Why I Support the CBA but Oppose the Deal

I am a Manchester United fan. This season that makes me something of an expert when it comes to witnessing capitulation. So I know what I am saying when I say that the deal announced last week between the Bar and the MoJ was not a capitulation. It was an error, but to suggest it was a capitulation would be to suggest that it was the product of a lack of desire to fight. The CBA have demonstrated ample appetite for the fight.

Nonetheless I believe the deal is not a good one for the Bar. And I believe it should be undone by the Bar and the CBA asked to continue their splendid fight. There are a number of reasons why I suggest you should urge the CBA to ditch the deal but before I turn to those if I may suggest some things not to base your decisions on.

Do not base your decision on blind loyalty. Do not base your decision on the desire not to rock the boat. Do not be timid or reckless. I would invite you to follow as much as you can of the debate. There is plenty out there to read. Take some time to read Matthew Scott’s blog If This Is A Victory……. I would imagine you have all read Nigel Lithman’s announcements and Monday Messages the last two weeks, but if not check them out here. The always admirable Andrew Langdon QC wrote this explanation/defence of the deal. Simon Myerson QC has had plenty to say across a plethora of social platforms but his blog and the comments section make an interesting read on both the “Debate” blog and the “Kicking Up The Dust” blog.

So equip yourself with plenty of information and discuss it with your colleagues young and old. Then think and think some more. I will add some of my thoughts now. This is not a complete answer. It is not a complete strategy. These are just some of the reasons I do not support the deal as a good enough deal to reward the actions of us all.

As a general point I worry about the nature and terms of the deal given the body with which whom we have entered a compact. I anticipate there are not many of us who trust the MoJ one bit. We have every reason not to trust them. They have shown themselves undeserving of our trust at every turn. And now we have to trust them. Worse than that we have given our mendacious and manipulating foe a series of weapons with which to beat us.

It has been said that the delay to AGFS changes have “kicked them into the long grass” such as we have seen the last of them. That would be a fantastic result. If we could be confident it was the case. The rationale as I understand it is that the Government who do not like to be seen in an embarrassing climbdown will announce a delay rather then a cancellation. Then it is just never resurrected. Added to this is the hope that there will be a new regime, either in Government or at least in the Minister’s chair.

There is a problem with this however. The tactic of delay is often used as just that – a delaying tactic to hope the political conditions improve so the policy can be implemented at a later day. The badger cull was a fine example of the delay being just that. Not a cancellation but just a delay in the face of concerted opposition. So will the General Election save the day? I am not going to place my hope in the current Opposition. You will find no commitment from them anywhere to reverse a single one of these changes and cuts. I confess I used to be a member of the Labour Party. I ceased to be due to their approach to public funding in about 2000. How about if there is just a new Minister regardless of political persuasion? The Civil Servants are still there. And they dislike us more than badgers.

So which do we think it is? Well nobody can know. I have not heard a convincing argument as to why it is cancellation by another name. There is plenty for the Government and the unchanging Civil Servants to gain by this simply being a delaying tactic. By the time the question of cuts are back around the department will be dealing with another reduction in their budget (in all likelihood). At that stage much of the “consolidation” in the solicitors’ profession will have happened (that means lots of small businesses providing essential legal services to the community will have gone to the wall). The PDS will have expanded and it is no coincidence that the Government have changed the PDS code of conduct to allow them to appear in the same case even where there is a conflict of interest. That happened just this month. Could it be that the delay allows the Government to regroup, garner the resources to combat our most potent weapons and be able to concentrate on just one side of the profession at a time?

Elsewhere I have heard a mood of optimism that we will be able to go back to them in June next year and have a root and branch reform of AGFS, seeking an increase in the fees. Well I suppose we can ask. However the Government has given no indication that they will even entertain this. Quite the opposite. The MoJ make it quite clear “the (AGFS) review is not intended to go beyond the savings from AGFS proposed on 27 February”. It is my understanding, reading those words, that the only question on the table will be whether the cuts that come in are introduced in whole or in part. The most optimistic hope could be for no cuts at that stage. We can make all the forceful submissions we want but do not vote for this deal thinking it leaves us with fertile ground for an increase.

In fact this deal concedes the principle of cuts. These lines are crucial “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”. That is said to be the stated position of the Bar Council, the CBA and the Circuits. Well I am afraid there is an objection in principle. There is the principle that the cases have been cut below the irreducible minimum. There is the principle that the current fees on offer are not sufficient remuneration. There is the principle that pricing such cases at such a low rate means that advocates of lower quality will be attracted to such work, potentially leading to greater cost to the taxpayer. Those are all points of principle that we cannot now make. When we do, the Government will simply be able to point to those few words.

There is also principle that goes beyond the political point we are trying to make. There is the principle that we have actively encouraged people to return that work in order for us to make a point. You can have all the “individual decision” caveats you want but when the message went out “we will not work at these rates” those who decided not to, those who gave back cases, made a difficult and principled decision adverse to their own personal financial well being. I am afraid to argue otherwise ignores the reality. And they are now abandoned. I, for one, am not prepared to do that. They stood by me, I shall stand by them.

Yes representations will be made about AGFS Plus in relation to these cases. But that will have to made in relation to the existing financial envelope (as Grayling would say). That financial envelope is now 30% lighter. The reason why we could get no better on VHCCs? Apparently because they have been approved by Parliament. I reach for my Hansard. I look for the tense debate in the House where Grayling carried the vote with soaring rhetoric…. and I fail to find it. The approval of Parliament is in reality no more than the stroke of a pen. If he wanted to, the Lord Chancellor could reverse those cuts by the end of this month. He does not want to. Now he does not have to.

It is said that the deal is good for 89% of the Bar. A deal which is good for 89% of the Bar must be good. That statistic makes me very sad. The 89% of the Bar refers to the proportion of us who do Grad Fee work. That is me. I am one of the “89 percenters”. However it makes me sad because that means the fight and the deal is about one thing and one thing only – money.It is said that the deal is good for 89% of the Bar. A deal which is good for 89% of the Bar must be good. That statistic makes me very sad. The 89% of the Bar refers to the proportion of us who do Grad Fee work. That is me. I am one of the “89 percenters”. However it makes me sad because that means the fight and the deal is about one thing and one thing only – money. When I spoke at the CBA delegates rally I spoke to a motion that was not about simply my fees. That was not sophistry by me. I was not hiding my wage demands under lofty ideals. I meant it. I meant the fact that we should use every tactic available to us to repair the damage that was being done to the Justice System of this country. This deal cedes all of my most potent weapons. I must work within the system, as imperfect as we all see it to be, because I have taken the King’s shilling. Yes I can still rant and rave but I am denied the right to take any action that effects the normal smooth running of the courts. That is not just a ceasefire. That is unilateral disarmament.

Ultimately that is all this deal is. A ceasefire. Unfortunately it is a ceasefire that leaves behind our allies amongst the solicitors. I will probably make myself fantastically unpopular here by saying this but the solicitors have yet to come anywhere as close to being as effective as the Bar have been. If they are defeated it is not simply because the Bar did this deal. It would be a defeat caused by an inability by some to act with unity. It would be cause by a reluctance by some to expose themselves and their business to risk.

However we do have much that is common interest. The defeat of dual contracts and the preservation of many of our sources of work is such an obvious advantage to the Bar. What has now happened is we have left the weaker ally fighting our foe alone. We can give them tremendous support form the sidelines. We can pen letters to the Times, bombard the Ministry with briefing papers and deliver powerful speeches. However we cannot enter the fray. We have promised not to. Let us say that this has kick started solicitors into seeing that direct action can cause the Ministry to yield. Let us say that they get something going in the Crown Court like the LCCSA proposed yesterday. We are powerless to play our part in that. As soon as we do this deal is finished.

These are just some of the reasons why I oppose the deal. My opposition to it is not a personal attack or slight on those who agreed to it. I still consider myself a member of “Team Nigel”. He may not want me but tough. I simply think this deal is a mistake. I have made many mistakes in my life but I still back myself to get things right. This is but one mistake. I still back the CBA 100%. It is simply that this deal is so crucial to my personal future, the future of my colleagues and the future of the profession, the profession that I have a passion for, that I cannot place my loyalty and faith in the leadership of the CBA before my reason.

Inform yourself. Decide for yourself. Vote. Then lets move forward. Together.