Difficult Days

There’s many a slip twixt cup and lip, so the old saying goes. Is this just a drop in the saucer or are we sitting here with hot, scalding tea in our lap?

There are some things that have not changed. Have not changed one iota. As I see it dual contracts are still a poor outcome for the Bar. The second cut, imposed on 1st July, is still a bad outcome for the Bar (and solicitors). The fight against the second cut is strategically an important step in bringing dual contracts to an end before they begin. These two judgements remain unaltered. 

It also remains the case that I believe the alternative proposed by those against the taking of direct action at this time, and in this cause, is insufficient, of itself, to ensure the future of the Bar. I see no argument yet made that persuades me regulation about referral fees will be enough to secure our future. We have seen it before with Carter – the greatest threat to our source of work is inadequate remuneration to those that provide us with work. Thereafter our remuneration for that work is of paramount importance. Securing appropriate remuneration is therefore key to our survival. It is also vital to the provision of proper and skilled representation in the police stations, in the lower courts and in the most serious of cases. 

None of that has changed. 

It is folly, however, to pretend that the issuing of the second protocol is not a significant event. If any proponent of action tries to brush it off as anything other they are plainly, palpably wrong. 

It was obvious, and I apologise if this needed pointing out in advance, that the possibility existed for a change in tactics by those corralling the solicitor profession. Did I expect this change at this time? No. 

Am I disappointed by this change? The honest answer is yes. I accept and acknowledge that I am something of an extremist in this regard. I believe that we should all, barrister and solicitor alike, walk out of court until such time as Legal Aid is put on a sustainable footing. I believe Sir Anthony Hooper and I have in common the belief that the Government will only listen when we withdraw our labour. And nothing amounts to a greater withdrawal than courtrooms sitting largely vacant. 

So I am disappointed. Recently I addressed solicitors in Manchester and urged them to stay out of the police stations and out of the courtrooms. Maximum disruption provided the maximum opportunity for success. 

Direct action can and does work. We saw that, to our benefit, with the previous policy of no returns and we saw the first sign of that with yesterday’s meeting. 

(As an aside, the furore over who was there and who was invited was a storm in the said teacup. All it served to highlight was a need for communication between the “leaders” with each other and between the associations and their members.)

So my next question is whether the change to the second protocol diminishes the prospect of success? There are two ways to look at this. The first is to say maximum disruption equals maximum prospect of success and therefore the answer would have to be “yes, it diminishes the chances”. On the other hand if maximum disruption is unsustainable then sustainable and significant  disruption becomes the next best scenario.

Again I make it clear, I believe the step change has come too soon. The timing is poor, for reasons I will develop in a moment. I am confident that the leadership of the CLSA and LCCSA have taken this step in the best interests of what they hope to achieve and as a result of developing circumstances. My sense of disappointment and dismay is not the same as a sense of betrayal. 

Is the second protocol capable of success? The answer is yes, if it is widely adopted. And there is a prospect that this will be more widely adopted than the first action. I would suggest it would be folly for any solicitor committed to the first protocol to reject this one out of hand. It may encourage some of the doubters to come on board. We will see.

Now for the big question. Should the Bar sustain a commitment to support this action? Nobody is going to fall off their chair when I answer “yes”. I go back to my aims as stated at the outset. I look at what I can do and not at circumstances that are beyond my control. Does the Bar adopting no returns and refusing new work strengthen the effect of direct action? Overwhelmingly, yes it does. 

I return now to the question of timing. It is a crying shame that the first protocol was not persisted with to overlap with the introduction of no returns. Now that would have been almost the perfect storm for the MoJ to weather. My sense of regret in that regard is deep. 

The more important question of timing is one of perception. The perception created is that the Bar is now being expected to shoulder the greatest burden. We, generally speaking, earn the lion’s share of our income in the Crown Court. That work is created by new work and returned work. The current direct action turns off both taps. If solicitors feel the economic pain of bills to pay and staff to face we have mortgages and families. 

Perception does create a skewed picture in this regard. Not undertaking new work in the Crown Court still will have a significant financial impact on solicitors. Their HCAs will be underused. Their clients will still be being turned away. Poaching will still be a risk. The system is such now that the Crown Court workload subsidises less profitable police station and Magistrates’ work. So the second protocol is not all jam for the solicitors. Far from it.

The perception is still very important. We may all be lawyers but we are also, mainly, humans too. Cold, hard logic is not always where decisions are made. Anyone dismissing this perception as nonsense does the owner of the perception a grave injustice. 

