“I put my faith in the honourable” – a guest post by Michael Auty QC

The post below was originally in the “Save UK Justice” group on Facebook, where it prompted considerable attention and received a lot of praise.  Its author is Michael Auty QC, and he has kindly agreed for it to be cross-posted here.  

The post is in support of the “yes” camp of barristers supporting “no returns” direct action against the government’s criminal legal aid policy.

I have added a few explanations in [brackets].

By way of background, Simon Myerson QC is a barrister who has been critical of the decision of the Criminal Bar Association to adopt the current “no returns” policy.  Michael Auty defends this policy, starting off with politely addressing the difference between them.


I have not yet had the pleasure of meeting Simon Myerson QC but I know I’m going to like him; a lot. We have different views about the action presently being taken but that, for me, is simply part of life’s rich tapestry. I always read what he writes and I consider it with the care it deserves. You see I know that, in any situation, I can rely on every word he says. I don’t need to verify or corroborate what he says; I can take it as if it were Holy Writ brought down from Mount Sinaii. How is it that I am able to do this? I simply know he’s a man of tremendous principle and unvarnished integrity.

He’s not unique in that regard but it has been, and continues to be, the abiding joy of my professional career that I meet and deal with society’s best usually as we battle about what we do with some of society’s worst.

The fundamental reason I was, and remain, in the “yes” camp is that I simply do not trust politicians.

I have nothing against Michael Gove as a person. I’ve met him and he’s very charming and hugely bright. He’s a very good and lifetime friend of Gary Bell QC, an old mate, and, in his days in education, worked closely with John Tomasevic, another mate, who, like Simon, I would trust implicitly in all things.

Not long after I came to the Bar Lord Mackay was made Lord Chancellor. He thought the Bar should be highly paid but we should be fewer in number. We didn’t prosper one iota under him.

In due course we had Derry Irvine, with his gold-plated “dine with me and schmooze your way to the top” dinners. Then we had Charlie Falconer about whom nothing polite can possibly be said.

Willie Bach was among the most disappointing politicians for me. I know him and I liked him at the Bar. Yet he promised us £11,000,000 on prosecution fees if we surrendered them from defending. He lied.

Geoff Hoon, famously christened “Buff” by His Honour Judge John Hopkin (deceased) was even worse.

Don’t even get me started on Grayling because Katrina Harris-Byrne [moderator of the Facebook group] tells me she won’t tolerate profanity.

At every turn I have seen my profession sold down the river by one sorry dishonest, lying politician after another, usually aided by the Chairman of the Bar who, shortly thereafter, crops up as a High Court Judge, the modern day equivalent of 30 pieces of silver.

Divide and rule; divide and conquer has been so successful a tactic at the MoJ, I’m astonished it’s not on their letterhead.

We are not dealing with Michael Gove. He is simply the smiling assassin sent to convince the next High Court Judge that his master, George Osborne, cares.

The photographs of George in the company of ladies of the night and a veritable mountain of Cocaine have been doing the rounds again lately I see. No one bats an eyelid. We expect such behaviour; it no longer has the power to shock. It may explain old George’s disliking of lawyers though. George no doubt fell over laughing when Igor Judge suggested Justice should be ring fenced just as the NHS and Education is. “Over my dead body,” I am virtually certain he will have said.

And yet I am invited to trust Gove. But where is the 40% cut to the MoJ budget coming from; the elephant in the room, as the modern idiom has it?

I was once a solicitor. I was booed on my call night when I was introduced as such. I wondered why I wanted to join a profession that seemed to hate me from the outset. Yet the Bar has changed; I have never known the Criminal Bar more skilled and capable than it is right now. In contrast the JAC seems to have turned most of the Circuit Bench into a monumental laughing stock.

I’ve never met Jonathan Black [‎President of the London Criminal Courts Solicitors’ Association and leader of the solicitors in the current crisis] either but I like him too and for many of the same reasons I so admire Simon. He never descends into petulant name calling or abuse; he is a professional. The thought of losing someone like him fills me with dread.

My fear is this. If Two Tier [the new legal aid contractual regime] comes in, what remains in September will be unrecognisable. The Bar will have no purchase, no bargaining chip; the MoJ will declare open season on us and it will be a massacre. Thus, even if I didn’t care a damn about all my solicitor mates, and I do, very much indeed, I’ll have been lulled into a trap waiting to be picked off.

In Nottingham the solicitors are using the income stream from Magistrates’ Court work to keep the more vulnerable firms and the most junior members of the Bar afloat. We work in glorious symbiosis; we help one another rather than kick each other to death the moment the opportunity arises, which is precisely what awaits all of us when Osbourne’s next 40% cut arrives.

Ironically the letter from Richard Atkins QC, someone else I admire enormously, anticipates the MoJ not honouring any promise they might make. What possible basis is that for honourable negotiation?

My position is thus a simple one; I put my faith in the honourable; those of integrity. When Simon Myerson QC is Lord Chancellor I will know I can take every word to the bank. Until then, given what I’ve learnt about politicians during my 52 years (as of next Thursday) of life, I wouldn’t trust one of them so much as an inch.



“The Empty Chair”

24th July 2015

Yesterday there was an important meeting at the Ministry of Justice.

Michael Gove, the new Lord Chancellor and Secretary of State for Justice, and his senior officials, met representatives of criminal legal aid lawyers.   I understand Mr Gove was very much on top of his brief and led the meeting; the issue of criminal legal aid and the current severe problems in the criminal justice system had his full and keen attention.

It was the sort of meeting where big decisions can be made; it is rare to get relevant people in one place to discuss one thing when that one thing can properly be dealt with.  It was – potentially – a historic meeting.

But not everyone was at that meeting.

Criminal legal aid lawyers were represented by the three relevant solicitor groups.  The Criminal Bar Association (CBA), however, chose not to appear.

Why was this?  Does it matter?  And what consequences – if any – will this no-show have?

The one explanation for the no-show which can be discounted is the one the CBA gave at the time.  Thirty minutes before the 11.30 am meeting yesterday I spoke with an official of the CBA.  He told me that the CBA had “not been invited”.  The CBA also had told others by then of this “not invited” excuse.

The excuse was false.

The CBA had been invited and had been asked to provide a name; for whatever reason, a name was not provided.  That is why, later in the day, the CBA switched to saying no CBA person had been put on the attendance list.  And this was strictly true; for no name was on the attendance list because the CBA had not provided a name.

It is curious that an organisation whose members every day in courts throughout the land expose such false excuses in cross-examination would offer something so easy to show as untrue.  Why give such an excuse?  Who knows.

What was more important was the non-attendance.

The meeting yesterday was plainly one which the CBA should have been attending.  Even taking their “not on the attendance list” explanation at face value, such things are easily rectified with a quick phone call.

So the CBA could have been there, and should have been there, but they were not there.  And given that any sincere problem with “not being on the attendance list” could have been addressed, the inescapable conclusion must be that the CBA – or, more specifically, its leaders – did not want to be there.

Just the completeness: the CBA were certainly expected to be there.  A member of the CBA executive had confirmed this to a journalist from the Law Society Gazette:

And when the CBA’s expected attendance at the meeting was expressly mentioned in the Law Society Gazette, this was RTd by the CBA’s own Twitter account.

As a matter of fact, senior people at the CBA were freely discussing their attendance at the meeting until the very evening before.  There was no issue about it.

From all this, you can draw your own conclusion of the sincerity of the “not on the attendance list” excuse.  The CBA’s “not invited” excuse is certainly false; you may conclude that the CBA’s “not on the attendance list” excuse is false too; but that is entirely a matter for you.

So why did the CBA leadership not want to be there?  What possible reason would they have for not attending the one meeting, with the Lord Chancellor’s full and informed attention, to address with all interested parties the resolution of the serious but complex problems with criminal legal aid?

Now that is an interesting question.

Some would be cynical.  Here the argument goes that the CBA are quite happy to play the MoJ’s game of divide-and-rule.  In support of this are the two times in recent years where the MoJ has agreed to not cut barristers’ fees when they have cut solicitors’ fees.  These have been seen as “wins” by many criminal barristers, though to any sensible onlooker they look like mere short-term advantages.

Also in support of this cynical approach is the immense flattery the new Lord Chancellor is giving the Bar.  In every relevant public statement so far he singles out the Bar for praise whilst if he mentions solicitors at all, it is about naughty solicitors who entice barristers into doing no good with inappropriate “referral” arrangements.  Gove seems unaware that there are far more solicitors than barristers, and that in the magistrates’ courts – and the police stations – it is solicitors who do the bulk of criminal legal aid work.  Not the glamorous stuff in wigs and gowns and in oak-panelled court rooms, to be sure; but just as important, if not more so, as trial advocacy at the crown court.

But this cynical argument, even if true, is not sufficient  to explain the no-show at yesterday’s meeting.

(It does, however, show one significant issue about the no-show; for the CBA – representing the barristers, whom Gove “gets” – to be in that one room sat alongside the solicitors – about whom Gove, so far, has expressed little interest – would have provided a powerful message about the unity of the legal profession. The CBA’s no-show, on the other hand, sent a different signal.)

The real reason for the absence of the CBA is more likely to be a substantial one.

Criminal legal aid solicitors have been boycotting new legal aid work since 1 July 2015.  Three weeks later, the financial impact of this stance was causing immense internal problems: for example, the staff of the small firms involved need to be paid.

In other words, the complete post-1 July boycott was unsustainable and was about to collapse.  And so, sensibly, the solicitors adopted a new “protocol” (to use the jargon) where the boycott would be focused on the crown courts, allowing legal aid solicitors to return to magistrates’ court work and police work.

The solicitors agreed this ne protocol and told the CBA in advance of the meeting with Gove.

The CBA leadership had a decision.

The CBA leadership could have understood the solicitors’ predicament, and worked with solicitors on how to combine the new protocol with the “no returns” policy which is about commence among criminal barristers.

(The no returns policy is disliked by the CBA leadership, but it was voted for by its members.  The CBA leadership prefer “constructive engagement” with the MoJ where they can continue to do side-deals which benefit barristers but leave solicitors in the lurch. Many junior criminal barristers and some QCs see this as selfish and short-sighted – hence why the CBA membership voted for no returns, whilst CBA leaders campaigned in alarmist tones against it.)

