Legislation

With the general election looming, Richard Gordon QC argues that the price of restored trust in democracy may be a codified constitution 

Is it time for the UK to have a written constitution? In suggesting that we had no constitution, the 19th Century French political theorist Alexis de Tocqueville was wrong. Britain does have a constitution but it is old-fashioned, top-down and—as far as the rest of the free, democratic world is concerned—of a fast-disappearing kind. 

What causes confusion is that, unlike us, nearly all democratic States have a written (in the sense of codified) constitution. Only Israel and New Zealand join us in relying on a nebulous body of rules, some contained in Acts of Parliament, some in constitutional conventions, some scattered around in the most diverse sources. The expenses scandal and the ensuing loss of trust in politics led many (myself included) to think we needed fundamental change. 

Book review
Felicity Gerry and Catarina Sjölin
Wildy, Simmonds and Hill, January 2010, £69, ISBN 0854900357 

Once a month, between February 1999 and April 2000—usually on a Thursday—a very disparate group of mainly middle-aged men and women met at Queen Anne’s Gate to talk about sex. Known collectively to ourselves—and to the Home Office receptionists—as the “Sex Offenders” we were the members of Jack Straw’s Steering Group, set up to review the law on sex offences. Essentially we were given a blank sheet of paper on which we were encouraged to set out a blueprint for a new sex offences law for the next generation or three. Our report “Setting the Boundaries” contained a total of 62 recommendations. It was published in July 2000. It formed the basis for the government’s Sexual Offences Bill, which received  Royal Assent on 20 November 2003 and came into force on 1 May 2004. Five years later the new case law is beginning to develop—and the books are starting to proliferate. 

MPs have warned legal aid reforms are threatening the future of the junior Bar, in a damning report on the Legal Services Commission (“LSC”). 

The Committee of Public Accounts (“PAC”) report into legal aid procurement, published in February, criticised the LSC for having “lax” financial controls and management information which, for example, led it to overpay solicitors by £25 million in 2008-09 resulting in it having its accounts qualified. It attacked the LSC over its “poor financial management” and lack of knowledge about the costs and profitability of legal aid law firms. 

The Ministry of Justice is refusing Bar Council requests to extend the deadline for “inadequate and unfair” consultations on Very High Cost Cases (“VHCCs”) and advocates’ graduated fees despite threats of judicial review. 

Solicitors acting for the Bar Council have now written, in accordance with the Pre-Action Protocol for Judicial Review Claims, to the Legal Aid Minister, Lord Bach, and to the Chairman of the Legal Services Commission (“LSC”), Sir Bill Callaghan, in order to advance proceedings for judicial review. 

David Ormerod, The Right Honourable Lord Justice Hooper
OUP, October 2009, £221.74 978-0-19-557423-0 

This work is now in its 20th edition since its re-incarnation by HHJ Peter Murphy, who has now stood down as Emeritus Editor. Criminal practitioners, and his publishers, owe him a great debt of gratitude. The teams of contributors and editors are immensely strong, providing as near a guarantee as is possible of an accurate, erudite work which combines practical guidance with excellent analysis. 

Nick Green QC explains why the Bar Council is preparing to commence judicial review proceedings against the government 

Throughout January and early February I visited a number of cities in England and Wales (Cardiff, Winchester, Leeds, York, Birmingham and Manchester) and spoke to nearly 1,000 members of the Bar at the road shows. I have also visited over 30 sets of chambers and had conversations with numerous clerks and practice managers. The process is ongoing and I am planning further visits to chambers over the next few months. I am very grateful for the warm welcome that I have received. The exercise has been extraordinarily informative in enabling me to obtain a more precise and educated view of the day-to-day problems of the Bar. 

The Criminal Procedure Rule Committee has made the first consolidating edition of the Criminal Procedure Rules, which affect all criminal courts in England and Wales. 

BARRISTERS in England and Wales are preparing themselves for major changes in the ways they provide legal services, says Bar Chairman Nicholas Green QC. 

Addressing the first meeting of the 2010 Bar Council, Mr Green said that barristers are ‘gearing up for a revolution in the way they provide their services’. 

His remarks came as the Bar Council ran a series of nationwide road shows following the historic decision of the Bar Standards Board (BSB) in November 2009 to liberalise the Bar’s practice rules in the light of the Legal Services Act 2007. 

SECURING stability for the publicly funded Bar and the need for all barristers to modernise in the fast-moving legal landscape have been set at the heart of the agenda for 2010 by incoming Bar Council Chairman, Nicholas Green QC. 

The leading regulatory and commercial lawyer, who practises at Brick Court Chambers, told a Bar Council meeting in London that the pressures on barristers doing publicly funded work were ‘potentially devastating’. He said: 

‘Cuts in legal aid pay, and competition for prosecution and defence work meant that pupillages to train young barristers were drying up in many parts of the country. Experienced barristers were often now ‘sitting idle’. Young, female and black and minority ethnic (BME) members of the Bar were being hit hardest. 

The Bar has made great strides in recent years to improve diversity and equality in the profession. These very positive steps are jeopardised by recent Government cuts, which do nothing to make the profession a more attractive place to come for a student saddled with a substantial debt as he or she leaves education and training,’ 

He condemned recent cuts in family and criminal legal aid, contrasting Ministerial and civil servants’ pay increases of 1% with reductions of 18% in legal aid pay. 

In the profession’s strongest warning yet over the legal aid crisis, Nicholas Green QC said: 

‘When members of the Bar see civil servants and Ministers taking an 18% pay cut, then we shall be silent. Until then we shall challenge unfair and irrational pay cuts with the utmost vigour.’ As rates declined, the risk was that there would be insufficient advocates prepared to take on the cases. 

Emphasising that he sought a settlement with the Crown Prosecution Service over its rising use of in-house counsel, Mr Green said that in the Prosecution of Offences Act 1985, Parliament had expressly envisaged separation between the charging authority and the person conducting the trial. 

He warned: 

‘Parliament has never sanctioned the creation of a nationalised prosecution advocacy service. The creation of such a body has profound implications. Advocates will spend an entire career in a prosecutorial organisation and they might over time become “prosecution-minded”’ It was no coincidence that recent Directors of Public Prosecutions had made their names as leading defence advocates. Mr Green told the meeting, ‘Public and Parliament should debate the issue ‘before mission creep becomes mission accomplished’. 

Despite his concerns, he emphasised that his goal was to unify the profession, whether employed or in private practice: 

‘There is far more that binds us than parts us. We share a single set of values and traditions and an agreement will help us to heal the rift.’
Turning to moves to liberalise the rules governing the Bar’s provision of legal services, Nicholas Green QC said that these were changes that could not be ignored. 

He said: 

‘We do not have available to us the luxury of Canute-like opposition’ Moves by the Bar Standards Board to permit partnerships between barristers and other new business structures were to be welcomed. A menu of options was emerging, including procurement companies that would enable chambers to bid for more contracts. 

‘Over the next 12 months the Bar must begin to examine its methods of working. New choices on the menu will not appeal to all. But for some they may be critical.’ 

Looking ahead to Lord Justice Jackson’s forthcoming report on costs, Mr Green said that there were important opportunities, beyond Conditional Fee Agreements (CFAs), to open up access to the civil courts. These included the mooted Contingent Legal Aid Funds, which could be resourced by a court award of costs on top of damages rather than from the claimant’s damages themselves. 

He continued: 

‘In future, all barristers would need to define themselves by what they do. We are still predominantly advocacy specialists. We are specialist advisors. We are still essentially a referral service. The Bar has always represented a pool of very high quality specialist advice. We have a strong ethos as a profession that our work is in the public interest. The cab rank rule and the fundamental acknowledgement of our duty to the Court are still very important. The profession has a stellar record of pro bono work.’ 

He foresaw in future, the Bar might consider opening its doors to all specialist advocates, including solicitor advocates. Nicholas Green QC said he would be introducing measures to improve the internal operations of the Bar Council and its secretariat, inparticular to improve communication with profession. A panel of experienced juniors would be drafted in to assist with the Bar’s representations to Government and more widely. 

THE Bar Council has welcomed the report on the procurement of criminal legal aid in England and Wales, which has been published by the National Audit Office (NAO). The NAO’s report examines the procurement of criminal legal aid by the Legal Services Commission (LSC), the body responsible for the distribution of the legal aid budget within England and Wales. 

The NAO’s report paints a picture of a chaotic, cuts-driven ‘reform’ programme being rolled out by the LSC, which threatens value for money and the provision of an essential public service. It warns of “confusion and duplication in the oversight of criminal legal aid”. 

The LSC is condemned for not understanding the market and for using “inaccurate and incomplete” data. The spending watchdog concludes that no further reforms to legal aid should proceed without having been properly piloted using guidance from the Office of Government Commerce. 

The report, which was considered by the House of Commons’ Public Accounts Committee in December, goes on to consider the cost drivers which affect legal aid and the LSC, saying that: 

“The cost of criminal legal aid provision is driven by a number of factors, including the complexities of the criminal justice system, and the level of crime, both of which are beyond the control of the Commission”. 

This is followed by concern on the part of the NAO that the LSC does not understand the market in which it operates, saying: “At present, gaps in the Commission’s knowledge about its supplier base prevent it from making the most of this position. In particular, we consider that the Commission has not marshalled the knowledge of its local managers well enough to develop a good understanding of the market for criminal legal aid, such as the cost structures of different types of firms and their profit margins”. Commenting on the report, the Chairman of the Bar, Nick Green QC, said: 

“The NAO has blown the whistle on the LSC’s cuts-driven, chaotic ‘reform’ programme, which must now be stopped so that any current proposals can be properly evaluated. Today’s report is a sad indictment of the state of the LSC and reflects the Bar Council’s concerns about the administration of legal aid. The LSC’s ‘reforms’ are disorganised and have not been evaluated. They threaten this fundamental service. When an NAO report states that ‘the Commission does not currently hold enough information centrally about its suppliers to be an intelligent commissioner’, it is time to rethink the way in which the Ministry of Justice and the LSC together run legal aid policy. These criticisms reinforce those set out by the Justice Committee in their July 2009 report on the LSC's consultation on family legal aid, where they noted the LSC's lack of an evidence base for their policies and called for the LSC to implement a fundamental shift in attitude toward such consultations. The Bar Council has always said that the justice system must serve those going through it. We support the NAO’s recommendation that all reforms to the legal aid system should be piloted using guidance from the Office of Government Commerce, in order to reduce the risk of irreversible and damaging cuts to the legal aid budget with little or no empirical evidence. We look forward to assisting the Public Accounts Committee with its recommendations to Parliament following the publication of this report.” 

Paul Mendelle QC, Chairman of the Criminal Bar Association, welcomed the NAO report, saying: 

“This report confirms what the Criminal Bar Association has told the Government time and again: that cuts to legal aid are unjustified and unprincipled, as legal aid expenditure is controlled and falling in real terms. The drivers of legal aid expenditure are the government’s own policies, not the actions of barristers. It also highlights that it is the LSC’s lack of data that has been the road block on the road to reform of the system for paying for Very High Cost Cases. The Government must rethink its policies otherwise it will do real and lasting damage to our criminal justice system.”