A rookie criminal barrister contemplates an uncertain future...
The spirit of Thatcherism looms large over much that this government does; the divide and conquer strategy evident in Mr Grayling's unsubtle approaches to the Bar. Dividing the public from the legal profession with disingenuous claims of gold plated pay. Dividing criminal solicitors from criminal barristers, first with One Case One Fee (OCOF), then the concession to protect Crown Court advocates' fees. Dividing the top from the bottom of the criminal Bar with the incredible claim that, under the proposals currently being consulted on, the junior Bar will actually see a modest increase in income at the top earners' expense. Does this most Conservative of Ministers think my cohort so short sighted, so unambitious, as to be uninterested in the plight of those more senior than ourselves?
As has been noted elsewhere, the minister, through his fumbling attempts, has succeeded in the unthinkable: bringing together criminal solicitors and the Bar as one. All sides are increasingly aware that QASA (Quality Assurance Scheme for Advocates), OCOF and PCT (Price Competitive Tendering) threaten us all. Make no mistake, the proposed changes will be the death of the professions as we know them.
First to go will be the solicitors. PCT is a balls-out lowest cost wins tendering process – the proposals singularly fail to ensure the quality of the service provided – and it will end the system of local, independent, expert firms that currently serve the courts so well. The small firms will lose out in the government's numbers game, as they arbitrarily cut the number of contracts by 75% to 400, but even the large firms will be unable to compete with mega-corporations for whom criminal law is not the primary business. The soulless Goliaths that have thus far signalled their intent (Tesco, Stobart, G4S) are able to tender at far below the market rates and, with the local competition eliminated, will doubtless ramp up the fees of their three-way oligarchy. Now that doesn't sound like Tesco at all, does it?
After the fall of the solicitors, the criminal Bar will stumble on for a while, feeding on the uneconomical scraps, but not for long. The corporations will keep their briefs in-house, and the concession to the Bar that a client can still choose their barrister (if not a solicitor) will be shown up for the hollow promise that it is. As for prosecutions, the bulk are currently undertaken by criminal barristers at the independent Bar, and there are no plans to hire more in-house CPS advocates – how could there be with the repeated slashing of the CPS budget? But when the defence work dries up for the Bar, there will be an exodus of talent as experienced barristers who cannot afford to pay the bills on prosecution work alone utilise their skill at the civil Bar, or in other industries. Who then will prosecute the murders, the rapes, the complex frauds and the many other complicated cases that the CPS currently 'ticks out'? Why does no-one at the MoJ appear to have even thought of this question?
The proposed changes to the day-to-day practice of criminal lawyers are shocking. First, clients will no longer be allowed to request the best solicitor – the government arrests you, prosecutes you, and now will tell you which solicitor will represent you on the basis of who is the cheapest. Whatever happened to the Conservatives' love of fair competition? Second, work will be guaranteed to the successful bidders, and with clients allocated at random, there will be no incentive to do a good job – just a quick, profitable job. The G4S lawyer will advise the client to plead guilty, the G4S dock officer will handcuff him and hand him over to the G4S transporter, who will drive him to a G4S run prison. In a generation's time, a G4S judge will pass the sentence. Third, there will be a financial incentive to encourage clients to plead guilty. The only logical explanation for such a perverse proposal is that someone in the MoJ actually believes that criminal practitioners advise defendants to plead not guilty in order to earn more money. Only a minister with absolutely no experience of the criminal justice system could display such flabbergasting ignorance.
Most believe Mr Grayling doesn't care, some suspect that he just hasn't grasped the impact his reforms will have. No-one currently working in the criminal justice system thinks that any of this is a remotely sensible idea. And yet, here we are.
Many in my position at the junior Bar (those of us without mortgage repayments, who can afford to make the move to a low-paid salaried job) will be forced to make the decision between joining the corporations, or leaving the law behind. No-one comes to the criminal Bar for the money – we come for the 'glamour' and because social justice is an ideal we hold in high regard. I won't be working for a corporation that views defendants as mere tongue-and-rectum sausage pâté to be stuffed through the machine.
The fightback begins with QASA. During my Baroness Deech phase, when singularly failing to make the blazingly obvious connection between QASA and PCT, I commented on the opportunity QASA might provide for the junior Bar. Well, my eyes are open. In order to ensure that the peanuts-paid, under-qualified and overworked graduates of the Tesco Law Academy do not find themselves the subject of legal action, they will need to practise under the veneer of competence that a QASA stamp of approval bestows. Without QASA, Stobart et al would either open themselves to criticism of the quality of their work, or else be forced to hire competent barristers and solicitors – a self-defeating exercise when cut-price justice is the name of the game. Mr Grayling has signalled that he is not in the least bothered about QASA, gamely hinting that he considers the professions to be over-regulated in any case. It's a bluff, a bad one, and one that his ministry's spokesperson appears not to know that he is making when they maintained that "Quality-assured lawyers will still be available".
There's only one way of ensuring quality in the government's plans, even though it's never mentioned in the 130 page document: QASA.
The government has given the professions a ludicrously short period of time to consult on the most comprehensive upheaval the criminal justice system has seen – less than two months, at the end of which these changes will be hushed through as a statutory instrument without select committee scrutiny or a single debate in the Commons. It's not easy to gather together several hundred self-employed barristers for a meeting, and it was disappointing that only the Northern Circuit were willing to take off a Monday a few weeks ago to consult (not strike). There is a palpable anger in most barristers I speak to, which only grows as a sense of helplessness sets in. But we are not helpless. It is difficult to imagine the entire criminal bar sharing the cells for our contempt, if only we stood together. Who knows, it may yet come to that.
Legal aid lawyers work with the most vulnerable people in our society: the downtrodden and abused, the addicted and the disabled, the mentally afflicted, the neglected, the domestic violence victims, the desperate souls who arrive in this country on the back of a haulage lorry hoping to work for a better future; repeat offenders who need society's strong helping hand above all others. Defendants, victims, witnesses – the vast majority of criminal cases feature vulnerable people in at least one regard. It's wonderful, hard work, and the unavoidable fact is that it takes an awful lot of time and resources to try and get right. Solicitors and barristers are willing to put in that work, sometimes at the junior end for salary equivalents (when the actual number of hours are totted up) not much above the minimum wage, whatever the government may say to the contrary.
For now the meetings continue; in our own time, at all levels of seniority. A consultative approach, even with a minister seemingly so gifted at closing his eyes and ears, does have its advantages. We are not the enemy within, militant and unwilling to adapt, and we will not allow ourselves to be portrayed as such. We are concerned that should the government continue to pursue its current policy it will be the very quick death of the criminal Bar and of the specialist criminal solicitor. We are concerned for the quality of justice we strive to uphold.
Paragraph 23 of the government's own impact assessment accepts (in deliberately obtuse language) that the effect of the proposals will be to reduce quality. That's reduce the quality of service for everybody in the police stations, the Magistrates' Courts, the Crown Courts. Please read it. Please understand what is being said. The MoJ is content to risk that the innocent be convicted, that the guilty be acquitted, that public time and money are wasted in order to make a relatively insignificant and illusory saving that in the real world they will never make. It's not about real savings – the long term costs of distrustful defendants and litigants in person will comfortably offset any short term gains the MoJ hopes to make. It's about a Yes Minister completing the tick-sheet passed to him by the Treasury.
Mr Grayling complains that Britain cannot afford Rolls Royce justice. What will he say to the victims of crime when Stobart's second-rate wheels inevitably start to fall off?
The Law Horse is an anonymous barrister at the criminal Bar of England and Wales.