We need to complete and secure the victory. I want to explain why it is vital that everyone responds to the Transforming Legal Aid crime duty contracts consultation. The extraordinary victory of the CLSA and LCCSA in securing a judgment that the MOJ had acted unfairly and illegally in failing to consult on expert reports is only ‘half the job done’. It will be an entirely pyric victory if we fail to actually respond. I am sure people will in their thousands despite the absurdly unfair short consultation period – ends October 15th!
I wish to explain why the MOJ’s position, set out in this forced consultation – and probably written in advance without sight of the Judgement – that the MOJ are not consulting on the principle of ‘two tier’ is simply untenable and will be blown away by you – if you take the trouble to respond.
Why do I say that? Because the Lord Chancellor made it clear through his counsel that he distanced himself from the view of civil servants that the profession’s views would not have changed his assumptions (and thus the principle of two tiers if assumptions were shown to make 2 tiers untenable). One assumption is the nonsense that duty firms will give up 50% of their own clients to ‘own client only firms’. How will the Lord Chancellor now ignore thousands of responses when dealing with this part of the judgement where it was said the consultees, on the prior consultation, without sight of the expert reports were ‘unable to meaningfully respond. The failure was so unfair as to result in illegality’.
See paragraph 50. It is an absurd proposition that the issue of the principle of two tiers is not in issue. It is disrespectful to the judicial process to now say the principle has already been consulted upon when the court has already ruled that was an unfair and illegal consultation (for deciding upon the principle without consulting properly.)
If the profession responds in numbers that the 50% issue and 0.1% ‘profit ‘margin’ assumptions underpinning these proposal are simply wrong then how can the MOJ safely and rationally ignore what the Judgment refers to as the need to consider the ‘weight of responses raising those points’.
So take heart. We have beaten these people once and we will beat them again if we move fast, energise and overcome ‘consultation fatigue’. Remember by now the MOJ must be tired too and after the repeated JR hammerings a little depressed. We will force them to adopt more sensible reforms that preserve access to justice.
The judgement, we suggest makes a Royal Commission or independent inquiry more likely. The Law Society and the CLSA/LCCSA are rebuilding their relationship following the positive lead shown by the new Law Society president Andrew Caplen. We feel we are now not alone and the profession should keep an eye out for positive developments.
In the meantime the associations have designed a ‘Response Hub’ for you respond to the consultation safely in the knowledge that we will track it for you, pass it on to the MOJ in both electronic form but also we will print this for you and deliver the hard copy by hand. The Response Hub also has collated all the relevant reports conveniently for you read before answering the questionnaire. All the MOJ questions are there but as these are deliberately vague and bland we also have placed additional multi choice questions on the reports contents that we felt you would want to use to capture your views in a simple but targeted way.
The CLSA also provide ‘hints’ based upon our close study of the reports which we intend to be helpful but please feel free to ignore these. It is your response not ours. The ‘Hub’ will allow us to see the geographical flows of responses and enable us to canvass people who have not apparently yet responded. We need you in your droves to add ‘weight’ to this fight. Using the hub to respond will enable us to ensure there is no distortion of numbers by the MOJ.
So let us overwhelm the MOJ with our responses and dare them to ignore us and be prepared justify any disregard politically and above all legally. I remember saying at the ‘Justice for sale’ meeting some time ago ‘Let’s show them how defence lawyers fight.’ Well, we did ‘show them’ by ripping them to pieces in the judicial review and we won you this chance to comment on the nonsense assumptions in these reports, an opportunity previously denied to you. Use it. Log on to the ‘Response Hub’, fill in the questionnaire.
Once again ‘show them how defence lawyers fight’. Respond and make sure everyone you know does. Fellow lawyers, employees, friends who care, Counsel who will suffer the loss of instructions from loyal firms going under (Possibly all of us at the proposed rates). There is a tendency among some to not want to contemplate the potential consequences if these proposals come in. To comfortably carry on with the same routines, to just carry on as usual dealing with your caseload as if nothing is actually happening and it may all just somehow go away. Well it won’t go away, unless you make it go away by fighting the MOJ to a standstill. That means every individual (not just firms) must respond by the 15th October 2014.
Once again show them how defence lawyers fight.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts