Divide and conquer: Grayling attempts to drive wedge between solicitors and Bar

Chris Grayling repeatedly contrasted the ‘constructive’ engagement with the Law Society and the uncompromising approach of the Bar, in a characteristically abrasive session with the House of Common’s justice committee yesterday, reports Jon Robins.

In the face of the criminal defence profession’s insistence upon a unified approach to the Transforming legal aid proposals, the justice secretary attempted to drive a wedge between the two main professions. Earlier this week there was a significant climbdown as Chris Grayling appeared to ditch his controversial proposals to scrap client choice for defendants as Chancery Lane accepted the case for a ‘managed consolidation’ in the sector.

Grayling told MPs that he promised to ‘looked again at the time frame’ for the reforms and that there would be a second consultation starting in September. ‘That is something the Law Society has asked for. I was very happy to have discussions with them about that and, in return, they have accepted that we face a very large financial challenge. They have also accepted the need for consolidation of their sector.’

The justice secretary spoke warmly of Chancery Lane’s alternative to PCT (‘a very interesting proposal’) and of ‘constructive meetings with local committee members of the Law Society, individual firms and with the Law Society nationally’. ‘I recognise the challenge and I’m genuinely keen to find a way of working through which delivers change in the best possible way.’

By contrast, Grayling said that ‘the rhetoric of the Bar has been rather different’. ‘Disappointingly so, because one of the first decisions that I took [was to drop] “one case, one fee”. A number of my colleagues had argued for that and a number of my colleagues are still arguing for that… My view was that it would destroy the independent Bar. I have to say we have not have the same level of constructive response from the Bar as we have had from the solicitors’ profession.’

Ideological differences
The minister also insisted that his proposals to cut legal aid for much of prison law were ‘ideologically’. In a striking exchange, the minister was pushed by Jeremy Corbyn, Labour MP for Islington North about the place of prison law in the legal aid scheme.

‘I suspect Mr Corbyn is very aware that there is an ideological difference between us on this,’ Grayling began. ‘I’m absolutely of the view that somebody in prison should have the right to legal aid when it is a matter relating to their sentence and the length of time they spend in prison. When it is any matter relating to the conditions in prison or the choice of prison in which they are detained, we have a prison complaints system and an ombudsman.’

Corbyn quoted the HM Inspectorate of Prisons stating the internal prisoner complaints system could not be ‘relied upon to consistently resolve prisoners’ complaints in a fair way’ and that there were ‘many examples’ where prisoners had been able to take the case to court through legal aid and achieve resolutions where the internal prison system failed.

Corbyn continued: ‘There might be an ideological difference, but you have a duty of care to ensure that prisoners are able to exercise their rights. You are trying to save £4 million on prison law. Is this ideological or practical?’

‘It is ideological,’ Grayling insisted. ‘I do not think prisoners should be able to go to court to debate which prison they sent to.’ Corbyn asked him about cases where prisoners claimed ill-treatment or suffered neglect to medical conditions. ‘I think these are matters for an ombudsman. What we are seeing is the area of prison law expanding dramatically. It has more than doubled in the last few years and, in my view, it now covers areas that it should not.’

What about the denial of access to mother and baby units or prisoners with mental health difficulties, Corbyn continued. Did they not have a right to their case ultimately to get to court? ‘That is why we have prison visitors, a complaints system, independent monitoring boards, and an ombudsman to make sure those safeguards are in place,’ said Grayling. ‘I do not believe it is appropriate to, on top of that, pay for legal aid for cases to got to court.’

Room for manoeuvre
The session opened with the justice secretary being asked by committee chair Sir Alan Beith what was the objective of the changes ‘to achieve the savings that the Treasury requires or to make a fundamental change in the way the professions are organised’?

‘We have to deliver financial savings. I want to do that in a way that delivers change in a way that is sustainable,’ Grayling replied; adding that to just cut fees was not an option. ‘I am told by many in the solicitors’ profession that they are businesses that run on tight margins and cannot accept and stay in business with any cuts. I don’t have much room for manoeuvre.’ The price competitive tendering model was necessary to avoid advice deserts, he argued.

‘I need some kind of contractual mechanism whereby I can cover off all parts of the country and at the very least ensure there is legal support for those that need it.’
Chris Grayling

What do you mean u-turn?
Grayling was clearly riled by the characterization of his change of mind over client choice as ‘a u-turn’. Instead, he insisted he had done ‘a radical thing of being a government minister’ who consulted, listened and changed his mind. When the issue came up a second time, Grayling exclaimed: ‘What do you mean-turn?’ Beith reminded him: ‘We are not against U-turns, we quite often advocate them and they quite often take place.’

Explaining his reasons for dropping the controversial proposal, he said: ‘We had judged that in order to invest in scaling up a business [for PCT] they would need to be a guarantee of volumes. The clear message I got back from the solicitors’ profession is that the “choice issue” was more important.’

He talked down the impact of PCT which aims to reduce the number of providers from 1,600 to 400, saying that he was not attempting to impose a ‘one size fits all’. ‘These changes are not about somehow exposing the legal market to a handful of giants who will take over everything. All I’m doing is seeking to encourage firms to look at new ways of working together.’

The Welsh question
‘For the whole of Wales, the number of providers will be going down from about 460 providers to 21,’ said Elfyn Llwyd, MP for Plaid Cymru. ‘I think that is highly irresponsible, ridiculous and not going to work?’

What matters is sustainability, replied Grayling; adding that those 460 providers might not be able to survive ‘in a more challenging financial environment’. Llywd asked about contingency plans if there were not sufficient lawyers in an area to to meet the obligations under a contract because ‘unlike the Olympics the Army cannot be drafted in’. Of all the challenges that the government faced, ‘a shortage of lawyers’ was not one, Grayling added.

He was critical of the Bar’s opposition to QASA which he described as ‘a bit of a puzzle’. ‘On the one hand, we get the message that they are terrified that the work is going to be done by unqualified people; on the other hand there is resistance to quality standards.’

The minister also had little time for concerns as to how the proposals would disproportionately impact on BME firms. ‘I simply do not accept that,’ he said. ‘…The Law Society has fully accepted that there has to be consolidation in the sector. Why should it be the case that BME businesses are less capable of going through that?’

It was pointed out that BME firms tend to be much smaller, often sole practitioners or small firms and therefore would be overlooked in the tender process. ‘I don’t think that these changes are going to lead to the sudden disappearance of a large number of criminal legal aid lawyers,’ he responded.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

There are 1 comments

  1. It worries me that Mr Grayling keeps coming back to ‘change’, as if that were the reason for this whole debacle. Change just for the sake of it will not produce an efficient and effective system. Anybody with a half-ounce of common sense can spot huge areas of bureaucratic waste caused by institutional dogma and incompetence. If those areas were robustly challenged I suspect the savings would cascade right though the whole organisation. However, that would require recognition by those in the Civil Service and HMCTS that there is something wrong in the first place.

    The anecdotal evidence of time wastage in courts is numerous, convincing and comes from such wide-ranging reliable sources it has to be taken seriously. If that matter alone it would save millions on the Legal Aid bill. I suspect it is an unwillingness to tackle this issue that leads to Mr Grayling’s desire to move to a one job one fee system.

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