Dear Mr Gove, bad Ministry of Justice policy making has not gone away

4th April 2016

Another policy failure of the Ministry of Justice becomes apparent: over at the Law Society Gazette, John Hyde has detailed how the MoJ has collected only a small proportion of the criminal courts charge.

The charge has now been terminated; but the underlying problem remains: the MoJ is simply not any good at policy making and policy implementation.

The MoJ adopts a policy, usually without assessing evidence or even thinking things through, and it then “presses on” with the policy regardless of onlookers pointing out that, well, the policy will not work.

The policy is then eventually reversed.

This is not just a one-off; the cycle of policy adoption-failure-reversal has been a feature of the MoJ for as long as one can remember.

Michael Gove has been Justice Secretary and Lord Chancellor for less than a year. He has started well as the ministerial head of the department, and he has been savvy enough to work out ways of ending most of his predecessors more idiotic policies.

To go by the political news, however, it seems like Gove is now becoming preoccupied with the upcoming “Brexit” referendum vote.

The worry is that Gove somehow thinks the problem of crap MoJ policy making has been solved. and that he is thereby free to concentrate on other political matters.

The problem has not been solved; as not being any good at policy making and implementation (whilst arrogantly ignoring anyone pointing this out) is the natural state of the MoJ.

Without a careful eye, bad policy making will return.

And, if so, Gove will no longer have the luxury of focusing on Breixt or even the Tory leadership succession.

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Michael Gove “picks a fight” over the MoJ’s Saudi contract bid: the background

13th October 2015

The overnight news was dramatic: the Lord Chancellor and Justice Secretary, Michael Gove, has “picked a fight” in Cabinet.

And the subject of this political spat?

It would appear that it is the commercial bid by the Ministry of Justice (MoJ) to assist the prison service of Saudi Arabia, something I have been blogging about here and at the FT since January.

This post sets out the general background to this political development: in essence, everything you need to know.

*

The overnight news

The story broke in the Times, with a page one news feature and a (very) well-informed opinion piece inside.

The front page of the print edition (hat-tip Nick Sutton):

20510 Times3

And here is what the online story looks like:

201510 Times2

And the opinion piece:

201510 Times1

(Please now click and read the originals if you can, even it involves paying: journalism costs money, whatever its source.)

The key facts in the Times story are as follows:

– there is a “cabinet row” between Gove and Philip Hammond, the Foreign Secretary;

– Gove has demanded the MoJ commercial bid be scrapped;

– Gove has circulated a memorandum to this effect;

– the dispute was raised at a meeting of the “National Security Council”

– the Prime Minister has had to determine the dispute, and has insisted that the commercial bid go ahead;

– Sajid Javid, the Business Secretary, supports Gove;

– Hammond warned that cancelling the deal would make the UK look an untrustworthy ally;

– and so, in summary, the Foreign Office and the Prime Minister have overruled the MoJ.

The Opinion piece repeats these facts, and adds the following detail:

“There was a robust exchange of views,” says a Whitehall source who has seen the letters. “The MoJ had human rights concerns; the Foreign Office felt this would have far bigger ramifications.” Downing Street ruled that the Ministry of Justice must honour its bid. Unless something changes, Mr Gove will sign the contract any day now and British civil servants will spend six months working with one of the most barbaric prison systems in the world.”

*

The “commercial bid” of the MoJ

So what is this about?

[Most of the information below is contained in and sourced in these previous posts: FT, January 2015Jack of Kent, February 2015,  FT, September 2015Jack of Kent, October 2015, and FT, October 2015 (yesterday).]

The “commercial bid” of the MoJ to assist with the Saudi prison service was one of a number of transactions proposed by a group of MoJ civil servants who called themselves “Just Solutions international” (or “JSi” complete with gimmicky lower-case “i”).

JSi was established in 2012, when Kenneth Clarke was Lord Chancellor and Justice Secretary, but it developed rapidly under his successor (and Gove’s predecessor) Chris Grayling.

The idea was that JSi would sell “expert” services to foreign governments in return for cash on a “commercial” (as opposed to a costs) basis.  The MoJ would thereby make money from the transactions.

Involved in the creation and promotion of JSi was PricewaterhouseCoopers.

