Tag Archives: bill waddington

One Small Step….

After 52 days the CLSA and LCCSA have suspended the action being taken by solicitors who hoped to defeat the most recent cut to Legal Aid fees. Whether this is action suspended or action terminated remains to be seen. The proof of that particular pudding comes when the seat at the table earned by the CLSA and LCCSA either produces results or does not. Direct action which has been suspended would swing back into life. Let us hope we do not have to find out. 

Does this represent failure? From a personal point of view, yes it does. In a very specific way I had hoped that concerted effort by Solicitors and the Bar, taken across the board in the CJS could have led to real results. And with a result on the cuts I hoped that we would find a way to defeat Dual Contracts. 

Was it inevitable that it would fail? No. Taking action of this nature requires impact and sustainability. It is a delicate balancing exercise between bringing the system to its knees and allowing people to participate for a reasonable length of time. Had the solicitors hit the CJS harder, refusing duty work etc, then the action may have proved successful in a shorter space of time, however firms would have hit financial problems more quickly. 

I would have preferred a quicker, more direct approach. Take the momentum produced by the early shows of militancy and step up the pace. Not as sustainable but would have brought the system crashing. 

Oh the benefit of hindsight. 

That is not to say that everything is a negative. The two representative bodies have now got a seat at the table. Remember when Grayling would not even meet Michael Turner QC? Well the Criminal Bar are now much better served by having the attention of the MoJ. It is much better to have a representative body like the CBA at the table than the monolithic Bar Council. And now the CLSA and LCCSA are in the room and fighting. That is a positive. 

One of the reasons they are in the room is because Jon Black, Bill Waddington, Robin Murray and Zoe Gascoyne managed to produce a predicted Impossibility – solicitors taking action. They said it could not be done. They said it would fall apart as soon as it began. Yet these four, and many other committed committee colleagues, welded together competing elements and produced a plan. A plan that produced action and action that they kept going for an admirably long time. Sadly, not long enough. 

The CLSA and LCCSA managed so much by managing the consultation with their members so well. They tried to keep everyone informed (it was not perfect, but it was a fine effort), they consulted their membership by surveys (not votes, apparently lawyers don’t do votes) and local meetings. Lessons of openness that many could learn from. 

The action also, hopefully, heralds an era of better cooperation between the CBA and the other organisations (am getting tired of strings of capital letters every other sentence). The cries of treachery that followed “the deal” were overreactions of epic proportions. Whilst there were good, logical arguments against “the deal”, the white heat of anger that followed it did not help one bit. The support given by the Bar to this action should put paid to any solicitor ever referring to “the deal” in a disparaging way. Those that did in the past were wrong to do so then, they have no excuse now.

It is certain that the CBA have to take onboard the concerns expressed by so many of their members about these cuts to fees and the danger of Dual Contracts. The question that lies ahead for Mark Fenhalls QC and Francis Fitzgibbon QC is how to best shape the way forward to address these concerns (a bit of a clue for them, it ain’t all about referral fees, or even a little bit about referral fees). 

So, whilst my hopes have been dashed and I fear for the future of my professions and for the Criminal Justice System, it is not time for despair. It is time to think again and to come again. Not a backwards step, just not the stride forward we had hoped for. 

Act in Unison

In response to my recent blog, Another Step, I received a number of comments along the lines of “how can the solicitors unite?” Now, it is not for me to tell the solicitors how they may go about unifying, but I’ll give it a go anyway!

The Bar always had problems “unifying” before now. The first lesson the Bar had to learn was that unity was not the same as unanimity. We achieved unity by largely acting together but recognised that we would not carry everyone with us. We also learnt that acting together sometimes meant going along with a tactic we did not particularly agree with.

So the solicitors need to forget about having everybody on board. It is not going to happen. They also have to put aside the view that they may have a better idea of how to act. You need one voice announcing the plan. Of course there can and should be debate about the detail but once it is announced all those who wish to effect change need to get behind it. Whether or not they like it. In the words of that great American philosopher Nike, “Just do it.”

The other lesson the solicitors have to learn is to forget the great and the good. Forget the big cheeses. In the world of Bar politics the great and the good are often naturally conservative. They often are seeking some form of career enhancement. For years, therefore, they have been disinclined to rock the boat. In the world of solicitors you have the great and the good in the Law Society who may have lost sight of the need to fight for the High Street solicitor. It may well be that they are in the same place as the Bar Council at the height of ProcureCo – they are trying to adapt to world which they feel they cannot shape instead of trying to change the direction of travel.

The other “great and the good” the solicitors have to leave behind is the boss. The managing or senior partners of the medium to large firms. This is where all attempts at action have floundered thus far. By the time that a lawyer reaches such a position the job is far more about business and a lot less about the law. That is understandable. Such lawyers have the responsibility of the future of the firm and the employment of their staff. Retaining and growing the volume of work is the ultimate goal. If difficult decisions have to be taken to allow the firm to survive then so be it.

So that is where direct action will often fail. The bosses of firms will plan how their firm can survive. They will not want to lose the contract they already have or the prospect of future contracts. They will not want to leave their clients unrepresented and at risk of being wooed by a rival. Hence they take the understandable decision that they cannot risk direct action. As soon as the senior partner in a firm in the locality announces they will not be taking part all other firms have little choice but to follow suit. Action collapses.

