McNally: If you live in a bubble, you’re not going to persuade people

by Carl Gardner on June 20, 2013

LAQT1

By turns combative and conciliatory, justice minister Lord McNally gave a mercurial performance, defending the government’s criminal legal aid proposals on Tuesday evening in front of an audience of lawyers at a “Legal Aid Question Time” organised by the Bar Council and chaired by Joshua Rozenberg. More than once McNally’s emphasis was on realism:

Let’s not kid ourselves: we’re in a wage negotiation.

Mainly though, the realism in his view was required from lawyers:

We’ve got to make the professions face up to the change that is inevitable.

He didn’t regret describing some responses to the criminal legal aid consultation as “hysterical”. People are “throwing around quite extreme accusations”, he said. And

If I’ve offended anybody by the odd phrase, well, I get the odd phrase thrown at me as well.

McNally’s message was mixed. He stressed repeatedly that this was a genuine consultation, and that ministers were “listening”. But he was also robust about his proposals and about this advice he’d been given:

Don’t buckle.

McNally made it clear he didn’t enter politics in order to destroy justice: for him, legal aid was

one of the proudest achievements of the Attlee government

but

The debate about its size, function and focus has been going on for a decade

and if you had to cut services most accessed by the poorest, then

… you’re going to have to hurt the poorest and most disadvantaged.

He said he welcomed dialogue and at one point he somewhat optimistically mused on whether

we could make some kind of agreement about where legal aid fits into our system.

But McNally was as ebullient as he was emollient.

You do have a vested interest

he told his audience, and as a minister spending public money

I have a right to ask the solicitors’ profession to organise itself as efficiently as possible to deliver what the taxpayer is paying for.

The “vested” interest remark prompted Maura McGowan QC, chairman of the Bar, to respond:

The vested interest is the one we all have: having a well run and properly funded justice system … It’s not a battle over our wages as has been described.

For her, the Bar Council was not just saying the proposals were wrong. She objected to them because they amounted to

altering the system

and feared for the future of justice:

there is a risk – a very substantial one in our view – that the provision of criminal justice will be wrecked by these proposals.

Lord McNally’s “unbending dialogue” approach to consultation clearly frustrated her:

they’re not going to “buckle” – so why are we doing it?

and she was in no mood to cooperate with the plans for price competitive tendering:

We believe PCT is wrong, so we’re not going to help design the PCT scheme.

She reminded the audience that the Liberal Democrats has been completely opposed to these sorts of legal aid cuts before the election.

An important political point was raised by Paul Mendelle QC from the floor about Labour’s position. Since Labour had been in favour of proposals similar to these and had now changed its mind, what was to stop it changing its mind again if it regained power? Paul Mendelle was clearly looking for the sort of honesty I too have asked of Labour.

He got at least some of it. Andy Slaughter MP, opposition justice spokesman, admitted that

We’d have made cuts in legal aid – it’s a question of degree, and a question of how.

What was less clear was how Labour’s approach would have differed from the coalition’s. At one point Slaughter identified two key differences: building into the system incentives to plead guilty, and removing client choice of lawyer were, he said,

not things we’d have countenanced,

reminding us that a Labour green paper on legal aid had talked about retaining competition. But later he said the differences between the parties were a matter of

degree, and choice of representation.

Slaughter made pretty good use, though, of his chance to attack the government rhetorically.

I don’t think they show a concern about criminal justice

he said, and called into question the government’s motives in putting forward its plans, which he claimed were

either red meat for the tabloids, or they’re playing to vested interests.

It was wrong, he said, for Lord McNally to “sneer” at the stance the professions were taking against what he called a

brutal attack

and he criticised ministers tactics in what he called an “air war”:

You demonize individuals, everyone’s a fat cat …

That was all fair enough in a knockabout way – though I wonder how much it impressed Paul Mendelle.

Slaughter did at one point put the legal aid debate into an interesting context, though, pointing out that he’s also been opposing government plans to bring in a £1200 total fee for bringing an unfair dismissal claim to an employment tribunal hearing. The government is not simply curtailing the rights of those who call on public funding, was his implication, but even those of private self-funders  in a key area of civil law.

Lord McNally again wanted his audience to focus realistically on Labour’s position:

I ask you just not to buy a pig in a poke from the other end of the table … whichever government comes in in 2015, if Sadiq [Khan] or Andy asks for £500 million back, they’ll get a short answer.

