On Friday the Law Society Gazette‘s Catherine Baksi reported that Court of Appeal judge Sir Alan Moses had written a spoof application to become the next Lord Chief Justice (a post which now requires candidates to submit a 2,000 word essay). In his essay, which features scathing criticism of the government’s legal aid proposals, Moses jokingly argues that any reforms should apply to the judiciary as well as lawyers — with the top judge urging his colleagues to compete to produce the most judgments in the shortest time. As they do this, he suggests that they could cut costs further by taking sponsorship from companies such as L’Oréal, Silk Cut and Virgin.
The full text of Moses’ essay — delivered as part of an after dinner speech to the London Criminal Courts Solicitors Association — is below…
The London Criminal Courts Solicitors Association Annual Dinner — Sheraton Park Lane Hotel — 5 July 2013 — Sir Alan Moses
It is usual to start with a joke…or a funny, preferably fairly dirty, joke. And I have heard a few here in the past…All the more startling when they come from a judge, usually pretty feeble since judges are used to advocates laughing inanely at their imagined wit, their sarcasm, and there are judicial jokes, but they are jokes from the sarcophagus. Something to win the audience round, something to celebrate 65 glorious years, something to refresh you after those battles, those fought and as yet unfought battles of which you should be proud, and which underline the importance of the London Criminal Courts Solicitors’ Association. So may I let rip with a really good joke: We have to maintain the integrity of the rule of law: it’s why London is such a world leader in legal services. There is simply no rival to it in terms of size, quality and experience.
Now some may say that’s not a very good joke, not really when weighed up against the Englishman, the Scotsman and the Irishman and the mermaid on Blackpool Beach; not really very funny when compared with Old Jews telling Jokes on BBC4…but then it all depends, doesn’t it, on who’s telling it; so what if the proud boast in a speech this week that London is a world leader in legal services is uttered by the Secretary of State of what is so quaintly, so curiously, described as the Ministry of Justice?…then it becomes a very good joke and like all very good jokes, in very bad taste.
And it is a shame, well a little bit of a shame, that of all the guests who are grateful and honoured to be asked here, Mr Grayling isn’t here tonight. Not even invited…such a pity, and all the more surprising after what was reported earlier in the week as a mini-triumph for the lawyers and more importantly their clients: a change of heart. Now there is always a whiff of sulphur, or to be more precise a stench of bad eggs, when a government, any government, announces a change of heart…what the opposition calls a U-turn and the government of the day brandishes as a sign that the consultation was serious and that they have been listening…
Now the reason for the more than faint smell of disquiet when a government announces a change of heart is not least because it assumes, more than optimistically, that it has a heart to change, and not the conscience of a shrivelled appendix. Perhaps just as well the Lord Chancellor is not here since judges are not supposed to express opinions of their own and certainly not when they criticise their ministerial critics…I must say I would rather have a system where they are allowed to say whatever they like in return for a few misguided and usually ill-informed pops from the ministerial benches…still, the judicial skin is apparently particularly thin.
But it’s all right here because I know you will be discreet, after all many of you have been allowed out on bail, and I am confident that you will not breathe a word of what I have said or what I am about to tell you. So that’s really why I am a little sad, because I had something to tell him in confidence but which I can tell you instead.
You will be aware, or if not you ought to be aware that this year, for the very first time ever, there has been a competition for the post of the highest judge in the land, the capo di tutti capi, the Lord or Lady Chief Justice. A competition not like the old days when silent and discreet advisers dropped hints to the Lord Chancellor behind closed curtains and peeked through the curtains to spot the safest pair of hands in the judicial egg and spoon race…no, a competition conducted by an independent body: the Judicial Appointments Commission. Now there has been a certain amount of publicity as to the candidates, those wise and eminent jurists who have tossed their wigs into the ring and after interviews and consultations await the puff of white smoke…if only, if only we could be confident that there would emerge a doughty champion of the poor and the disenfranchised in the slums of Rio di Janeiro of decidedly leftish leanings…but that is unlikely. But the confidence, no, the secret which I can divulge tonight, is that there was a fourth…no I mustn’t reveal how many there were, another candidate whose name has not yet been disclosed…it is me.
I have to say that not a lot of bets have been placed on my successful running and it is the Commission who will make the initial selection, with the approval of the Lord Chancellor. So it is that if he had been here I would like to have improved my chances by showing him my essay. Some of you may know that, rather like the first day back at school, to be Lord Chief Justice you have to write an essay on some topic as yet undisclosed…what I did on my holidays or who I would like to meet in history or how I have spent my last fifty years in the law or triumph and disasters at West Ham Magistrates Court. I am worried that now the Lord Chancellor is not here he will never learn what I have chosen to write…and because I know you will keep the secret he will never learn. So I shall tell you what I have written in my application to be Lord Chief Justice.
