as we do, the differing roles of solicitors and barristers/advocates. The short point is that comparing our Legal Aid spend with other countries is not meaningful. It fails to take account of the differences between our legal systems.

2) The proposal to award only 5 contracts for Kent and to guarantee work by removing consumer choice.

These proposals are bad for Clients and bad for lawyers.

The effect will be that all of the 50 or so firms currently supplying legal services in Kent will need either to expand or merge with others to bid for contracts covering a wide geographical area. The proposal is that bids must be made by October 2013 and contracts start October 2014. This is an astonishing pace of change, and it seems very likely that chaos will be the result.

Winning bidders will have to centralise, and keep overheads to a minimum. This is likely to mean that there will be large areas where there are no lawyers for clients to go and see. It seems most unlikely that any winning bidder would have an office in Thanet, In fact it is more likely that there would be one centrally based office for Kent in, say, Maidstone.

It is very important that a defendant or suspect in a criminal case has confidence in his lawyers. A lack of such trust leads to delays. It takes a long time to gain a reputation. We as lawyers work hard to gain the trust both of our clients and the Courts. The Proposals to remove client choice of lawyer will remove that essential relationship between lawyer and client.

The Proposals will create inefficiency. Suppose that I represent a man arrested for his 10th offence. I have represented him for years. I represented his father too. When I go and see him in custody, he knows and trusts me. He will accept my advice more readily than that of a stranger. Given that I know him and his background fully, I can interview him far more quickly than I could if he was a new Client whom I had never met before.

Many of those passing through the system are repeat offenders. Their “own solicitors” know if they have drink/drug problems. We retain and can re-use Mental Health assessments. We know when our Clients might be a risk to themselves or others.

All of this will be lost if consumers are required to have a lawyer appointed to them. There will be significant duplication of work, and inefficiency.

The Proposals will be bad for quality. It seems inevitable that whoever gets the contracts, they will do so with a view to making money. How will they do that? Well, by removing customer choice, the Government is also removing any capacity for the firm to expand, to attract new or even repeat business.

There will, under these proposals be no choice (compare schools, health care?) and no competition between providers. The lawyers get paid the same, whether they are good, bad whether they work hard or not. They cannot lose clients, they cannot gain clients.

Furthermore, given that the winning bidder will receive a fixed and finite amount of money to provide their services, there will be a pressure to maximise profit by employing cheap, and inexperienced lawyers. This is in itself counter-productive, after all, an experienced lawyer is more likely to give a client realistic advice about his prospects, and less likely to detain the Court with poorly thought out submissions.

There must be a danger that a great number of sensible, experienced solicitors will find themselves unable to gain employment doing publicly funded work. They will either leave the profession, have to retrain, or do privately funded criminal defence, (which is a rare thing indeed in Thanet). The consequences therefore would be a loss of skill and experience resulting in inefficiency and the creation of what is likely to be perceived as a two tier service. Those who can afford to pay their lawyers (and lose their money, even if they are falsely accused) will get the best. Those most vulnerable and without the means to pay will be appointed a cheap alternative.

A fixed fee system rewards efficiency by the provider, while sacrificing quality for the consumer. Lawyer fees are currently predicated either by time spent or by a combination of page counts and matter type. If people are paid the same amount, no matter how much work they do, there is a danger that they will seek to do as little as possible. Corners will be cut, papers will not be properly considered, witnesses may not be interviewed. This is a further way in which long term costs will in fact be driven up. Poorly prepared defence cases result in delays and in convictions. Convictions result (very often) in prison sentences and Appeals.

A further insidious proposal is that Advocates should be paid more if our Clients plead guilty early. Imagine being arrested, you cannot have the lawyer of your choice, and then you are told that the one appointed will only make a reasonable living if you plead guilty! Confidence inspiring? NO.

THE WIDER IMPLICATIONS

It seems to me that if these proposals go through, there will be carnage. In the run up to the award of contracts, banks may decide to remove firms’ overdraft facilities, and businesses will fail. There are likely to be considerable numbers of redundancies of solicitors, clerks, secretaries, support staff and their suppliers. Consider that the scale of chance required is huge. Firms currently operating have leases on or even own premises. They simply cannot up sticks and leave in 18 months.

OUR JUSTICE SYSTEM IS CURRENTLY RIGHTLY REGARDED AS ONE OF THE BEST IN THE WORLD. IT WILL NO LONGER BE IF THESE PROPOSALS GO THROUGH UNALTERED.

Thank you for taking the time to read this, I have (believe it or not) tried to be succinct and not indulge in hyperbole, but instead to concentrate on real and tangible effects. I would of course be interested both to hear your views and of any progress you are able to make in your dealings with Mr Grayling.

Yours faithfully,

Oliver Kirk

Solicitor

Gemma’s Blog. A guest post on what the BVT consultation REALLY means to the public and the Criminal Justice System

Sometimes we are asked to repost other people’s blogs on this site. We are delighted to repost this one. Please read it and tell all your friends, (and enemies!)

The response belongs to a learned colleague of mine. His name is Will Nelson and is a criminal lawyer. He is a much better writer than me, and has kindly given his permission for me to publish this on his behalf.

For reference, please see the MoJ’s consultation paper here:www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf 

And the petition here – please take a minute to sign it – and you’ll find out why it is so important to fight against the government’s decision below: http://epetitions.direct.gov.uk/petitions/48628

“I start by saying that I have a vested interest in all of you signing this petition. If the proposals that this petition is seeking to highlight happen I along with about 5000 other people will lose their jobs. Now I know that those of you who are my friends will probably say something like “that’s a shame” and will genuinely, for a few minutes feel a bit down for me. However what I suspect is that none of you will realise the greater significance  that lays behind this.

Since this government came into power via the back door, they have systematically been eroding the justice system in the name of saving money, improving efficiency and giving the tax payer value for money. All of those are entirely laudable aims and I certainly would not seek to criticise them for so doing. That is I would not seek to do so if these aims were in fact the truth of the matter. What this really is about as usual is politics. The Coalition started on this economic course and despite repeated calls to slow down or try something new, they have chosen to stand fast and plough on, regardless of the damage this will cause. You can see it around you in every public service. They have decimated the police force leaving officers under paid, overwhelmed and demoralised. Huge chunks have been sliced from the NHS, crippling front line services. The benefits system is in chaos, and the public have been turned against what is a fundamental part of our society and a need for social well being. I know brilliant teachers that have had enough and despite their love of the profession feel that their position has simply been made untenable. The list goes on and on.

So to Justice. The concept is not just about capturing criminals and punishing them in the way that The Daily Mail would have you believe but is the cotton that binds the fabric of our society together. We all rely upon justice every day in everything we do. The rule of law is fundamental to the safe guarding of all those  rights and privileges that living in a democracy you would expect. Justice, in essence protects you from wrong doing. The erosion of this concept is to expose you to the possibility that a wrong done to you by state, corporation or private person will go unresolved. It is therefore vitally important that all of us have access to justice.

Since the coalition have come into power they have sought to erode access to justice at an unprecedented rate. Furthermore, this has been happening at a time when it has never been more important to have such access. As more cuts take effect, the economy lurches (both here and abroad) from crisis to crisis and people lose livelihoods, public services, savings and with increasing bills not to mention higher taxes, it becomes more important that people can seek redress.

Let me give you some examples; let’s say that you have been working all your life and you suddenly lose your job in ways you feel may be unfair. First of all even though you have lost your salary and probably cannot pay your bills, you are not entitled to any free legal advice to help you consider whether the termination of your employment was lawful. You are immediately on an unequal footing with the organisation that you believe may be in the wrong. Then you decide the time has come to cash in on some of the national insurance you have been paying all those years. The benefit system is so complicated that even those administering it get it wrong. You are now no longer entitled to any legal help in securing those payments, or challenging a decision you think is incorrect. Remember also, if you fill those forms in incorrectly, you may be committing an offence for which you can be sent to prison. There are many more scenarios that may effect you. These are not changes that will only effect “work shy scroungers” as the right wing press have been so careful to have you believe. These changes stop you getting the access to justice you may really need one day. Those that will still get access are those that can afford to pay thousands. Are those who can afford to pay really the people who need access the most?

Now to crime. It is perfectly acceptable for you to think this really never will effect me. In fact I suspect you will be thinking that those that require legal help in defending criminal cases probably do not deserve it in any case. I have to say that there are a great many people that I come across who frankly attract very little sympathy even from me. I’m not going to try and lecture you on why everyone deserves the right to be represented, however I think it needs to be said. If you are accused of a crime by the state, it is your right to have someone qualified to do so, to speak on your behalf. Not to have this protection would very quickly lead you into a situation like those we see today in North Korea and other less democratic nations. Let me tell you, no one,  absolutely no one is too far removed to be arrested for a criminal offence, charged, taken through the courts. In fact it is pretty easy to find yourself in very serious trouble very quickly. Consider these examples; you are driving home from work, you look down for a second to change a song on your iPod or the station on your radio and when you look up you realise the car in front has stopped and you haven’t reacted in time. The person in the car in front that you hit is killed. You are arrested, taken to a police station and following an interview you are charged with causing death by careless driving. You go to court where you are found guilty and you are sent to prison for 12 months. Prior to changing that track on your iPod you hadn’t even had a parking ticket. Would you not want access to a lawyer to guide and advise you and speak on your behalf? How about adding insult to injury. Lets say that you have the money to pay that lawyer. You are found not guilty. You are not entitled to all or possible any of the money you paid out defending yourself against the state. In effect you have been taxed for the right to defend yourself and protect your liberty. Now that should really piss you off. If it doesn’t re-read this paragraph as you have not understood it.

I know that is an extreme example but it doesn’t have to even be that. I know that there are plenty of you who still smoke weed or indulge in other extracurricular activities that are illegal. I know that there are plenty of you that have got into scuffles on a night out. All of these things that you do as ordinary, hard working, normally law abiding citizens can bring you into contact with the criminal justice system. Your life and career as you know it can be wrecked in an instant.