The proposed Saudi contract was first mentioned (in passing) in a MoJ report to Parliament in December 2014.  That in turn was brought to the attention of David Hencke, who broke the story in January 2015.

The MoJ under Grayling continued with the bid (despite the public criticism), putting a final bid in around April 2015.

In May 2015, after the general election, Gove replaced Grayling.  Gove then quickly reverses a number of Grayling’s policies: see Joshua Rozenberg here.

In September 2015, the MoJ announced it is closing down JSi, but also that the Saudi commercial bid was too advanced to be stopped.

After a bit of digging, I was able to establish that one reason then given by the MoJ for not dropping the bid – “financial penalties” – was invalid (and this led to an amendment of the September announcement to parliament).  The MoJ then confirmed it had to continue with the bid because of the “wider interests” of the government.  Alan White at Buzzfeed reveals that MoJ (and Gove) wanted to drop the bid but could not.

At this stage, therefore, there was obvious tension between government departments. Tension is not new, of course.

But what then electrified the situation is that at the end of September 2015, the new Leader of the Opposition Jeremy Corbyn mentions the bid in his conference speech.

Corbyn demanded of the Prime Minister:

“And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.”

And that in turn is the immediate background to the overnight news.

So: an issue of “reverse public procurement” (ie, public bodies seeking to sell goods and services) in a relatively small government department (in spending terms) leads to a political fight between the holders of two great offices of state – the Lord Chancellor and the Foreign Secretary – which the Prime Minister then has had to resolve in the face of criticism from the Leader of the Opposition.

And then someone tells the Times about this happening.

*

Assessing the overnight news

Things do not end up on the front page of the Times by accident.

There are reasons why this story has hit mainstream media in this well-informed way, and in the manner it has.

The details of the contract bid, or the MoJ’s recent opposition to continuing with it, are not news.  It has previously been covered in detail by David Hencke, by me here and at the FT, and by Alan White at Buzzfeed.  It was not of particular interest to political correspondents and columnists.

What has converted it to front page news is that the bid and the MoJ’s opposition has become the stuff of a cabinet split.  One can guess who would benefit from such a story.

What appears to be the situation (and here I am only going on what is in the public domain) is that the issue is of natural interest to Gove (I do not doubt his sincerity in not liking this Saudi bid) but that it also is a useful political tool for him to use.

Gove did not have to close down JSi – the fact he did shows his general disdain for selling MoJ services to foreign despots, even though it shut off a potentially lucrative revenue stream to a cash-starved department.

It is also clear that the Saudi bid would have been stopped but for pressure from the Foreign Office.

And so it also serves Gove as a political weapon: it is reminiscent of how Gove used the faith school issue in Birmingham when he was Education Secretary.

Whatever the political realities of the matter, one thing is plain: the MoJ should never have got itself into the misconceived and illiberal position of making commercial bids to sell UK state services to repressive regimes.

Nothing good was to come of it.

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The story of the unfortunate MoJ and Saudi commercial proposal

25th September 2015

This is the background story to my ongoing posts at the FT about the unfortunate contract proposal from the UK government to the government of Saudi Arabia, and what the deal tells us about who really has power in – and over – the UK polity.

It is an unfinished story at the moment, as it is not yet known if the transaction will actually take place; no final decision on the contract has been made.

But what is known and in the public domain already is bad enough.

For example, the relevant UK government department over the last couple of weeks has had to admit to misinforming both the House of Commons and the High Court about the relevant procurement exercise, and it would seem no official – or minister – at the department has an overall grasp of what is going on.

And now it seems now the government department itself is not in control of its own contract proposal, as it appears that the only reason for the bid continuing is political pressure from other government departments.

It is a remarkable – and revealing – situation.

*

The MoJ commercial proposal

The government department involved is, of course, the Ministry of Justice (MoJ).

The contract proposal is for the MoJ to provide training services to the prison service of Saudi Arabia.

The value of the contract is reported to be £5.9 million.

The contract is to be let on a “commercial basis” – that is, the intention is for the MoJ to make a profit, rather than to just cover its costs.

The services to be provided seem to be the time and supposed expertise of MoJ civil servants (all of whom are, of course, funded by the UK taxpayer).

In effect, the MoJ wants to make money out of selling UK state resources to the Saudis.

