Dear everyone who still cares about criminal justice,  

On Tuesday I started writing a "What do we learn from the JR and where does it leave us?"  blog. The next day the MOJ's new consultation hit my in box and one of my questions is already answered. It leaves us with a new consultation impossibly crammed into 3 weeks.  But the consultation provides only half an answer to questions that will determine for a generation whether we will retain a criminal justice system worth the name.  Despite the MOJ’s speedy announcement after the JR defeat (they required only one week to consider those tricky “technical issues” raised by LJ Burnett's  judgement and publish their now infamous tweet) the two-tier plans are still in disarray, the criminal justice system is crumbling around us and it is still, up to us to defend it.

So roll back two Fridays.  We won. Against the odds and ignoring the nay-sayers, volunteers from the LCCSA and CLSA burnt infinite midnight candles and took on the government, doing what we do best, analysing evidence, marshalling our arguments and showing up the Ministry's ever growing blind spot to Justice an all too constant failing, under Lord Chancellor Grayling who now faces two further JRs on family legal aid and prison law legal aid. 

The first consultation drew howls of protest not just from lawyers but the judiciary, public and press. The threat to ditch own client choice and tender work to the lowest bidder was easily understood even by those who aren't legal ad trainspotters. Responses flooded in. That was important in the JR because there was an admission from the MOJ that the strength and numbers of responses mattered.  They contrasted this with the relatively weaker response to consultation 2.

That was hardly surprising. The second consultation saw all of us battle weary. Many were relieved at the apparent success of the first campaign.  The government repeated ad nauseam that old favourite "There Is No Alternative".  The Ministry sniffed victory and bullied, cajoled and threatened the Law Society leadership into working alongside them on the new proposals 

The 2nd consultation was also less accessible. Two tier contracts? Procurement areas? It looked and felt complex. People responded but numbers were down.  

We know that Otterburn were producing a report and based on past experience, we had some trust in them. We didn't know the content of the report would be withheld from us but in any event we thought the Lord Chancellor would listen to Otterburn because...well...he told us he would. And who are we defence lawyers to doubt the word of the Lord Chancellor - whether on this or his explanation for spreading his invoices over two tax years in the MP expenses scandal?

We didn't reckon on KPMG. In fact, we didn’t even know KPMG had been instructed (the MOJ didn't want to tell us that) and where Otterburn said our businesses needed a minimum of 5% profitability to be viable, KPMG knew better.  My business acumen is now enlightened by KPMG, those world leading experts in accounting who plan an industry's future on the basis that operating at 0.1% profit is viable.  I cannot believe that KPMG advise their business clients in similar terms. 

So we can take our 0.1% profit margin and use that not only to fend off the effects of the last 8.75% cut, and the next one, and then invest the surplus in the costs of mergers, new leases, new software and whatever else is required to bid for duty contracts in a consortia type arrangement.  We also didn't know about PA Consulting - yet another MOJ commissioned and hidden report, belatedly published for all: PA report, it contains some surprising data.

In this process we learned some things we already knew for example that the MOJ "assumptions" are built on sand.  

 -Think 15% improvement through “latent capacity” (we are all lazy and should work harder), 

- Think staff cost efficiencies of 20% (we are all overpaid and can manage a cut), 

- Think 100% or 50% cut in own client work to get a duty contract (we are all mad).  

All these assumptions are open for comment in the new consultation and clearly someone other than KPMG should look at this. But the 3-weeks-and-counting slot doesn't leave much room for that. The LCCSA and CLSA will seek further time and I am hopeful that the Law Society under its new leadership will push on both fronts.

We learned that you really cannot trust Government. However well-intentioned the Law Society, to government they were presented as the fig-leaf the MOJ needed. At every turn as we raised our objections the MOJ broadcast that they were negotiating with our leaders That led directly to the I’m mad as hell and I’m not going to take it any more” souls prompting the vote of no-confidence in the Law Society. At a time, our divisions were laid bare, but the point was not lost on Mr Justice Burnett. When the MOJ argued that they were in consultation with us in respect of the expert reports they could only point to a few hand-picked people at the Law Society, and not a criminal lawyer among them,  and these few were themselves sworn to secrecy about the discussions. The people who supported us at TLS (and there are good people who always have) were kept at bay.  Now we hope they are again central. The new leadership is making promising statements and offers real hope.  

