By Stephen Gilchrist
John Mortimer’s alter ego, Horace Rumpole, was fond of saying: “They say that crime doesn’t pay, but it’s a living.” Hardly. Anymore.
Rumpole, for those too young to remember, was an ageing Old Bailey hack who defends any and all clients, largely on legal aid. In response to his wife’s, Hilda’s, remark “So, you think that men and women are entirely equal?”, the response was “Everyone is equal in the dock”. Hardly. Anymore.
I recall the always prescient Mortimer, through his Rumpolian mouthpiece, asserting 30 years ago that what the Government really wanted in the long term was a quick summary trial in front of the custody officer without representation. So now we have it, courtesy of the latest MoJ proposals: inequality in the dock, no representation on legal aid in the Crown Court for those earning too much, no choice of lawyer, and the real possibility that in a post-pricecompetitive tendering world, lawyers undertaking one of the most significant jobs in a democracy will be either deprived of, or unable to, earn a living.
In the early 1990s, I was Chairman of the Legal Aid Practitioners Group (LAPG) during a particularly turbulent time for legal aid. In November 1992 the Law Society Gazette reported that: “A distinct lack of confidence in the vigour with which the Law Society planned to fight the Lord Chancellor’s proposed legal aid eligibility cuts was expressed at a meeting of 120 legal aid solicitors in Birmingham earlier this week.” The meeting was co-organized by LAPG, the Criminal Law Solicitors Association and four of the largest local law societies. I am quoted asking as Chair: “Can we have confidence that the Law Society will take us forward in an aggressive initiative to make our position plain to Lord Mackay? I hope we can. But frankly I think we have to take the initiative ourselves.” So nothing really changes, except that, in the last 20 years, magistrates’ court standard fees, voluntary franchising, obligatory franchising, contracting and more than a decade of freezes on fees linked to decreasing eligibility have now really brought legal aid and its practitioners to their respective knees. This insidious deconstruction of legal aid has always had two objectives: cap the legal aid budget and reduce the number of (and thus control) the “providers”.
In the 1990s the Government was only able to get away with what it did because the profession was not able to demonstrate solidarity in the face of attack. The Bar was not prepared to take action – I know, I had meetings with those in charge of the Bar Fees and Remuneration Committee. The Law Society’s position was soapy and wet. No change there then. And frankly there was no appetite for strike action because it was thought there would be too many blacklegs prepared to cash in. I am pretty non-political generally, but it made me mad then, and it makes me mad now. Compare our position to that of other professions under attack. Doctors and dentists have managed to negotiate better terms for themselves because of the assertive position taken by their representative bodies. We lay on the ground with our feet in the air screaming: “Walk all over us”.
Of the many outrages the Government is preparing to subject us to, let us just take one. The Government proposes that will generally have no choice in the provider allocated to them at the point of requesting advice, and would be required to stay with that provider for the duration of the case, subject to exceptional circumstances. Richard Miller, the Law Society’s Head of Legal Aid (and former LAPG Director) has quite properly said: “It is very concerning that the Government appears prepared to sacrifice client choice, which is widely regarded as a vital principle and an important driver of quality in the justice system.”
And so … what are we going to do about it? What is our professional body going to do about it? The fact is thatwe have such a low opinion of ourselves as a result of the way in which we have been treated that I suspect we will do nothing. Prove me wrong! To end on lighter note, I once instructed John Mortimer in one of his last murder cases. On the day he was due to make his big speech at the Old Bailey, he had not arrived by 10.30. I was waiting at the door of the building in a somewhat agitated state. He finally turned up in a taxi with: “I’m so sorry I’m late, old boy, I was up all night writing Rumpole!” It will not surprise you to learn that we came second in that particular fixture. Go figure.
This article was originally published in Criminal Law & Justice Weekly, Volume 177, May 2013