I would love to be able to make some constructive comment on developments in the Criminal Legal Aid saga, but I am as confused as most others about what has happened.
Have criminal practitioners won a great victory? Has Chris Grayling been routed? Or has he merely staged a tactical retreat or a “small u-turn”. Or did he always intend to give way on the proposals to withdraw choice of solicitor so that he could say he was listening? Is he in fact on the verge of a great victory?
Legal aid lawyers would be wise to bear in mind the words of Virgil writing of the Trojan war: “Equo ne credite, Teucri. quidquid id est, timeo danaos et dona ferentes”, generally translated as “Do not trust the horse, Trojans, whatever it is, I fear the Greeks even when they bring gifts.”
It seems that Price Competitive Tendering, at least in its proposed form, has gone. It is to be replaced, we hear with something based upon the Law Society’s proposals. At first reading the Law Society seems to have produced quite a sensible and workable set of ideas that would represent evolution rather than revolution. What is less clear is how they will produce the savings required. I suspect that if the Law Society was effective in changing Mr Grayling’s mind it may well have been because of the devastating report it commissioned from Andrew Otterburn and Anya Designs which made it crystal clear that the goverment’s original proposal was simply unworkable in business terms.
It is less clear how far representatives of the bar have signed up to the Law Society’s scheme, and in particular whether it has the support of the Criminal Bar Association which, under the leadership of the indefatigable Michael Turner QC, can be very proud of its efforts so far.
Mr Grayling himself has been conspicuous by his low profile in recent weeks. He has studiously avoided debate, not least in the House of Commons last week. However he cannot have failed to notice that his original plans were opposed by not just the Labour Party (which in truth was no great friend of the legal aid system when in Government) but also by some Liberal Democrats and Conservatives.
Mr Grayling’s absence from the debate has led many to underestimate him. Lampooning him as a defeated Führer deep in his Berlin bunker was good fun and we must hope that a closer parallel is not with Marshal Zhukov quietly massing his forces on either side of the German supply lines before snapping the pincers shut to isolate Paulus’s Sixth Army in the ruins of Stalingrad.
Many barristers will be suspicious that a scheme apparently endorsed by the Law Society may not be especially favourable to the independent bar. Moreover there has been no suggestion of movement on such issues as tapering of fees in long trials, which, if implemented could lead to the extinction of the independent advocate.
Since we are on military analogies, let us leave the Second World War and go back to 1066. Harold and his foot-soldiers had defeated his treacherous brother Tostig and the Norsemen at Stamford Bridge. After a forced march of exceptional brilliance, on October 14th he made his stand against William The Bastard in an excellent defensive position at the top of Senlac field outside Hastings. Again and again the Norman cavalry charged at Harold and his men, and each time they were repulsed. Finally, late in the day, the crafty William ordered his men to feign a retreat. Believing victory was within their grasp the untrained men of Harold’s fyrd charged pell-mell down the hill, whereupon William ordered the cavalry to wheel back round. The undisciplined Saxons were cut to pieces. Still at the top of the hill, Harold made a desperate last stand behind the shield wall of his Housecarls but as evening fell the wall was breached and victory went to The Bastard.
So this may be the moment of greatest peril for the criminal bar. If we allow ourselves to believe that the Ministry of Justice has been defeated we may be cut to pieces like Harold’s fyrd. Yet if we remain inflexible and unwilling to contemplate any retreat we may be isolated and destroyed like Paulus’s Sixth Army. Either course will allow Mr Grayling to say, like Caesar: veni, vidi, vici.
Now as never before we criminal hacks look to our leadership. Michael Turner please tell us, in your much admired ashtray voice, where do we go from here?