In a hipster bar, a general in the battle against legal aid cuts and contracting reforms slams solicitors’ firms for offering cheap ‘McJustice’ law. But he’s convinced the fight with the government can be won
Jon Black, the wry-witted, straight-talking president of the London Criminal Courts Solicitors’ Association (LCCSA) and partner at BSB Solicitors, squeezes lunch in the middle of a four-hour meeting and a hearing at the Bailey.
The monster pow-wow is with sister organisation the Criminal Law Solicitors’ Association (CLSA) at Kingsley Napley, ahead of the second meeting in two weeks with the Ministry of Justice to discuss the legal aid cuts and introduction of dual contracts.
He texts to say he will be a few minutes late as the meeting has reached a ‘crucial stage’.
It’s no problem — I have a well-mixed Bloody Mary to keep me company and am enjoying the lounge jazz being pumped out by the Clerkenwell & Social – a trendy bar in St John’s Square with high faux leather stools and books suspended from the ceiling.
Black arrives. Despite his hectic schedule, he is breezy and unrushed, informing me the venue used to be a pub called The Bear before it got poncy-fied.
Dismissing a pretentiously-named dish that included ‘foraged spinach’ he orders a Blue Moon beer and a leafy concoction, described as a ‘social salad,’ before getting down to business with a report on the criminal lawyers’ strike action.
‘I am pleasantly surprised at the reaction to how it’s going, and at the huge demonstration of the strength of feeling,’ he begins, ‘which was underestimated by the MoJ and by those that said at the outset, before 1st July, that solicitors would never get their act together and would never take unified action.’
Recapping the events of the past weeks, Black recounts how the grass roots action began – starting in Liverpool, thanks to the efforts of local solicitor Zoe Gascoyn and the CLSA, then growing, after simultaneous meetings in Leeds, Manchester and London agreed to strike. That preceded a representative group ballot, which he notes, became a ‘side-show’, although members voted overwhelmingly in favour of action.
The protest evolved, he says, ‘like beacons lighting up around the country’.
Despite the MoJ playing down the impact and insisting courts were ‘sitting as usual’, Black argues it worried the ministry and prompted the initial meeting between the LCCSA and CLSA and Justice Secretary Michael Gove.
He recalls of that get-together last May: ‘It was a cordial conversation. We expressed our concerns about the proposed cuts and two-tier contracts’. But within a fortnight Gove announced the cuts would be implemented in July and the contracting changes would still happen.
Black explains passionately the context in which the CLSA and LCCSA has acted. ‘The issue for us isn’t just the cuts; we’ve always been vehemently opposed to two tier contracts.
‘We expended huge sums, not just through crowd funding, but our own resources into fighting it through judicial review, because we felt that it was shit or bust – it was the end of the line for the majority of our members and those that aren’t members, but look to us for leadership and guidance.’
Gove, he describes as ‘clearly intelligent and a strategist. He was a lot more personable than his predecessor [Chris Grayling], who didn’t really want to engage with the profession at all’.
Blacks gets the impression that Gove is none to keen on engagement either, though says current Lord Chancellor has asked ‘the right questions’ and appeared to be listening.
Explaining the change in tack that shifted the action away from police stations and magistrates’ courts to the Crown Courts – and which oddly happened after the bar voted to join the action — Black explains that the groups had under pressure from a number of firms in areas of the country where big firms could not hold out any longer and small firms were getting wobbly.
‘Firms had continued the action for three weeks; they’d held firm for much longer than we, the MoJ or the CBA had expected. We surprised ourselves at the ability to individually not attend police stations or courts, despite the financial losses we were suffering and despite the cruel nature of our competitors in a small minority of firms who saw this an opportunity to make hay while the sun wasn’t quite shining.
‘Firms, looking at their income stream and recognising that the lower work — in police stations and magistrates’ court — pays the bills on a monthly basis, took the view that they couldn’t continue.
‘They needed either to up the action, by conducting no duty work in order to bring the matter to a quick close, or do something which was more sustainable’.
The action had not included duty work from the outset, Black explains, because the groups did not want to put firms at risk of allegations of breach of contract allegations by the Legal Aid Agency. Indeed, that was a weapon the LAA had been quick to reach for in the past.