*

Why the MoJ commercial proposal is wrong

Stepping back, it is obvious that this proposal is odd and wrong in a number of ways.

First, is a strange reversal to the usual approach to public sector contracting, which is that the state is the purchaser from a supplier; here, it is the government itself purporting to be a supplier to a customer.

Second, it should not be the business of the civil service to be selling “commercial” services to non-UK purchasers; the job of the civil service is to administer public services as, well, public servants.

Third, it certainly should not be the role of the MoJ, of all UK departments, to seek to have any commercial relationship with the government of Saudi Arabia.

And this is because of a matter of basic principle.

The MoJ is responsible for the integrity of the court system of England and Wales; indeed, the ministerial head of the department – the grandly titled Lord Chancellor and Secretary of State for Justice – has a constitutional duty recognised by statute to uphold the “rule of law”.

The Saudi Arabian state, on the other hand, has repeatedly sought to undermine the UK legal system.

The ongoing attempts by the Saudis to disrupt the legal system are well documented.

The most notable example, though not the only one, was the subject of the notorious Corner House case, which set out how the Saudis had bullied the UK government into dropping a fraud prosecution of BAe.

Anyone interested in seeing the extent of Saudi influence over the UK government and how it seeks to frustrate due process should read the first 22 descriptive paragraphs of the 2008 decision of House of Lords.

Following Corner House, it should be simply unthinkable for the Saudis to be given any commercial sway over the MoJ, or any other part of the domestic legal system – and although £5.9 million is not a lot of money for the Saudis, it is a significant amount for a MoJ under pressure to reduce spending.

And fourth, it is a revolting notion that the UK should be assisting any part of the Saudi punishment system to be more efficient.

The Saudi regime is, without any exaggeration, barbaric. Criminal offences are not defined; there is no recognisable due process for defendants; and the punishments are savage. And this description is not just some hyperbole of a breathless human rights lawyer: it is what the UK embassy in Riyadh itself says in its chilling Information Pack for British Prisoners in Saudi Arabia. On punishments, the guide says:

Criminal law punishments in Saudi Arabia include public beheading, stoning, amputation and lashings. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mabahith, and “religious” police, the Mutawa. The Saudi courts impose a number of severe physical punishments. The death penalty can be imposed for a wide range of offences including murder, rape, armed robbery, repeated drug use, apostasy, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning or firing squad, followed by crucifixion.

What one is told by our embassy about what happens in the courtroom is not encouraging:

There is no jury system in Saudi Arabia. Trials are heard by a judge. They rely largely, and at times solely, on police reports and there is no guarantee that your pleas will be discussed. If a decision is taken by the Ministry of Interior or the Public Prosecutor’s office to send an individual before a Sharia court the procedures are very different from those in the UK. The court consists of a judge, the court clerk and a prosecutor from the Public Prosecutor’s office. The Judge will read the file prepared by the Police, the Public Prosecutor’s office and a statement made by the defendant. He will then ask a few questions from those involved and reach a decision. You will be allowed to have a lawyer represent you in court but he will not be allowed to cross examine witnesses or argue about statements presented by the either the police or the Public Prosecutor.

But you do not have to go to a UK embassy pamphlet to get a sense of the barbarity of the Saudi punishment; you just have to look at news media.

Cases of dire inhumanity by the Saudi state are a commonplace.

This week, for example, the Saudis are seeking to behead a seventeen year-old; and if executing a minor was not sickening enough, the plan by the Saudi authorities is to then have the boy’s corpse crucified.

This is not a punishment regime any western liberal democracy should be seeking to make more efficient.

*

The problem within MoJ

So how did the MoJ get into this unfortunate position?

The answer is depressing; the MoJ’s civil servants appear to have blundered into bidding for the Saudi prisons contract and nobody at the department had the wit or sense to stop them before it got too far.

This was not knavery; it was more collective foolishness within a dysfunctional government department.

And it was not only the Saudis to whom MoJ civil servants were seeking to sell services on a commercial basis; there were to be contracts with despots around the world.

No regime in the world seems to be too nasty. As I have described previously, the self-appointed unit which undertook this activity – “Just Solutions international” (JSi) – was “an exercise in amateurism and obfuscation, with civil servants toying with high-value international service contracts”.

