A Thoroughly Biased View

This is the piece I wrote for the CBA blog concerning the ballot on direct action. 

It is important that you understand that I am terribly biased. I am in favour of taking direct action. I was in favour of direct action before “no returns” and I advocated rejecting the deal. I believe that the previous Government and this Government have done significant damage to this country by undermining the justice system. The principal tool has been money – increasing court costs, introducing court costs, restricting access to Legal Aid and cutting Legal Aid. I believe that lawyers could and should make a stand when politicians wreak such damage. Not just fine words and strongly worded letters to the Times but using everything we have at our disposal to make the Government think again.

As I am going to seek to persuade you to vote “Yes” in the CBA ballot it is important that I introduced myself. This is not some independent critique of the intellectual debate. Do not, however, mistake bleeding heart liberal for hothead. Failing to treat people who hold a different view to you with respect is not confined to those who yell “scab”. Bullying can be achieved by belittling as much as by belligerence. 

There are many aspects of the current changes that I feel should be fought. Two Tier and the latest cut are but two of them. I believe that the latest cut poses a threat to the proper provision of high quality representation in this country. Just because I am not able to fight the other changes, does not mean that I will not be bothered to fight this one. So let us concentrate for now on the fight we are voting on, the fight against the latest cut to fees paid to solicitors. 

Let us start with one important clarification. These are not just cuts to what are described as the litigator’s fee. The litigator’s fee is the fee paid for the work of the litigator, usually the solicitor, in the Crown Court. Some counsel will have experience of the litigator’s fee being considerably more than their own fee. So I hope the reference to litigator’s fees by some who should know better has just been an error and not an attempt to make counsel think that it is only these fees that are being cut. The cuts apply to magistrates’ courts and police station fixed fees. Those fees are already, in my opinion, cut to unsustainable levels. 

So with that bugbear out of the way I am not going to rehearse in detail why I think we should be supporting solicitors in the fighting the cuts they face. If you Google “View From The North” blog you will have plenty of detail. In short, I believe these cuts will take work away from the Bar and will create the substantial risk of levels of representation declining in the police station, the Magistrates’s Court and the Crown Court. 

I am fortified in this belief by the fact that the CBA Executive agree with me. Perhaps not in every regard but they agree that the cut currently imposed as of 1st July is cause for significant concern. 

So what should we do?

Well perhaps you should ask yourself the question – are we going to be able to reverse the 01/07 cut by a process of negotiation in circumstances where the CBA believe the MoJ are at the most receptive?

The simple answer to that question is “no”. We can be pretty definite about that. The CBA say they have repeatedly made their opposition to this second cut to the MoJ. The negotiations have taken place. And they have achieved nought in respect of that cut. The cut has been imposed. 

So the next question would be – does the Bar taking direct action guarantee that the cut will be defeated?

Again the answer is simple. And it is “no”. Anyone offering a guarantee in these circumstances would be seeking to mislead you. 

Perhaps the real question is – what gives us the best chance of defeating this cut?

Well if negotiations have already failed, then direct action must be the only option. Particularly when that has not failed. In fact direct action has proved spectacularly successful. Pre-Carter the Bar were refusing VHCCs and the Northern Circuit had called a meeting on a court day to propose direct action and as a form of direct action. It was as a result of this that the Government of the day established the Carter Review. The more recent VHCC proposed cut was circumnavigated when 41 practitioners gave back these case and we said “No”. The defeat of the AGFS cut came about after days of action and no returns meant the MoJ came to the Bar with the deal. In each instance it is to ignore reality to say that these positive outcomes have been brought about by negotiation alone. Each time the circumstances that have allowed for successful negotiation have come after some form of direct action. I can think of no instance in 22 years at the Bar when negotiation alone has altered a stated intention to cut fees. 

Part of the “what gives us the best chance of defeating this cut?” is the legitimate supplemental question “can’t we just leave the solicitors to it?” The answer to that is no, not if you want to give us the best chance of defeating the cut. A united approach gives the opportunity for disruption to be more widespread. It allows for the maximum publicity as we deal with the cases that tend to be of interest to the media with them being the most serious. And a united approach gives the best chance of yielding results more quickly and that is the key to the taking of action like this. Such action cannot be open ended. So you have to have the maximum impact leading to maximum problem for the Government. The Bar with no returns and a Crown Court in crisis provide this in a way which is unique to us. And it is this impact which may lead the MoJ to want to resolve matters. That is what will open the door for the previously unsuccessful negotiation to recommence. 

So those are my reasons why we should fight the cut and the manner in which we should fight it. Any fight has a potential cost. Before we embark on the fight we must look to see what we stand to lose. 

This is the real argument for those saying we should vote “No”. Voting “Yes” will destroy the CBA’s strategy of negotiating the long term future of the criminal bar, they argue. We are told that the MoJ recognise our value. 

Can we risk losing that?

Firstly, Gove has gone on record stating that he wants to preserve the junior Bar. That is being relied upon by the CBA Exec as evidence of his goodwill towards us and the fact that he will not let us down. If that is the case then to change his perception of the value of the Bar would only be as a result of us opposing him and the MoJ. It would be to go back on his stated view as mere punishment. Surely we can trust him not to be so petty and vindictive? 

Actually we can’t trust him not to be vindictive. We cannot trust him at all. It may just be that I am a Northerner and the words “Northern Powerhouse” are a byword for the untrustworthiness of our political classes. 

We have to acknowledge the animal we are dealing with. This is not an honourable opponent in a negotiation between counsel. This is politics. This is the world of Selwyn-Gummer feeding beef burgers to his kids, of the Iraq invasion being based on evidence of weapons of mass destruction, the world of Nixon and Archer, the world where Nick Clegg promised to oppose tuition fees. This is the world where members of the cabinet toe the party line irrespective of their own actual views, just to keep the Ministerial job. I am more than prepared to accept that Gove believes what he said for the purposes of today and did so convincingly to those in the room with him. But can anyone really say they would fall off their chair if he said the opposite tomorrow?

Secondly it is difficult to judge what we stand to lose because we have no idea what is being negotiated. We have been provided with no fleshed out plan. Not even a skeleton argument. We are told of the CBA’s aspirations. But how is this going to be achieved? What mechanisms are going to be put in place to create the level playing field? How can we judge whether that is a plan worth pursuing if we have no information as to how the plan is to be implemented? What is that timescale involved? When are the MoJ going to start putting these unknown mechanisms in place? How do the mechanisms fit within the regulatory framework? How does it impact upon QASA and vice versa? Is it going to end up costing the individual practitioner yet more money to have the right to practice? By what yardstick are we going to judge whether the current negotiations concerning a level playing field are a success? How long are we going to let the negotiations drift without result? What action do we intend to take if we don’t get a level playing field?

And finally, why can these negotiations not carry on AND we take direct action regarding the cuts implemented on the solicitors? Will the MoJ fail to act in a way that they accept is to the benefit of the system because we disagree about something else? 

Some say the deal precludes us from taking action. If that is right, we are precluded from taking action ever again. But it is not right. The deal was about our AGFS cuts. It was a postponement of them until after Jeffrey and Rivlin. During that time we agreed to return to normal working practices. Time has marched on. This is a different Lord Chancellor. It is a different administration. The period of the postponement has come to an end. Talk of us acting with honour is admirable and a little quaint but wholly irrelevant in these circumstances. 

Voting yes is not cutting out negotiation. Voting no cuts out direct action, the one thing that has previously led to successful negotiation. 

I am not a believer in the fact that being a barrister makes you a special creature. We are just human beings. Nor do I believe it is of assistance or relevance to approach other areas of life in the same way we approach our profession. I don’t know about you, but I don’t apply the cab rank rule to my social life. I do believe that most good barristers share some common traits. Good judgement, intellect, a certain fearlessness, eloquence. In those circumstances most people voting in this instance are capable of making their own minds up. We do not need to be led, patronised, bullied, scared or protected. We just need information upon which to base a decision. 

This is not a moment for dying on your feet rather than living on your knees rhetoric. It is a time for thought, not just about yourself, your income or your circumstances. It is a time to think about which is the right choice. Good luck. 

4 thoughts on “A Thoroughly Biased View

  1. Pingback: A Thoroughly Biased View | the Brighton brief

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