Wannabe criminal barristers should “celebrate” this week’s Court of Appeal ruling by spinning the classic Doors song and getting pissed to Jim Morrison’s prophetic lyrics
As defining moments go, the Court of Appeal ruling earlier this week on a judicial review of government plans to streamline criminal legal aid provision was, well, pretty damn defining.
Doomsayers rightly get a bad name for generally purveying far too much doom and painting the bleakest of dark pictures. But in relation to the profound implications of Wednesday’s ruling, the doomsayers might so far actually have been understating the case.
No sooner had Lord Dyson — with Lords Justice Elias and Sales on the wings — handed down judgment, Chris Grayling’s bagmen at the Ministry of Justice geared up to send out revised tenders for law firm criminal legal aid contracts. The process was set to kick off today.
There are still two possible last-ditch battles for opponents of the scheme to fight. The Law Society — which was one of three parties bringing the judicial review — could be granted leave to take the matter to the Supreme Court. As of yesterday, Chancery Lane would only say “we are considering our options”.
Failing an appeal to the Supreme Court — or in the case of an unsuccessful appeal — there is one more hope for opponents. The existing coalition government could be out on its ear in about six weeks’ time, with the likely replacement being a minority Labour government propped by Scottish nationalists. For what it’s worth, Labour currently says it will bin the scheme.
But how high the issue will be on any Labour government agenda is a matter of considerable speculation. If implemented, it is probably a safe bet to expect that a revised and slimmed down contracting system will survive a change of government.
So back to those doomsayers — does the reformed regime signal the end of all but the highest reaches of the criminal bar? And will law students wanting to go into criminal advocacy have to get their heads round the concept of working in criminal law firm factories?
Yes. And here’s why.
On its face, Wednesday’s ruling on the lawfulness of implementing the reforms was exclusively a matter for law firms.
And it is easy to see why they are agitated. The MoJ will slash the number of law firm criminal contracts by nearly 70% — from around 1,600 down to 527. That will push swathes of firms to the wall, while many others will be taken over by the 20 or so mega-criminal practices across England and Wales.
So what, barristers could callously argue. That smaller group of firms will still need to instruct counsel.
Not so quick, m’learned friends. Scything the number of criminal legal aid solicitors’ firms is only part of Lord Chancellor Grayling’s grand scheme. He has also already hit solicitors with a 17.5% fee cut.
And even more crucial, the Dark Prince of the MoJ has also dictated that what fees remain will be paid in the first instance to those lawyers with oversight of the litigation, namely, the law firms. The firms will then be expected to sort out the grubby business of remunerating advocates.
Those law firms that survive are already the most efficient and commercially savvy. As one commentator pointed out to Legal Cheek yesterday, under this regime those remaining law firm factories will increase their economies of scale to maximise and squeeze as much profit as possible from repeat criminal clients.
That means creating in-house advocacy battalions of mini-call centre proportions. Sure, barristers will be welcome to apply for those posts, but they will be competing for jobs with the growing ranks of solicitor-advocates and legal executives. What’s more, salaries will reflect the more assembly line nature of the work.
This is why the Criminal Bar Association is gearing up to hit the picket lines again. Strike days and a “no returns” policy regarding briefs could have an impact, but barristers and solicitors will have to stand together for a sustained period. They will also have to be prepared for senior ministers — especially those with media backgrounds — to hurl all sorts of fat cat abuse at them.
But ultimately the future is not bright for the criminal bar. A dystopian image of galley slave advocates, whipped by red-braced and gold chain-bedecked law firm senior partners is not as fanciful as undoubtedly the Bar Council will claim.
Indeed, those at law school today still contemplating careers in criminal advocacy should probably prepare themselves for a working environment somewhat different from the Rumpolian idyll of fog-shrouded Inns of Court.
Think more along these lines: an open-plan office in a pre-fab low rise on an industrial estate. Name badges will probably be de rigueur, not least for the day Lord Chancellor Grayling arrives to cut the opening ribbon.
Previously:
Striking again — court defeat over legal aid cuts could see barristers back on picket line [Legal Cheek]