One of many commendable things which the new Lord Chancellor and Justice Secretary Michael Gove has done since taking over the MoJ in May is to order that JSi will cease to operate.

(This decision by Gove is one of a number of reversals of what happened previously at the MoJ which are discussed by Joshua Rozenberg in a recent insightful article.)

Gove quite properly insists that the focus of the work of MoJ civil servants should the courts, prisons, and probation services they are actually responsible for.

The global gallivanting has come to an end.

But bringing the antics of the JSi to a full conclusion has proved hard to do in practice. My last FT post on the MoJ and JSi was published on 11 September 2015, just after there had been a parliamentary statement saying that although JSi was to be closed down, the Saudi contract bid had to continue.

The natural and ordinary meaning of the explanation then given for the continuation by the MoJ was that Saudi “financial penalties” meant that the bid could not be withdrawn.

As my last FT post noted, this did not seem right. And, when officials at the MoJ double-checked, it turned out not to be right.

If the “financial penalties” could have applied at all (and that is still not clear), they were out-of-date. In an elementary error, the civil servants briefing the minister who made the parliamentary statement had got basic information wrong.

And so parliament was misinformed (or, in truth, misled) and the MoJ had to formally correct the ministerial statement. And such corrections are not done lightly by government departments.

The MoJ even went further than a formal correction; in an accompanying letter to the MP (who had nominally asked the question to which the ministerial statement was in the form of an answer), the MoJ made plain it was its own officials who were to blame for the misinformation:

I am writing to inform you of a correction to my answer to your parliamentary question on Just Solutions international (JSi).

My answer stated: “Following the submission of a final bid in April 2015, [the National Offender Management Service] is now liable for financial penalties should the bid be withdrawn.”

This sentence was incorrect. In fact NOMS is only liable for financial penalties in the event of a withdrawal for a “validity period” of four months after the submission of the final bid in April. This period ended on 21 August meaning NOMS is no longer subject to financial penalties. I have asked officials for a full explanation as to why incorrect information was provided first to ministers and then to parliament through a written answer. It is clearly unacceptable for incorrect information to be given to parliament and I apologise unreservedly for this error. The parliamentary records will be corrected and I will be placing a copy of this letter in the House [of Commons] library.

So what?

What does this error matter?

It is significant in two ways.

First, it showed that even ministers and their private offices at the MoJ were not being given reliable information by officials in respect of potentially crucial information which could have influenced decision making on a controversial and high value contract with a barbaric regime.

But second, it meant that the fig-leaf of the “financial penalties” excuse for continuing with the bid fell away, and exposed something more worrying: the MoJ is now being forced into carrying on with the contract proposal, regardless of Gove’s desire to cease such activities at his department.

It is no longer a decision just for the MoJ (even though back in January, the MoJ press office assured journalists that “if the Saudi Government decided to offer NOMS the contract…the Secretary of State would have the opportunity to review the earlier decision in the light of current issues and considerations. The final decision may be to continue to contract (should it be offered) or to withdraw from the process)”.

The hands of the Lord Chancellor and Justice Secretary have been tied by government colleagues.

And it was not only ministers and the House of Commons which have been misled by officials.

A few days after the MoJ admitted to misinforming parliament, another interesting and potentially significant error was revealed.

The ministerial statement had stated that the final bid to the Saudis had been made in April.

But this contradicted what the MoJ’s lawyers had told the High Court in defending the spirited judicial review of JSi brought by the Gulf Center for Human Rights. Government lawyers incorrectly told the court that the final bid was made in February.

Again, a mix-up of dates may seem unimportant.  But in the context of litigation, such dates can be crucial, especially in cases relating to commercial and procurement matters.

In essence, the more stale the procurement stage, the less likely a court will be minded to grant a remedy.

And, in any case, the High Court should not be given false information. So, as with the House of Commons, the MoJ has had to formally write to the High Court to correct a mistake and apologise in respect of information which the MoJ should not have got wrong.

The Gulf Center for Human Rights has said that the judicial review is continuing – and this week the experienced judicial review judge Mr Justice Supperstone granted the Gulf Center for Human Rights a protective costs order, saying that he was satisfied that that claim raised a matter of public importance which the public interest requires to be resolved.