Under these proposals, you will lose the right to choose who represents you. You may have to travel miles to see your appointed solicitor on the other side of the county. If you are lucky enough to qualify for legal aid, (I suspect only a handful of you will even be close) the service you will get will frankly be below par. There will be no incentive for lawyers to be the best. There will be no competition so no reason to up your game as there is now. Criminal lawyers now trade on the strength of their reputations. Next year you won’t need a reputation. Let me tell you this too. Criminal lawyers, in fact most lawyers that are paid by the state, do not live in mansions. We do not drive brand new BMWs. Most like me are screwed by the debt that they had to incur to become a lawyer. I live in a two up two down house in a small village. i drive a nine year old car. Most of us work very long hours 7 days a week. I was on call last night. I had 13 calls, I did not go to bed and I did not get paid anything for the privilege. I do this job because I believe in it, because most of the time its rewarding, challenging and I can make a difference.  Do not be fooled by the press into thinking we are complaining because we are losing our cushy lifestyles. We are complaining because we are losing our jobs and because the thing that we fight to preserve everyday as lawyers is being taken away from you. The access you should have to justice.

This government do not understand you. They do not come from where you do and none of them have had to strive in the way you have. They know they will be gone in two years. Do not let them lay waste to this country on their way out the door.

Thanks for reading.”

Thank you from me too, and thank you to Will. A great peice of writing, I am sure you will agree.

Simon Myerson QC responds to David (I’ll never take silk) Wolfe QC on why his “defence”of #QASA is a little lacking in substance!

Is This The Best That Can Be Said?

APRIL 10, 2013
 

resistance-is-futile

I was alerted by a retweet from Baroness Deech that David Wolfe QC had blogged in favour of QASA. David Wolfe QC achieved considerable publicity when he was 11 years call by announcing he would not take silk and then, in 2012 when he was 20 years call, did so on the basis that he could not otherwise service his clients fully and was loosing work. His entry on his Chambers’ web site states that he believes passionately that public bodies should act in a fair and open way. He was until recently a Commissioner of the Legal Services Commission and a member of the Legal Services Board (the body which wants to abolish the cab rank rule). According to his page on the Chambers’ website, he does not do criminal work. I wondered whether this would be the beginning of a fair and transparent debate. I am afraid I don’t think it is – but you must judge for yourselves. This is what David Wolfe QC has written; my responses are below.

 

We will never get close to having an “independent, strong, diverse and effective legal profession” (which section 1 of the Legal Services Act 2007 sets as a regulatory objective for the regulators) if advocates providing a high-quality service to their clients remain undermined by others who are not even competent.

In my view we have one already. The government agrees. This is what Chris Grayling said in March 2013:

As a government we recognise the importance of the UK’s legal services sector and the excellent reputation its legal services providers have at home and abroad. The sector contributed £20.9 billion to the UK economy in 2011
The argument David Wolfe QC is advancing seems to be that incompetent advocates prevent the profession as a whole meeting statutory requirements. That is an implicit assumption made without any evidence. It does not rest on proportions of incompetent versus competent advocates. It does not manage to provide a definition for ‘competent’ or incompetent’. On its face the argument is bad.

Let’s not fool ourselves: we all know lawyers – including barristers, and including criminal advocates – who are just not up to it (perhaps they never were, perhaps they have lost their touch) at all levels, from magistrates’ court practitioners to QCs. The most senior judges complain about it; the Attorney-General notes the cost (not to mention harm to the public interest) of appeals necessitated by poor trial advocacy.

It is of course true that some people – perhaps because of family circumstances, illness or personal pressures (I’m not sure I can sign up to just ‘lost their touch’, which seems to me to be overly crude and rather unfeeling) are not performing as they would wish. It is equally true that some people go over their competence level regularly. That is why a proper quality assurance scheme would assist (QASA as first proposed was a system for warning advocates that they needed to up their game). But, as support for the argument that the profession as a whole is not meeting statutory requirements, the point is a huge stretch.

Neither the professional obligation falling on us all only to take on what we can do competently, nor market forces, has dealt with the problem.

Hasn’t it? As I say we have no evidence that this is so and David Wolfe QC provides none. He has an anecdotal claim that senior judges complain (not to him, it appears), but whether that is a generalised complaint or a specific instance I don’t know. Nor do I know the result of any such complaint, whether it has been investigated and whether the person criticised was able to respond. All of this falls within my definition of fairness and openness. There is a shed-load of difference between the odd disaster, which can and should be dealt with by the profession, and a far more generalised complaint that the profession is failing. David Wolfe’s anecdotal accounts are of the latter: they morph – unacknowledged – into the former. I have to say that this is not a type of argument which commends itself to me.

Nor will they, alone: advocates still regularly get instructed to appear in (and take on) cases beyond their competence. We simply cannot credibly claim that we are all competent to do the cases we all currently take on (though of course, as trade unions, the Criminal Bar Association and Bar Council will do their best to protect all their members and still make that claim).

The same trick has been played again. It is correct that we cannot all claim to be competent to do all the cases we currently take on. The shift comes in the allegation that this is a regular thing. Is it? The BSB has just released the latest conduct committee report showing 133 new cases in the last quarter of 2012. That equates to 520 cases a year. 82 of those cases – 328 a year – were external complaints (i.e. could possibly be of people acting beyond their competence). Even if all external complaints supported David Wolfe QC, which they obviously could not because such complaints include dishonesty and misleading the court, 80% are dismissed. Accordingly, there can be no more than 65 cases per year which support this thesis. There are 12,000 barristers doing goodness only knows how many cases each per year. Let’s say it’s 20 cases each, which is likely to be a massive underestimate. That makes 240,000 cases each year. Now let’s say that only 1 in 10 people actually complain, so there could be as may as 650 cases of acting outside competence per year. That’s one complaint for every 369 cases. Is the enormously troubling and expensive machinery of QASA (not to mention what a bad scheme it is) justified by that? Not in my view. And such facts as exist to actually make the case are – to coin a phrase – fairly and openly available. Why haven’t they been examined?

So no surprise, particularly in an oversupplied market, that the funders of most advocacy in the criminal courts – the new Legal Aid Agency, the Crown Prosecution Service etc – only want to spend taxpayer’s money on advocates who have been assessed as able to do the job properly. This is not about marking out excellence; it is about ensuring a minimum competence.

That strikes me as wrong. The CPS don’t want solely spend money on a competence basis. They are paid for keeping work in-house and they pay a salary premium to employees for being Higher Courts Advocates. The CPS’ own Inspectorate’s comments about the use of such advocates based on value alonearen’t exactly a secret. So the evidence is that quality is not the priority it ought to be, even now. The priority is money. The new legal aid consultation, doesn’t even pretend otherwise. The Ministerial Forward does not use the word ‘quality’ once. This is not about minimum competence – a phrase which creeps into David Wolfe QC’s article at this juncture without any argument that minimum competence is lacking at present. It is about minimum money. The new proposals are going to break the system, which will result in more wrongful convictions and acquittals and a lessening confidence in justice, which will corrupt society. The divide between the fees paid for representing people accused of really serious crime and prosecuting those same people, and those paid for representing people, for example, opposed to a badger cull or those opposing a Roman Catholic School because it isn’t humanist (to pick 2 of David Wolfe QC’s recent cases) cannot survive public scrutiny without undermining confidence. It may well be that David Wolfe QC’s own fees for those cases were on a par with the fees paid to criminal practitioners for defending a case of less than 2 days (currently an absolute maximum of £2,856 plus £1.63 per page of prosecution evidence, plus £6.53 for each witness over the first 10 witnesses, to include all preparation – however lengthy and however many defence documents there are), but – unlike in a criminal case – his opponent’s fees will not be so limited. The new proposals will also break people. Real individuals with real lives and families. This is all a subject for another time. But it is offensive that QASA is argued for on the basis of  quality, when that is plainly neither its genuine purpose nor its likely result. And the offence is nor lessened by the fact that the argument comes from a barrister who does not work in the field of criminal law, is not subject to the same financial constraints and whose work is not going to be touched by QASA for the foreseeable future.

Is that so wicked? The public would rightly insist on it. So too surely would the competent barrister, fed up of losing work to others not up to the job, or of sitting in court watching justice not be done because another barrister is out of their depth. We’ve all been there. Quality assurance would be happening even if competitive tendering was not being contemplated.

But it isn’t. Let’s take the field of public law, in which David Wolfe QC practices. Adopting his argument for the moment, the temptation to take work for which you are not competent must, surely, be greater in public law than in crime, simply on the basis that there is more money to be made in the latter field. Yet the very market forces and professional obligations which David Wolfe QC says do not work for criminal law seem to work just fine in public law. If QASA were justified on this ground, it would be required for every area of practice. And public law – being a relatively small field with highly trained Judges and a public interest element almost as great as crime – would be an ideal area to pick for a pilot project to see if QASA delivered. I’m not hearing much of that… In reality, the Bar delivers an extremely high level of quality at present and the public is happy with that quality. There is no public pressure for QASA.

If the regulators don’t do it (protecting privately paying clients as well as public purchasers) the Legal Aid Agency (and other big purchasers) would likely set up their own systems (and refuse to contract with any barrister who does not meet their quality standards, as would any other public purchaser of services). They would likely outsource that work. Would we prefer Capita or G4S to set up and run crime QASA? I doubt it.

This is the BSB argument. If we don’t accept QASA a worse scheme will be imposed. Of all the arguments I have heard, this is the worst. Why? Because it pre-supposes that the purpose of a quality scheme is to threaten the professions and drive down costs. Otherwise there could not be a ‘worse’ scheme. The answer to David Wolfe QC’s question is that it does not matter who runs the scheme. What matters is whether the scheme delivers quality assessment. QASA does not. And QASA doesn’t improve because an alternative scheme could be administered by a commercial organisation (although the contempt for commercial organisations inherent in that position sheds an interesting light on the thinking). QASA is a bad scheme. It doesn’t deliver. Although David Wolfe QC’s contribution – astonishingly to my way of thinking – doesn’t focus on this issue at all, that is still the reality.

So maybe the fact that the regulators are doing it is not so bad? Barristers might have wanted the Bar Standards Board (BSB) to go it alone. But, in reality, it would have been chaos for the chartered legal executives, solicitors and barristers who appear through the criminal courts to be assessed by separate but overlapping schemes. A combined scheme will put to bed the solicitor-advocate-bad, barrister-advocate-good debate. We also need to remember that there are about twice as many solicitor criminal advocates as there are barrister criminal advocates: the main regulator of criminal advocates is the Solicitors Regulation Authority. So the BSB had to work with the other regulators in the Joint Advocacy Group (JAG).

Work with – of course. Accept nonsense – of course not. Moreover, this argument also rests on the unstated position that this is a bad scheme but that’s what we have to have, because that’s all anyone else could agree on. Isn’t it our job to be fair and open about this? If the professions can’t design a workable scheme together then why not have competing schemes? Let’s see what the users go for.

Incidentally, of course, if oversupply is reduced, then those who are left (i.e. the truly competent ones) will be busier, and will be better able to resist downward pressure on pay rates. But let’s not be self-interested about this!

It’s obviously tempting to look at an argument which is right and self-interested and only point to the self-interested bit, thereby diminishing the fact that the answer is still right. It’s tempting, but in my view it’s wrong. It avoids real assessment of argument and replaces it by sneer and smear. I went to the Bar because I believe in fairness and openness – and that is only achieved by opening competing arguments to neutral, unbiased assessment. Arguments which seek to prevent such assessment are shabby. If the aim is to help the truly competent, then why not run a proper scheme, let it compete with other schemes and let the best scheme win out? This isn’t about oversupply as a bad thing. It is about using the number of barristers to reduce earnings. That’s unashamedly political and it may be government policy. If so, we will have to put up with it. But don’t, for pity’s sake, dress it up as an argument about quality.

We might not like every detail of what the JAG has proposed for crime QASA, and we might be sceptical about how aspects of it will all work in practice, but it has the potential to weed out incompetent performers, whoever they are.

I don’t run my cases because they might potentially win. And I don’t tell my clients that it’s worth running with a case (whether they pay or the state pays) because it has potential. And I don’t think a different standard should apply to how my profession is governed. This isn’t an argument worthy of the name.

So why do vocal opponents argue for a boycott (#notoQASA etc)?

Because QASA as currently designed is rubbish.

(1) Plea-only advocates (POAs) If POAs were currently banned, it might make sense to argue against a proposal newly to permit them. But they already exist. Boycotting a scheme which will subject them to quality assurance is going to look pretty daft (after all, the cry for a boycott is not a cry for a more onerous crime QASA scheme). And given the ratio of advocates to full trials, many (possibly most?) current POAs are actually likely to be barristers.

This argument misses the point. I think it does so because David Wolfe QC doesn’t practice criminal law. POA’s don’t exist. What exists is a culture of (some) solicitors taking cases until it is clear the client won’t plead guilty and then handing them over, because they will not represent a client at a hard-fought trial. That regularly means that avenues of enquiry helpful to an innocent accused aren’t explored until very late in a case – perhaps too late. It undermines confidence between client and representative and thus in the system. It sets up a conflict between a client who wants to take advice and wants continuity of representation, but who cannot be sure that the advice is being given dispassionately in his or her own interests. That conflict – which is not based on any stupid assumption that a solicitor cannot be independent, but rather on the existence of a divide between what a solicitor is allowed to do and what the client should be advised to do – is multiplied when the client may actually want his solicitor to represent him. That is not something that we should encourage – quite the contrary. Yet QASA will turn this culture into the approved way of doing things.

(2) QCs It is argued that crime QASA should not apply to QCs because they should all be presumed competent to undertake criminal trials at all levels. Even people who became QCs ‘crime’ recently cannot be assumed competent to do criminal trials. After all, the QC system is driven by references arising from ‘cases of substance’, which could be all cases in the Court of Appeal and need not include any trials. So even a recently appointed QC ‘crime’ need not have demonstrated their ability in criminal trials.

Yes. And the moon could be made of cheese. But it isn’t. There are, as far as I know, no silks in this category. If there were, one doubts whether they would be as stupid, as venial and as incompetent as David Wolfe QC implies. Instead, I would expect – and be confident that – a silk offered a case beyond their competence would turn it down. I don’t know why David Wolfe QC thinks otherwise. These are people of probity and integrity and it does no one any credit to treat them as if they were shysters, desperate for a fast buck at the expense of the public.

But even if new appointees could be assumed competent for all trials, what matters for QASA is whether the same can be said of all practising QCs (i.e. regardless of when they became QCs and on what basis). Of course it cannot. The loose linkage of the QC award to work type is relatively recent, and there is no reaccreditation. Can someone who, 20 years ago, was a brilliant family lawyer and became a QC on the back of that, be assumed to be competent to do the criminal trials which they take on at all levels now? Of course not. They may (still) be brilliant, but they might not be, or not in crime. Even someone who did all crime at the time they became a QC may have lost their touch. We all know of examples. No rational QASA scheme could simply assume all QCs to be competent at the highest level.

No – you could replace the expense and risk to the QC ‘brand’ by a presumption which could be rebutted. Then we could see how many silks are really superannuated. Yet again, an apparent lack of sophistication insofar as criminal practice is concerned has led to the point being missed. What QASA does is line up silks with senior juniors. It is – again – about reducing cost. Either silks drop their fees (and plenty of them will then leave crime alone, depriving the system of top-end performers) or they will accept lower fees. If we grant the implied assumption that lots of silks are not really up to it, which ones will stay doing crime at lower rates and which ones will do other work? QASA will defeat its own purpose by forcing out the good.

But, in the end, a reality check: if a QC currently working doing big criminal trials is competent do those trials, is it such a burden for them to complete the forms and pay the fee to prove their competence in a system which will apply to everyone (and which will thus be weeding out the incompetent at all levels, in the public interest and in the interest of the competent)? Surely not.

It’s not the burden that is objected to. No one has said this and it is not right to argue in this way.

(3) Case levels to be agreed between the advocate and the solicitor I agree: that cannot be right. It’s what the last JAG consultation proposed but will the regulators stick with it, and – if they did – would the Legal Services Board really sign it off? I doubt it. But even if they did, is it so fundamental that it justifies a total boycott? Clearly not – that would be baby out with the bathwater, for sure.

Oh to be in the position where I did not have to trust 2 lots of regulators and the Legal Aid Board to ignore their own recommendation. It would be nice to work in an area where I was not reliant on that – say public law. For hundreds of people who see what is proposed by their own regulator in black and white it is, frankly, insulting to say ‘don’t worry – it will never happen.’ And apparently, the fact that your income will then depend on your willingness to agree that a case is less serious than you really believe is not a deal-breaker. If we all just stand back from that a minute it means this: David Wolfe QC says that QASA should be agreed to, even though there is potential for the quality assurance element to disappear in the blink of an eye, when the solicitor decides that the quality demanded from a level 3 advocate can be replaced by a level 2 advocate. How can QASA be credibly said to be about quality when that can happen? I simply don’t understand.

(4) Judges as assessors Moses LJ argued powerfully that judges should not be assessing and reporting on the competence of the advocates who appear in front of them: apart from anything else advocates may play to the judge at the expense of their client. I share his concern. But isn’t that exactly how the QC system works? References from 12 judges (from cases ‘of substance’ in the last two years) are required. Perhaps that needs to change too?

No – you don’t tell the Judge you are applying for silk until after the case. You can ignore the case where you fell out with the Judge. Moreover, becoming a QC is a rank within the profession – it does not dictate what work you can do. Nor are Judges referring you for silk having to deal with 168 separate indictors. Nor are they trying to assess quality by reference to QASA’s miserable parameters. Instead they are saying what they actually think about your ability. Nor is it compulsory. No one has to apply for silk. But perhaps those differences are only apparent to me.

But anyway, the documents relating to the JAG rather suggests it was the barristers involved who insisted on ‘judicial assessment’ in crime QASA and the solicitors who argued against (maybe it will favour barrister advocates over solicitor advocates?). The judges leading the process have also seemingly insisted on it. So a boycott on this basis would look particularly ridiculous.

I remember being led in the Divisional Court by Michael Harrison QC. We altered our submission because we thought we hadn’t done it terribly well the first time and Laws LJ picked him up on it and asked him if there wasn’t a contradiction. Michael used the words attributed to John Maynard Keynes, “When my information changes, I alter my conclusions. What do you do, sir?”  The information that has changed, of course, is the firstly the fact that QASA has become a process by which a barrister’s ability to earn a living is to be fixed. It was not always so. Initially it was a way of ensuring quality. Secondly, as the scheme has emerged, it is clear that Judges are not to be allowed to determine what quality might mean. Instead, they are to be trained in what the BSB thinks quality means.

Some people have suggested that a boycott (or strike, or lock out, call it what you will) could be defensible in the media. Dream on. John Humphries will eat alive anyone brave enough to try and defend it to a critical public audience. All of us will end up looking foolish.

If John Humphries is putting a case, then why can it not be answered honestly? Boycotting QASA isn’t a strike. It is not signing up for a scheme because the scheme is lousy. If the he BSB were then to say that no one who did not sign up could work, that would not be a strike. It would be the BSB ensuring that the system ground to a halt because it could not find it within itself to admit that it had made a mistake. This argument elides the opposition to QASA with opposition to a proper scheme. That is a mistake.

Dressing up objections as being on the basis of the public interest will simply not wash when you have the most senior judges, the regulators and the politicians all saying that the public interest requires crime QASA.

Why? Are all politicians and regulators to be taken as acting in the public interest? That should make for an interesting discussion in the context of David Wolfe QC’s practice. And, if he doesn’t find it true at work, then why does he feel able to tell me that it is true for me? As to Senior Judges. As Moses LJ has made clear, they don’t all. And there is a massive difference between support for a scheme and support for this scheme.

So let’s be realistic. Crime QASA is going to happen.

I think this is right. But it isn’t the issue. The issue is whether it is supported by the Bar. It isn’t and all the current indications are that this will remain the position.

Of course it could be improved. But my biggest concern is that it might not be operated robustly enough to get rid of the incompetent advocates who undermine the rest of us (including financially) thus turning into a waste of time.

There isn’t an ‘us’. That word ought to be ‘you’. And if that is the biggest concern then a moment’s reflection might suggest that the way forward is to listen to those of us who practice criminal law. Because our biggest concerns are that QASA will not work at all as regards quality but will work to ensure that we have less control over cases, work for less and are left without a practice because we can’t compete when it comes to BVT.

QASA will also provide for ‘career progression’ for advocates, something currently largely lacking; and help promote equality of opportunity for people from groups which are under-represented in the profession, particularly at higher levels.

No, it won’t. Career progression will continue to depend on reputation, as it always has. We have had CPS grading for years and no one ever thought more highly of you because of your CPS grade. As for diversity: I know it’s a sexy term but really? Fewer pupillages and less money to fund them are not optimal conditions for diversity.

In times to come, barristers starting out will be able to aspire to move up the levels as they publicly demonstrate their quality regardless of who they are. QASA is vital when it comes to the “an independent, strong, diverse and effective legal profession” to which we are surely all committed.

