Price-competitive tendering for judges. That is the subject of a spoof essay of application for the job of lord chief justice, penned by Court of Appeal judge Sir Alan Moses (‘aged 67½’), demonstrating the absurdity of the government’s planned legal aid reforms.
The sitting judge read his work ‘What I want to do when I am the lord chief justice’ at last week’s annual London Criminal Courts Solicitors Association dinner.
Although in the context of a humorous after-dinner speech, it is one of the most stinging attacks on the government’s proposals, all the more striking because it comes from a sitting judge.
Moses begins by noting the £220m that that the ‘curiously described’ Ministry of Justice seeks to cut from legal aid, and the 15-20,000 hostile responses received to its consultation.
But because he really does want the top job - the capo di tutti capi - he writes: ‘I shall not fall into the trap of trying to challenge his figures or pointing out that, far from spiralling upwards, the costs and expense of legal aid are spiralling downwards.’
‘I don’t think that will help me since it is quite obvious that the ministry won’t listen or, if it listens, it gives no evidence of having heard, still less of having understood.’
Instead, Moses has a suggestion: ‘I’ll give him his cuts from the budget; he can have all the cuts he wants… but not from lawyers, not from defence solicitors, not from those medium and small firms who work in 138 courtrooms and 25 magistrates' courts, not from the firms who the clients trust not to treat them as commodities to be pushed and shovelled through the revolving doors between custody and the streets, not from those who to survive are expected to expand by 250% in a hopelessly unachievable timescale so that 298 London criminal contract firms can be cut down to 38.’
Moses is scathing of the government’s concession to retain client choice. ‘What use is choice when you have nothing to choose save Eddie Stobarts? What is the point of asking a man to choose still or sparkling water when you have left him to crawl in the desert?’
Moses’ proposition is PCT for judges, who he says have ‘been quite wrongly and unfairly spared from the swinging of your axe’.
‘For far too long they have been allowed to sit with bottoms safe on the consolidated fund, shifting only uneasily to release from time to time an excess of wind.’
Now he suggests: ‘They must compete, and to the cheapest will be awarded the biggest prizes…the more judgments each can produce in the shortest time at the lowest rates, the more they will be permitted the privilege of making them.’
He has learnt, he says tongue firmly in his cheek, from the ministry that cheap justice does not mean no justice. Indeed, he says: ‘The ministry’s own impact assessment teaches us that any incentive to provide legal services above an acceptable level must be removed.’
Mischievously he questions: ‘If lawyers are not to provide services of a quality above a level specified by the state, why should judges?
‘If, with PCT, quality is to be reduced and the highest standards explicitly designed out of the system, what possible harm could come to our legal system by introducing PCT for judges?’
Moses continues: ‘We won’t listen to moaning litigants who deserve no better than a legal service that the state regards as acceptable because they cannot afford to pay…we have learnt from you the litigant is a commodity, and you the government are the monopoly purchaser.’
Moses notes that, thanks to the reforms, judges will be able to tender at low bids because their workloads will fall: ‘We won’t have to listen to the most disadvantaged - those in prison, or those who are not resident, or those who can’t afford a lawyer because they earn the enormous sum of £37,000.’
For those colleagues who he says might find it distasteful to offer their services at reduced rates, he has an alternative suggestion. Judges could amalgamate, act in combination and form larger entities. It is, he says ‘financially wasteful’ to have lots of independent judges with ideas of their own. For those who may need support to enable them to make economies of scale and lower their bids, Moses suggests judicial sponsorship could be the answer - L’Oreal judges, Silk Cut judges, Virgin judges.
Moses notes that there is one ‘small cloud on the horizon’: ‘What is to become of the proud boast that London is a world leader in legal services, that the integrity of the rule of law must be maintained?’
If his acerbic wit hasn’t driven the point home, there is a serious bit. Moses concludes: ‘If it is unthinkable… to procure the services of the judiciary by permitting their services to be performed by the lowest bidder, as part of a large commercial organisation, by laying them waste, by offering their services only to the wealthy, and to the privileged, by excluding the poorest criminal or non-resident whose support gains no votes, why oh why is it thinkable to procure the services of the lawyers in such a manner?’
‘Do you know...I don’t think I’ve got the job…’ he says.
For my money, a judge like Moses, who speaks out against a government whose plans are likely to have such an injurious effect on justice and the rule of law, was definitely a strong candidate.