Tag Archives: deal

A Second Open Letter

Dear Nigel and Tony,

When I wrote my open letter to you I said at the time that if the Bar voted to keep the deal I would give you my apologies. I am anxious to keep my word so here I am apologising. It is only right that I do so publicly.

I do not apologise for having spoken up for what I believe to be right. I continue to believe I am right (I am obviously always right) and think that it was important that the Bar had their say in matters and that the question was debated openly. The CBA are to be applauded for hosting a balanced debate.

I am sorry that you and other officers of the CBA were subjected to any personal abuse. I am not suggesting that anyone is ever immune from criticism but that is very different from abuse. At least now those from outside the Bar can see that the decisions taken have a popular support amongst the rank and file. They should no longer be seen as just “your” decision but a decision taken by appropriate democratic process. I will allow myself this one lament – that the energy expended by so many in debating the issue was matched in equal amount by the apathy of some in not voting.

The vote demonstrates that you had judged the mood of a significant proportion of the criminal bar and my own view was out of step with them. I expect everyone can agree that there are many difficulties that lie ahead. I foresee that we are a long way from securing a future for the Criminal Bar so let us hope that my streak of being wrong continues!

When Tony stepped into the lion’s den and addressed the meeting of the Northern Circuit something that I have long believed was brought into sharper focus. In the future we have to ensure that the people in the room negotiating with the Government are only the people that have been directly elected by the Bar or special interest group. Those elected representatives should only come from a pool of candidates unfettered by artificial rules that limits the pool.

As the elected representatives of the Criminal Bar there can be little doubt about your mandate in respect of the decisions taken. Although not always in agreement with every step taken I would like to take this opportunity to thank you for the work you have done on our behalf.

Yours,

Jaime Hamilton

One of the 41

I have been asked to post this blog and I am once again happy to do so. I should say I am happy to post any blog with an opposing view if someone wants me to. This one comes from one of the 41, Tim Thomas.

Why I voted Yes in the Ballot and No to the deal.

The CBA leadership of recent vintage, from Max Hill QC, through Michael Turner QC and now Nigel Lithman QC have done a terrific job in the last few years. They have woken the sleeping giant of the Criminal Bar and given it a voice in the Criminal Justice system. They have of course proposed things such as Grad Fee + that I, as someone who is privileged enough to have 90% of his practice in VHCCs, fundamentally disagree with. But their leadership has been outstanding and proved to us all that we are more than the sum of our parts.

I voted Yes to the question on the ballot.

Why?

An 8.75% cuts to Solicitors fees came in on 20th March. Another 8.75% of cuts will come in next year, despite reports to the contrary, whether deliberately misleading or not. If the majority of the CBA membership vote No to the measure and yes to the deal it does not take a genius to see that the one area that Solicitors must look to offset the catastrophic cuts that will have wiped out their very slim profit margins is AGFS and keeping Crown Court briefs in-house. You cannot blame them for that and as small and medium business owners they would be mad not to. As others have said if we vote No on this ballot measure it is a rerun of the Carter reforms, which we know resulted in a loss of work for the Bar to solicitor-advocates and HCAs such that their share of AGFS is now some 30%. Voting No to the ballot question (and yes to the deal) will be the death of the junior bar.

It is really that straightforward.

Why else?

We have seen unprecedented unity across the CJS to oppose this Government’s barmy approach. We have had success with all the things we as a Criminal Bar have initiated: days of action getting publicity, VHCCs returned (and not taken up by others) and the No Returns policy making Judiciary and MoJ sit up and take notice. Solicitors have supported us with all these. The success of this approach is that having been put on the naughty step by the MoJ for much of the previous year our leaders are now regular guests at Petty France. The MoJ approached us to negotiate last week – not the other way round. The time limited deal offered last week is not, following another meeting Our Leaders were invited to on 3rd April, apparently quite so time limited. I am sure that I do not need to spell out the implications of this to you.
We can and must do more for all CJS professionals.

Why else?

A No vote in the ballot is to reject the actions of counsel who took the brave decision to return their VHCCs briefs last year when the 30% cuts were confirmed not knowing whether the rest of the Bar would support them. A No vote rejects the part those who returned VHCCs (and those who have had cases contracted since December who have declined to sign) in getting the MoJ to approach the CBA to negotiate.

Forgive me for personalising this but I was one who returned a VHCC and I did so as the sole breadwinner in my household and with two sons under four. Even though VHCCs are 90% of my practice, enough was enough. I have not worked for 4 months but it remains the right decision. There is no commitment by the MoJ to negotiate on VHCCs other than ‘within the existing financial envelope’ ie they have no intention of reversing the cuts with this deal. VHCCs are not, as some have tried to argue, a separate issue. It may have been a quirk of timing that the return of VHCC briefs has spearheaded the CBA campaign to oppose the MoJ’s cuts but spearheaded it has. Operation Cotton, the VHCC I returned, with 5 defendants without counsel and 101,000 pages of served evidence, is due to begin on 28th April.
I do not think it is an accident there have been two meetings with the MoJ in the last eight days.

Why else?

The return of VHCCs and the days of action have had an impact. The No Returns policy was making huge waves and if re-initiated will keep doing so. Combined with the radical and brave decision by the LCCSA and CLSA to have its members decline to apply for Legal Aid in the Crown Court from 7th April I believe that we will be successful. It may be painful – it has already has been so for VHCC practitioners and the Junior Bar with No Returns. But we have a once in a life time opportunity here to safeguard the system that we have spent our professional lives supporting, Criminal Justice. We must continue to fight the cuts and unite more closely with our Solicitor colleagues.
Solicitors and Barristers cannot be simply replaced by Green Goddesses.

And finally….

A Yes vote is a vote for 100% of the Criminal Bar and 100% of the Criminal Justice System.

Tim Thomas, 1 Pump Court Chambers, tt@1pumpcourt.co.uk, @TimothyThomas79

The 89ers.

At the moment I am an angry young man. Alright the young may be pushing it a tad. The anger has been a near constant companion since I heard the news Adam and the Ants had split up. In more recent times I confess that I was angry last Thursday when news of the developments with the MoJ broke. The anger was provoked by what I view as a misstep in a matter of vital importance.

I like to think that I never expressed that anger in way other than indignation. I am confident that it has not been expressed in terms personally abusive to any party involved. Clearly I think that I am right. However, right or wrong, I am nevertheless confident that those who disagree with “the deal” have some reasonable and rational points worthy of recognition as such.

Today I am mainly worked up by the idea that the deal represents 89% of what the CBA set out to do. I hope that this is being used more as a rhetorical device than anything seeking to accurately express what has been achieved in percentage terms.

The 89% figure represents the proportion of the profession that earns money from AGFS as opposed to VHCC work. That the deal represents 89% of what we set out to do refers to the fact that it secures a deal which delays and potentially stops the cuts to the fees earned by those 89%.

That of course is not the same as the deal representing 89% of what we set out to do. Let me state what I believe the Criminal Bar set out to achieve. We wanted to improve the fees paid for criminal advocacy, we wanted to reverse a number of damaging changes to the Legal Aid system that we viewed as denying access to justice (such as access to legal aid by prisoners, restrictions on JR, the eligibility criteria etc), we wanted to stop various changes to Legal Aid paid to solicitors in order to maintain a high quality system of representation and to maintain a system of referral advocacy.

Now I know of at least one Silk out there who would suggest that I am mistaking what I desire with what my goals should be. I’ll come back to that in a moment. My list is fairly uncontroversial. It is taken from the resolutions at the CBA Delegates rally. Have we achieved 89% of that? Not even close.

So let us get to the nitty gritty. 89% shows that we were actually looking to achieve was simply in relation to the issue of fees. The principles? They fell away to pragmatic questions of money. Let us say that we concentrate therefore on just one third of what I believe we set out to achieve. We ditch the access to justice points and we ditch the opposition to solicitor changes as pie in the sky ideals and concentrate on the money.

What were we trying to achieve in terms of fees? Well our desire is undoubtedly to achieve a reasonable level of remuneration. Current levels of remuneration fall below what is acceptable. However I guess in times of austerity it is difficult to press too hard for an increase. So we can say that the aim was to preserve what we have. You may paraphrase that as “not a penny more” in cuts.

So what does “not a penny more” relate to? Well that would be the cuts that were foreshadowed by the Transforming Legal Aid consultation. That was the catalyst for concerted, well organised and unified action. There can be no room for doubt that included all cuts to all advocacy fees. VHCC and AGFS. Two goals.

The goal was to stop those cuts. That is it. Plain and simple. Not unrealistic, not unachievable. When we met, when we rallied, when we marched that was the message on the placards, that was the theme of the speeches. When I walked out of court with my friends and colleagues it was to preserve the status quo.

On the route to achieving those goals then there was always going to be something in the way of a compromise. It is not an unrealistic strategy to be reasonable. We could compromise by achieving further room to argue and to agitate. It was a logical step to ask the Government to await the various reviews until they implemented the cuts. It would be unreasonable for us to ignore that offer if it was made. We would be compromising our goals in return for their compromise. We would not have achieved everything we had set out to do but would have had a partial success along the way.

In reaching that compromise we would have come up well short of achieving 89% of what we set out to do. However that is not the deal we are seeking to do. We have agreed half of what our bottom line compromise at this stage should be. What we all understood it to be.

Three comprehensive areas where we fought policy. Reduced to the aspiration of improving our levels of remuneration. Down to two areas of fees where we wanted to preserve our current levels of income. From there to a compromise that we would achieve a stay in those two areas whilst we argue our case some more. And then the actual deal – a stay in one area. That does not look like 89% to me.

So if it is only a rhetorical device then it is meant to represent the fact that this deal was done for the good of the greater number of barristers. More barristers do AGFS than do VHCC. If the deal had been done the other way round, if a compromise had been settled that favoured VHCC practitioners over AGFS practitioners there would have been outrage everywhere. But why should we, the rank and file, be content to leave our colleagues who do VHCCs behind?

I am also afraid it is not a deal which is as simple as saying it saves those 89%. In chambers with someone senior to you who used to have a VHCC diary? They are now competing with you so they can keep their head afloat. In a chambers with people who do VHCCs? Your chambers’ income has taken a huge dent. Not just a 30% dent but the loss of all the income from those cases that they are no longer doing. Do you aspire to get into good quality, complicated work? Be prepared to work for peanuts.

Not a penny more? Whilst we wait until June 2015 your income goes down in real terms, just as it has every year since 2007. Not a penny more? Too right. It isn’t just a penny more. It is 30 pennies in every pound more of cuts. Achieved 89% of what we set out to do? Only an MoJ statistician could come up with that.

From that compromise we have denuded ourselves of the one weapon that may have helped us achieve any of our other goals with this Government. Without direct action we will not be able to significantly influence eligibility, access to justice or the quality of justice over the next 15 months. Has the compromise of our compromise been worth that. And in the meantime the MoJ have compromised over less than 1% of the total cuts they seek. They have not even thrown us the bone of rectifying the injustice of the fixed fee on either way offences where the prosecution offer no evidence.

Vote how your conscience tells you to vote. Vote how your reason tells you to vote. Vote how your bank balance tells your to vote. But recognise what it is you are voting for or against.

Queensbury Rules

I was sent this document by a Junior on my Circuit. As the CBA offered the cloak of anonymity to anyone who wished to have their say I saw no reason not to either! Here are their views.

I’ve asked that my name is not attached to this because in many ways it doesn’t really matter who is saying it. The only significance to it is that it is might be of assistance to those who are presently undecided on which way to vote. If it helps, I’m a junior who does do VHCC cases.

Importantly, I echo all that has been said about the work done by the CBA and all those who have generously given their time and effort to fight for our cause. There is no criticism of their efforts, implied or otherwise, in what follows.

However, I do believe that it is a mistake to accept this ‘deal’ from the MoJ.

The deal – in its simple terms – is a deferment of the cuts in the AGFS in return for the end of any action, the end of the ‘No Returns’ policy and an end to the objection to VHCCs. That is it. In short, we’ll defer the cuts – you keep the system afloat again.

In relation to AGFS this amounts to a stay of execution only. We wait a year and then we get kicked in the proverbials anyway. The budget has not changed and the cuts will come. If, following the next election, the Government is Blue of hue then the cuts will certainly come. If the Government is Red then that won’t guarantee the cuts won’t come but the present incumbents won’t care what happens anyway as they will have left the Reds to sort it out.

I’ve read somewhere the argument that we have demonstrated that we can stand up to the MoJ and so we can do so again in 2015. I’m afraid to my mind that is shockingly naïve. This is a fight for our survival so let us embrace that analogy. We should not allow our opponent out of the corner when we are pressing home our advantage. Our tactics have been effective. Our opponent is injured, is suffering, and is looking for a way out. We should not surrender our momentum and position of strength and allow our opponent to go away for a year, working on his weaknesses in order to strengthen himself and meanwhile weakening us, before then allowing him to start the fight again from his improved position.

