An Open Letter

This is the email that I have sent this afternoon to the leadership of the CBA. I have not done so lightly. If you agree with me then please comment on this blog or, even better, send your email thoughts to the CBA. Both Nigel Lithman and Tony Cross have their email addresses on the contacts page on the CBA website. I am afraid it is not enough to moan on Twitter or in the robing room. I may be a lone voice of dissent but if I am not then it is important to say so now and to say it to those who can do something.

Before I simply reproduce my email can I say I started this blog because of the whole Save UK Justice thing. I have enjoyed writing it tremendously and have appreciated all your kind words. I have no idea whether I will have any need or desire to return to this blog in the future. Time will tell. However I can say, and this is no exaggeration, this is my saddest day at the Bar.

Good luck to you all.

Dear Nigel and Tony,

I write this open letter to you because what I have to say is important. I will publish this eleswhere because debate has never been more important than it is right now.

Nigel – you do not know me but Tony does. I hope that Tony would vouch for the fact that I have always been very much a team player. I have been incredibly grateful for the leadership you have shown in the fight so far. It is against that background that I feel tremendous sadness in saying that the CBA have got this as wrong as they could have. However it is not too late.

Can I remind you of the palpable anger at the Law Society having been praised by The Lord Chancellor for the way they “engaged” in the discussions about PCT? How the Bar felt that we had been blindsided by their engagement? I probably do not need to remind you Nigel as you had this to say in your Monday Message on 23rd September

“I understood that the agreement was No to PCT, No to QASA and No to Cuts. I am sure solicitors having achieved the first will now demand that the Law Society take steps to deliver the latter two. Nothing less is honourable.”

A gentle reminder to the solicitors to keep in step with us. That their fight and our fight was a fight for justice. That alliance lies shattered this afternoon. Our support for the solicitors means nothing at all unless we are prepared to back that by action.

And now we have seemingly surrendered the taking of that action. And received what in return? A stay in respect of part of the cuts. Is that a victory? No.

Nigel you have rallied us constantly and consistently under the banner “not a penny more”. The message was clear. No more cuts to barristers’ fees on your watch. Today the damaging cuts to VHCCs remain. It is unforgivable that we have all encouraged a small number of practitioners to rescind ongoing contracts and hand back their VHCC cases, in some instances virtually decimating their diaries, to now abandon them. That should not happen. Not on your watch.

At the CBA delegates rally you compared yourself to Joan of Arc and instead of hearing the voices of the saints you heard the voice of the minister saying to you “I will cut the rates in this order. First I will cut VHCC’s by 30 %”.

Your response was “Then that is what we will oppose first with all our determination and there is no reason why we would not defeat these cuts.”

The only reason why we have not defeated those cuts is because we have compromised too early and too much. There can be no mistake other than your promise of “not a penny more” was to include those VHCC cuts. I hold you to that promise. Not because I handed back a VHCC or turned one down because I did not. It is because, like the American Marine Corps, we should never leave a man (or woman) behind.

And that is what we have done. We have left behind the solicitors, we have left behind those that do VHCCs and we have left behind justice itself. I did not walkout mid trial, exposing myself to wasted costs, disciplinary action, censure by the CPS and all it entailed so we could get a stay of execution until such time as the Government come again and we are in a weaker position. I have not refused returns so a deal could be hammered out and then agreed to in a (proverbial) smoke filled room.

When there was some ongoing discussion about the no returns policy the whole CBA position on that was the meetings of Heads of Chambers was not the way things were done in the democratic CBA. I have been constantly trumpeting the mandate you have and the processes that you go through to represent and not just dictate. We have all just completed a consultation that concludes tomorrow about the way forward. Was that just tokenism?

Today the Criminal Bar has not won a victory. What we have demonstrated is what we might achieve through unity and action. What we have shown is the Ministry of Justice are feeling the impact of what we were doing. Sadly we have been the ones to blink first.

I could be a lone voice of dissent. There is only one way to find out. I hold you both to your promises and the ideals I thought you held dear. Tell the MoJ this deal is not done. Consult with the rank and file. Not Heads of Chambers. The juniors. The ones who have been let down time and time again. Let us have a process by which we can decide whether to accept or reject it. If we accept it you have my apologies. If we reject it then we have a chance to put this right.

We all appreciate the effort you have put in. We all realise you have been faced with difficult decisions. The white hot glare of a struggle like this can cause good men and women to make mistakes. This decision, this ultimate decision was not yours to make. It was not for the Silks to make, the Circuit Leaders to make or my Head of Chambers to make. It is a decision for all of us to make.

Give us back our voice. Give us back our choice. It is our future.

Yours in sadness,

Jaime Hamilton

48 thoughts on “An Open Letter

    1. Ian West (@ianswest)

      I couldn’t agree more. Nigel always said that this was not a pay negotiation, but a fight over access to justice, and maintaining the best criminal justice system in the world. What happened to those noble sentiments?

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  1. utterbarrister

    Nigel / Tony

    I am only too alive to the fact that as Jaime says, there is the white hot glare of the struggle and that decisions are difficult. There may be factors and variables we are missing…. However, that demonstrates more clearly than ever that transparency is urgently needed. Your members need and deserve to know. Our solicitor colleagues need and deserve to know. How can we abandon those who returned VHCCs? Why have we blinked when the litmus case of Cotton is coming close to its key moment? How can we enter into a “normal working relationship” with MoJ who lie and smear and have kept in place the 30% cut for VHCCs, the Solicitors’ first cut, the threats of future cuts for us both.

    The solicitors are in a white hot frenzy. Their ire is now directed at you, at us, rather than Grayling and the TLS.

    Why has the MoJ been allowed to dictate terms? Was the No Returns policy not working? Was the system not slowly grinding to a halt? Were the days of action not having their effect? If they were not the MoJ would never have come to table. What have we won? A one year stay of execution while solicitors expire around us and those that remain would rather expire than instruct backstabbers, betrayers etc that we appear to have become in their eyes.

    Please either reconsider or if there are valid reasons why this was the best option for us, for the CJS etc,, tell us why ! Or are we children once more to be instructed from on high, from the snug of the smoke filled rooms.

    Look at the social media to see the sh*tstorms that have erupted.

    If this is the best deal we could ever get, convince us! If not, hear us!

    Yours oscillating between despair and dismay

    Tim

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  2. Steven Wild

    I agree completely. This is simply an attempt to divide and conquer and we should be resisting until the cuts to solicitors fees are reversed. If we give in now then the cuts will just be re-instated in 2015.

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  3. Jane Waugh

    I agree. We should be fighting on. I feel let down and want us to show that we are standing with the solicitors against the destruction of the Criminal Justice System.

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  4. Jo Durber

    I completely agree and thank you, Jaime, for expressing so well what I have been too shocked and devestated to put into words.

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  5. Victoria Gainza

    I agree. Speaking as someone who is very junior, I feel very let down by the lack of consultation. I would much rather have continued to fight alongside solicitors. This was always about access to justice just as much as (in fact more than) about my own career. The cuts to AGFS may be delayed but they will be implemented in 2015 – once the unity and momentum we had been building for 15 months are handily wiped away. In the meantime, solicitors will have felt betrayed and I for one will not blame them.

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  6. Clare Ashcroft

    I agree with all that has been said. We have sacrificed our VHCC foot soldiers and our “no returns” policy for not very much at all.

    I was and am prepared to stand firm, alongside with solicitor colleagues, in order to resolve these terrible cuts to the justice system. We had achieved so much and we have given it up for so little, with no consultation at all.

    It is time to have an EGM, may I suggest either 31st March or 1st April?

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  7. Andrew Long

    I am in complete agreement with Jaime Hamilton’s views. We have all just completed a questionnaire which I am perfectly confident will give the CBA a clear mandate for immediate strike action. Why on earth are they throwing in the towel before the fight has really begun and before we have won a single concession worth fighting for? In the last few weeks the criminal bar has shown the government that we are a force to be reckoned with rather than than the pushover they have always taken us to be. I am dismayed that the CBA leadership appears to have taken such a damaging retrograde step without at least consulting with us, the angry rank and file.

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  8. Jonny Lally

    Well said Jamie. I shall be e-mailing the CBA indicating my support for your letter and will be passing the link to this post to the Criminal team in Deans Court.

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  9. Alex Simmonds

    Well said Jaime. I agree with everything you write. We seemed to be getting somewhere so why stop now when it was all to play for. Stupid move by CBA.

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    1. Steve Wedd

      To NLQC

      Subject: Work for the Bar comes from solicitors

      Your professional clients stood by you on the steps, gave up fees to protest, failed to accept returned cases, declined to seek barristers to whom to return cases, for this?

      Where do you think your work comes from? Until you get ocof, we’re the gatekeepers.

      If two tier contracts come in, I as a tiny law firm go bust in 2016. No more work for me and no more briefing your members. My only satisfaction will be leading your members to the dole office.

      Your brilliant fantastic successful no returns policy brought Grayling to the table. Pity you forgot about those that instruct you while dealing with him.

      You’ve gained a years breathing space for your lot at the expense of your solicitor colleagues. You’re a disgrace – just go.

      Regards
      Steve Wedd

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  10. Vincent Acheson

    On behalf of the sole practitioner for whom I clerk (who has emailed you privately) – fully agreed with all the above. Ethics aside, I am staggered by the inability of the great and the good to grasp a key strategic point: the Junior Bar will die faster without instruction than it will from fee cuts.

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  11. Angry Northerner

    I find it difficult to know what to think. The graduated fee reductions have been delayed until after the next election, when Chris Grayling is unlikely to be Secretary of State for Justice whoever wins. We have shown that we can be united and resolute and that it produces results. A future government might be less likely to take our capitulation for granted. This part of the proposals may well have been kicked into the long grass. On the other hand it does seem that we have thrown in the towel prematurely. The VHCC cuts (which don’t affect me) are unjustifiable and it is entirely wrong of the CBA to abandon those who have had the courage to refuse to do them.

    The bigger problem is that the effect of the changes on solicitors is likely to be devastating and if our supplier base disappears it doesn’t matter what our payment rates are. We have got this far by showing that we can be untied and resolute (until today at least). Unfortunately the solicitors, in their meeting at Manchester, were not able to be as resolute as they should have been (or perhaps as united). They should refuse to work at the new rates, as we were about to do. We would back them. What they cannot expect is for us to continue with our action in order to save them having to stick up for themselves.

    It is disturbing to see the BBC reporting this as a done deal, agreed to by all barristers. The actions of the CBA are plainly not binding on any of us and they must consult us now, even if it is a bit late. We also need urgent talks with solicitors, who understandably feel they have been sold down the river.

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  12. Rawdon Crozier

    I am conscious that as a non-criminal barrister it may be easier to sit and carp from the sidelines but this isn’t so much an “I have in my hand a piece of paper moment” as an “OK you can invade Poland and we won’t go to war after all” moment. The structure of the criminal justice system remains as under threat as it was yesterday afternoon, the medium through which the criminal bar is instructed remains under direct attack and it seems to me that cutting a deal with the MoJ when they were on the back foot is tactically naive. When the MoJ comes at the bar next time (and it will) it will be better prepared and the bar will still be weary from this fight. I understand incidentally that the CBA and the Circuits felt in some way honour-bound to accept the MoJ proposal because it was in line with a compromise that had been pot forward by the CBA. The flaw in the reasoning however is that the MoJ has never fought this battle with honour and, if refusing the proposal involved the bar shifting the goalposts, I think they should have been shifted
    .

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  13. MaltonTom

    Adjournment of AGFS cuts saves nothing but the face of a tawdry career politician. I would welcome greater clarity from the CBA on what was agreed and why. And I feel for those of principle who have taken action this far.

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  14. Emily Pitts

    I agree, thank you for uttering my sentiments so clearly!
    I am despondent, this is not a great day and not a great result!!

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  15. jt1982

    I can’t and surprisingly don’t share your anger Mr Hamilton -I suspect the CBA view is/was that having achieved 80-90% of the Bars’ objectives by this proposal it would be silly not to suspend the protest activities.

    On the other hand I don’t and can’t see this as any sort of victory. I simply don’t know how to feel.