Instead, it appears that the CBA leadership saw the new protocol as their opportunity to get rid of the no returns policy, and they seized it.

This is not conjecture; read the CBA chairman’s statement of this morning yourself.

“On Wednesday evening, before the meeting, every member of the CBA Executive, received a document entitled “protocol v9″ HERE and a joint statement from the Solicitors’ organisations.  The document and its appendices have been widely circulated.
“The CBA has had no input into the protocol.  It provides for solicitors resuming applications for representation orders in a very large number of cases.  This marks a major change of position by our solicitor colleagues, and appears to alter fundamentally the basis upon which our members voted to support solicitors’ action.   
“Hence, the Executive Committee will reconvene for an emergency meeting on Monday 27 July, to consider the effect of the new situation.  Meanwhile, everyone is reminded that the decision whether to take or continue action in support of the solicitors remains a matter of individual choice.  I shall of course keep each of you informed of developments.”

The CBA leadership now had what they want; a plausible explanation to get rid of the no returns policy imposed on them by their members.  What they could now get is more delay – another leisurely vote over 14 days (like the last one). And, in the meantime, the solicitors will be struggling to maintain their action in the face of brute financial reality.

And having a “emergency meeting” to discuss a “fundamental” shift by the solicitors would not be consistent with also turning up alongside the solicitors at the Gove meeting.

And so there was an empty chair.

What will now happen?

Criminal legal aid solicitors were wise to shift their action onto a more sustainable basis.  They were alert to the probability that the CBA leadership would do what they can to get out of the no returns policy inflicted upon by the CBA membership.

The new protocol simply means the criminal legal aid solicitors’ boycott can continue when otherwise it could not continue.  They do not depend on the CBA putting in place no returns.

The meeting with Gove was, it is reported, positive.  It is likely that there will be further meetings.  Given the direct involvement of Gove it is possible (though not inevitable) that an overarching solution can be put together.  No longer are lawyers having to deal only with MoJ officials.  The no-show by the CBA is not brilliant; but it is not a disaster.

Nonetheless, it would have been so much better if the CBA adopted a constructive approach and worked with criminal legal aid solicitors.

It would be so much better if there was not an empty chair in that MoJ meeting  room.

Better for barristers, for solicitors, and for all the people caught up in the criminal justice system.

The leadership of the CBA have a real opportunity to help shape the overall reform and recovery of a criminal legal aid system now in crisis.

And you cannot do that with an empty chair.







Law and policy round-up – legal aid crisis, judicial review, CPS, Beghal and terrorism

23rd July 2015

Legal Aid Crisis

Today is the big meeting between the MoJ and four groups representing criminal legal aid lawyers – my post on this here at Jack of Kent.

Yesterday there was a “Save Legal Aid” protest at Westminster Magistrates’ Court:


Judicial Review

The government has announced a consultation on “reform” of judicial review, so as to make it more “transparent”.  In fact, the government is seeking to make it even more difficult for judicial review claims to be brought.  Judicial review is the means by the High Court can check unlawful actions by public bodies; it is no wonder that governments seek to limit its scope.


Crown Prosecution Service

An interesting post by “the Secret Barrister” on the under-funding of the Crown Prosecution Service.  You don’t have to be a fan of the CPS to see that it not being properly funded is not going to make it perform any better.



In Beghal [2015] UKSC 49the Supreme Court held that the notorious schedule 7 to the Terrorism Act 2000 was compliant with human rights law.  Some of the Justices had reservations, but on the whole this is another case to show how weak the UK courts are at upholding fundamental rights.

The Appellants were represented by Matthew Ryder QC:

David Anderson QC, the Independent Reviewer of Terrorism Legislation, tweeted:


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Law and policy round-up – legal aid crisis, court and tribunal fees, freedom of information

22nd July 2015

Legal Aid Crisis

MoJ and criminal legal aid solicitors to meet tomorrow (Thursday) – Monidipa Fouzder at Law Society Gazette

MoJ tries to keep a brave face amid signs of legal strike panic – Ian Dunt at Politics.co.uk

Comparison of what Michael Gove first said about teachers and what he is now saying about lawyers – A view from the North

The “Save Legal Aid” Crisis – is an end(game) in sight? – here at Jack of Kent

Courts and Tribunals

The House of Commons Justice Committee announce major inquiry into the effect of court and tribunal fees

Freedom of Information

Is this the end for the Freedom of Information Act? – Christopher Cook at Newsnight

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The “Save Legal Aid” Crisis – is an end(game) in sight?

21st July 2015

On Thursday there will be a remarkable meeting about the current crisis in criminal legal aid – remarkable that it is taking place at all, remarkable in who is attending it, and remarkable that it appears to have no preconditions.

Everyone who should be there will be around the table, and it would seem that there is nothing “off the table”.

It is a credit to everyone involved.

The meeting was announced today.

Michael Gove, the new Lord Chancellor and Secretary of State for Justice, will meet representatives of four criminal lawyers’ groups.

This is a shift in approach by the MoJ, which under Michael Gove’s predecessor gloried childishly in confrontation and provocation. And this was unfortunate, as the MoJ was formulating and implementing a botched “reform” of legal aid.

For the four lawyers’ groups to be in one place is exceptional: for when cats complain, they must complain of herding lawyers.

Two of the groups, the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association, represent the smaller legal aid firms.  They will be joined by the “BFG” (not the Big Friendly Giant, sadly, but the “Big Firms Group” of the larger solicitors’ firms).  The BFG is not entirely a natural ally of the other two groups.

And there will also be the Criminal Bar Association (CBA).  Until recently the executive of the CBA was persisting in a misguided (if possibly well-meaning) policy of “constructive engagement” with the MoJ.  In effect, this meant that the CBA sought to protect barristers’ fees and higher court advocacy, regardless of the interests of solicitors.  This suits the MoJ, which in turn played solicitors off against barristers.

Last week’s significant vote by the CBA membership changed all this.  The members defied the leaders and voted to adopt a “no returns” policy which, in effect, will bring the work of crown courts to a halt.  No returns will start on 27 July.  The date is now looming; and the policy will significantly escalate the effect of the boycott on criminal legal aid work which has been in place since 1 July.

Had the members of the CBA not voted against their leadership, it is difficult to see that Thursday’s meeting would be taking place, and that all four lawyer groups would be attending.

The best chance of resolving the current crisis, in a way acceptable to all sides, is for the meeting to succeed.

If a public confrontation is forced then there will be lingering damage. If one side “gives in” then there will be lasting resentment. If nothing is done, the criminal justice system will slide further into chaos.

Michael Gove has made fine speeches since his appointment.  He has said many of the right things.  But Thursday will be perhaps his first real test of substance: can the crisis be resolved so that the criminal courts can work again?

It may well be mundane; but the best practical meaning of “upholding the rule of law” is to make the court system work as well as it can, and to ensure people have proper access to that system.



The current criminal legal aid crisis: a timeline

19th July 2015

Last updated 20th July 2015




The current crisis in criminal legal aid has many starting points; I have chosen the April 2013 consultation as the place to begin this chronology.

This chronology is a work-in-progress.  The first draft of 19 July 2015 is incomplete; but rather than heed the counsel of perfection, it has been posted and will be updated/improved on a regular basis.

Significant additions (other than tweets) added after 19th July 20015 marked with *



9 April 2013

The Ministry of Justice (“MoJ”) published its “Transforming Legal Aid” consultation paper.

This covers “reforms” to legal aid in both civil/family and criminal cases.  It includes a proposal for a 17.5% reduction for criminal legal aid solicitors’ fees, as well as reductions in barristers’ fees.  It also includes proposals (which are swiftly dropped) for price competitive tendering and limiting the rights of people to chose solicitors.


4 June 2013

The MoJ consultation closes on the “Transforming Legal Aid” proposals.  There were over 16,000 responses.


5 September 2013

The MoJ publish its response to the consultation: Transforming Legal Aid: Next Steps.

In respect of the 17.5% cut, it is stated that this will not now be in one go. There will be a 8.75% cut in 2014, and a further 8.75% cut in 2015.

The MoJ also proposed a “dual contracts” model.  Criminal legal aid lawyers can bid for “duty provider work” (DPW) contracts and “own client work” (OCW) contracts.  There is a further consultation, which ends on 1 November 2013.


17 December 2013

*Law Society Gazette: ‘No confidence’ motion passed at the Law Society SGM

*The Lawyer: Law Society leadership in chaos as solicitors pass no-confidence vote


6 January 2014

*Law Society Gazette: Half-day protest attracts hundreds of demonstrators


27 February 2014

The MoJ states that its final decision is that there will be 525 “duty provider work” contracts.  (There are currently about 1,600 contracts in place.)  It also announces that the 8.75% cut will be in March 2014, and a further 8.75% cut in 2015.


7 March 2014

The Criminal Bar starts a “no returns” policy, which quickly brings the criminal courts to a halt.  This is called off on 27 March 2014 when the government announces that the cut in advocacy fees will be postponed.

Many solicitors are angry at the “deal” and say that they have been let down by the barristers.


20 March 2014

The first 8.75% cut in fees takes effect.


June 2014

1808 OCW contracts are awarded.  This are generally regarded as commercially of little point, as most criminal legal aid lawyers rely on duty contracts as the basis of their practices.


19 September 2014

The High Court quashes the decision to award 525 DPW contracts, as the respondents to the consultation had been unfairly denied access to the underlying consultancy reports on which the government was relying.  This forces the MoJ to re-open the consultation.


27 November 2014

The MoJ announces its revised decision, increasing the number of [contracts] by only two, to 527.

The MoJ also announces that the 8.75% cut is now planned for 1 July 2015.




23 December 2014

The High Court suspends the tender process for letting the 527 contracts, pending the result of a new judicial review of the 27 November 2014 decision to award 527 DCW contracts under the “dual contracts” model.



18 February 2015

The High Court rules that the 27 November decision to award 527 contracts is lawful.

This decision is upheld by the Court of Appeal on  25 March 2015.