The implication that people are currently held back because of “who they are” is nasty. If you are going to say that about your own profession it would be good practice to offer some evidence for an unpleasant allegation. The proposition that QASA – as opposed to the efforts put into recruitment and scholarship funds – will make the difference is either unintended or ineffably self-important.

The contemplated boycott of crime QASA will undermine all of those things (and certainly the interests of competent advocates, particularly barristers, everywhere). So let’s embrace the principle of QASA and then work to extend and improve the current proposals over time.

Let’s hear it for the guinea pigs, in other words. My own view of what is expected from a profession of which I am hugely proud, because the vast majority of us aspire to the highest possible standards of behaviour even when our own interests are at stake, is that we will get the system right first, and ask our colleagues to test it second. 

With any luck, other areas of work will also be covered in due course (albeit, presumably, modified to reflect the fact that other areas of practice are less focussed on trial work, or the trials are very different to a jury trial). That way those of us working in other areas can publicly prove our competence too.

I know it’s an easy shot but honestly, if you stick your chin out you must be expecting it to be punched – you first. If David Wolfe QC would like to respond, I make the customary offer of an unmediated slot on this site.

 

Matthew Scott responds to Grayling’s idea that barristers’ legal aid fees should not exceed the prime minister’s income

The Lord Chancellor, Chris Grayling, has announced that he is to take yet another “axe to the criminal legal aid budget”. Despite the fact that legal aid fees paid to criminal barristers have already been cut by 13.5 per cent since 2010, and are planned to be cut further, his new idea is that no barrister should receive more from public money than the Prime Minister’s salary of £142,000.
But Mr Grayling’s assertion that the Prime Minister’s overall remuneration should be the measure of a top criminal barrister’s earnings only works in his favour if we ignore Mr Cameron’s actual earnings.
To earn the equivalent of the Prime Minister’s salary of £142,000 before tax a barrister would have to have a turnover of at least £200,000 in legal aid fees, a sum all but unheard of on a regular basis, and completely unattainable to 99 per cent of the Criminal Bar.
And Mr Grayling’s principle breaks down completely when one remembers that the Prime Minister’s salary is just a small part of his remuneration. Of course no-one begrudges Mr Cameron No.10, with its 100 rooms including a choice of pillared, terracotta or white drawing rooms, each furnished with either Chippendale or Robert Adam furniture and decorated with a selection of Turners and Constables; nor would we want him to forego his half an acre of garden (with gardener included), and it is of course a good thing that the maintenance costs (just over £680,000 since the last election) are paid by the public, but it does amount to quite a generous package. A quick check with primelocation.com reveals nothing remotely comparable in the immediate vicinity, although Foxtons do have a more modest six-bedroom apartment available not too far away in Knightsbridge for an annual rent of £2,592,000.
Then there is Mr Cameron’s 11-bedroom holiday home, Chequers, which would cost at the very least £10,000 a week to rent, let’s say £500,000 a year (without the staffing costs).
Nor should we forget Mr Cameron’s pension, an index-linked annual sum of £71,250. To pay this would require a pension fund of at least £2,750,000, and given that Mr Cameron is only likely to be Prime Minister for at most about five to seven years this equates to an annual contribution of something like £250,000 per annum.
Mr Cameron also receives his £65,700 MP’s salary on top of everything else, and will receive in due course the very generous MP’s pension when he leaves office. I am too polite to discuss Mr Cameron’s parliamentary expenses (although not so polite that I won’t mention that Mr Grayling, who now poses as a stern guardian of the public purse, used his to pay the mortgage for four years on a Pimlico flat, despite having a constituency home just 17 miles away from Westminster).
So adding together his salary, perks and pension it seems as though the Prime Minister receives the equivalent of well over £3 million from the public each year.
Nobody at the Criminal Bar could possibly come within spitting distance of this sort of money in legal aid fees, so Mr Grayling’s pronouncement that their fees should be capped at the level of the Prime Minister’s income is absurd, and unless Mr Grayling is a very stupid man indeed he must know that it is absurd.
The vast majority of criminal barristers have taxable incomes far, far below the sort of six-figure sums that Mr Grayling’s department likes to pretend, with even the most experienced and hard-working rarely earning much more than about £60,000 to £70,000 after expenses, while many others are lucky to earn even half of this. Their incomes have been dropping for years. They do not have grace and favour residences to live in, or publicly funded pension pots, index-linked or otherwise, to cushion their retirements. The idea that they are growing fat on public money may play well with the public, but it is utter nonsense.
Far from having incomes equivalent to the Prime Minister, most criminal barristers already earn considerably less than the police officers they cross-examine, and their incomes continue to fall. Despite this the Ministry of Justice regularly issues press releases about wholly exceptional individual barristers’ earnings as though this in some way justified the continual reduction in fees for all.
Instead of tennis at Chequers or croquet at Dorneywood followed by an ermine-cushioned dotage, criminal barristers – and solicitors too — now face bankruptcy and ruin as a combination of legal aid cuts, absurd regulatory changes and plans to tender criminal work to the lowest bidder, destroy a central pillar of our criminal justice system.
Any previous Lord Chancellor would have been appalled by this. Mr Grayling, seemingly unaware of the dignity of his office, appears to revel in it.
Matthew Scott, of Pump Court Chambers, specialises in serious crime, including murder, serious sexual and violent offences, offences against children as well as cases involving drugs and fraud

 

 

 

NOT THE MONDAY MESSAGE. BVT GREEN PAPER GOES WEST!

Issue 4: Tuesday, 9th April 2013 – Special Souvenir BVT Green Paper Edition
View this email in your browser

NOTThe Monday Message*

Motto: All the criminal Bar news that’s fit to print…..and then some!

(*not to be confused with The Monday Message © The Criminal Bar Association, prop: M. Turner QC)

Welcome to issue 4 of NOT the Monday Message, the irreverent, irrelevant, sometimes scurrilous, always witty (Get on with it: Ed.) fanzine of the criminal Bar. And definitely NOT to be associated with the Official Merchandise product of the CBA: The Monday Message, prop: M. Turner QC (issued on, er, Mondays).

Although issue 3 was only published yesterday, the big news today is the publication of the BVT Green Paper. This issue is entirely devoted to that document.

The Author and Editor, looking leaner*, fitter and extremely learned….

Well, would you Adaam and Eve it? No sooner has issue 3 of NTMM hit the newsstands, than the Dark Lord, Gray-Ling publishes his long-awaited Green Paper on Best Value Tendering. And without getting the Daily Mail to publish the ‘top ten legal aid earners’ first! Such is the contempt in which he holds the Bar.

In this SPECIAL issue of NTMM, we take a quick look at the GP, and consider what it means for the crimnal Bar. Of course, a more measured response will follow in due course, but for now, lets just vent our collective spleen at the wretched man’s impudence.

* thanks to ‘Lard-Be-Gone’** the wonder cure for obesity, exclusively marketed by West Fraudulent Medicinal Products Inc. (a company registered in Andorra, home of the finest medical research laboratories laundered money can buy).

** TM, patent pending.
The Green Paper – those facts in full.

This is it. What all this ranting has been about. NTMM urges all of its Readers to follow the link, and read the digest the whole of the Green Paper, here:

http://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf

However, if you are a busy criminal barrister (really?) and simply don’t have time, or the inclination, to read umpteen pages of ministerial gobbledygook, here is the NTMM executive summary of the GP:

– I only ‘need’ £142m to buy off the Chancellor, but because I’m such an ambitious creep, I want to give him £220m;

– I’m going to shaft the solicitors first by introducing BVT in the MC only (for now);

– I’m going to shaft the ‘fat-cats’ making money out of VHCCs:,

– I’m going to shaft QCs in particular;

– er, have I forgotten anyone? Oh yes, as soon as I’ve got rid of High Street solicitors, I’m going to extend BVT to Crown Court work, and get rid of the independent Bar, in a year or two – just as soon as they’ve signed up to QASA., that is

– Oh yes, before I forget, I’m going to hit particularly hard barristers from Middlesbrough, whose names begin with ‘Ian’ and end with ‘West’.

– Just one more thing – I haven’t finished shafting the civil Bar, either.

signed C. Grayling.

Having read the paper, please feel free to email me with your thoughts. A selection of the most insightful, and least libellous, will be published in Issue 5.

Now read on…..
That Green Paper – ‘We’re All Doomed’*

Whilst ordinary, law-abiding folk were relaxing during Easter week, deep in the bowels of the Death Star, anchored at its moorings in Petty France, the Dark Lord’s evil BVT pixies have been working tirelessly in their pursuit of the saving of a ha’porth of tar (and the promotion to greater things of their Master).

The Dark Lord has obviously seen which way the wind is blowing at the criminal Bar, and has decided to try and buy off a boycott of QASA and the derailment of BVT by barristers by throwing the solicitors’ profession to the wolves first, in the hope that barristers will issue two cheers, thank the stars that they are not going to be eaten (yet) and will dutifully sign up to QASA (a.k.a. their own death warrants) on the promise that BVT will only extend to the Magistrates’ Court – at least initially. In the meantime, barristers will not escape the axe, suffering swingeing cuts to VHCC rates, to GFS rates. In addition, there will be a clampdown on ‘two-counsel’ certificates and choice of solicitor (for the time being?) in multi-handed cases.

Is there any good news? Er, not that I could see, but I have only given the Paper the most cursory once-over. Obviously, I will have digested it properly before next week’s NTMM. In the meantime, I would urge everyone to read it – at least those parts that impinge upon criminal legal aid – and let me, and the CBA, know what you think:

[here].

* with acknowledgement to Pte James Frazer, Dads’ Army (c) BBC Enterprises Ltd

The lookey-likey for this issue is a tricky one. See if you can tell which is which…

Lord Darth Vader Lord Chancellor
Master of the Dark Universe

Contributions of all types (other than the libellous type) from readers are always welcome: Letters to the Editor, articles, funnies, links to stuff of interest – all will be considered, and, if selected, plagiarised, and published as original work by the editor (so no copyright stuff, OK?). The usual cash reward – a post October 2011 GFS sentence fee (geddit?) – for all contributions selected for publication.

Pip pip.

Ian ‘Wat Tyler’ West.

PS. Feel free to cascade this missive to any passing criminal barrister. Then get them to send me their email address, so they can ‘buy’ their own copy in future. Points mean prizes! IW

Follow my musings on Twitter: @ianswest. Pure unadulterated vitriol in 140 characters or less!