Tag Archives: ballot

Why I Vote Yes

This blog post have been published on the CBA blog with a number of such blogs of competing opinions. You can see all the blogs here. If you are a criminal barrister it is very important for you to inform yourself and to use your vote.

I was not a part of the committee which assisted in the design of the new fee scheme. I am not a CBA Officer or executive committee member. I do not hold any position on my Circuit. And no, I am not the Secret Barrister.

Now as well as reading like a deeply unimpressive negative version of a CV, the point is that I am not invested in the vote regarding the MoJ’s proposals, save the investment of facing another twenty years of earning my living doing this job. The fact that I am not the Secret Barrister also means that I do not have the additional income of the royalty cheques from a top ten best seller to help me pay my way. It is criminal barristering and criminal barristering alone which pays the bills. Which is why I am anxious that we get this decision right.

Because I do not fill my time by contributing to legal society by being on committees, I spend a lot of time on social media. And it strikes me that there has been a lot on social media about the current proposal which is just wrong.

This 1% increase is just another cut when inflation is 2.5%!!!

It perhaps goes without saying that it is less of a cut than inflation alone but that’s not the point. The point is that it is not just 1% being added to fee levels as of April next year. That misunderstands the proposal. There is an additional 1% but that is on top of new money from outside the AGFS budget that has been used to work out the figures in the new scheme.

I have seen the figures from someone who has lost 30% as a result of these fees….

The document that has been circulating around indicates 5 out of 9 cases that make up the figures relied upon were 10,000 PPE cases. It may well be that many people have a practice which mirrors this profile. There are also many people who do not. It does not represent that the new scheme post 1/4 means a 30% cut on all fees. And the information provided in that document is the unaltered fee scheme. There is new money to ameliorate these reductions. But that does not mean the new money is to reflect an acceptance that there are cuts to the overall budget. These paper heavy junior cases were cut to rob Petra to pay Paula. Now Petra is getting some or all of her money back

The first increase isn’t new money, this scheme represents massive cuts, so giving 5% back doesn’t replace the 30% I have lost.

There are a range of fees under the new scheme which suffer swingeing cuts. But there are also plenty of fees, generally speaking either in the work of the more junior barrister, certain sex cases or Silks, where there have been significant fee increases. What you do not tend to find is barristers who take to Twitter to publish a range of cases which have seen a fee increase under the new scheme.

No one ever takes the first offer….

I could see that there may be some logic in that if this was the first offer. But it plainly is not. The MoJ did not call the CBA up out of the blue and say “here it is, take it or leave it”. This has been the culmination of weeks of work. But the other thing is, in this context, plenty of people do take the first offer. The context being a negotiation about rates of remuneration. So, once the Trade Union activists have negotiated and negotiated they will take the package they have negotiated to their members. And, often, the members will vote on that offer and accept it. The Trade Union negotiators have not spent all that time eating sandwiches and staring at the management. They have been negotiating. Offer and counter offer. That is what has happened here. It definitely is not the first offer. There is a risk it is the last offer.

This offer (whether it be 1% or 2% or 5%) is derisory and an insult…

I have previously used the fact that we have had a real term cut year in and year out for 20 years in my argument as to why we are right to take action. I did not for one minute think I was going to get it all back in one go. Or ever. I have bemoaned the fact that we have been cut and cut again. But I do not think we can now win fights we lost twenty years ago, fifteen years ago or five years ago. In relation to public sector remuneration, this increased offer is not derisory. We should be very wary about framing it so. And particularly when our colleagues in the solicitor profession have just suffered another cut.

I will not just criticise what I see as “myths” that have built up around the negotiations and the proposal but I will deal with the positive case as to why I will vote “yes”. Before I do, however, 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.

I vote “yes” because I believe this is the best we are going to achieve at this moment. I was very vocal about the fact we should not have accepted the deal offered by the MoJ when we first operated a “no returns” policy four years ago. I foresaw that this would lead to all sorts of problems. I thought this was the only way we could get more. I was wrong. I did not listen to the people in the room. They were right.

That does not mean I have blind faith. But it did teach me a lesson. In this instance Angela Rafferty QC and the CBA have been canny enough to call for action when others were saying we should just adopt the new scheme. They were canny enough to know that they needed militant action to achieve a result. They knew what it took to get new money when everyone else was saying there was no money. They have also been astute enough to gather together this particularly argumentative group of wigged cats and herd a significant enough number of us in the right direction. They have called for staged action and have added to that a bit of political fancy footwork. All of that has shown good judgement and astute tactics. And now ARQC tells us they have achieved all they can. Against that backdrop do we bet against that judgement? I don’t. Because that is a bet which, if we lose, we lose heavily.

That is not just a call to listen to your elders. That is not just me tamely following what the Silks tell us. It is me trusting the judgement of someone that has proven themselves to be deserving of that trust. I am not following instinct. I am following the evidence.

The proposal reflects the best that can be achieved for the whole of the Bar, doing justice between competing interests of practice type, specialisms, level of call and geographical area. There will still be fee anomalies. They happen under any scheme which pays for anything other than each hour reasonably worked, they happen under the scheme with the PPE proxy. With the new scheme we have certainty of the level of fee when the invitation to the digital system lands. If you decide the fee is not adequate, do not take the case.

If we had been told twelve months ago that we were going to be paid more for sentences, that we were gong to get a refresher for our second daily attendance and that refreshers did not halve after 40 days, we would have been pretty pleased. If we were also told that the overall budget available was going up, we would have been over the moon. If we were told that we were going to get our first ever planned increase, we would have thrown a street party in the Temple. There would not have been action. There would not have been a poll. The fact that the money for most of that was coming from within the scheme itself, that the money was being taken from other cases to fund the improvements, caused us to have to take action. We have to cease the action for now to assess whether that has been put right satisfactorily. We have missed out on the street party by the method of how we got here, but we are not at a wake.

The one thing which shines out from this is that we have a change in the direction of travel. I have been a barrister for 25 years. I have been working, campaigning and fighting for adequate remuneration for the last 15 years. Never have we ever got even close to a rise in remuneration. And now we have. That is not derisory. That is a victory. It does not give us everything, far from it. But it is a victory the likes of which we have never ever seen before. It is unique. Now we should not take any old offer, but before we reject an offer as derisory we have to set it in that context. It is only derisory if we let it be the only positive for the next 20 years. Each time we have fought, we have won. So we come back again, a year from now, and we negotiate with the might of action at our elbows. We are not going to get the last 20 years back in one go, nor are we going to sit back and say that 1% will do for the next 20.

I say to you all now that you should only vote for future candidates for the role of vice-chair and then chair of the CBA if they include a manifesto pledge to negotiate a rise in fees in their two year tenure, to be backed up with action in the event of refusal by the Government. The rise should become the norm, not the exception. To achieve that the Government have to fear our collective power, with no evidence of its failure. Accepting the proposal is not a failure.

As soon as this action is over we should turn our attention to prosecution fees. We should begin a real, proactive plan for the whole of the criminal justice system. Accepting the proposal allows us the time to do this and do this properly.

And I stress again. If the figures in the boxes of this revised scheme turn out to be wrong, if we do not see the improvements that need to be made, then the Government already know our answer – if the figures are not right, we have the appetite for the fight.

Paddington Bear and His No Returns Dilemma 

Yesterday I Tweeted about the fact that I was a 44 year old barrister watching Paddington Bear on my iPad whilst on the train. This provoked nearly 60 responses on Twitter. Far more than any uttering I may have made about Legal Aid and the CBA ballot (ok this may be a lie, but it helps me make the point and gives me a cracking title so cut me a bit of slack).  

The last two weeks have seen urgent and urging missives flying hither and thither about the decision that faced the criminal bar. Ultimately 45% of CBA members voted in the ballot. A pretty decent turnout for a general election but a surprisingly low number for the effort put in by some on both sides of the divide. I don’t ascribe to the “you can’t just snipe from the sidelines, stand for office” line (which comes as no surprise, as I am someone who sits on the sidelines like the worst kind of father of a seven year old footballer), however clicking a link and filling in a form was not the most arduous of commitments for the CBA membership. 

I suppose it may not represent lethargy and apathy. People may have been turned off by this endless, bitter battle against cuts in recent years. People may have abstained, finding neither the wording of the question nor taking no action as representative of their own view. That is not to criticise the question. It is just a realistic analysis of what some may have thought. 

However, the CBA is a representative body and they asked their membership how they wanted that representation to be performed. There was a democratic vote and the decision was in favour of direct action. To their massive credit the CBA Exec have acted upon this and produced a protocol. Furthermore, and I cannot emphasise how grateful the “yes” campaigners should be for this, they have indicated that they will individually observe the protocol. I commend them for the dignity of that response and for the leadership it shows.

We cannot ignore the fact that some voted yes, some voted no and some did not vote. So what are individuals to do? The CBA represent their membership, they do not govern them. 

I suppose there are four options. 

  1. Work as normal. 
  2. Observe the protocol in its entirety.
  3. Only adopt a policy of “no returns”. 
  4. Only adopt a policy of no new work post 01/07. 

If you have read any of my non-animated-bear related posts you will not be surprised that I urge everyone, including the “no” voters and the abstainers to adopt the protocol in its entirety. I have seen little by way of people saying that the recent cut is a positive thing. So the aim of the action will be laudable, to one extent or another, in the eyes of most. This is the approach the CBA membership have chosen, the choice being made in the most appropriate fashion. 

I was vehemently opposed to the deal. However, once the membership had been balloted, I did not agitate for further, continued action. It would seem the view from the North is often, collectively, a militant one. Not for one moment did anyone try to derail the deal by carrying on action post the ballot on the deal. By the same measure that bound us to that, perhaps the doubters will engage with the current action. 

As far as those that do not want to adopt the protocol, and I urge you to think very carefully about that, then perhaps it will be important for you to consider whether you are would be prepared to take a case which you know is available because other people are observing the protocol. What would you do, you may ask yourself, if offered a return in Manchester? These are matters for individuals to decide. The only thing I ask is for you to think about it. 

A profession committed to “no returns” is capable of speeding this matter to a conclusion. I welcome the announcement by the BFG, the CLSA, the LCCSA, the HRBL and the CBA of a joint approach on this issue. Long overdue and entirely the right way forward. (In case you are wondering, the HRBL is the Home for Retired Bears in Lima. Aunt Lucy is with us, all the way).

Perhaps the threat and reality of “no returns” adds a little of Paddington’s hard stare to the negotiators’ armoury?

Painting the Shed

No, this is not about legal aid cuts, strikes or ballots. This a snapshot, a snapshot of the criminal justice system as it exists in July 2015. And it is one ugly picture. 

Sitting around the robing room table today the hot topic of discussion was not referral fees. It was adjournments. Not lawyers eagerly in pursuit of adjournments, but lawyers desperate  to avoid them. It proved, however, impossible.

One trial had been listed on Monday. The impact of decisions taken by counsel locally meant that there was no one available to accept the defence case as a returned trial. The case had been adjourned to the following day, Tuesday (and I pause there to have a little word about strikes, if I may, with the observation “look how quickly it bites” and invite everyone to take heart from that). 

So Tuesday had come around, defence counsel was now available and the trial was all ready to go. Save for the fact that it was not. The court did not have sufficient jurors. The summoning of jurors is a fine balance, you do not want too many idly hanging around but then you do not want to adjourn trials because there are not enough.  So I suppose one trial, adjourned from one day to another is forgivable. As a bit of a one off.

But not as one of five trials to be adjourned that day, for that same reason. Five trials that were adjourned because the courts are saving money by not arranging for sufficient jurors. This is not an isolated incident. Counsel knows that this happens all the time. 

At least this one trial, the one adjourned from Monday to Tuesday was adjourned until Wednesday for them to start. And come Wednesday morning they had jurors. Ten of them. Which is a few jurors short of a picnic, sorry, a jury panel. So it still had not started. The participants in the trial were having to wait for a jury that was involved in their deliberations to return so the jurors could be recycled. Which is fair enough…..except that trial was in its third week, so jurors were going to have to be retained beyond their expected period to make up the shortfall.

Meanwhile, on Wednesday morning, another trial in the same building was waiting to go ahead. This was a case with the defendant in custody. There was a small snag…..they only had ten jurors available to them. The same jurors. As my American cousins would say “you do the math”.

I have no idea, as I write this, whether those trials got on. 

All this time one of my former pupils was painting his shed. “What’s that got to do with the price of eggs?” I hear you cry. And the answer is nothing. Nothing to do with eggs. But the reason he was painting his garden shed was because his trial had been pulled through lack of court time in a different court centre on the circuit. 