May 2015

Conservatives win overall majority; Michael Gove replaces Chris Grayling as Lord Chancellor and Secretary of State for Justice.


5 May 2015

The tender exercise closes for the new 527 PCW contracts.


21 May 2015

The Criminal Bar Association publish a survey which shows its members are in favour of supporting criminal legal aid solicitors in combating dual contracts. (Reports: Law Society Gazette, Guardian.)


10 June 2015

The MoJ confirms that the 8.75% cut will take effect on 1 July 2015, and put the requisite statutory instrument before parliament.  (Report: Guardian)

The MoJ decides not to cut barristers’ fees.

Tony Cross, chairman of the Criminal Bar Association, says:

“The Criminal Bar Association regrets the decision of the Ministry of Justice to press ahead with the Duty Provider Scheme and to impose further fee cuts on hard pressed litigators.

“The Executive of the CBA will be discussing our response at the earliest opportunity, including further consultation with our membership.

“We acknowledge the Secretary of State for Justice’s welcome recognition as to the critical importance of quality advocacy in our Criminal Justice System.”

Alistair MacDonald QC, chairman of the Bar, says:

“We are pleased that the Ministry of Justice has agreed not to proceed with the cuts to the Advocates’ Graduated Fee Scheme (AGFS). We are also grateful to the Lord Chancellor for listening to, and acting upon, the Bar’s concerns about the impact cuts to the AGFS would have had.

“The Bar Council continues to have grave concerns about the effects upon solicitor colleagues of further fee cuts and the implementation of the dual contracting scheme. We remain convinced that these measures are likely seriously to damage access to justice and the provision of high quality advocacy services in England and Wales.

“We will continue to advance the case with the Ministry of Justice and the Legal Aid Agency for robust measures to be taken to protect, maintain and enhance the high quality of the advocacy market in order best to serve the public interest.”


22 June 2015

The CBA executive decides not to take direct action about dual contracts.  Cross says:

“The fact is that the solicitors are not currently prepared to take decisive action over two tier contracts. Many firms want them; others feel they have no option but to sign up to them. We know that over 1000 tenders have been submitted for the 527 contracts available. Save for three procurement areas, the number of tenders outweigh the number of contracts available.

“It is against this reality that the Executive felt that action on two-tier contracts would serve no purpose. We have lobbied and argued publicly and privately against the introduction of two tier contracts. We believe they will be bad for the Criminal Justice System and be bad for the Bar. But we do not believe, however, that we can fight the solicitors’ battle for them. Fighting alongside is one thing, but our considered opinion is that taking direct action on behalf of solicitors over two-tier, when the solicitors organisations will not or cannot take decisive action themselves is doomed to fail.”


23 June 2015

Michael Gove makes a (widely approved) first speech as Lord Chancellor.


24 June 2015

Criminal legal aid solicitors and barristers in Merseyside meet and agree to take direct action after 1 July 2015. (Report: Law Society Gazette)


25 June 2015

Criminal legal aid solicitors and barristers in Cardiff meet and agree to take direct action after 1 July 2015. (Report: Law Society Gazette)


26 June 2015

The “Big Firms Group”, an alliance of the large criminal legal aid firms which do around 25% of criminal legal aid work, are reported to be supporting the action. (Reports: Law Society Gazette, Solicitors Journal)


27 June 2015

Solicitors in East Yorkshire are reported to be supporting action.


29 June 2015

Criminal solicitors meeting to discuss action in London, Kent, Manchester, Leicester, Derby, Leeds:

Law Society Gazette: Bar chief speaks against “self selecting meetings”

Law Society Gazette: Legal Aid Agency denies warning solicitors against direct action


30 June 2015

Formal statement that London legal aid solicitors will not act in legal aid cases after 1st July

Reports: Guardian, Law Society Gazette.

Solicitors Journal: Legal aid firms set to work after 1 July ‘will run at a loss’

Law Society Gazette: Courts order protest meetings off the premises


1 July 2015

The 8.75% cut takes effect.

*BBC: Legal aid work refused by law firms in cutbacks protest

Law Society Gazette: ‘Business as usual’, claims MoJ on first day of action


2 July 2015

Law Society Gazette: Solicitors’ ballot shows overwhelming support for action.

Legal Aid Solicitors send letter to Gove.


3 July 2015


5 July 2014 

Report about leader of the Merseyside lawyers Zoe Gascoyne at Liverpool Echo.


6 July 2015

Law Society Gazette: PDS lawyers move in as direct action bites

Law Society Gazette: Bar urges solicitors to withdraw legal aid tenders

Solicitors Journal: CBA chairman to vote ‘No’ in upcoming ‘no returns’ ballot


7 July 2015 

Law Society Gazette: MoJ ‘offers talks’ – but not about fee cuts

Solicitors Journal: CBA shown favour by Lord Chancellor over legal aid cuts


8 July 2015

*BBC: Legal Aid boycott ‘causing chaos’

Gove makes speech on legal policy at Lord Mayor’s Banquet, praises the Bar.