Of course there are some exceptions. Some leaders in the profession who are prepared to lead for the greater good. However I am afraid business people are not radicals or rebels in their market place.

So what is the answer? The momentum for action has to come from the bottom. I believe that the momentum for the fight came from the rank and file of the Bar and was then splendidly taken up by the CBA. The Manchester meeting, the first real example of direct action, came from the ground up. It was not a Circuit initiative, it was the initiative of Circuiteers. The great and the good counselled against it. It went ahead. It was a success. It crossed a Rubicon. We have not looked back.

“Barristers and solicitors are different!” I hear you all cry. If you are called Sherlock may I point out that I get that and you do not have any excrement. Which is less pithy than the well known phrase or saying. But I do get it. And it is why solicitors would have to do something different.

I get why your boss cannot take action. That does not stop you. If legal aid solicitors, caseworkers, fee earners, legal executives and support staff could join together to protest against Government cuts, then that would be a wonderful thing. “But how?” you cry. It is all about unity. And all about unions.

Form or join a Union. Unison would be a good bet. Today public service workers went on strike. You could join them. And bring the CJS to a grinding halt. And if you did, then that would get your shop stewards, the likes of Bill Waddington and Nicola Hill, in the room with Grayling.

Lawyers are brilliant at standing up for others but less good at standing up for themselves. Lawyers are brilliant at being fearless but are paralysed by fear of the competition. Take that out of the equation. Your boss does not have to risk losing their contract. It could be legitimate collective action. It would be the rank and file standing together.

Why should you? You should do it because you believe that the Government’s changes are detrimental to justice. You should do it because you believe in the principles that lie behind our criminal justice system. But you should also do it because you or your colleague or your typist or your mate from university is about to be made redundant. You should do it because you are an individual who knows what is happening is wrong.

Another Step

Time for a little reaction to the VHCC deal. This time it is a little less violent than my reaction to the original “deal”.

It is clear that the Bar had to reach some form of agreement when it comes to VHCCs to limit or halt the expansion of the PDS. If Op Cotton and other cases remained without advocates the Government would have been forced to employ advocates to do them. Those involved are therefore to be congratulated for having reached an accord.

Whether or not it is a “good” deal is more difficult to judge. We have no figures to judge it by. We have the MoJ proclaiming it is within the budget of the 30% cuts. Therefore I am certain it is not. That would not really be much of a negotiation, would it? If one side came out with exactly what they went in with. Also I doubt very much that counsel would now be prepared to do the cases if the reality is that they are being done at the reduced rates. I am also pretty certain that the figures would not be “secret” unless they were greater than the proposed reduced fees. My guess is it will be somewhere in between the old rates and the new rates. Counsel have the advantage of not having to wade through bureaucracy to read a page of evidence and the Government get consequential administrative savings (the sort of thing the Bar have been urging on the MoJ for ages.)

It also allays some of my fears about the return of the AGFS cuts that have been sent to the “long grass”. I am now more confident that they nestle in the nettles beyond the long grass. It is clear that the collective action taken by the Bar has caused serious concern at the MoJ. We were told that the MoJ would not budge on VHCCs. Well they have budged. We had a little luck along the way with the brief stay in Op Cotton but they have now had to come up with this deal.

Another positive is that it is a deal which completes the circle by including the “41” potentially left behind by the original deal. The Circuit Leaders, the Bar Council and the CBA should be congratulated for what they have achieved up to this point.

However, now is not a time to rest on our laurels. With our own fee position secured for the moment we need to turn our attention to the other matters of importance. Now we have secured our “bottom line” it is vital we return to matters of wider concern, matters of conscience, matters of principle.

We need to, urgently and with urgency, come to the aid of the solicitors. I have said before and I say again – we cannot fight for them as effectively as we fought for ourselves unless they unite. However the problems faced by the majority of solicitors are problems that threaten our continued existence. We have to use our current influence to get those solicitor “activists” such as Nicola Hill and Bill Waddington into the the room with the MoJ.

We also have to turn our thoughts, arguments and actions to repairing the Criminal Justice System. Not initiatives designed to tinker with it. We need to get the MoJ to see that the basic functions of the CJS are unravelling on a daily basis. The CJS does not need root and branch reform. At the moment it just needs intensive watering to make sure it does not shrivel and die.

Looking to the future let us not lose sight of the fact that we are working at rates which have been slashed from rates that were set many years ago. On Thursday thousands of public sector workers strike over the fact that the are not getting a “real term” pay rise. At the moment we are celebrating the fact that we have managed to preserve our nearly decade old pay real pay cut. For the criminal Bar to survive and flourish we need to fight for proper remuneration.

So, having achieved much, I say “let’s go back and achieve more.” How about starting with the cracked trial fee for either way offences in the Crown Court when the defendant has elected? This is something the MoJ recognised as unjust in the consultation process. This is something which is so palpably wrong. This is something that has a disproportionate impact on the most junior of juniors.

This is not a time for cigars and back patting. Now the real work begins.