Law and policy round-up: media law, Brevik and human rights, legal aid and access to justice

25th April 2016

The media, defamation and lawyers

Excellent post at Law Society Gazette on the state of current media law litigation, especially the impact of the Defamation Act 2013.

Breivik reminds us human rights never stand alone

Nick Cohen takes on the “what about Brevik” counterpoint to the concept of absolute human rights.

Legal aid cuts have led to surge in DIY defence, says charity

Good article (though one with a dull title) on the recent Transform Justice report. Includes this eye-catching example:

https://twitter.com/taxbod/status/724115206801108992

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Falconer refers the MoJ’s criminal legal aid fiasco to the National Audit Office

1st February 2016

The shadow Lord Chancellor Charles Falconer has today referred the Ministry of Justice’s aborted criminal legal aid “reforms” to the National Audit Office for investigation.

Below is a copy of the letter which was sent today.

 

Dear Sir Amyas,

I write to ask the National Audit Office, as the body responsible for scrutinising public spending on behalf of Parliament, to investigate the decision by the Ministry of Justice to pursue its policy of consolidating the criminal legal aid services market through a model known as “dual-contracting”, as well as the Legal Aid Agency’s (“LAA”) handling of the procurement process for the introduction of Own Client and Duty Provider Crime Contracts.

The Government’s proposals for legal aid were first consulted on in June 2013 in the document Transforming Legal Aid: Delivering a more credible and efficient system[1].

As a result of fierce opposition to some of the Government’s plans, the Justice Secretary came before the House of Commons on 5 September 2013 and announced that there would be a further consultation, Transforming Legal Aid: Next Steps[2], in relation to two of the original proposals, those to introduce competitive tendering and proposed reforms to criminal advocacy fees.

On 27 February 2014, the Government unveiled its final package of criminal legal aid reforms, which included staged cuts of 17.5% and the introduction of a dual contracting model[3].

There has been considerable opposition to the Government’s proposals and the decision to commence a tender process for 527 Duty Provider Work contracts was the subject of judicial review proceedings.

In March 2015, the LAA set new deadlines for crime duty tender contracts following the Court of Appeal’s decision to dismiss the Law Society and practitioner groups’ challenge.

In June 2015, the Parliamentary Under-Secretary of State for Courts and Legal Aid, Shailesh Vara MP, published a Written Statement confirming that the government would press ahead with the second 8.75% reduction to litigators’ fees and with the new duty provider contracts[4].

Shortly afterwards, practitioner groups commenced a nationwide boycott of legal aid work under what they describe as ‘derisory’ new rates.  This was suspended after 52 days of protest as a gesture of goodwill following talks with the Lord Chancellor and MoJ officials.

Criminal legal aid firms found out whether they were successful in their bids for new contracts in October 2015.

The procurement process for the new duty provider contracts has been mired in chaos and controversy from its inception.

After repeated delays in announcing the tender results and reports of errors, two separate whistle-blowers – Freddie Hurlston and Paul Staples – came forward alleging that the process had been “shambolic and unprofessional”, with bids being handled by inexperienced, temporary staff and staff being put under pressure.[5]

Despite denials by Ministers, a response from Shailesh Vara MP to questions tabled by Karl Turner MP revealed that almost twenty per cent of the assessment team were temporary staff and that staff working on the bids were not required to have procurement experience.[6]

Following these allegations, the president of the Law Society, Jonathan Smithers, wrote to the Chairs of the Justice Select Committee and the Public Accounts Committee expressing concerns that the process had not been robust and calling for an independent review[7].

 A judicial review, sought by the Fair Crime Contracts Alliance, has been launched which was due to open on 7 April and a hearing into more than a hundred individual procurement law challenges was due to begin on 3 May.

On 13 November, the LAA was forced to announce that services under the new contracts, scheduled to start on 11 January, would now start on 1 April 2016[8].

Following speculation at the start of January 2016 that the court action would cease and that the Government would drop its plans, the Law Society asked the LAA to clarify its plans. The LAA maintained that there had been no change in policy[9].   

 On 28 January, the Secretary of State for Justice, the Rt Hon Michael Gove MP, announced via a Written Ministerial Statement that the Government had decided not to go ahead with the introduction of the dual contracting system and to suspend, for a period of 12 months from 1 April 2016, the second fee cut[10].

This is a significant change in policy and one that has taken place very late in the day. Not only will many criminal law firms will have already taken decisions either to expand or to cut staff based on their success in the bidding process but much time and expenditure is likely to have already been spent by the MoJ and the LAA. In addition, the Government has so far ignored calls – by the Law Society and the Labour party – for an independent review of the procurement process.

For the reasons set out above, I hope you will agree that the NAO has an important role to play in ensuring that the interests of the taxpayers have been properly safeguarded in this case.

I copy this letter to the Chair of the House of Commons Public Accounts Committee, Meg Hillier MP.

[1] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

[2] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps

[3] https://www.gov.uk/government/news/transforming-legal-aid-government-response

[4] http://www.parliament.uk/documents/commons-vote-office/June%202015/10%20June/2.Justice-Legal%20Aid.pdf

[5] http://www.lawgazette.co.uk/law/whistleblower-claims-legal-aid-contracting-process-flawed/5051581.fullarticle; http://www.legalvoice.org.uk/2015/11/13/duty-tender-shambolic-and-unprofessional-says-second-laa-whistleblower/

[6] http://www.theyworkforyou.com/wrans/?id=2015-10-29.14001.h&s=speaker%3A24767+section%3Awrans#g14001.q0

[7] http://www.lawgazette.co.uk/practice/society-calls-for-independent-review-of-duty-contract-procurement/5052209.fullarticle

[8] https://www.gov.uk/government/news/crime-news-provision-of-criminal-legal-aid-services-from-11-january-2016

[9] http://www.solicitorsjournal.com/news/crime/funding-legal-aid/25215/law-society-seeks-clarity-legal-aid-contract-procurement-process

[10] https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting

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Law and policy round-up – legal aid crisis talks continue, court orders

4th August 2015

Legal Aid Crisis

Talks continue at the Ministry of Justice – a joint statement by the the two criminal solicitors’ groups the LCCSA and CLSA.

Comment: The boycott by solicitors of criminal legal aid work since 1 July 2015 is continuing (though it is now focused on crown court work only); the “no returns” policy of criminal legal barristers since 27 July 2015 is now also beginning to have an impact.  The crown courts are gradually coming to a halt.

It is thereby good that these talks are taking place and that there are further talks planned. The lack of confrontational public statements by the MoJ is welcome.

Gove’s absence at this second session of talks was a disappointment; but at least someone from the Criminal Bar Association managed to turn up this time.  The MoJ is plainly playing hardball over the (flawed) “dual contract” model which is intended to somehow restructure (“consolidate”) the supply of criminal legal aid services.  The MoJ is, however, being more flexible about the 1 July 2015 cut and appears to accept that there could be a case for suspending it (though not removing it completely).

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The Guardian view on cuts to the justice budget: eroding the rule of law – Guardian

Comment: Good, strong – and detailed – editorial. Well worth reading carefully.

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Why lawyers are taking on the government  – by Oliver Carter, at Left Foot Forward

Comment: Nicely done, informative piece with many helpful links.

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Court Orders

Illegal immigrants to UK face eviction without court order under new plans – Guardian

Comment: JoK is a primarily a law and policy blog, and so is not really concerned with areas of substantive law; but what is worrying about this news report is the notion that there could be a return to the pre-1957 days of evictions without court orders, as former appeals judge Sir Henry Brooke noted on Twitter.

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“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.

 

Terrorism

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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