Law Society Gazette: Gove meets big legal aid firms


10 July 2015

Law Society Gazette: MoJ denies manipulating legal aid figures


13 July 2015

Law Society Gazette: firms consider duty boycott

Law Society Gazette: 89-call hunt for solicitor as protest bites

Chair of CBA urges “no” vote for ballot on “no returns” policy.


14 July 2015

Law Society Gazette: judges query absence of solicitors

Manchester Evening News: Defendants charged with serious offences might not be represented by a lawyer in court, warn legal aid protesters 


15 July 2015

The CBA membership votes in favour of no new work and ‘no returns’ to support solicitors’ action by 982 votes to 795 votes, equating to 55% in favour and 45% against

*Transcript of Michael Gove’s appearance before the Justice select committee

Law Society Gazette: Gove: legal aid ‘concerns are legitimate’ – but no concessions

Joint statement from solicitors’ leaders Jon Black and Bill Waddington.

Yorkshire Star: Legal aid strike ‘causing chaos’ in South Yorkshire courts and police cells

Channel 4: Barristers vote to back legal aid protest

Independent: Criminal barristers vote to refuse taking work in protest against cuts to legal aid


16 July 2015

Criminal bar announces date for legal aid action

The Times: Barristers back strike action over legal aid cuts


17 July 2015

Joint statement of LLCSA, CLSA, BFG & CBA.

CBA statement

*Huffington Post: Legal Aid Cuts – ‘If Stephen Lawrence’s Mother Walked Through My Door Tomorrow, I Would Have To Turn Her Away’


20 July 2015

*Liverpool Echo: Michael Gove blasted by Liverpool lawyers for “refusing to engage” with legal aid strike

*Bradford Telegraph and Argus: Solicitors strike causes concern for judges over case delays

*Hull Daily Mail: Sentencing of man who tried to abduct child delayed by solicitors’ strike
*Law Society Gazette: News focus on legal aid boycott


Any suggestions of new links and events welcome – please use comment box below.



Michael Gove and the Ministry of Justice’s change of tone

13th July 2015

Over at the FT I have just posted on the change of tone at the MoJ – is it a change of substance as well as of style?


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“Lord John Marbury”

11th July 2015

So sad to hear of the death of Roger Rees.

His Lord John Marbury in the West Wing was wonderful, and this scene in particular was memorable.

“You are all frightened. As well you should be…”


The scripts did the work of, course; but Rees made the character alive and real.



You just wanted to know what he thought, what he would say next, and how he would say it.  You wanted to know how his worldly yet erudite British empiricism would supplement and put right the silly superficial idealism bouncing around the Oval Office.

Not bad for a cameo.

He also was a marvelous Peter Quince in the 1999 film version of A Midsummer Night’s Dream.

A bad loss. RIP.


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Gove must sort out bad MoJ policy making if he is to uphold the rule of law

9th July 2015

Following-on from yesterday’s post on the causes and possible consequences of the current lawyers’ revolt, this is my post today at the Financial Times on why Gove must sort out bad MoJ policy making if he is to uphold the rule of law.

The conclusion reads:


Michael Gove and the Lawyers’ Revolt

8th July 2015

Today, like yesterday, there will significant disruption in the criminal courts of England and Wales; and in the next few weeks this disruption is likely to get worse.

The trigger was the decision by many criminal defence solicitors last week not to take on any new legal aid work as from last Wednesday (1 July 2015), in protest about the government’s criminal legal aid policy; but the causes are more complex than any particular set of refusals to accept publicly funded instructions.

Some criminal defence barristers are joining in the protest by also refusing to do legal aid work from last Wednesday, and their representative body is now balloting on whether barristers should take a “no returns” stance (which will be explained below) which will convert the current disruption into a near stand-still.

Pretty soon the criminal courts may not be functioning at all.

If a crisis can be defined as a complex and serious situation the outcome of which is not predictable, then the criminal justice system of England and Wales is plainly in a crisis.

Last March, the last time criminal defence barristers and solicitors joined together in what most would call a “strike” (a few lawyers – being lawyers – quibble with the word), the Ministry of Justice (MoJ) was able to avert its consequences by the expedient of promising to delay planned cuts to barristers’ fees, leaving solicitors in a lurch.

But such a cynical divide-and-rule tactic is probably not going to work again. This time round, nobody knows how it will end up.

This presents an immense and urgent problem for Michael Gove, the new Lord Chancellor and Secretary of State for Justice.

The problem is not entirely of his own making. He has only been in office since May 2015, whilst the MoJ policies at the heart of the dispute have been in place since April 2013, if not before.

The main responsibility for this mess is with his predecessor Chris Grayling, as well as with the senior clutch of officials at the MoJ.

The primary cause of the discontent is that the MoJ wants to substantially reduce expenditure on criminal legal aid. This in turn is because of overall expenditure cuts forced on the department by the Treasury.

But the difficulty for the MoJ is that it cannot simply make a brute long-term reduction in expenditure; if it did so there just would not ever be any lawyers willing and able to afford to contract with the MoJ to do the work needed.

And so since 2013 the MoJ has hit on a succession of clever-seeming wheezes so as to force through the desired spending cut. One misconceived idea was to somehow introduce competitive price tendering between solicitors; another one was to legally oblige all those accused to have to take a defence solicitor of the government’s choice. Both these proposals were dropped as they failed simple tests of reality and practicality.

But the one policy which has limped on is that known as “dual contracts”.

The concept behind “dual contracts” is that the market for the provision of criminal legal aid can be compelled by the government’s buying power into undergoing a fundamental and sudden process of restructuring; effectively a market crunch.

The chosen method of this compulsion is to cut the number of contracts for providing criminal legal aid as “duty solicitors” from 1,600 to 527.

The notion is that if cuts in criminal legal aid cannot be borne by lots of small firms then using the MoJ’s market power can ensure that a smaller number of larger firms (or groups of firms) can absorb the cuts whilst maintaining service levels.

(The “dual” is because solicitors can also bid for contracts to provide legal aid other than as duty solicitors; but such contracts are commercially pointless, as most criminal legal aid work comes in as a consequence of doing “duty solicitor” work.)

This “dual contracts” model must have looked a very good idea on paper; and indeed, the MoJ has paid a lot of money to external consultants to come up with papers setting out this policy.

The “dual contracts” model will not be fully in place until next year; the MoJ is still at an early stage in its (expensive) procurement exercise.

A sensible MoJ approach would have been to delay any further cuts in criminal legal aid until the new contracts were let.

More sensible still would have been Mr Gove (or any other incoming Lord Chancellor and Secretary of State for Justice) to take an opportunity to revisit this (to put it politely) “ambitious” piece of social and economic engineering.

After all, it does seem rather odd that any right-of-centre government would want to “buck the market” based on management theories and consultants’ assumptions, when the tangible – and quite deliberate – effect of the policy will be the closure of hundreds of small- to medium-size businesses in towns and cities across England and Wales.

There is no reason to believe that the “dual contracts” model will even be a success on its own terms.

There are few if any criminal legal aid solicitors which can take the current cuts in their stride; and in three areas of England and Wales, there have been insufficient bidders for the contracts on offer.

There is certainly no evidence to believe that the successful firms (cobbled together groups of firms or “market entrants”) will in practice be able to “deliver” services at the lower prices.

But the MoJ is determined to drive on with this illiberal and ill-conceived exercise, just because – it seems – it has started on it.

And what makes it more damaging, and which has led to the current lawyers’ revolt, is that the MoJ has also insisted on a concurrent 8.75% cut in criminal legal aid fees, as from last Wednesday.

This cut, taken together with a similar cut in March 2014, means that the MoJ seeking to have its cake and to eat it: reducing fees for current criminal legal aid solicitors until next year in the hope that the new “dual contracts” will then make such reductions viable in the medium- to longer-term.

Mr Gove is, of course, not to blame for MoJ policies from before he became the department’s ministerial head; but he was in charge when the cut of 1 July 2015 was placed into law, though he may not have been aware of its likely effect.

He may well have been swayed by plausible MoJ officials assuring him that by halting the planned reductions in barristers’ fees, there could again be a game of divide-and-rule between solicitors and barristers.

So Mr Gove may have good excuses for not expecting the current crisis.

Indeed, just two weeks ago he gave a clever and charming speech in which he emphasised the importance of the rule of law:

“And I am conscious …that there is something distinctive about the role of Lord Chancellor, different from other Cabinet posts.

“The most important thing I need to defend in this job – at all costs – is not a specific political position – but the rule of law.”

He also praised “the scrupulous patience, intellectual diligence and culture of excellence” which he said characterises the work of solicitors and barristers. The speech – which is worth reading carefully and in full – showed a thoughtful (if abstract) understanding of what the rule of law means, and he had warm compliments for judge-led initiatives to improve efficiency in justice system. It was almost as if peace was breaking out between the MoJ and the legal profession.

But charm and cleverness are never enough to deal with genuine problems.

And so in the days leading up to the cut of 1 July, starting in Merseyside and then in every major city, meetings of criminal solicitors and barristers met to discuss what to do about the cut and the imposition of “dual contracts”, and what not to do.

The significant attendees at these meetings were not the verbose firebrands who are always up for a fight, but the quiet, scrupulously patient, intellectual diligent and culturally excellent lawyers who manage the solicitors’ firms. For them refusing to take on new criminal legal aid work at the lower rates would not be some wild altruistic gesture; it would be a rational step, as it would be uneconomic to do otherwise; they could no longer afford to their job.

The only real choice was to act in unison with other solicitors and show the government a united front of disapproval and non-cooperation.

Importantly, the criminal defence Bar also seems to be behind the solicitors. Again, this is not from narrow self-interest (the MoJ having been careful to first delay and the annul the planned barristers’ fee cuts so as to keep them on side), but because the future of the criminal defence Bar depends on work from solicitors’ firms.

And without such work, there is no basis for a criminal defence Bar, and that in turn means that the quality (and quantity) of advocacy in serious criminal matters will suffer.

Though the leadership of the Criminal Bar Association (CBA) initially was against barristers taking any action in support of the solicitors (preferring “constructive dialogue” with the MoJ – and, to be fair, they have *twice since 2013 negotiated to protect the positions of barristers at the expense of solicitors ), pressure up from grassroots seems to be coercing the CBA into a more openly robust position.

