Autumn Days

As the first days of autumn come tumbling down and the optimism of summer is shaded by the gloom of an oncoming winter we are, yet again, responding to another consultation about the graduated fee scheme.

My first reaction was that I had been consulted previously. And my response was a robust, two fingered retort. I was instantly jaded that this process had to be the subject of a further consultation when it seemed to make more sense that we were simply provided with a new scheme, worked out with those that represent us.

At least the consultation process has, belatedly, allowed some further number crunching. And the proposed £15 million injection would actually be a £8 to 9 million injection if last year’s billing data was used. This has caused outrage. This has prompted some to suggest that the Bar have been totally had over.

I have to confess I don’t share that outrage. Not over that. The reality is that the case mix and the pages contained within those cases is only broadly predictable. In a year’s time we may do a retrospective comparison and find that the new money was in fact £17 million. Or £5 million. That is just the nature of the beast.

That is why I had this to say at the time of the last ballot:

“I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.”

So I wanted to see a consultation that showed lots of worked examples. Tables that showed what we got paid under a scheme that included PPE, what we get paid on the current scheme and what we will get paid with new money in the scheme. That is the only way the practitioner with a mortgage to pay, a family to feed and a life to lead can assess this material.

This consultation is not packaged in this way. And that concerns me. How are we to decide about these things in the abstract? It is the figures in the boxes which really matters, what we are going to get paid for the case. Until I am provided with this information then I am not going to respond positively to this consultation.

But this is not the source of outrage. But that is not to say I am not outraged.

When we were presented with this proposal we were told that things had to move quickly. We were told that the current scheme could not be delayed but that part of the reason to take this offer was to enable an October implementation. That was absolutely fundamental. We would take work remunerated inadequately for a short period of time as a gesture of goodwill, goodwill which we believed was being reciprocated. I have no doubt that this is what the Bar Leadership were being told.

And now there is no prospect of that happening. We are told that it is going to be December, at the earliest, before the new money comes into the scheme. My goodwill was a brown leaf dangling from a horse chestnut tree. It is now already compost. This is not acceptable. This delay undermines the whole process.

The message is simple. We start the ball rolling towards a resumption of “no returns”. The MoJ should be told that this is a consequence of yet another broken promise. And that our goodwill is going to have to be bought again. With less online consultations and more money.

7 thoughts on “Autumn Days

  1. Ciaran Rankin

    As I have already said on this site. No returns immediately. We have consistently shown our good faith in this seemingly ongoing dispute with the government. Actions not words I’m afraid.

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      1. iandodd2013

        Before the bar builds the barricades and lights the braziers we might have a cool consideration of some facts.
        1) Since the great VHCC Strike of 2008 there has been another six episodes of ‘action’ to get the MoJ to improve AGFS fees. As fees have fallen by 40% over 20 years these actions have, demonstrably, failed. How will any future action alter this?

        2) The MoJ don’t care what the criminal bar does. If they did, fees would have increased. Nothing the bar has done has changed the MoJ’s position or improved fees.The best that can be said is that things are getting worse more slowly than otherwise.. How will any future action alter this?

        3) There are too many barristers chasing less work. In the last 10 years;
        * The value, in real terms, of criminal legal aid work has fallen by 20%
        * The volume of criminal legal aid work has fallen by 25%
        * The numbers of barristers working in chambers and practicing criminal legal aid work hasn’t fallen
        * The proportion of the total number of all cases in criminal legal aid work handled by solicitor advocates has risen from 10% to 50%.
        4) The last action resulted in a very poor outcome for the criminal bar; especially for juniors. The negotiating team also failed to realise that the £15m included VAT (I imagine the new figure of £8.6m includes VAT too. So, it’ll really be £6.88m, then).
        5) ‘Strikes’ never work. Read V I Lenin ‘On Strikes’ (1921) on this.
        Any business where income has fallen by 40% in 20 years and where supply vastly outstrips demand/capacity would have changed (supposing it was still around) its business model to one which matched the facts/reality as they are rather than as they would like them to be. Perhaps the criminal bar might consider this?

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      2. jaimerhamilton Post author

        For the assistance of anyone reading these comments we should point out that you have a business concerning developing alternative structures and business models in the legal sector so people realise that you have a “vested” interest to that extent but also know what you are talking about.

        As far as action is concerned we have only got to the point of taking action twice in relation to AGFS to my recollection. There was a brief return to no returns in support of solicitors as well. Both of those actions have obtained tangible results (whether they were adequate results is another matter).

        I had always understood the figures used to include VAT and believe that the CBA have always had the same understanding.

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