The essay is headed: What I want to do when I am Lord Chief Justice…written by Alan Moses, aged 67½, court 63, RCJ.
You will appreciate, by way of introduction, that the Lord Chancellor tells us that he is seeking ways to reduce the criminal budget by £220 million.
“Faced with your reasoned arguments, the 15-20,000 hostile responses, he has asked for alternative suggestions. Because I want, I really want to be Lord Chief Justice, I shall not fall into the trap of trying to challenge his figures or pointing out that far from spiraling upwards, the costs and expense of legal aid are spiraling downwards…no, I don’t think that will help me since it is quite obvious that the Ministry won’t listen or if it listens, it gives no evidence of having heard, still less of having understood. No, I’ll give him his cuts from the budget; he can have all the cuts he wants…but not from the lawyers, not from the defence solicitors, not from those medium and small firms who work in 138 courtrooms and 25 magistrates courts, not from the firms who the clients trust not to treat them as commodities to be pushed and shoveled through the revolving doors between custody and the streets, not from those who to survive are expected to expand by 250% in a hopelessly unachievable time scale so that 298 London criminal contract firms can be cut down to 38. No, that is not what I propose…After all, it’s easy to offer the tit-bit of a concession…oh yes, now that I have taken on board the results of the consultation I will retain choice for clients…all too easy to give that away when by Price Competitive Tendering you create a wasteland, a desert.
What use is choice when you have nothing to choose save Eddie Stobarts? What is the point of asking a man to choose still or sparkling water when you have left him to crawl in the desert?
But I will, Lord Chancellor, offer you an alternative which will spare the honourable hard-working and ill-rewarded members of this association but abide by the principles you have invoked and which you wish to apply. And I will apply them to the judges…it seems to me that they have been quite wrongly and unfairly spared from the swinging of your axe…First they too must enter the modern legal world of Price Competitive Tendering…for far too long they have been allowed to sit with bottoms safe on the consolidated fund, shifting only uneasily to release from time to time an excess of wind. They must compete, and to the cheapest will be awarded the biggest prizes…the more judgments each can produce in the shortest time at the lowest rates, the more they will be permitted the privilege of making them. And if anyone dares to say that cheap justice may be an oxymoron, or at least oxymoronic or that justice on the cheap may not be justice at all, the more I can say that is not what we are told now…you have taught us a lesson…
After all, the Ministry’s own Impact Assessment teaches us that any incentive to provide legal services above an acceptable level specified by an agency of the state, the LAA, must be removed. If lawyers are not to provide services of a quality ABOVE a level specified by the state, why should judges? After all, if with price competitive tendering quality is to be reduced and the highest standards explicitly designed out of the system, what possible harm could come to our legal system by introducing price competitive tendering for judges? We won’t listen to the moaning litigants who deserve no better than a legal service the state regards as acceptable because they cannot afford to pay…we have learnt from you that the litigant is a commodity, and you the government are the monopoly purchaser.
And of course we can afford to tender with the lowest bidder winning…much of our work will be reduced…we won’t have to listen to the most disadvantaged, those in prison or those who are not resident or those who can’t afford a lawyer because they earn the enormous sum of £37,000… The law from now on won’t protect them from overweening state power so why should the judges bother?
I appreciate that some of my dear colleagues may find it rather distasteful to offer their services at reduced rates, so I have a further complementary suggestion…we need to amalgamate, the judges need to act in combination…form larger entities…It is financially wasteful to have lots of independent individual judges with ideas of their own. And they may need support to enable them to make economies of scale and lower their bids…so what do they need? They need sponsors.
Now sponsors won’t sponsor for nothing, I acknowledge that. So a bit of branding will not surely come amiss. L’Oréal Judges…because you’re worth it, or at least worth seven years, Costa Baristas or Costa Judges…Silk Cut Judges…what about Virgin Judges? You need not worry about Magna Carta, after all the Prime Minister had forgotten what it means, and if excellence is to be replaced by the merely adequate…a judicial force composed of the merely adequate who have tendered the lowest bids is entirely consistent with the very principles you seek to apply to the lawyers on whom they depend to hand out justice.
There is of course one small cloud on the horizon…but I shouldn’t worry; after all, nowadays Lord Chancellors move on and even the government may be replaced by another whose past history shows just as clearly that they understand the importance of an independent and fearless legal system just as much as you do. So what of the cloud, that speck on the horizon, no bigger than a man’s hand…it is what is to become of the proud boast that London is a world leader in legal services, that the integrity of the rule of law must be maintained? If it is unthinkable, simply unthinkable to procure the services of the judiciary by permitting their services to be performed by the lowest bidder, as part of a large commercial organisation, by laying them waste, by offering their services only to the wealthy, and to the privileged, by excluding the poorest criminal or non-resident whose support gains no votes, why oh why is it thinkable to procure the services of you the lawyers in such a manner? THE END”
Do you know…I don’t think I’ve got the job…