Michael Gove and the Lawyers’ Revolt

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.

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