The court got the point. No one was talking to real criminal lawyers about what was being done to them. This time around everyone knows that negotiating with government, however well intentioned, is not the same as facilitating government plans. Opposing government policy can be uncomfortable and has the capacity to interfere with the Law Society's work in other non legal aid areas. None of this is easy, less still given the department and Minister we face,  but if the Law Society is to retain the confidence of criminal lawyers, in fact all legal aid lawyers, it has no choice but to listen to us and to work with us. Those that know best tell me they will and despite the success of the LCCSA/CLSA taking on the leadership role, we would be stronger with the Law Society beside us.  

Sadly we also learned that the MOJ will undermine the rule of law with condescending tweets; will sit on or hide relevant research and will threaten PCT to extract concessions - even after they have decided against it.  Finally, we know they are having real difficulty working out how to make this model work. Anyone who studies it knows the scheme is shot full of holes.

So where do we go from here?

Well the MOJ could have delayed all of these difficult decisions until after the next election. The first 8.75% cut in the meantime would do its work. Fewer firms will be around in six months than now. 

Instead, they have ploughed on, steering the criminal justice ship liken a modern Captain Ahab, towards and thorough the rocks, oblivious or indifferent to the risk and casualties ahead for all.  And we criminal lawyers and our staff are Ahab’s crew - but if we don't sleepwalk our way through the next weeks we might just be able to save the ship. To do so, we need to respond. We need to challenge the limited timetable and instruct experts to review the skewed calculations built on irrational assumptions on which the Lord Chancellor relies. And we need to mobilise again. The consultation is sitting there now on your laptop waiting for you and we need the responses going in by the thousands. We need pages of argument from you and your colleagues, your clients and your family and friends, the secretary in your office and your bookkeeper.

The landscape of criminal legal aid is still on the cusp of an irreversible transformation. We  have all been watching the entire criminal justice system is collapsing around us. Courts frequently don’t answer the phone for long periods. Many CPS offices stopped doing so long ago. Watching jurors and lawyers aimlessly wandering around closed court canteens looking for something to eat in the lunch break presents a sadly pathetic image of the finest criminal justice system in the world.  Now is not the time to accept that we will be consigned to history along with all that was best in our system.

There are a few lone rider voices (actually only one I have seen so far in public) who seem to be disappointed at our success in the JR. One firm has also crowed at its appetite and readiness for this brave new MOJ world.  I accept that we all bring some element of self-interest to these discussions. In that sense I have no right to preach. It's only that my self-interest happens to coincide with the self-interest of hundreds of other firms and individual solicitors and the junior bar, rather than echoing the handful of firms who over the years have egged on the government to bring about consolidation in the market when that would just happen to suit their firms, by closing down the competition on the high street.  This stance also coincides with defending the system itself: it is breaking and the damage to our justice system is a national disaster.

Make no mistake. If 2-tiers is brought in, it will result long term in the same lack of client choice that the first consultation envisaged. Own client firms will close. Large factories will remain working for pennies, structurally encouraged not to build relationships with potential long term clients, processing them as non-returning replaceable numbers, entering a legal aid A&E to receive basic triage on an endless duty-only conveyor belt. I don’t buy the economies of scale arguments. The MOJ future means less qualified staff, less well paid staff, less prepared cases, more mistakes and more miscarriages of justice. Not good for you. Not good for clients. Not good for the system.

There is everything to play for. Only this time around we should have the full backing of the Law Society, the MOJ know we are serious in our commitment to upholding the law, and we have shown we are prepared to fight, with a campaign funded by thousands and the simple power of argument in a Court that recognises unfairness and illegality even if the Ministry of Justice cannot. Please join us in this fight. Join the LCCSA (join here) or CLSA today (join here) or just pledge to the fighting fund (contribute here). I know that both organisations will write to all members in the very near future with help on how to respond to the latest consultation. Spread the word. Stay informed. This isn't over yet.