McNally made another verbal misstep in response to a question from Hannah Kinch about the prospects for young barristers from disadvantaged backgrounds, and a suggestion that the cuts would disproportionately affect female and black and minority ethnic lawyers.  McNally made the fair point that problems with social mobility can’t simply be blamed on legal aid cuts, but the audience groaned with disapproval when he rhetorically asked the bar and solicitors

Shouldn’t you be thinking about the structure of the profession where the bottom of the profession is left to BME and women?

Maura McGowan was having no blaming of the professions, though:

We don’t pretend to live in another century, nor do we structure the profession to ensure women and BME get lower-paid work.

Steve Hynes of the Legal Action Group was an interesting panellist, sharing many of the concerns of the Bar Council and Law Society but coming at the debate from a slightly different angle. He complained that the proposals are “technically inept” – in his view they won’t work or achieve what the governments wants them to – saying he thought simply reducing the number of providers from 1600 firms currently down to 400 would not in itself save money. He’s open to serious change:

I don’t see anything wrong with Coop Legal Services, or with redesigning the market

but expressed concern that small firms and young barristers should be able to compete in any new system:

It’s not tue that only larger firms can be more efficient … small can be beautiful.

Interestingly he implied that there may be vested interests pressing for reform that may not be aligned with the wider public interest:

 … of course larger firms want the volume.

But he argued for “whole system reform” rather than the government’s current plans. An interesting point he made more than once (and with which Maura McGowan agreed) was that

Client choice is the best determinant of quality in the system.

Lord McNally accepted that

Client choice is certainly an issue that’s emerged in the consultation

but when pressed by Joshua Rozenberg about the idea that criminal clients may be “too thick to pick”, he made a principled defence of the removal of choice in at least some cases, suggesting the public can’t understand

the idea that the 20 year career criminal should get his choice of brief on the public payroll.

Steve Hynes’s view was that a system can be designed that retains client choice. His immediate alternative suggestion to the government’s plan was that there be a “wigcut” at the top of end of the profession – targeting higher rates of advocacy fees – so as to retain the greatest possible scope of matters covered by criminal legal aid. He said he felt

reasonably encouraged

by the minister’s assurances that he’s listening.The signal coming from McNally seemed to be that there might be room for some movement from the government – but not much, either on the scale of the cuts of the broad principles of the plan.

I thought Steve Hynes’s ideas were interesting – perhaps because his position on the future of legal aid seems fairly similar to my own. I thought Maura McGowan pressed the legal aid lawyers’ case robustly and well, and was pleased Andy Slaughter was forced to and did address the debate with some of the honesty I want from Labour. To oppose the details of these cuts is fine, so long as the impression is not given that Labour would maintain the current level of spending, in the system as currently structured. It wouldn’t.

As for Lord McNally, the minister made a brave and decent defence of his position – and his honest, occasionally gaffe-prone style shouldn’t be underestimated. His approach will I think help his case among the broader public – though it won’t impress legal aid lawyers. Many listening must have thought Lord McNally’s the one “living in a bubble”, to use his words, clearly directed at lawyers’ representatives.

Here are some other write-ups of the event, from Save Justice, Gemma BlytheJon Mack and Richard Bentwood.

{ 2 comments… read them below or add one }

1 Deed Poll Name Change June 20, 2013 at 15:58

Well a consultation implies there is a chance of change or even retraction of the proposed changes. Does anybody think there is any possibility changes might happen following this consultation?

2 Carl Gardner June 20, 2013 at 18:11

I think there’s some chance of changes and/or delay.

I’m pretty sure cuts of roughly this scale will certainly happen and I think, in time, structural changes along these lines are likely too.

But I think the consultation may represent the government’s “highest bid” and that they may give some concessions – indeed I imagine they have in mind a few they expect to offer at some point. I know these changes won’t need primary legislation but if cross-bench Lords can organise themselves to “pray against” secondary legislation implementing the changes, they could force some amendments, too.

And of course the government does occasionally retreat at least temporarily – like Michael Gove over his English Baccalaureat plans. I think if that happened it’d be because MoJ realised the plans wouldn’t work. I’m not expert enough in the structure and economics of legal aid work to know how likely that is here – but given the nature of the proposed change, I think there must be some chance the bidding timetable and process could go badly wrong. Making the new PCT system work in crime seems to me a much bigger policy challenge for government that simply turning off the legal aid tap (as happened with the changes to the scope of civil legal aid).

So I think changes are possible.

Leave a Comment

{ 2 trackbacks }

Previous post:

Next post: