Tag Archives: CBA

Every Dog has its Day

The white heat of anger feeds the desire to fight the Government at every turn. And we have plenty to be angry about. Years of cuts. Years of politicians badmouthing us. Year after year of our working conditions being eroded. It is the unprecedented sense of fury that now means the Bar stand on the brink of unprecedented action. The sort of action about which I have always dreamt. So why would I say that we should pause now? Why would I say, again, let’s take what is on offer and come back another day?

Some will say I lack back bone, that I am a coward. Some will say that I have self interest at heart. Some will say that I was wrong to say we should back down last time and I am wrong to do so again.

And that is okay. I do not hold a right to be right. I am not someone with all the answers. I am just doing what we all must do, I am listening to the views of others; I am weighing up what I think to be important; I am considering what can be achieved; I am learning the lessons of experience; and I am making my decision.

I have voted to accept the offer.

In 2012 I wrote a very angry letter. It decried the imposition of Fee Scheme C by the CPS. It railed against how wrong it was. It foretold the end of adequate representation of cases on behalf of the CPS. It was signed by 90% of Counsel on the newly formed advocate panels from Manchester. It was sent to the Chair of the CBA, ironically Max Hill. I had meetings with Maura McGowan about it. I had all the anger knotted up inside me. And yet nothing changed. Importantly we carried on doing the work, myself included.

Many will think that this would be an argument in favour of taking action. Again, we have been ignored for years. But I now appreciate that the rhetoric of being abused dogs means nothing in the cold reality of our fight to improve remuneration. What matters is actually improving our remuneration, not Shakespearean speeches or fantasy fee levels. It is about making sure that someone called in 2012, called in the year I was writing angry letters, is paid for things like the second day of the trial, is paid something which is worthwhile to conduct an appeal from the mags and is paid something approaching a reasonable fee when a trial is adjourned.

Once we have achieved that, we can continue to fight to get even better remuneration. We can fight to restore some sense of value to cases with higher volumes of evidence. We can fight to get paid for unused material. We can fight to get paid for the work we do. These are battles to be won, these are battles that can be won. They will not be won all at once.

By mid-July, a point at which we would be mid “no returns”, we will have a new Prime Minister and a new cabinet. That shiny new Boris or Jeremy will have made a lot of promises to get that new job. Those promises will have been to the public about headline grabbing initiatives and tax cuts and to their fellow politicians about jobs in that new cabinet. Those promises will not included more money for the Bar. We have the certainty of an improved offer on CPS fees that we can lock down right now, and a timeframe when we know that we will have to go in battle once again should AGFS not be improved. We need to secure those improvements now, before the political chaos of modern Britain means that cases going unprosecuted is just a footnote to what may lie ahead in Brexit Britain.

The bravery which many talk about being lacking in the leadership of the CBA is in fact the bravery that the Bar show time and time again in being prepared to take action. It is not the route of a someone that lacks courage to stand down from the fight, knowing that they will have to step forward again on another day. And that is what we are doing.

I didn’t back down in 2012, I just didn’t achieve what I wanted. I won’t have backed down in 2022, even if I achieve what I want in 2019. This is a war to be won battle by battle, and on Tuesday the 3rd of September, every counsel who is on day 2 of a trial, every junior counsel who has their non-custody, non-sex case stood out through lack of court time and every junior member of your chambers doing an appeal will be reaping the benefit of having won this battle and the battles that went on before.

That’s why I voted yes to the offer. I do so knowing we will probably be called upon again to act. I do so knowing that there are still cases which are not properly remunerated. But I believe this to be the best way. If I am wrong, if more people believe that we can do better by fighting on in this battle, I will be alongside you, refusing returns and taking part in whatever it takes. But I take the view that we can fight alongside each other now, or after we have secured this win. And I would much rather do what we didn’t do in 2012. I would much rather we improved things now.

WHY I THINK WE SHOULD REJECT THIS DEAL by Simon Csoka QC

Whilst Simon and I disagree on the way forward I am more than happy to host this blog written by him. It is very important that everyone who is voting equips themselves with as much information and viewpoints as possible. The act of disagreeing is a healthy way to make a decision.

I am struggling to understand how anyone can see this deal as anything other than shameless divide and rule. I do not underestimate the immediate impact that the conditional increases from September will have on junior juniors who prosecute.

Any pragmatic strategy against us by the MOJ and Treasury is to determine what is the least costly way of defeating any disruption by the Bar. The CPS advocacy budget should inevitably always be less than the defence advocacy budget. Multihanded cases mean that there are more defence advocates per case. An extra refresher on short cases, appeals and interlocutory hearings make huge differences to junior juniors but are not particularly costly from a Treasury point of view. Paying properly for the prosecution of large cases would require massive investment. There have been no increases for over 20 years. In fact, there have been cuts. Inflation amounts to 73% since 1998: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator . The reality is that to even to get back to the position in 1998, there would have to be a doubling, at least, of the CPS advocacy budget. I fail to see how taking this offer provides any prospect of that occurring. It will be a cold day in hell first.

Likewise, in relation to AGFS we are 73% down by inflation and actual fees are at best no more than half the remuneration in 1998. It would require an increase in the budget of at least 300% to restore current incomes to the level in 1998. Does anyone believe that there will be a 50% increase let alone a threefold one?

I say this in order to put into perspective how easily pleased we can be. It’s rather like a badly treated dog that is overjoyed when its abusive owner occasionally pats it on the head. At least a dog does not congratulate itself when its abusive owner pays it some attention.

There is no commitment in the joint CBA and MOJ press releases for there to be any extra investment. I fail to see why remuneration for unused material or PPE would amount to extra money as opposed to simply a redesign within the current budget. This applies largely to AGFS but there is no reason why the redesign of the CPS scheme would not follow the same premise with some illusory increases.

The justification provided for suspending action is that the offer to increase prosecution fees will be withdrawn. This is taken seriously by the CBA. If it is a genuine threat, then the same would apply in a few months time. The blackmail then would be along similar lines irrespective of whether it’s a modest increase to the defence or the prosecution. We would be played off against each other on each occasion. A credible threat by the Bar to stop working is being averted by a very modest spend. This is a superb model for the MOJ “going forward” to deal with any dispute. For us, it provides no realistic prospect of ever achieving any significant improvements.

I have not attended any of the meetings with the LAA or MOJ. Perhaps the CBA are right. I doubt it but I cannot be sure. But it is better to test our opponent now than get into an intractable position in 6 months time. The threat of “push it to the members or lose it” has been used for many years. Each time we have ended up with appalling fees. Each iteration of the new AGFS was presented by the MOJ to the Bar Council and Circuit Leaders on the basis that we will only make this offer if you push it for us. Each time the leaders said it was impossible to get more. Each time we got more by not doing what the leaders were being told to tell us to do. Scheme 11 is dreadful. If we had done what we were told originally, we would have got a scheme that was worse that scheme 10. That too, was pushed by the Bar Council and Circuit Leaders as an achievement. Ultimately, we believed scheme 11 was bad, we were told it was good, the CBA now accept it was bad having told us last year to vote for it.

It seems to me that the whole process now starts with an expression of bad faith. One the one hand an acceptance that prosecution fees are wholly inadequate and unfair but a refusal to increase them unless we do hereafter exactly what the MOJ propose. It demonstrates that the MOJ is motivated by pragmatism and by the Treasury. It is not governed by doing what is fair. Who would rationally believe otherwise? We only get near to what we want when it becomes cost effective. The reality of the collapse of the criminal justice would be very costly. We are not obliged to prop it up. We told them we would no longer do so with these derisory fees. Now we are saying we will continue to accept cases even though we have only been offered a fraction of what we asked for. The proposed amendments to the AGFS scheme were supposed to be a stop-gap. We are now told to give up without any commitment to the stop-gap, let alone a proper solution. The collapse of the criminal justice system is now no more than a remote prospect thanks to our acquiescence.

I fear that the real problem is that this shambles of an AGFS scheme was largely designed and then pushed by CBA and the Bar Council. We were told on multiple occasions to vote for it last year and the year before. We were told that the fee projections were scaremongering. This self-inflicted fee cut (which is still presented as a fee increase by the Bar Council) is preventing any effective representation in negotiations. It’s all too easy for the MOJ to claim (as they did last week) that they made further investment last year. I cannot believe that the advocacy spend is actually greater. We can only base it on our own experience. We can’t see the data. There needs to be some acceptance of the huge failure last year so that we can move forward.

I cannot have any faith in the MOJ when they have dictated that the CBA cannot disseminate contrary views to its members. Any deal that has to be pushed by the CBA on MOJ terms is not worth having.

The CBA now argue that the Government will be persuaded by November to make significant increases to AGFS. A year ago they claimed that Scheme 11 was the best we were going to get. Nothing has changed except a belief that this time it will be different. They now believe that we will do much better but do not explain why.

The only thing that changed was the threat of massive disruption. If we call the action off, then the threat will never again be taken seriously. It will have taken nothing more than loose change in Treasury terms to defeat a Bar that was united. Who is to say that the Bar could even be led out to battle again? We instinctively feel that we are being led into another capitulation just as we are winning. I think most of us are getting too cynical to be led out by any fighting talk after this. It’s action now or never.

SIMON CSOKA QC

The Mistake They Made

There are many that believe that making of a single offer in respect of CPS fees and AGFS is a tactical masterstroke by the MoJ or the Government, that this is a tactic of divide and conquer which we are fools to fall for.

I believe it may be the single biggest mistake “the Government” side of these negotiations have ever made.

Each time we have been involved in days of action and no returns up and down the country prosecution counsel have received very similar letters (an example of which is here) telling us that those briefed on behalf of the prosecution should not be involved in the proposed action as the complaint about AGFS is nothing to do with the CPS.

Can you see where I am going yet?

Joining the two issues together is the biggest mistake they could have made. The CBA have made it perfectly clear that the action will be suspended as a whole. That is the term stipulated by the Government. The CBA have also made it perfectly plain that, should the reviews not happen in a timely fashion or should the outcome of the reviews fail to produce new money to cure some of the ills of AGFS, then the action will return. And that, logically, should be all of the action. Defence and Prosecution briefs.

No matter what the outcome of the vote, the CPS have allowed their own argument to be torpedoed. What they have always sought to set apart, this offer has joined together. Rather then dividing us, this offer produces the unanswerable case that action in support of changes to the AGFS is action taken by the whole of the criminal Bar, no matter which side of the courtroom they are due to sit on.

I would also venture to suggest that it would be incumbent on those that prosecute to support those that defend should the decision be to accept the offer. That support is at its most crucial if it should come to us taking action again. I imagine it would be very difficult for the CPS to take back that which they have given by that point but the offer is a global one, if the Government renege on their promises of a speedier review or fail to set right that which is wrong they should face the chaos of both Prosecution and Defence action.

This need not divide us. It provided us with a stronger lever with which to apply pressure. It turbocharges the impact of no returns and days of action. And it was all the Government’s idea….

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.

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.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.

The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails.