Rumours, confirmed and unconfirmed, abound that more Silks have joined the PDS. Twitter is redolent with tales of “approaches” being made to senior practitioners in recent weeks and calls for action to be taken.
No doubt a regular reader of my blogs would guess that I would be amongst the vanguard of those clamouring for a return to direct action. My opposition to the deal is well documented, as are my calls for it to be unpicked.
But I am not. For a whole host of reasons. Before I explain why, let me say again that I think the deal was bad for the Bar, I believe it has denuded us of our most valuable weapon and has not sufficiently secured the future for the whole of the criminal justice system. However I am not about to use the expansion of the PDS as a flag of convenience.
The deal was accepted by vote. It can, and should, only be undone by similar democratic process. No matter how fervent your belief that the decision is wrong, the membership of the CBA spoke. It would be for the membership to speak again before a change of direction.
Expansion of the PDS does not constitute the Government reneging on the deal that was struck. Whilst people involved may have understood that the background to the negotiations include maintaining the status quo as far as the PDS was concerned, the terms of the deal as published made no reference to that assurance. I am afraid, as lawyers, we must recognise that the deal is not predicated on understandings but on the clear terms recorded and published by both parties.
Furthermore the Government’s response is one that is utterly predictable, was foreshadowed in the business plan as published by the LAA and is consistent with the Lord Chancellor’s statutory duty. He has to provide resources to allow cases like Operation Cotton to proceed. It matters not (to him and his duty) whether those resources are top drawer. It matters not that he may have a cheaper option. An expansion of the PDS is amongst a range of responses to get these cases up and running. I do not think we can legitimately take direct action because we object to the establishment of some form of competition.
Yes we can point out it is illogical due to cost. Yes we can argue against it. But it is difficult to make out a case for legitimate protest. I would dearly love the Minister to solve the problem by introducing appropriate rates and was willing to fight to achieve that end but that is different to objecting to the choice he makes about who does the cases. I was satisfied that competition, training and ethics at the Bar meant my colleagues who have joined the PDS were good enough when at the independent Bar. I am not going to be hypocritical enough to cut up rough about their instruction now.
An expansion of the PDS is detrimental to the future of the independent Bar. It means that the prospects of succeeding in direct action is reduced in the future. There will exist a cadre of advocates able to step into those cases deemed as most embarrassing to the Government. One can see from the experience of the CPS that the only prospect of making in-house advocacy pay is by bulk instruction. It only takes a few tweaks to the system to see PDS advocates with piles of Early Guilty Plea cases dominating court rooms devoid of other counsel.
Can we fight that threat? The short answer is no. Not unless you are prepared to refuse to work to stop solicitor advocates having rights of audience or are prepared to fight the CPS using employed advocates. I am afraid such action would be anti-competitive and unlawful. As would taking direct action to strangle the PDS at birth. It would also be a public relations disaster.
The only answer is for the Bar to renege on the deal and restart direct action with wider aims than simply defeating the cuts to Grad Fees. It would have to place the whole criminal justice system at the heart of the fight. I am afraid that is simply not going to happen. I do not detect an appetite for it.
So we are left with making our arguments about quality and cost. And we know how successful those are with the public and the ministry. The only way to stop the PDS expanding is to start doing VHCCs again. I am not advocating that we should do them at current rates. Nor can we wait for a whole new system to be devised and implemented. What has to happen is some further improvement on the rates whilst still giving some savings. Enough to get those cases closer to adequate remuneration for the Bar to do them again. Only that will stop the rise of the PDS.