Similarly, Black insists, it would have been irresponsible to run a campaign to boycott the tender process, as it would have put firms at risk of losing out to those gliding in from neighbouring areas, as well as to new entities coming into the criminal defence market.
However, his position, he says, is changing on this as he sees it may be the last resort for many bidders who do not see how dual contracting can work.
Many firms, he says, bid ‘with a gun to their head’, facing extinction if they did not play ball.
Moreover, there was a great deal of uncertainty caused by both the outcome of a judicial review challenging the dual contracting proposals and a little matter of the general election.
After the High Court ruled that the tender process was lawful and proportionate, firms had five weeks to submit their bids in what was a lengthy process.
‘Bids take some firms two months using two fee earners to complete. It’s a big job. Not all firms have practice managers and consultants to do them; most run on a shoe string, with a skeleton administrative support, so it’s the fee earning partners putting them together,’ he states.
Deftly getting through his lunch and barely pausing for breath, Black moves on to consider the relationship between the bar — at which he practised — and solicitors.
He accepts there is ‘a lot of suspicion’ on both sides, fuelled by the fact that the bar avoided recent cuts while solicitors were hit with two, and by Gove’s overt courting of barristers since taking office.
Black says he understands the bar’s suspicion over the reasons for the change of focus in the strike action, which seemed to transfer the financial hit onto barristers. But, he says: ‘It was stirred up in corners that did not want to see a united approach to the MoJ’.
And a unified approach, he insists, is the only way ahead.
The 20-year-solicitor veteran is adamant that despite the ‘hysteria’ over higher court advocacy and referral fees, solicitors want to see an independent referral bar.
‘That’s at the heart of this campaign. The majority of solicitors’ firms and the majority of the junior bar will suffer as a result of duel contracting,’ he warns.
It is important to retain a quality service, Black insists. ‘Instructing the best advocates, whether they be independent barristers or solicitor-advocates, is in the interests of our clients. Good quality service and good results are in the interest of our reputations.’
Black insists that firms do not want to lose the relationship with the bar, which he says, provides ‘quality service on a shoe string’.
To that end, he says: ‘We’ve tried our hardest to build bridges with the bar and have been in constant talks with the leadership of the CBA [Criminal Bar Association], working hard and wanting to understand what is in our mutual interest’.
He expresses gratitude to those barristers who have campaigned for the no returns policy, as well as to those who were not in favour of it, but who have accepted the will of the majority.
Black accepts that the thorny issue of solicitors doing more higher court advocacy has caused tension.
‘There needs to be an open and honest discussion in this regard. The bar needs to understand that some cases are simply not viable unless solicitors conduct the advocacy.’
The fees paid to those providing the core service to clients in the magistrates’ courts, he states, can be parsimonious – as little as £180 to visit clients in prison, speak to family, appear in court and apply for medical reports. ‘The only way they can make that viable is to continue the representation as Crown Court advocates’.
‘Unless either profession wants OCOF – one case, one fee – then we need collectively to address it. We need all to be Atticus Finch’s — stepping into each other’s shoes and walking around.’
On the all important issue of quality, Black states: ‘There’s no way that we can provide the same service that we did before 2008 and make any form of profit.’ But he adds: ‘I’m afraid firms still do provide a service and make a loss, because we come into this job to enable our clients to have access to justice and access to quality justice.’
Rejecting the image that some of the public have of criminal lawyers being either ‘Rumpolians or wide boys dedicated to getting the guilty off,’ he emphasises: ‘There is so much we do that the public do not see. We have traditionally been legally qualified social workers for our clients.’
The criminal justice system, he reflects, has for far too long relied on the goodwill of the criminal defence profession. ‘As Paul Harris [his predecessor as LCCSA president] has described, we have behaved like a battered wife – been willing to take hit after hit and still come back for more because we are committed to the job we do.’
Though he is aware that some firms take a ‘McJustice approach’ – cutting corners, ‘piling clients high and selling them cheap’.
Black does not accept that there are too many criminal lawyers. ‘There are firms that have gone on for years about the market being too big. There were people in them who trained us how to bill so we could recruit more lawyers, who are now saying there is an over-supply’.
The market, he insists, will dictate the number of firms, without the ‘paradoxical’ interference from a supposedly laissez-faire doctrine Tory government trying to dictate terms.
The former Leeds Grammar School boy — who studied English and history at Newcastle Poly before completing the bar course at the Inns of Court School of Law — blames deregulation of the universities in the 1990s and the post-graduate legal education system for some of the problems created for aspiring lawyers.
‘Law faculties popped up everywhere and the profit-driven provision of education meant over-recruitment at universities. That has been coupled with irresponsible recruitment to the BVC and LPC without warning students that there is no guarantee they will be the next Michael Mansfield or Helena Kennedy,’ he observes.
Back to the strike. Black is optimistic about what can be achieved. ‘We think we can win the arguments. We need to continue putting them, not just in relation to the cuts, but to two-tier.
‘If two-tier does come in, it is a well known fact that it is likely to lead to a car crash in the market, which could take us back to the days when legal aid was introduced for this type of work 64 years ago,’ he warns.
Stressing the importance of high quality police station advice and need for proper payment for the anti-social hours the work involves, Black recalls the days before legal aid was available or accreditation required, which saw numerous miscarriages of justice.
‘When they started the police station advice scheme in the 1990s, there were two levels of representation – duty solicitor and own solicitor. The own solicitor didn’t have to be a solicitor or anyone who’d ever read a law book; you could send the receptionist to sit next to the clients in interview.’
He fears a backwards step to the days of those miscarriages of justice, since the fee cuts that started with the Carter reforms have meant the hourly rate is so derisory that experienced practitioners are unwilling to give up their time or weekends to spend hours at a police station.
Though he does not expect money to made available to increase the criminal legal aid spend, he observes that the ministry has already achieved its desired savings. And, he suggests, the court closure process will bring added savings without the need for dual contracting.
The government should not expect the determination of the LCCSA or the CLSA to fizzle over the summer. ‘We’ve spent far too long and far too much energy over the last two years — both the CLSA and LCCSA have worked round the clock — fighting dual contracts and PCT [price competitive tendering] and the cuts.
‘Despite our exhaustion, we’re not ready to give up,’ Black asserts.
He comes from a legal family. His father, Barrington Black, was a criminal solicitor and a judge and his sister is a barrister. ‘Growing up in a legal household put me off being a lawyer,’ he says. Politically active, it was not until Black was in his 20s that he saw a link between the law and his social ideals.
Persuaded by his sister that the law was for him, he trained as a barrister and practised at the bar, before making the transition to the other side.
As a solicitor-advocate, when Black first appeared in the Crown Courts, he was something of a rarity. ‘You’d see another solicitor-advocate like you might see another English person when travelling in a foreign city.’
When appearing in the higher courts, he generally eschews the horsehair. ‘I’ve always said that in a courtroom in 2015, where we have iPads and MacBooks, there is no place for 18th century court dress’.
Such has been the intensity of his stint as LCCSA president, admits Black: ‘I’ve forgotten what I do to relax.’
He can’t sit still to watch the telly or read a book and is permanently distracted by work, much, he quips, to the irritation of his wife and three children. ‘Even when I’m walking the dog I tend to be looking at my ‘phone.’
Black likes to cook, but says he makes too much mess to be allowed frequent access to the family kitchen. So going for the odd run with a mate is the nearest Black gets to relaxing, before revealing his ‘guilty pleasure’: a Sonos sound system. He is a fan of classic eighties bands The Stranglers and The Smiths, and his ultimate tune is The Jam’s ‘A Town Called Malice’.
Come November when he hands over the reigns at the LCCSA to Julian Hayes from west London law firm Hayes Law, Black may have more time to indulge his cooking and musical hobbies. His advice to Hayes is to switch off his ‘phone for a couple of hours each night.
With that, Jon Black shoots back to the CLSA meeting. But when the autumn rolls round, will he really take a leaf from the that Jam tune: ‘Better stop dreaming of the quiet life; Cos it’s the one we’ll never know …’