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  16. Gary Woodhall

    Jaime, as always an accurate exposition of just what the rank and file think about today’s developments. We have repeatedly talked about mandates. The mandate which the CBA had was “not a penny more cuts”. I am afraid that position has not been reached – the VHCC cuts remain and the Grad Fee cuts simply postponed. What the government was offering amounts to nothing save the collapse of our concerted and effective protest (and the potential end of unit between the two branches of the profession). Given that cuts remain I do not see how the CBA had any mandate to accept the proposal. First rule of negotiation, never accept your opponents first offer. The MoJ were clearly worried, our action was working, we are two working days from action by solicitors and we are four weeks away from Operation Cotton. What possible reason could there be for ignoring the mandate and compromising now! The CBA must pause for breath, accept their mistake and put this wrong right, now!

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  17. jameshepherd1@mac.com

    The CBA have been outmanoeuvred by the Government………how could they have been so naive! The Government is playing chess with Criminal Justice as the stake and the CBA have just played a blinding game of noughts and crosses seemly oblivious to the bigger picture! We must act to maintain the momentum that we had developed and rebuild and repair the damage done between the criminal Bar and our solicitor colleagues!

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  18. Nicola Fleck

    I completely agree with you and am very disappointed with what has happened. Many solicitors supported our days of action and we do this just hours before they act. I think it’s disgraceful.

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  19. Edmund Burge

    I am appalled. We have surrendered completely and needlessly just at the moment when, for the first time in history, we were completely united – not just at the Bar but across the professions. I am appalled at the capitulation of our leaders, at their betrayal of the Northern Circuit and the solicitors, and at the hypocrisy of settling for the benefit of ‘80% of the Bar’ when we had always argued this was about the future of the CJS. The CBA and Circuits have no mandate for this – it is a total repudiation of what we instructed them to do on our behalf, and we should take urgent steps to make sure the gov’t understand that they did speak for us. Lithman, Cross et al – you did a fabulous job in mobilising the professions so that the MoJ were forced to offer concessions, but you have settled far too early and on terrible terms. Please, acknowledge your mistake and tell the gov’t there is no deal. Give your members the chance to decide whether the MoJ have offered enough. It is what you have always promised and it is the least that we deserve.

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    1. Edmund Burge

      “make sure the gov’t understand that they did not speak for us” – a crucial typo, borne of frustration and rage.

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  20. Elizabeth Nicholls

    I am in total agreement with you Jamie. And our next move? A local meeting to see if we want to continue the action?

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  21. Rachael heppenstall

    Jaime – everything you have said is fully supported by me. I could not have put it better. You are not a lone voice.

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  22. Jennifer Twite

    The answer is an EGM of the CBA. Its important to stand united. United within ourselves, united with solicitors, and united with other legal aid lawyers. As much as is possible to do so.

    Whilst I share the disappointment, and confusion over what has happened, and would welcome some clarification from the CBA, we all still want the same thing. Lets call for an EGM, get a proper opportunity to argue/debate what the right tactics are from here on in.

    If there is any further action, we need to agree in advance what our demands are.
    I propose the following:
    – all cuts – to solicitors, barristers alike to be suspended, pending the setting up of a pay review board, who can then decide on our renumeration, and all future pay rates. Why can that body not consider the renumeration rates for all publicly funded lawyers? Barristers, solicitors, and other legal aid lawyers. These problems are not just limited to crime.
    – the right to form a proper union, and the right to strike. This has shown us that we are just as susceptible to politicians whims as any other profession. Why do we not have the same rights to protect our rank and file?

    When we started the no returns I was not clear what our bottom line was. Lets call an EGM, propose further action, and get a consensus on what we settle for, and what we will not.

    It doesnt have to end here.

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  23. Steve McNally

    Agree entirely with JH. Well said.
    I simply cannot fathom why we appear to be trying to relinquish a position of unprecedented unity, and the strength that brings, for a meaningless stay of execution for the Bar and one which undermines our solicitor colleagues and friends. We said from the outset that this fight was not just about fees but about justice. We need to be true to that. However, this isn’t over. We do not need to accept these proposals and nor should we. As JH says – let your views be known and let’s undo this misstep.