Misinforming both the House of Commons and the High Court are serious matters, and that it has happened is indicative of the ineptness of the MoJ in respect of a major contract bid.

But what is far more serious is that the MoJ is being obliged to continue with the proposal.

*

The “wider interests” of government, and the interests of Saudi Arabia

In the same ministerial letter to the MP that corrected the point about “financial penalties”, the MoJ goes on to say:

I should stress that this does not affect the decisions either to choose JSi or to proceed with the training needs analysis bid. As my original answer stated, the bid will proceed because the Government decided withdrawing from the Saudi bid at this late stage would be detrimental to the HMG’s wider interests. Although ministers considered the implications of potential financial penalties during their decision-making process, the critical factor was the strong view from across government that withdrawing at such an advanced stage would harm HMG’s broader engagement with the Kingdon of Saudi Arabia.

The passage is subtle; but the only sensible meaning of the passage is that the MoJ is being pressed into continuing by other government departments. Over at Buzzfeed, the estimable Alan White reports:

Seven days ago, Grayling’s successor, Michael Gove – said by insiders to strongly oppose the notion that Britain should enter into such commercial contracts with despotic regimes – announced that JSI would be wound up.

However, a £5.9 million contract to advise Saudi Arabian prison system on training needs will still be delivered.

BuzzFeed News understands that Gove wanted to terminate the entire contract but this was blocked by other government departments who feared that it would damage relations with the Saudis.

White is nobody’s fool as a journalist, and his description of Gove’s sentiments is likely to be well-sourced and correct.

It would accord with the robust wording of the ministerial statement and the letter to the MP.

And it is also consistent with Gove closing down JSi.

So it is probably not just MoJ spin that Gove and his department want distance from the contract: the evidence is that the department is clearly being made to do something it no longer wants to do.

But who are these “wider” government interests?

Nobody in government is willing to say at the moment, but a look back at the history of JSi is suggestive.

As I set out back in February, JSi is referred to (though not named) in the UKTI Security Exports Strategy of 2014 (host web page), which contains the following paragraph:

Ministry of Justice (MOJ) and National Offender Management Service (NOMS) Supports capacity for design and prison build across overseas prison services. Provides justice assistance consultancy services alongside learning and development opportunities and interventions via the Prison Service training college… NOMS will work with UKTI to identify trade opportunities arising from this work.

And back in 9 October 2013, Gove’s hopeless predecessor Chris Grayling referred to JSi in a speech to the World Probation Congress, where he said:

We are committed to supporting those countries in the development of their criminal justice systems, working in liaison with UK Trade and Investments, the Department for International Developments and the Foreign and Commonwealth Office.

It is not really that difficult to see that the “wider” government interests forcing the MoJ to continue with this misconceived and illiberal proposal are UK Trade and Investments, the Department for International Developments, and the Foreign and Commonwealth Office.

And in turn, it is not difficult to see why the FCO in particular would not want the MoJ to be so discourteous as to withdraw from a Saudi procurement exercise. The Saudis are, after all, key strategic allies of the UK. This is not the least thing the UK does to appease a regime with one of the most dreadful human rights records in the world.

*

Conclusions

The proposed MoJ deal is now an ugly mess.

The proposal is wrong in principle; and it is now unwanted by the MoJ.

The proposal offers the Saudis a commercial grip over the very department responsible for the same legal system which the Saudis have repeatedly sought to undermine (as set out, for example, in Corner House).

It also means the prospect of UK civil servants using UK taxpayer funded resources to help make more efficient one of the most vile and brutal punishment regimes in the world.

It is a distraction from what the MoJ should be doing.

It is therefore as wrong a transaction as one can imagine; there is nothing good to be said for it.

But yet, such is the importance of keeping the UK’s ally Saudi Arabia happily on side that somehow there is a power greater than anything which can be said against it.

Parliament and ministers and the courts may all be misled but the deal must continue, lest the Saudis be upset with the UK.

For the UK government as a whole, it would seem that the integrity of the domestic justice system and international human rights priorities are but loads on one side of the set of international policy scales, and they are outweighed by the interests of Saudi Arabia on the other side.

In essence, the UK government’s “wider” interests appear to be nothing other than the interests of Saudi Arabia.

*

ADD, 26th September 2015

This post prompted some positive responses on Twitter:

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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

https://twitter.com/MChawlaQC/status/618497813878579200

 

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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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:

FTpost

How not to count prison over-crowding

11th June 2015

There was a ministerial statement today from the Ministry of Justice, and it contained a remarkable admission.  But you had to look carefully.

The statement was headed with the unrevealing title “NOMS accounts – explanatory note”.

(NOMS is the National Offender Management Service, part of the MoJ.)

The admission was about prison over-crowding figures:

“In instances where two prisoners were held in a cell designed for one, both prisoners should be counted as being in crowded conditions. Some prisons, however, were only counting the additional prisoner.” 

Extraordinary.

It takes a special kind of genius to think that two prisoners in a cell intended for one means that only one of them was in over-crowded conditions.  Of course, both of the prisoners should have been counted.

And this is the same NOMS branch of the MoJ which is – disgustingly – seeking to sell “expertise” on prison management to the barbaric Saudi regime.

 

 

Round-up: five posts on the constitutional problems with Human Rights Act repeal

11th May 2015

From before the general election:

Human Rights, Devolution and the Constrained Authority of the Westminster Parliament by Colm O’Cinneide

Will devolution scupper Conservative plans for a “British” Bill of Rights? by Aileen McHarg

 

Since the general election:

Scotland and Human Rights Act abolition… by Lallands Peat Worrier

Replacing the Human Rights Act: the House of Lords, the Parliament Acts and the Salisbury Convention by Dr Mark Elliott

Michael Gove’s attempt to repeal the Human Rights Act faces almost insurmountable odds by Matthew Scott

 

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A new Secretary of State for Justice and Lord Chancellor

10th May 2015

There is a new Lord Chancellor and Secretary of State for Justice – but what difference does this make?

 

In one way it is a welcome move.  The previous Lord Chancellor and Secretary of State for Justice – Chris Grayling – was not a success. This was not just because of the Treasury-driven cuts: those would have affected any politician in the job, and indeed implementation of the cuts in respect of civil legal aid were the responsibility of Grayling’s predecessor, Kenneth Clarke.

But Grayling made things needlessly worse.  His grand design for reforming criminal legal aid was unrealistic and botched, and the consultation had to start from scratch. Again and again the High Court found the Ministry of Justice to be acting unlawfully which, if you think of it, is a rather odd thing to happen to this particular department.  Scarce departmental resources were used to promote a Bill – an extended press release dubbed the “SARAH Act” – which actually made no change whatsoever to the law of the land.  And his personal stubbornness ended up with his spending £72,000 of taxpayers’ money to defend a prison books restriction which the bemused judge regarded as “strange” before quashing it.

The Ministry of Justice needs a fresh start, and it is good that it has got one.

 

The appointment of Michael Gove is controversial.  His record at Education received (and deserved) heavy criticism.  But any complaint as to his time at the Ministry of Justice should be based on what he now does as Lord Chancellor and Secretary of State for Justice, and not what he did elsewhere.  After all, the basis of natural justice is not to prejudge a case, and to be dismissive of him before he even starts is also to play into the hands of his political supporters.

That said, Gove will need to be careful as to the targets he chooses and the initiatives he launches.  Both the criminal and civil justice systems are in a delicate state, and the probation and prison services are already undergoing what can be euphemistically be called “change”.  One wrong move and there could be a political calamity, and prisons especially can ruin a politician’s reputation: ask David Waddington, the right-winger who was packed off to be Governor of Bermuda when prison riots erupted on his watch as Home Secretary (responsibility for prisons is now with the Ministry of Justice).

 

News reports suggest that Gove’s first job is to repeal the Human Rights Act 1998. That is something which gets easy applause but is actually not that straightforward – not least because it is unclear what could replace it which would be any different to the fairly limp legal provisions of the existing legislation.  There are also problems because of the devolution settlements: both Scottish and Northern Irish devolution have human rights protections built in the current arrangements.  And the English courts have spent a good part of the last decade “developing” the common law in anticipation of repeal so as to give rights protection to citizens.

So replacing the Human Rights Act is not as simple as it seems – though supporters of human rights now need to make the case against repeal a lot better than they have done so far.

 

Nobody knows how Gove will fare at the Ministry of Justice.  He is highly intelligent, a fluent communicator, and a cabinet “heavyweight”.  In all three respects he has a marked advantage over his predecessor.  On budget cuts he is in the same position as any new Secretary of State and Lord Chancellor would be in – and neither Labour nor the Liberal Democrats promised at the general election any increase in the legal aid budget.

One key question is whether the new Secretary of State and Lord Chancellor has a feel for the Rule of Law and how citizens can practically use and defend their legal rights.  Legal aid and access to justice are not really about the self-interest of lawyers: the issue is how citizens can go about and rely on the court system to ensure that the law is enforced.  There is no point in a legislature passing legislation if you cannot depend on those laws in the real world.

Another key question is whether the Secretary of State and Lord Chancellor wants probation and prisons policy to be an end  in itself, or the means by which society becomes safer in the medium to longer term.  There are currently over 80,000 people in prison, all of whom (with a handful of exceptions) are to be released back in to society. For a politician with vision, there is a chance with probation and prisons policy to make a genuine national improvement.

 

It may well be that this blogpost is too optimistic, and that the new Secretary of State and Lord Chancellor will be as bad as the last one, if not worse.   But that doesn’t have to be the case.

What is beyond doubt, however, is that the running of the Ministry of Justice needs drastic improvement, and that this improvement needs to be quick.

 

 

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Grayling: the Lord Chancellor who told the High Court to disregard the Rule of Law

1 April 2015 (pm)

Today is the birthday of the current Lord Chancellor and Secretary of State for Justice, Chris Grayling.  

With parliament dissolved and with a general election just weeks away, he may not be in post, or indeed in any ministerial office, much longer.  But that did not stop the High Court giving him a sort of birthday present.

In a judgment handed down today the High Court held that yet again the Ministry of Justice under Grayling had acted unlawfully.  

It may seem strange to some that the very government department running the court system of England and Wales would ever be held to have acted unlawfully.  Indeed, the Lord Chancellor and Secretary of State for Justice has a duty recognised by statute to uphold the rule of law.  But during Grayling’s time at the department, the Ministry of Justice has repeatedly been found to have acted unlawfully.  

And today, on his birthday, came from the High Court another judgment that the Ministry of Justice had acted unlawfully, with a very telling passage.

The case was about whether Grayling could ignore the Ministry of Justice’s own statutory “Directions” (rules formally made under a statutory provision) when forcing a change of policy about the treatment of prisoners.

The High Court, unsurprisingly to anyone with a basic understanding of public law (in essence, the law which regulates activities of public bodies) held that it was not open to the Lord Chancellor and Secretary of State for Justice to simply ignore Directions made under a statutory provision.

But in a revealing paragraph, the High Court detailed what the Lord Chancellor and Secretary of State for Justice had instructed a barrister to make as a key submission: 

54. Mr Weisselberg’s principal submission in response on this issue in oral argument was as concise as it was striking. The Directions were issued by the Secretary of State. He has the power to amend or revoke them; therefore he has the power to ignore or contradict them. They are not directions to him but by him, and he cannot be bound by them.

This was a remarkable submission.  The judge described it as “striking” (which is judge-speak for “utterly bizarre”).    It is dismissed with ease by the court:

55. We cannot accept this submission. The Secretary of State could indeed amend or revoke the Directions to the [Parole] Board. But so long as they remain in force they are binding on the Board and also binding on the Secretary of State, in the sense that he cannot lawfully tell the Board to ignore them or his officials to frustrate them.

The current Lord Chancellor and Secretary of State for Justice appears to believe that because he makes the rules, it is perfectly fine for him to break the rules.

One problem with this approach is that the rule of law works both ways: you can hardly insist that others should abide by the law if you are happy to casually “ignore or contradict” the law.  Another problem is that it shows a serious lack of understanding of the nature of statutory provisions: he could not simply tell his civil servants to “ignore or contradict” Directions he had made under a statutory provision.

In a junior minister all this would be a deplorable attitude.  But in the Lord Chancellor and Secretary of State for Justice, it is a disgrace.

Grayling may well shrug at yet another court defeat, especially as he will “move on” soon.

But paragraph 54 of today’s judgment will provide a lasting memorial to his period in this historic office: the Lord Chancellor and Secretary of State for Justice who, in all seriousness, one day told the High Court to disregard the rule of law.