Tag Archives: CBA

To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 


The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.

Everybody’s Talkin’

It would seem there is a lot of talking going on. We hear today that the “Bar” are in advanced talks with the MoJ over changes to Legal Aid regulations. This in the week where the CBA and the CLSA et al had talks about talks where some of the things that were talked about were misunderstood. The Lord Chancellor had “productive” talks with most of the people present at the earlier talk about talks. All this after we had learnt that the CBA were engaged in talks about the future of the Bar with a Lord Chancellor who engaged in a lot of sweet talk about the Bar to anyone who would listen. 

A lot of talk but a complete dearth of communication. 

This is the real problem which bedevils the legal profession. As you can imagine I like to think I follow things pretty closely. I read the Monday Message and the Tuesday Truth. If there was a Wednesday Waffle I would read that too. Yet I am regularly taken by surprise by things that are being talked about in my name. I wish those who represent me would embrace communication and learn the importance of information. 

There was one vital part of that last paragraph. “Those who represent me.” The Bar Council and the CBA do not govern me. They act as my representatives. It is (obviously) unwieldy for the Lord Chancellor to speak to each of us. When the CBA and the Bar Council are in the room they are there as my proxy. And that means I am entitled to know what goes on. 

So often we are told that meetings are subject to Chatham House Rules and therefore we cannot be told what happened. Firstly this is not what Chatham House Rules are about. CHR is a mechanism by which the identity of a contributor is not to be disclosed to allow those present to freely discuss issues without fear of their employment or role being undermined. It is not a promise of confidentiality or a short hand for the Officical Secrets Act. So, as an aside, if you want to keep secrets, do not hide behind Chatham House Rules or fall for it when the Minister says, conspiratorially, “of course, Chatham House Rules applies.”

Secondly these meetings should be conducted with the presumption that their contents will be widely disseminated. The provision of information would do much to quell some of the wild speculation that fills the void created by the absence of information. It would also do much to assist in the reality of expectations. 

Let me give you a recent example. When the CBA commissioned the slightly infamous survey they were involved in a strategy that included engagement with the MoJ over things such as referral fees and modifications to the AGFS. If the membership had known this then much of the furore over the survey could have been avoided. The problem was that the strategy adopted conflicted with the survey, something we only discovered in the aftermath. Anger abounded. It was all so avoidable. 

Another problem that is created is that the wider Bar learn about things after it is too late to influence the shape of things. We end up with the only influence the ordinary member can have is to enter into conflict with the representative body in order to overturn things which are set in stone. We end up fighting rather than discussing. 

There are times when certain matters are too sensitive for wider dissemination. I stress that such situations would be very limited. That is not to say that we should be told nothing. The presumption should be that we know much of what is happening rather than nothing at all. 

The various representative bodies should do much better at owning the information. Starting from a basis of wide dissemination of what is happening the bodies should not be constantly reacting, often belatedly, to a firestorm of speculation when, for example, Jack of Kent or Crimeline let us know things we should know already. When such situations do arise the bodies should react more quickly and with accurate information. “No comment” is for suspects and football managers. Not for representative bodies to their membership. 

Social media is a valuable tool in this area. So often it is treated like some unexploded bomb of deliberate animosity. It is not. Remember how insulting it was when opposition to QASA was described as a “noisy minority”? Well such dismissive and condescending nonsense should not be peddled by a body about those it represents. Yet still it happens. 

Social media is a wonderful tool to aid the provision of information. It is not to be feared.

At the outset of Transforming Legal Aid I would oft repeat the slogan “Information is Unity. Unity is strength. Strength is victory.” Nothing has happened in the last two years to make me believe anything different. Sadly much of what has happened has been the demonstration that the lack of information leads to disunity. We can do better. We have to do better. 

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. 

Back to the Future

“There is no profession more noble, no calling more vital, no role more important than being a barrister. Far and away the best part of my job is spending time with barristers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great advocacy left me feeling more optimistic about the future. I believe we have the best generation of barristers ever in our courts….. “

Fine words from a minister new to their job. Words that show the man in charge at the Ministry has the interests of the people on the front line at the forefront of his mind and at the heart of his policy. Barristers can hear these words and rest assured that this is the dawn of a new era in relations between the Bar and the minister. We can have confidence that our future is safe. 

The only problem being that Mr Gove did not utter these words, well not about barristers anyway. He said them about teachers in the early months of his tenure during a speech he gave at Westminster Academy;

There is no profession more noble, no calling more vital, no role more important than teaching. Far and away the best part of my job is spending time with teachers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great teaching left me feeling more optimistic about the future. I believe we have the best generation of teachers ever in our schools….. “

We all know how that relationship ended. Mr Gove, a close ally of the Prime Minister, was moved to Chief Whip in July 2014 when his relationship with the teaching profession was described as “toxic“. His reform proposals had left teachers feeling that the man in charge was a man who was not listening to their needs and concerns. The negative nature of this relationship was such that the Prime Minister feared that it would damage his party’s re-election prospects. I bet the teachers did not envisage this when being so warmly described by the brand new minister. 

The equally concerning aspect of the speech to the Academy, and many other speeches from the same period, is the fact that it bears many similarities to the speech delivered in his latest role to the Legatum Institute and the speeches that have followed. Warm words about the actors on the stage followed by concern at the two tier nature of the system. Of how the delivery of a quality service is currently dependent upon the ability to pay. And then solutions to problems by study of what they have done abroad. 

It goes without saying that we have to judge the Lord Chancellor on what he does. The important thing is not to just base that on what he says. Warm words can soon turn to dust.  His meeting with the CBA, CLSA, LCCSA and BFG gives him an early opportunity to match his words with deeds, deeds that benefit all the actors on the stage.

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. 

Two Tribes

The last two years have been remarkable. There was much talk from the MoJ of Transforming this and Transforming that with next steps and all that jazz. It has certainly transformed my professional life from one where I went about my everyday business, meeting clients, irritating Judges and wondering when the next brief would land. A professional life where I thought the robing room at Minshull Street was my patch. A piece of the court building forever for the advocates. 

Now I spend my holiday scouring Twitter and absorbing emails to try to ascertain the latest development. I wake in the morning with a thought to write something comparing the Lord Chancellor to Dr Who or Game of Thrones or something even more ridiculous, like the last Lord Chancellor. Hoping that a gentle dig in the ribs from my iPad will suddenly make everything okay again. 

But it never does. 

So here we are, like the drug addicted client, standing at yet another crossroads. Which way should we go?

And whilst the Bar has two choices to make – take the path of engagement and try to secure a legal landscape which would be fertile ground for our strengths to prosper or the path of taking action to stop the Government grinding us down to no more than mouthpieces for an imitation of a free and fair society – these two choices do not a war make.

We are not at war with each other. 

This is not “Hotheads v Appeasers”. It is not “The Must Do Somethings v The Don’t Do Anythings”. It is not “The Rash” scrapping it out with “The Wise”. It is not even “The Brave” against “The Scabs”. Dare I whisper it? Well, it ain’t “The Noisy Minority” trying to stick it to “The Silent Majority”. It is a body of professionals who face some very real difficulties trying to come up with some very real answers. 

Acuusations fly around. From both camps about the other. “He is just a leftwing hothead, hellbent on fighting the Government, any Government,” is often just as daft as “She is just a non-boat-rocking conservative with one foot already in the pension”. Yes there may be elements of truth in some individuals and their motives but the truth is people advocate for one way or the other because they have analysed the situation and believe it to be the best way. That is to be respected and acknowledged. 

No one should look down at those that hold a different view. Those views need airing to assist those who have yet to come to a view to reach their decision. When we had the vote over “the deal” the CBA hosted a blog for the arguments to be raised by proponents of both sides. It is a shame the same is not being done now. In fact it is such a shame that I’ll offer to host it. Anyone who wants their say should feel free to email me at jaimerh@aol.com and I will post your blog for you. 

Any regular reader will know that I favour taking direct action now. I favour it for many reasons. I hope in favouring it I set out my reasons for doing so. Whilst I am not courteous to or about the politicians, and may even tread on a few judicial toes, I like to think I am always courteous and reasonable about differently held views. 

I repeat, this it not two tribes going to war, but one tribe who both want the tribe to survive. We just have different ways of going about it. 

Ultimately we both may be right. Both approaches may have the chance to succeed. The biggest fear I have is that if the engagement route is taken and fails, it will be too late to save us. Our fate will be sealed and that is a fate none of us want. 

No matter what, this is you and me against the damage being caused to the criminal justice system. 

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. 

Liverpool Meeting

Back in the day, I used to occasionally nominate a Legal Aid Hero. From recollection they included Tim Thomas, Mukul Chawla QC and Hannah Evans. I resurrect the award. So today’s Legal Aid Hero is Dan Travers from Exchange in Liverpool. He has not just moaned in the robing room. He has not just whined on Twitter. He organised a meeting that took place this morning in the Robing Room in Liverpool. Here is the note of that meeting. Food for thought for those that say there is no appetite for the fight. And further fuel for the argument that the CBA Exec should not decide this one, we all should. 

LIVERPOOL CROWN COURT ROBING ROOM

MEETING 24th JUNE 2015

Many thanks to everyone who attended this meeting, and many more who contacted me offering their support. This is my view of the meeting.  

Daniel Travers

 

Over 100 barristers and solicitors met this morning to discuss the future of our profession. Every Chambers in the city, and the majority of solicitors were represented. The room was unanimous that immediate action must be taken to prevent the introduction of 8.75% cuts to the litigators’ fees. The proposed action is that solicitors do not do their own work under the new rates. That would mean that solicitors would not attend police stations, or represent defendants in the Magistrates Courts, or apply for legal aid for any new case from the 1st July. That would mean that there are no new cases coming to the Crown Court with legal aid. It was further proposed that the bar would re-introduce the No returns policy for all existing cases in the Crown Court from Wednesday the 1st July.  

We hope the Lord Chancellor will re-consider implementing these cuts. If he is in any doubt as to how strongly we feel about this action he should attend one of the many meetings that will be taking place over the coming days.  

There are meetings in Liverpool and Manchester at 4pm on Monday the 29th June.

 

 

Daniel Travers

Barrister