That being said, the implementation of the second protocol does shift the comparative burden. I am afraid the suggestion that those following the protocol should brief out Magistrates’ trials to the junior Bar does not ease the burden signicantly. It is a well meant gesture. Gestures do not pay the rent. 

So it is both the reality of a shifted burden and a perception of hardship falling only one way. 

So, what am I saying? I do not ignore the fact that the second protocol changes the situation. It is a development which could cause people to change their mind. No doubt in the coming days there will be meetings of solicitors that will allow them to reflect and make decisions. The Bar should do the same. 

And I’m afraid that means another ballot……please do not throw things. It is the only sensible way forward. People should not claim to speak for others, everyone should be allowed to speak for themselves. And that requires a ballot. 

The ballot should be organised quickly and should conclude in a short space of time. In the meantime I would still invite my colleagues to respect the decision made recently. That is why I will still not accept new work and will not accept a returned brief. 

If a new ballot is organised then I would respectfully suggest the Bar should ease the burden on itself. I would suggest a new protocol that the returns policy only applies to trials. That, in some way, reflects the shift made by the solicitors. 

I have no doubt that some will say I do not have all the answers. You would be wary of me if I claimed I did. These are not easy times. We are all trying to find solutions. Time once more for the Bar to consider and to speak. 

5 thoughts on “Difficult Days

  1. Pingback: Concerned about “No Returns” | Daniel Benjamin

  2. Tony Hatfield (@tonyhatfield)

    Imagine for a moment Mr Gove waking up tomorrow morning. He’s met the ghost of Christmas future. He’s seen good honest criminal lawyers’ kids starving. Many queue at the new Lincoln’s Inn food bank.
    Bob Cratchet QC’s family are starving. No money for the meter.
    Gove leaps from under his goose down filled quilt. He realises the Ministry has been wrong. He’s seen the effect of his predecessor’s dual contracts and the savage cuts in Legal Aid. He phones the lawyers reps and tells them-cue cheering in the background- he’s ditching the new contracts and the 8.5% cut. Back to normal. Nice thought.
    But the problem faced by the profession would not be resolved. Everyone knows what it is. Too little work for too many lawyers. The MoJ/LAA website shows just how seriously the work has declined since I retired as a criminal solicitor 10 years ago. Whatever happens, that problem will have to be faced sooner or later. The Ministry has tried-under Labour- Price Competitive Tendering- and now it’s Dual Contracts. Both intend to nudge suppliers to consolidate. One failed; I suspect the latest iteration will. The solution? I’ve no idea, but those siren voices who say ‘let the market sort it out’ are unlikely to have the answer.
    Perhaps we are looking at a Greek bail-out. We are doomed to revisit this until the money just runs out!

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  3. S. A. Kelly

    I am a defence solicitor. I am not one for conspiracy theories. But, this time I really do wonder. I work for a small firm. Small firms are naturally opposed to TT. Despite our size my firm has stuck rigorously to the first protocol. We have lost money we will never recover. We were willing to continue not taking police station calls and not attending the Magistrates Court for matters that commenced after 1st July. Like all small firms we understood that if the latest cut was reversed this might bring an end to TT. The one thing that small firms really want is an end to TT.

    BFG want TT.

    The explanation for P2 being banded about is that certain ‘influential firms’ – for this I presume read BFG, were about to break ranks yesterday. Even if you are member of BFG why would you do that on the day that there is a meeting with the Lord Chancellor? Why would you? The only sensible answer I can come up with is that the ‘influential firm’ fears that if the cuts are reversed then TT goes out of the window.

    The decision to abandon the first protocol before 27th July when the CBA members were to officially join the solicitors in action is to me shameful. I am so embarrassed by this that words are not enough.

    Now is the time for the small firms to join together on an urgent basis and issue a statement telling the Bar that they are no longer taking action just because of the cuts, but also against TT. We have 75% of the work. BFG have only 25%. We really need to do this.