[*note this is disputed by an informed source, who tell me the the two criminal fees concessions by MoJ had little to do with the CBA – note added 9 July 2015]

If a “no returns” stand is taken – and here it is important to note that the crown courts which deal with serious offences rely on the flexibility of barristers to accept “return” instructions when other barristers become unavailable – then the solicitors’ protest will have powerful support.

This lawyers’ revolt began slowly after last Wednesday; it takes time for cases to work through the criminal court system, and the solicitors’ refusal to take on new legal aid work was only for cases from 1 July onward.

Solicitors were careful to comply with their obligations to provide “duty” work, mainly at police stations and magistrates’ court (this is why the quibbling lawyer will say is not a “strike”); but such work is at best a bare minimum of what is required to ensure those arrested and charged with proper representation.

Over the last few days the effects of the revolt have been manifesting.

The handful of defence lawyers employed directly by the MoJ – the Public Defender Service (PDS) – found themselves being sent from their four small regional offices all over the country to deal with serious matters where no legal aid solicitors accepted instructions. The PDS is a fine group of dedicated lawyers, but each one can only deal with one high-profile case at a time in one place, rather than a list of dozens of low-level offences in each local court. And even deploying the PDS has not been enough; a man charged with murder in Bristol had no representation in court yesterday and there had to be an adjournment, among many other similar examples in the last day or so.

The MoJ’s processing centre for placing cases with legal aid defence solicitors – the Defence Solicitor Call Centre (DSCC) – appears to be failing to cope with the current demands (though the MoJ press office insists the DSCC “is not in meltdown”). DSCC staff are reduced to desperately contacting solicitors hundreds of miles away from those needing advice and representation, and often cannot place instructions at all.

I have been told by a number of solicitors of examples where the DSCC is unable to obtain anyone to do even straightforward criminal defence work, either as “back up” to “duty” solicitors or at all.

Another pressure-point are police stations, where it appears (from various sources) that those arrested are now being released – or bailed – without charge, and planned arrests are not taking place, because what can be done by “duty” solicitors is insufficient.

And in the courts, it is now well attested that the attending “duty” solicitors are often now having to slowly do the majority of cases, leaving many defendants unrepresented.

If these are the manifestations of the lawyers’ revolt, then what will be its knock-on effects? Hearings and trials will take significantly longer, and will also be repeatedly adjourned and delayed, many (guilty) people will be released without charge, and (not guilty) people may plead guilty without the benefit of advice – or, if a trial goes ahead without proper representation, wrongly found guilty.

The criminal justice system will cease to function in any meaningful way; and there is no point having politicians and civil servants making and implementing laws which cannot be enforced.

But if there are no defence lawyers who can afford to run their businesses accepting the fees now on offer, then the cause of this problem is with ministers and officials who set the rates.

And what will be its political consequences?

What can actually change as a matter of policy as a result of this revolt?

The 1 July cut is now the law of the land; and the “dual contract” policy, having survived a legal challenge, is now at the stage where there is an on-going procurement exercise.

Neither the cut nor the procurement exercise can be easily reversed; and the Treasury still demands reductions in expenditure from the MoJ.

There is no quick fix available to the MoJ to placate and appease the criminal defence lawyers; nothing can be done by tomorrow.

One observer has suggested that the revolt can be seen as a mere “howl of pain” by the lawyers involved; and it may well be that the fine resolutions and unanimity of the solicitors and barristers fall away having made a lot of noise and caused a lot of disruption, followed by a slow drift back to accepting legal aid work until the “dual contracts”arrive and put most of those lawyers out of work.

Mr Gove is an intelligent and media-savvy politician: all he may need to do is wait and put up with what is happening, watch the protests collapse, spot things he can blame the lawyers for having caused, and then ensure that the public gets to hear the MoJ’s version of how well the criminal justice system meets its “challenges”.

The indications, however, are that Mr Gove may be taking a more prudent course of action.

Unlike his time as education minister, he and his advisers have not gloried in the conflict. Tabloids have not (yet) been briefed against the lawyers. The MoJ has instead been careful to keep lines of communication open with the professional bodies.

It will now be clear to the MoJ that it cannot deftly just play barristers against solicitors, or rely on the PDS to make the problems go way. It will also be plain that the lawyers’ revolt is holding and even becoming firmer.

It is, in fact, a good time for the MoJ to think afresh, to look at other litigation funding models for criminal legal aid and work in accordance with an existing market, rather than hope like utopians that somehow that an ideal one comes along.

There was never any good reason to impose the 1 July cut so far ahead of the letting of the “dual contracts” – and there was actually no reason to believe (or empirical evidence to show) that the “dual contracts” model will ever achieve the desired sustainable reductions in criminal legal aid.

As Mr Gove said in his speech just a couple of weeks ago, “the most important thing I need to defend in this job – at all costs – is not a specific political position – but the rule of law”.

He now has the opportunity to show that he can make that very choice.

Mr Gove does not need to defend – at all costs – a specific political position erroneously taken by his predecessor; he can instead decide to ensure that the criminal justice system continues to function on a sustainable basis; in short, and as he says he wants to do, he can choose to defend the rule of law.