The Future

i usually try to start with something funny or lighthearted. I may not always succeed, but at least I try. Not this time though. This time things are just too damn serious. 

We now know that the CBA Exec have decided upon their strategy. The strategy is to engage with the Government to put in place measures that they believe will be advantageous to the Bar and safeguard the flow of work. They believe that the Bar is in a very strong position to compete for work when excellence and ability are key factors in the allocation of work. 

This is a legitimate avenue for the CBA to pursue. They are the body that represents criminal barristers and should be largely devoted to improving the situation of their members. It is most definitely not their job to represent solicitors. 

But in this instance they are wrong. 

I imagine this to be the point when some Silk somewhere will begin typing a comment below about how I am confusing anger with reason. How I am conflating my disagreement with the decision with ideas of treachery. 

I am not. I accuse nobody of treachery. I have been appalled by some of the comments posted to places like Twitter that speak as if the Bar have acted together and deliberately without honour. 

However I do fundamentally disagree with the CBA. Here are my reasons why. 

The strategy that they seek to pursue is one which may have paid dividends for the Bar. However this is the wrong time to deploy the strategy. It should have been deployed in 2007 when the Carter changes led to economic realities requiring solicitors to want a piece of the advocacy pie. The genie is out of the bottle. We are locking the stable door after the horse has bolted. In fact the genie is a speck in the distance atop a bolting horse. 

However that is a minor detail compared to the more urgent consideration. Given the decision on QASA this morning, a scheme to which the CBA are implacable opposed, how are the quality controls to be put in place? The sort of mechanisms that will be required will take months, maybe even years, to work out and implement. Yet the second round of cuts happen to solicitors in just seven days time. 

Let me spend a moment to recap why this is bad for the Bar. The reports that the Government relied upon for their Transfroming Legal Aid plans made it clear that the level of cuts now imposed would make many solicitors unprofitable businesses. There is just no profit to be made. This is not speculation. This is why Dual Contracts have been introduced. The Government and the Law Society both acknowledged that the cuts meant firms had to have an increase in volume to improve profit. The Two Tier system is also specifically designed to bring about “consolidation”. Consolidation means firms ceasing to exist. Again not speculation. In the style of Rafa Benitez, that’s a fact. 

So firms that currently instruct you are being deliberately holed below the waterline. They will either go out of business (bad for you) or have to find other ways of increasing the amount of money coming in. And that means wanting more of the advocacy pie (bad for you again). Fine words about choice of advocate not being based on economics are laudable. But wholly unrealistic. 

Planning for the long term future is all well and good, but a little pointless when your future is bound to the fate of your solicitors who are being hit in seven days time. This is like being distracted by the fire engulfing your house whilst looking at the architect plans for the new conservatory. 

Defeating the cut coming in just seven days is not fighting the battle for the solicitors. It is fighting a battle which is imperative to the immediate future of the Bar and your chambers. 

When I read or listen to those talking about salvaging the Bar for the future and seeing what we can be saved for those currently just starting out I am reminded of the young soldier in War of the Worlds who speaks of building a new world beneath the ground whilst the Martians bestride earth, before showing the narrator the start he has made – which is no more than digging a shallow ditch. For the Bar “survivalists” you may as well be digging our shallow grave. 

Fighting the cuts is an act of extreme self interest for the Bar. 

My objection goes far beyond self interest however. I am ideologically opposed to the Lord Chancellor. Not because of political prejudice. But because he is a man who recognises that we have a two-tier criminal justice system but thinks the answer lies with lawerly charity work plugging the gaps. The gaps that are his duty to plug. 

What the rape victim needs is a properly funded criminal justice system, not 25 hours pro bono work by some City lawyer. What does he think is going to happen? Clin Neg Silks doing their bit by prosecuting a murder for free? Of course the Lord Chancellor is not thinking that is actually going to happen. But with all his talk of efficiencies, technology and improvemental he ignores the plain truth. The CPS, the Court Estate and the provision of defence services have all been sacrificed on the altar of cost. What the hell is going on when the CBA and the Bar Council welcome this sort of nonsense?

I am ideologically opposed to a Lord Chancellor who speaks of how those who have no choice other than being within the system are let down by that system BECAUSE HE DOES NOT PROVIDE ADEQUATE RESOURCES FOR THE SYTEM TO BE ADEQUATE. And refers mainly to victims and witnesses in that regard. Not the innocent or the unwell. Now that is someone playing politics with justice. 

And to cap it all he has the chutzpah to make it seem like this is somehow the fault of the lawyers. That we do not do enough for free. This is the man we trust will do right by us in the very moment he is pontificating about a two nation justice system when he is days away from cutting Legal Aid once again. 

So the Lord Chancellor has made the proper provision of quick, high quality Justice the centre of his agenda. We all must now hold him to that commitment. That begins by defeating this latest cut. For once self interest and the greater good collide. 

The  Monday Message concludes with the fact that the Exec anticipate an EGM and welcome it as the democrats they are. The Message is correct when it says that there are competing views, beliefs that are strong to be aired. In those circumstances the CBA should not be defiantly welcoming the prospect of an EGM. It should be calling it. This issue is too important for the Exec to decide on its own. As before with the Delegates Conference or the vote on the deal this issue is something the whole Bar should be involved in with the debate and the decision. 

In Flash Gordon, the film, Dale Arden cries out to the hero “Flash, Flash, I love you, but we only have 24 hours to save the Earth!”  Right now my cry is this “CBA, CBA, I love you, but we only have 7 days to save the Bar!” I could be wrong, I could be right. If I am right and the CBA pursue the path they currently follow then bad things will befall us. If I am wrong it is vital that the Criminal Bar decide I am wrong. For it is all our futures. 

One thought on “The Future

  1. David

    To identify the real problem here is to look at the way the Bar have dealt with fees over the years. You will of course remember the old epf red corner claims. It allowed systemic fraud. It was a con and I defy members of the Bar to say that they did not put in overinflated claims. Further the BVC/BPTC is now open to everyone via many more institutions. People are paying upwards of £12k per year to embark upon a career which is unlikely to ever happen. Please explain why two tier will not work for some firms? The reality is that the system will still be present but firms will operate as opposed to chambers. It is the firms that will take and develop the best advocates, unless you are saying that firms can’t do this or firms are unable to provide good advocacy. Chambers are now effectively dead in the water for publicly funded work and the Bar is an anachronism. It was almost impossible to ever get any sort of concrete agreement from chambers as individual barristers always assume there will be a need for them. The large majority of the Bar’s work can be done in house by firms. The Bar are only required for the serious cases that in house teams don’t want to do OR that are loss leaders. Can you explain what the int of chambers is now? I certainly don’t mean to pose that question in an insulting way so please don’t think that.

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