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  4. Russell Fraser

    Email from Jon Black and Robin Murray (24/7)

    Dear Colleague
    Thank you to all of those who attended meetings, rallied colleagues and suffered the loss of own client work. Thank you to those who put up with your clients being poached and those who fed back to colleagues at other firms when representing their clients as own solicitor. We showed that the majority of our membership could act in a unified way, without which we would not have succeeded in meeting the Lord Chancellor at the table. He wants ideas and alternatives. We need to deliver.
    Necessity or choice?
    To maintain the action for three weeks was phenomenal. We struggled to keep it together over the last week as the Big firms were ready to pull out. At the commencement of this action and whenever such action has been suggested in the past the lack of support of these firms had been a barrier to any progress. This time was different. It was the glue that gave smaller firms the confidence to stick together.
    When the bigger firms couldn’t sustain the action and indicated an intention to withdraw entirely we anticipated that it would collapse as the backlog of duty calls would be met by a surge of firms prepared to deal with these cases ; and The Magistrates’ courts would continue ” business as usual”. At this critical stage last week we persuaded these firms to remain involved on the basis of no representation in the Crown Court. There is currently a critical mass of unrepresented defendants in the Crown Court and the continuation of the protocol would continue where it is most visible. Let us not pretend that this will be easy. The work in The Crown Court simply allows us to draw the profit, described in the Otterburn report as less than 5% as for many of us. Firms will still be facing difficulties, especially if clients desperate for progress lose patience and seek out the odd non-participating provider.
    Why didn’t we consult the membership?
    Firstly not all members of the profession in London are members of the CLSA / LCCSA, we would like you to be to enable us to continue campaigning in your behalf; more vitally we simply did not have time. The BFG wanted to go live on Monday , with the meeting with the Lord Chancellor looming it was vital they held off for as long as possible . Any driver knows that to avoid an accident you drive into the skid and that’s what we had to do. We held off any announcement as we did not want it publicly known by the Lord Chancellor that there was to be a change in advance of the meeting. It was not the LCCSA or CLSA that announced it and for that reason we could not hold a ballot of the members as there was simply insufficient time. We had to drive ‘into the skid’ and make a choice.
    Communications with The Criminal Bar Association
    We did however sound the siren by approaching the CBA chair and showing him the protocol. He understood as to how and why we were in this position, but in fairness was as anxious as we were for us to wait till after the meeting with the Lord Chancellor. It was also discussed that he would forward on to us the name of an officer who was to attend the meeting with us as a watching brief.
    We are grateful to the CBA members who worked so hard for a vote in favour of no returns; we hope that both campaigns can still run in conjunction. We recognise that the junior bar, along with many of our members, are concerned about this change in tactics. This has more to do with the timing and communication issues with the wider memberships, and the suddenness of the change, than the actuality of what it means. Why do we say that? Because:
    1. At the Crown Court for the Bar nothing has changed. Before Protocol 2, the Bar were not to do returns and were not doing post 10/07/15. That is still the case.
    2. At the Crown Court solicitors were, before protocol, not applying for legal aid and getting the LGF or AGF paid. That is still the case. There is an attempt by the defeated old guard of the ‘vote no campaign’ to obscure that fact with a mythical stab in the back narrative.
    But we repeat nothing has changed except we can sustain the CC action for longer if we do not collapse financially and it IS bringing new firms and areas in to the action hourly.
    We do not dismiss the feeling of betrayal but it us misconceived especially as we went out of our way to show the protocol to the CBA before it went out. Solicitors value the support of their grass roots barrister colleagues and vice versa. The quickest way now to bring this action to a conclusion would be for us all to unite in support of the decision to support no returns and no legal aid. But if our colleagues take the view that this is a fight against the cuts to be imposed on solicitors and the proposed two tiers then we will hope they are supportive of those firms that refuse any July 1st Crown Court work . This message goes out to you all and we hope that our words are not misconstrued in any other way.
    Release of the Protocol
    On Wednesday we held the rally at Westminster and we mentioned then that there may be a change of direction and asked you to be patient and flexible. Yesterday afternoon the new protocol was emailed around Manchester and then subsequently Kent, it was then spread into parts of London. By Thursday morning as we were waiting to meet Mr Gove (and the CBA but that was another communication misunderstanding), questions were being asked as the CBA were anxious we should clarify that they were neutral about the protocol, i.e. it was a matter for us. It was our intention to hold off supporting the protocol until after the meeting yesterday.
    The majority, who can’t continue with the first protocol, have the new one as a base line to follow, knowing that the big firms are united with them on this. It works and will work much more successfully than the “no Crown Court ” action launched in spring 2014 as we now know we are capable of the unprecedented unity.
    This new phase is about sustainability in the event that we need to continue this action for the longer term or until such a time that we can persuade Mr Gove to stop the cut and rethink two tiers.
    Jon Black and Robin Murray

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