Ministers in the coalition government don’t talk about ‘fat cat lawyers’.

This may be because policy-makers are moving on from an unhelpful cliche as they prepare to cut legal aid, or it could be because any focus on high rewards turns the public’s mind to the bank bonuses government has been unable or unwilling to stem.

Many of these bonuses are larger than the rewards available to many lawyers.

While the Law Society has proposed capping annual earnings from legal aid cases by barristers at £250,000 a year, ministers had not proposed any such cap.

A perusal of key consultation papers and ministers’ speeches, shows that this is no time to stop paying attention to language and labels.

The words omitted, and the new phrases introduced in their place – in the legal aid and Jackson consultations, in the Localism Bill, and in communications on immigration law – show that there is a war of words to be fought, even though personalised attacks on the profession seem to have lessened.

Legal aid

The words used around loss, costs and compensation are evident in the legal aid consultation paper.

The primary impact of the proposals in the paper is, as is well known, on the civil legal aid budget, which could be cut by £350m a year by 2015.

The word almost entirely absent from a paper covering key areas of restitution is ‘compensation’. In 214 pages it is used just nine times.

Five of those mentions relate to the Criminal Injuries Compensation Fund, including the title of the body, leaving three in the rest of the report, and one in an annex.

The key new phrase here, linked to ‘compensation’, is the description of claims as ‘primarily about monetary compensation’.

Elsewhere it is observed: ‘We do not generally view primarily financial matters as being of sufficiently high importance to warrant intervention and support.’

‘Loss’ is another word barely used in the legal aid consultation.

Across the entire paper, including annexes, it gains just 11 mentions. Five of those are ‘loss of liberty’, two relate to ‘loss of home’, and just four mentions acknowledge that ‘loss’ may refer to something of value that an individual might have been deprived of through no fault of their own.

Mentions of ‘victim’ or ‘victims’ are primarily limited to domestic violence, which gets 12 mentions, and victims of crime, who are referred to five times.

There are just two mentions referring to medical negligence or personal injury. By contrast, the word ‘costs’ is used on more pages than not.

Jackson and costs

The most far-reaching changes in language come in the consultation paper on the implementation of Lord Justice Jackson’s recommendations on civil litigation funding and costs.

The trick here is not one of omissions – instead, the narrow definition of ‘costs’ has been conflated with the ‘costs’ of the system, and the overall ‘cost’ to the defendant.

Claimants’ ‘costs’ are secondary. As the paper acknowledges, proposals are ‘primarily directed at reducing the disproportionate costs of civil litigation – in particular for defendants’... ‘ensuring that defendants can resist those claims which should not succeed, without being liable for disproportionate costs’.

They seek to ‘promote access to justice at proportionate costs’. There is a large body of work on ‘costs’. From textbooks to judgments, it is a technical subject, but not a small one.

However, the phrase ‘at proportionate costs’ is almost unused outside the context of Jackson’s report and the consultation paper, though it has gained some currency in relation to the multi-billion-dollar bailout of the banks since 2008.

That convenient association may have been made subliminally, but in setting the tone, it is certainly helpful.

The Jackson paper barely recognises the concept of a ‘victim’, using the word just once, when discussing the insurers of ‘victims of a civil wrong’.

‘Compensation’ is mentioned in the paper just 11 times. Of those, two refer to ‘the rise of the compensation culture’, another two to the politically charged issue of ‘compensation for criminals’, two to litigants-in-person, and five are linked to the position of the claimant.

Perhaps the most telling quote from the Jackson consultation is this: ‘Full compensation for claimants has therefore come at a substantial cost to the litigation system.’

This is an awkward sentence, and no wonder. ‘Cost to the litigation system’ sidesteps direct mention of a ‘defendant’, or consideration of the fact they have lost a case.

Instead, the defendant is part of ‘the litigation system’. They are in the same camp, as is made clear elsewhere in the paper, as the burdened ‘taxpayer’, who ‘ends up footing many of the bills’ where a public body is concerned.

Is the litigation system here the existence of liability, the cost of going to court, the cost of losing, or some kind of generic burden? If Jackson’s proposals concern ‘costs’, shouldn’t it be ‘costs in litigation’?

Localism

Communities secretary Eric Pickles resists labelling lawyers as ‘fat cats’, but he certainly has a new and colourful way of talking about lawyers and the law.

Instead they are ‘conservative’, risk averse – supporting stasis and preventing local communities from being ‘empowered’. Here he is talking about the Localism Bill.

He insists the bill takes aim at ‘all those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, [who] will now have to err on the side of permissiveness’.

Pannone consultant Nicholas Dobson, who writes for the Gazette on local government issues, recalls picking up on Pickles’ choice of words as unusual.

Dobson says: ‘Judging by his comments during the 17 January 2011 second reading debate on the Localism Bill, local government lawyers do not feature in Eric Pickles’ list of local government professionals to admire.’

He adds: ‘In commenting on the present need to extend local authority legal powers, the secretary of state for communities and local government twice referred to local government lawyers in disparagingly mocking tones.’

In fact, across government, lawyers are being portrayed as professionals who are an obstacle to common-sense decisions.

Talking about the issue of ‘votes for prisoners’, prime minister David Cameron told his own MPs, according to the Express, that: ‘He was "waterboarding" government lawyers to come up with proposals to ensure "the minimum possible" number of prisoners got the vote.’

Immigration minister Damian Green does not mention lawyers specifically, but his choice of words has come in for criticism from immigration lawyers.

Here the words in question are ‘highly trusted’. In London, on 1 February, Green gave a speech, trailed on the website adviceforyou.org.uk, in which he ‘revealed’ the ‘number of non-highly trusted colleges’, as a ‘sign of abuse’.

As the site reported: ‘Home Office concerns are focused primarily at private colleges and the immigration minister will cite new research showing that only 134 (or 18%) of the 744 private education providers in the UK have been granted Highly Trusted Sponsor status.

Further, only 34 have ever been subject to an Ofsted inspection.’

Immigration lawyers, though, are critical of the words used.

As Penningtons partner Nichola Carter tells the Gazette: ‘"Highly trusted" as a label is entirely a product of the department’s own guidance. You can have compliant institutions that are not classed as "highly trusted".

'But the assumption, especially abroad, is often that it is not worth applying to any institution that is not "highly trusted".’ It is, then, a new phrase that gives a misleading impression.

Each government has its own agenda – and reasons to dislike lawyers and campaign groups who have the capacity to trip them up. The interesting point here is that the coalition government’s approach is becoming clearer.

And that approach is more subtle than past attacks on the legal profession – the exception being Eric Pickles, whose attacks are direct, though highly original.

The subtlety is coming as much in the omissions, and implicit redefinition, of words, the introduction of new phrases, and attempts to conflate one meaning of a word with another.

Currently, the chances are that if you believe you’ve read an unusual phrase in a government consultation paper, that it is both new, and intended to shift the terms of the debate. It is also worth wondering which well-known words might be missing.

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Going up

Monetary compensation

Compensation mostly refers to a payment to cover loss – so why add the word ‘monetary’, unless it is to devalue the notion of compensation?

Compensation culture

‘Compensation culture’ appears more frequently than ‘compensation’ in official statements and consultation papers. It gets a special outing in ministerial forewords in consultation papers, including the Ministry of Justice’s consultation on Lord Justice Jackson’s proposals on costs.

The cost of the litigation system

This phrase appears in Jackson LJ’s original proposals, and again in the consultation paper. It implies that there is an unfair burden that arises from being a defendant-type of organisation, win or lose.

Disproportionate

As applied to costs and awards, ‘disproportionate’ implies that claimants receive more than they need or deserve.

Rise of the litigation culture

Jackson LJ, in common with others who have looked at Britain’s ‘litigation culture’, has trouble finding it in the form that critics of the current system describe. Still, it is used in the foreword to the consultation paper, and of course it is there in Lord Young’s report on health and safety.

Cost to the taxpayer

This is not a new phrase, but is being consistently applied to the liability of all public bodies to claims. It underlines the argument that claims are potentially detracting from vital public services at a time of cuts.

Going down

Fat cat

The traditional label of ‘fat cat lawyers’ is one the coalition government’s ministers have not, in general, used to criticise members of the profession. Could this be because they are treading such a delicate line on bank bonuses, where government support for the banks has not been translated into a politically saleable reduction in the staff bonus pot?cuts.

Victim

The consultation on Lord Justice Jackson’s proposals mentions ‘victim’ just once, and the legal aid consultation paper is mostly concerned with victims in domestic violence cases.

Loss

Like compensation, the idea that claimants have suffered ‘loss’ is being downplayed.