Let us remind ourselves that we all agree that you cannot trust the MoJ. Then lets look at what the MoJ believe has happened. It is available on their website. I reproduce them here with some commentary.
Agreement between Ministry of Justice, Bar Council and Criminal Bar Association
No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014.
The timing is crucial to the MoJ. They were facing a summer of discontent from both sides of the legal profession. Cases and CTLs going wrong. All of this in the run up to a General Election. We have given them a stay of execution.
Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that:
No recognition of the impact of VHCC changes
1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below. This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind.
The cuts, these cuts, are still on the table. All we have is a promise of an open mind. We have already made all our good points to this Lord Chancellor and these Civil Servants. Their mind has never been open. I anticipate part of the gamble is that we have a different Government in the future. Firstly if we do not we are then dealing with a Government with a fresh mandate and five years to tough it out. And we have the same civil servants…..
2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence.
As part of the deal we have had removed from us the one, small improvement of the scheme. Advocates will still go to court for little reward in either way cases which resolve. This was a small step. A token crumb. We have not even secured that small positive change.
3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular:
Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy;
Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;
criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;
any impacts on legal aid spend from falling crime rates; and
a comprehensive analysis of income and earnings of criminal advocates,
including effects from changes in recent years.
We are reliant upon their comprehensive analysis of income and earnings. Given the MoJ’s form with our earnings does this prospect fill you with confidence?
4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported.5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament.
The likes of Nigel Pascoe who hope that this review will deal with the iniquities of the current mutilated grad fee scheme can stop such hopes right now. The review will do no more than tinker with the size of the cut. That is all. And if we get nothing from that then whoever leads the CBA at that point will be faced with galvanising the troops for a fight. A fight on their own, the solicitors will nto trust us and their fight will be over by then. A fight when the Bay will face solicitors having moved into our work. Good luck with that, you’ll need it.
6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.
The money that has been slashed and slashed again will remain. The cuts of 30% are not going. We are offered here the possibility of rearranging the deckchairs. That is all. Not a penny more? We have conceded the VHCC budget.
7. The Officers of the Bar Council and the Criminal Bar Association, having engaged with the Circuits have stated that, in return for the Government’s proposed approach (outlined above):
whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs
there is no reason why barristers who want to work on VHCCs should not do so;
the ‘no returns’ policy should be withdrawn; and
normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action.
We have, in return for these meagre almost non-existent concessions, ceded our movement of direct action. We have rendered ourselves impotent to assist our solicitor colleagues. We have effectively ended the VHCC boycott. The line was holding because we were holding the line. Having completely fractured now the ethos of unity is gone. Advocates will work on VHCCs. They may not be the best but they will be found. And here we have, written in stone, that there is “no reason” why they should not do so. If we complain that the fees are not good enough? Well not according to our betters. If someone raises abuse of process because they cannot find an advocate? The prosecution will simply point to the fact that the Bar Council and CBA concede there is “no reason” why advocates should not work on VHCCs.
8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.
There has been no problem with our engagement. The problem has been with the Government engaging with us. And now with the leadership engaging with the rank and file.
Unpick this rotten mess now or plan for a bleak future.