INTERVIEW: ‘We’d like Michael Gove to come and spend a night in the police station and a day in magistrates court with us,’ says Jonathan Black, president of the London Criminal Courts’ Solicitors Association (LCCSA).
The Lord Chancellor will no doubt have had better offers. Black’s invitation reflects a growing frustration that the new justice secretary appears to be largely indifferent to the fate of solicitors, whilst apparently bending over backwards to keep the Bar’s leaders onside.
A view helped no end by Michael Gove’s debut in front of the House of Common’s justice committee when he spoke of his ‘admiration’ for Tony Cross, chair of the Criminal Bar Association, whose troublesome members had just voted to support direct action in solidarity with solicitors. The justice secretary told MPs that the vote might be down to ‘bruised feelings in the past as much as anything else’.
So, what does Jonathan Black make of Gove? He wants to ‘undo the damage of Mr Grayling by acknowledging the prison crisis, dealing with the book ban and flirting with the Bar in order to make them feel loved and appreciated’, he says.
Black continues: ‘As a cynic, I would say that this is a typical ploy by a Tory minister to endear himself with his establishment friends. I may be wrong, but I suspect he has far more access to senior silks than he does to friendly solicitors.’
I spoke to Black yesterday on, as he puts it, day 35 of the action. What’s the mood of the profession?
‘It’s still strong. Lawyers would like to get back to work but they also angry and disappointed at the way they have been treated. They are resolved to carry on. No one wants to work at these new rates.’
Of course, there are those firms not supporting the boycott and moving in on new clients. There are firms that ‘have profited and made hay’ during action and done so ‘with the sanction of Legal Aid Agency’, acknowledges Black, a founding partner at BSB Solicitors. Such firms are being paid ‘a premium’ to cover work out of their area, he adds.
The solicitor points to the irony of LASPO, section 1 imposing a duty on the Lord Chancellor to ensure that legal advice is made available for those in need. ‘And yet the legal aid cuts make it difficult for government to discharge their duty. What will happen when firms shut and when there are advice deserts? What will happen when there is no representation?’
The LCCSA/ CLSA/ Big Firms Group has drafted a protocol enabling solicitors to carry out more police station and magistrates’ court work, focusing action on the Crown court work.
What was the point of the protocol (which came as barristers voted in support of action)? ‘The purpose is to ensure that this action carries on for as long as possible, and that it is of sufficient profile so that the public and media can see that there is a problem with the criminal justice system,’ Black replies; adding that it also enables the solicitors’ action is ‘in tandem’ with the Bar’s ‘no returns’ policy.
How are relations with the CBA? ‘It is tense,’ the solicitor admits. He says that other representative bodies are ‘doing a lot of work to build bridges and persuade them that this is an action against “two-tier” and not simply against the cuts.’ He describes the Bar’s leaders as ‘suspicious of the separate interest of the big firms’. ‘Fortunately there is a critical mass at the Bar who are sympathetic and see that it affects them as it does us,’ he adds.
So far the Solicitors Regulation Authority have issued two warnings in relation to the protocol. As reported in the Law Society’s Gazette, the watchdog’s chief executive Paul Philip has written to Black to say the protocol sought to ‘balance on a fine line between sustaining the action you are engaged in and your professional obligations. In our view, the protocol risks failure to achieve that balance.’ Philip threatened a ‘thematic review of criminal practice’ – and that would likely ‘involve visits to firms and consideration of these issues’.
‘Whilst we understand that the SRA cannot support the dispute – can they please look at our issues?’ asks Black. The SRA has ‘demonstrated very little support for our concerns over the past months’ – including, solicitors’ concerns over ‘two tier’ and ‘the risk of us not being able to discharge our professional obligations working at these lower rates’.
Now the deadline for the tender for duty bids – 527 contracts available to 1,600 firms – has closed, will the final decisions be capable of challenge? Black believes so. For example, firms might argue that their tenders were submitted without knowledge of the government’s newly announced court closure programme. ‘If the courts are closed, the work is no longer there. There goes the volume which would allow for any economies of scale,’ Black explains.
Also, the solicitor notes that the LAA has been ‘very prescriptive’ as to how the tender defines terrorism cases (asking only for experience of the Terrorism Act 2000). ‘The criteria for awarding the contract may well be subject to challenge as unsuccessful bidders seek information why others were found to be favored,’ he adds.
Black describes the last few months of negotiations for him and his colleagues – Bill Waddington, Robin Murray, and Paul Harris – as ‘gruelling’. During the course of our chat, he receives 30 emails from practitioners.
‘We are all exhausted. These decisions we have to make our massive – we have to make sure that we are making the right decisions for the profession. We have to make sure we don’t make the mistakes that those purporting to represent the Law Society two years ago made.’
Finally, how long can the protest go on for? ‘We are resolute. It will go on until we reach a solution,’ he says.
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