Again, listing is not an exact science. Occasionally cases are overloaded in the list to make sure that courts do not sit idle. It is a gamble, sometimes there are losers. So the shed has a touch of “it does what it says on the tin” and I should stop my moaning.

Just one small niggle though. This was the fourth time this trial had been adjourned. The second time it had been adjourned through lack of court time. To lose one trial slot is unfortunate, to lose two is positively careless. Particularly careless when the particular court centre has four courtrooms sitting empty. 

This is not the responsibility or fault of a listing officer or a judge. But this is the reality of life within the CJS. Yesterday I gave a speech to solicitors in Manchester where I said this 

Whilst I cannot speak of what motivates everyone, I believe that many have reached the point of taking action because they see that the cuts and other associated changes threaten not only their livelihoods but also the provision of a proper criminal justice system. And when I say proper I don’t just mean functioning, or adequate, I mean one that offers protections to the vulnerable, that safely convicts the guilty, a criminal justice system that is fair to all.

We have never been further from the system functioning adequately. Years of underfunding in the court estate, in the system, is now slowing and destroying the system to the extent that victims, witnesses and defendants wait endlessly for justice. And despite the delays, nothing is ready when it should be. This is not a two tier justice system, at least not a two tier criminal justice system. It is one tier, and it is the basement. A mouldy, damp basement. With a broken little skylight. And a rusty bike in the corner, behind some empty tins of paint. 

This needs the urgent attention of everybody. The press need to see what is happening. The CBA, the Bar Council, the Judiciary, the CLSA, the LCCSA and the Law Society need to be shouting about it. It is a such a disgrace the RSPB and ABBA should get involved too! I don’t care who, but this needs shouting about until such time as Mr Gove sees that the basic system is failing. And puts it right. 

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. 

This is My Decision

So the CBA have announced their ballot. If you are eligible to vote I urge you to do so as soon as possible. The vote is available here. It is absolutely vital that you vote and have your say, either way. 

There has been some consternation about the fact that the ballot has a closing date two weeks away. I can understand some frustration with this. Of course if lots and lots of people vote very quickly the period may be foreshortened. 

I pause for a moment to observe you should be careful what you wish for. Many of us wanted a ballot. We have got a ballot. Impatience expressed with intemperance may not be the best way to persuade. Herding cats is a difficult task to manage. The CLSA  and the LCCSA know that only too well. They have been corralling felines for months and months. I know that time is of the essence, however sometimes patience is rewarded. 

The question in the ballot does start off with one tiny mistake. The opening line is “solicitors face an 8.75% cut to litigators fees.” The mistake is not in the missing apostrophe or an extra “s”. Only an arse would point that out. Actually it is two mistakes. The first is that the cut is not only in respect of litigator fees. Or litigator’s fees. It is in respect of lots of fees. Like the ridiculously low fee for police station visits. The second error is that it is an additional 8.75% on top of the cut already suffered. And is in advance of a further cut due in January. Oh and is also being introduced before the consolidation has taken place that the Government recognises has to take place to avoid total market failure. 

But the important thing is the vote is asking you to support the action taken by solicitors up and down the country as of today. The same battle we fought recently. 

For many days now I have been giving the whole thing lots and lots of thought. Contrary to public opinion, I do think about these sort of things. And I am increasingly coming round to the view that I truly have an individual decision to make. The decision I make right now is irrespective of the view taken by my chambers, my Circuit or the CBA. It is not a protest.

When I did not attend court on the days of action I was not reported to the BSB by my instructing solicitor. When I participated in no returns, my instructing solicitors understood and were supportive. Furthermore I was really, really, really, REALLY (I think I may have enough emphasis now to get across the fact that I mean this) but I was REALLY pissed off when I thought that action was being undermined by people who took returns. 

And if I took a case that had a Representation Order after 1st July I would be exactly the person that I felt let me down so badly last time round. And, in all conscience, I cannot do that. 

So from now until the result of the CBA ballot is known, I am not available for new defence work with a Representation Order dated 1st July onwards. Until such time as we join with the protest I will not undermine the protest of my friends, colleagues and allies. If I miss out on a fortnight of new briefs, so be it. If others profit from my stance so be it. 

Once I started to think about it, the answer was obvious. I wonder how many agree with me? Perhaps you could comment below if you do. It’s not a ballot. More of an informal survey. But a survey that may reassure those who today took the first step in standing together in the same way the Bar did. 

Good luck.