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  24. Rob Kellock

    It’s not 3 weeks ago that Tony Cross sat with the solicitors of Lancashire. At the Marriott Hotel. I was there. Shoulder to shoulder was the rallying call. The managing partner of Forbes put this head above the parapet and suggested that if the no returns policy worked, the Bar would capitulate and leave the solicitors high and dry… Tony assured us this would not happen.

    Sad, sad day for everyone.

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  25. James Spedding

    The MoJ must be completely delighted. This deal seems to secure no real advantage to those who have been campaigning so vigorously and at such risk to their practices. At the same time it appears to have split the CBA and created a schism between the Bar and Solicitors. It seems incomprehensible.
    And well said Jaime, as always.

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  26. Shirlie Duckworth

    I would like to start another campaign: Jaime for Justice Minister! Thank you expressing the views of those of us who were either too shocked by the announcement to respond eloquently or too caught up our own trials etc to formulate a response

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  27. Lauren

    As a criminal solicitor I just want to say how upset I feel for the bar. It seems to me that the CBA announcement is not supported by the majority of barristers who have shown tremendous strength in all the actions taken so far. Our professions together have shown the MOJ that they will lose this fight. And now the CBA has allowed the MOJ to do what they always wanted- divide and conquer! I appreciate the CBA set out its goals early on, and the MOJ has agreed to them but things have changed since this started. We have shown an unprecedented unity across both professions and caused fear in the MOJ. It’s not too late for the CBA to tell the MOJ that their goals and demands have changed. I fear if they don’t overturn this crazy decision with the MOJ then the bar will be decimated. Solicitors will survive – even with the horrendous cuts – but only because we will be forced to keep in house work previously destined for the bar. What use is a years stay when after it (and frankly from tomorrow onwards) there will be very little work heading the bars way? Every barrister has to make their own choice and I would urge you to ignore the CBA’s sell out decision and to take action on 31st and 1st and to continue the no returns policy.

    We will conquer this together!

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  28. Sarah Barnard

    it is difficult to feel anything but betrayed .As a solicitors in Southampton we walked out on the Bars Days of Action .We have had to placate our clients and get them on side for the no returns policy .Two days before the most comprehensive walk out the Criminal Justice system has ever seen involving the Bar ,defence firms and probation this happens .It understandably has knocked the momentum from Monday and Tuesday’s actions and the Solicitors will have to regroup especially in the light of direct bully boy tactics and threats of Contract Notices from the LAA to certain firms . The lessons of the Carter protests have not been learned this is the Classic divide and conquer tactic when we were finally making head way .Your posters are correct the High Street Firms who choose not to use HCA’s have been screwed over ,We are your bread and butter .You have managed short term gain for long term pain .Do not be surprised if those solicitors who have always declined to be HCA decide to go ahead do the exams .The most instant affect will be to decline to instruct Junior Bar in the Magistrates Court ..As it is their fees come out of our Profit Costs and with a 9% paycut and more next year this is an unaffordable luxury .for defence firms ..This capitualtion is the beginning of the end for the Criminal Bar

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    1. swild7332@me.com

      Please know that the capitulation by the CBA executive committee is NOT supported by the Bar. Having read Ian Wests resignation letter, his was not the only dissenting voice. The vast majority want to continue the fight and to continue to support the solicitors in their fight. We are painfully aware that this concession will ultimately lead to the end of the criminal Bar. We can only hope that our “leadership” realise this too, and summon up the courage to tell Grayling to stick his pathetic offer “where the sun don’t shine”.

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  29. Michael Haynes

    A bad decision by the CBA demonstrating naivety if the CBA believes we have achieved anything worthwhile and leaving us open the the criticism that we were acting solely out of self-interest and have abandoned any significant support for solicitors. Calling off the current action will simply delay the cuts and leave solicitors weaker in their fight.

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  30. Pingback: An Open Letter | Legal In General | Scoop.it

  31. Angry Northerner

    Having thought about this further, I realise that if solicitors can’t or won’t fight, we have to fight for them. Otherwise the CJS remains in peril and our supplier base remains at risk of being wiped out. We must fight on!

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