The 89ers.

At the moment I am an angry young man. Alright the young may be pushing it a tad. The anger has been a near constant companion since I heard the news Adam and the Ants had split up. In more recent times I confess that I was angry last Thursday when news of the developments with the MoJ broke. The anger was provoked by what I view as a misstep in a matter of vital importance.

I like to think that I never expressed that anger in way other than indignation. I am confident that it has not been expressed in terms personally abusive to any party involved. Clearly I think that I am right. However, right or wrong, I am nevertheless confident that those who disagree with “the deal” have some reasonable and rational points worthy of recognition as such.

Today I am mainly worked up by the idea that the deal represents 89% of what the CBA set out to do. I hope that this is being used more as a rhetorical device than anything seeking to accurately express what has been achieved in percentage terms.

The 89% figure represents the proportion of the profession that earns money from AGFS as opposed to VHCC work. That the deal represents 89% of what we set out to do refers to the fact that it secures a deal which delays and potentially stops the cuts to the fees earned by those 89%.

That of course is not the same as the deal representing 89% of what we set out to do. Let me state what I believe the Criminal Bar set out to achieve. We wanted to improve the fees paid for criminal advocacy, we wanted to reverse a number of damaging changes to the Legal Aid system that we viewed as denying access to justice (such as access to legal aid by prisoners, restrictions on JR, the eligibility criteria etc), we wanted to stop various changes to Legal Aid paid to solicitors in order to maintain a high quality system of representation and to maintain a system of referral advocacy.

Now I know of at least one Silk out there who would suggest that I am mistaking what I desire with what my goals should be. I’ll come back to that in a moment. My list is fairly uncontroversial. It is taken from the resolutions at the CBA Delegates rally. Have we achieved 89% of that? Not even close.

So let us get to the nitty gritty. 89% shows that we were actually looking to achieve was simply in relation to the issue of fees. The principles? They fell away to pragmatic questions of money. Let us say that we concentrate therefore on just one third of what I believe we set out to achieve. We ditch the access to justice points and we ditch the opposition to solicitor changes as pie in the sky ideals and concentrate on the money.

What were we trying to achieve in terms of fees? Well our desire is undoubtedly to achieve a reasonable level of remuneration. Current levels of remuneration fall below what is acceptable. However I guess in times of austerity it is difficult to press too hard for an increase. So we can say that the aim was to preserve what we have. You may paraphrase that as “not a penny more” in cuts.

So what does “not a penny more” relate to? Well that would be the cuts that were foreshadowed by the Transforming Legal Aid consultation. That was the catalyst for concerted, well organised and unified action. There can be no room for doubt that included all cuts to all advocacy fees. VHCC and AGFS. Two goals.

The goal was to stop those cuts. That is it. Plain and simple. Not unrealistic, not unachievable. When we met, when we rallied, when we marched that was the message on the placards, that was the theme of the speeches. When I walked out of court with my friends and colleagues it was to preserve the status quo.

On the route to achieving those goals then there was always going to be something in the way of a compromise. It is not an unrealistic strategy to be reasonable. We could compromise by achieving further room to argue and to agitate. It was a logical step to ask the Government to await the various reviews until they implemented the cuts. It would be unreasonable for us to ignore that offer if it was made. We would be compromising our goals in return for their compromise. We would not have achieved everything we had set out to do but would have had a partial success along the way.

In reaching that compromise we would have come up well short of achieving 89% of what we set out to do. However that is not the deal we are seeking to do. We have agreed half of what our bottom line compromise at this stage should be. What we all understood it to be.

Three comprehensive areas where we fought policy. Reduced to the aspiration of improving our levels of remuneration. Down to two areas of fees where we wanted to preserve our current levels of income. From there to a compromise that we would achieve a stay in those two areas whilst we argue our case some more. And then the actual deal – a stay in one area. That does not look like 89% to me.

So if it is only a rhetorical device then it is meant to represent the fact that this deal was done for the good of the greater number of barristers. More barristers do AGFS than do VHCC. If the deal had been done the other way round, if a compromise had been settled that favoured VHCC practitioners over AGFS practitioners there would have been outrage everywhere. But why should we, the rank and file, be content to leave our colleagues who do VHCCs behind?

I am also afraid it is not a deal which is as simple as saying it saves those 89%. In chambers with someone senior to you who used to have a VHCC diary? They are now competing with you so they can keep their head afloat. In a chambers with people who do VHCCs? Your chambers’ income has taken a huge dent. Not just a 30% dent but the loss of all the income from those cases that they are no longer doing. Do you aspire to get into good quality, complicated work? Be prepared to work for peanuts.

Not a penny more? Whilst we wait until June 2015 your income goes down in real terms, just as it has every year since 2007. Not a penny more? Too right. It isn’t just a penny more. It is 30 pennies in every pound more of cuts. Achieved 89% of what we set out to do? Only an MoJ statistician could come up with that.

From that compromise we have denuded ourselves of the one weapon that may have helped us achieve any of our other goals with this Government. Without direct action we will not be able to significantly influence eligibility, access to justice or the quality of justice over the next 15 months. Has the compromise of our compromise been worth that. And in the meantime the MoJ have compromised over less than 1% of the total cuts they seek. They have not even thrown us the bone of rectifying the injustice of the fixed fee on either way offences where the prosecution offer no evidence.

Vote how your conscience tells you to vote. Vote how your reason tells you to vote. Vote how your bank balance tells your to vote. But recognise what it is you are voting for or against.

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