Whatever people’s views are about the solicitors being able to fight their own corner and allowing them to do so, we must not lose sight of the fact that we are stronger and we have more power when we join forces. One of the tactics the MoJ has employed repeatedly is to try and divide the unity they see between the professions. They appreciate that we are stronger together and there has been an almost unprecedented degree of unity which we should maintain and use to the advantage of both professions.

We should be using that unity and pressing home our advantage until the opponent concedes. Either that or we ensure he does not want to, or is not able to, fight with us again. Too many times in the past we have observed the Marquis of Queensbury rules and dropped our guard at the point where the fight looks like coming to an end. Yet if we drop our guard in good faith here (which is what I believe we’re doing in accepting this deal) I believe we will find ourselves stabbed between the ribs by an opponent who has no intention of adhering to those rules. Our opponent is a streetfighter, not a pugilist. We are mismatched in weight, in muscle and power, in resources, and we need to be efficient and tactically astute and I believe we have been up until last week. One of the essential elements of our tactical approach must be that when we gain the upper hand we do not relinquish it. This is a fight for our survival not a challenge to our honour. We are not fighting to regain some credibility, we are fighting to survive.

This is the announcement from the Government

Update – 27 March 2014

Transforming Legal Aid

Following discussions with the leaders of the Bar and the Law Society, the Government has agreed a number of measures to help criminal legal aid lawyers as they prepare for the necessary legal aid savings and market restructuring.

I do not read that as deferring these cuts to such a position that they will not occur. I read that as ‘These cuts are coming whether you like it or not and the current model and practices which you have will not survive them’. Get on with ‘market restructuring’.

Furthermore, as we have repeatedly demonstrated to them and they have repeatedly ignored, these cuts are NOT ‘necessary’. They are ill thought out, counter-productive and will result in a second rate, two tier legal system.

Given that there are many who take the view that these cuts are ideological at heart, I pause there to observe that the ‘market’ (which is said by the Government to be the great panacea) is not trusted to determine who gets work in the brave new world proposed for the CJS. The small firms who presently survive by their reputation and hard work will go to the wall and the consequences for the Bar are self evident. Who amongst us believes that Serco or G4S Legal Services Ltd will have the slightest interest in our abilities or years of experience? They have one objective and one alone. Profit.

There is a YouTube clip of the late Tony Benn speaking in the House of Commons at the end of Mrs Thatcher’s time as Prime Minister in which he refers to her Government as ‘measuring the price of everything and the value of nothing’. That is the very approach that we are facing. We have repeatedly demonstrated that these cuts are not about money but we have been resolutely ignored. We have been contemptuously ignored while the Public Defender Service advertisements are shoved in our faces which offer rates of pay which are multiples of what the average legal aid barrister earns before we enter into discussions about pensions, sick pay or holidays.

As a consequence, the leadership of the Bar will call off their ‘No Returns’ Policy and there will be no further days of action. The Bar Council and the CBA will also make clear that there is no in principle objection to working on VHCC cases at the new rates.

I would argue this is clearly intended to be read as ‘everybody back to work as before’. No more ‘No Returns’, no more ‘Days of Action’, no more disruptions and no objection to people undertaking VHCCs. In other words – ‘start doing VHCCs again’.

Why would the CBA need to make clear that there was no objection in principle to working on VHCCs at the new rates? It has been said all along that this was a matter for individual choice and that is still the case – so nothing has changed, right?

Wrong. We all know what this implies. We all know that once there is no unanimity then there will be those who take these cases. We all know that many people have refused or returned them because they have felt secure in the knowledge that none of their colleagues will betray them and take the cases anyway. We cannot allow that to happen and in truth it simply shouldn’t. Any suggestion they’re reconsidering VHCCs and creating ‘AGFS plus’ while they’re still managing those cases with the exact same budget is a marketing exercise akin to Alan Partridge’s PA, Lynn, (very hard-working but she’s got a moustache) trying to tell him that the new ‘Rover Metro’ was not the same as a Mini-Metro. Alan didn’t fall for it and neither should we. ‘They’ve re-badged it you fool’. We should be as determined to stick by our principles as he was : ‘I’m not driving a mini-metro, I’m not driving a mini-metro, I’m not driving a mini-metro !’

We have spent months telling the Government that such cases simply cannot be done properly for those rates. Nobody of sufficient experience or ability could afford to conduct such cases on such derisory rates. That such rates will lead to injustice, will lead to errors, will lead to appeals, will lead greater costs as a result. That paying proper rates ensures that the experienced, the able, those whose knowledge and experience will save time and money is the only way to conduct those cases. What of all of that? Has all that been changed ? Has all of that been resolved ?

Of course it hasn’t. It is as true now as it was then. But we have been able to maintain a unanimous opposition to the new rates because we have stood as one. We simply cannot afford for that resolve to be in any way diluted. We have all been able to stand firm because we knew that we were all in the same position and that nobody would accept these cases at these rates. Nobody would do the work that you were refusing to do as a matter of principle. Our principles cannot, and should not, change because the cuts in AGFS have been deferred. We voted on it. People gave up years of work on the strength of that resolve. I do not believe that we can, in good conscience, resile from that. Apart from the betrayal of those who returned these cases, what credibility would the lengthy and detailed arguments about the injustices that would occur have if we now start accepting that VHCCs can in fact be done on those rates? What credibility would any of our arguments have in the future? None.

Oh, and does anybody think that the other arm of the Government a few blocks away won’t think to themselves : ‘Hmm. So the defence representatives CAN do VHCCs at those rates after all. Well, the same must be true of prosecution counsel as well’. It is inevitable that the CPS would look to implement the same rates once it has been established that these cases are being done again.
We have to show the Government that we stand strong on VHCCs and this deal undermines that position. It may be said that nothing has changed it is a matter for individuals as it was then but we all know it has changed, otherwise why even mention it.

My view is that the fight should be carried on both fronts. There is strength in the unified position. The VHCC boycott should continue in conjunction with the ‘No Returns’ policy because their combined effect is so much greater. We must not let the MoJ divide these issues into smaller more manageable chunks. To return to the fight analogy, why should we only hit them with one hand when we can finish this fighter far more quickly and effectively punching with both.

The Government will defer changes to the Advocates Graduated Fee Scheme until Summer 2015, to align with the second fee reduction for litigators. This will allow us to take into account the outcomes of the reviews by Sir Bill Jeffrey and Sir Brian Leveson, as well as any impact on legal aid spend from falling crime rates, and earlier remuneration changes. In the same way, we will consider any impact from the above factors before introducing the second fee reduction for litigators.

All very interesting but they’ve already told us in paragraph 1 that the cuts are coming. We’re surrendering a position of real unity with the solicitors, we’re surrendering the combined effect of No Returns and No VHCC’s, and we’re doing that so that they can consider the reviews which will take place and then implement the cuts anyway when we’re in a far weaker position to do anything about it.

There were thousands of articulate, well argued replies to the consultation papers which were insultingly ignored. The inspiringly impressive response from Treasury Counsel was criminally ignored. The MoJ will not listen to anything that doesn’t suit their agenda. We have surely learnt that by now!! Does anybody genuinely believe that deferring this argument for a year or 18 months strengthens our position ?

Let’s not back off now. Let’s tighten our grip, increase the pressure and let’s achieve what we set out to achieve in the first place. ‘Not a penny more’ was the mantra we got behind. It was not ‘Not a penny more until 2015 when we’re all doomed anyway !’.

A Call to Arms

Happy to host this guest blog from Sam Parham and Joanne Cecil setting out their view of things

A Call to Arms: Why we Must Hold the Line

“The greater danger for most of us lies not in setting our aim too high and falling short; but in setting our aim too low, and achieving our mark” Michelangelo

The ballot is a referendum on the merits of the deal and not on the leadership. We respect Nigel Lithman QC, Tony Cross QC and members of the CBA executive who have worked tirelessly on our behalf and in what they believed were our best interests. The CBA secured concessions but our demands were too limited in the wider context of the criminal justice system as a whole and it would be wrong to agree the terms of this deal.

The proposed deal and its aftermath have the potential to be the most positive development of the campaign so far. Holding a ballot and a full and open debate is a sign of strength and should be applauded.

We only need to look at the timing of the MoJ’s “ultimatum” and the tactics involved to understand just how effective the campaign had been. The Bar was operating a successful “no returns” policy, combined with days of action. VHCC cases (one of the strongest weapons in our armoury) were about to implode within weeks.

Solicitors had mobilised: supporting our days of action, placating our lay clients and the courts and voting to join with probation officers for two days of direct action, coinciding with Grayling’s birthday (April Fool’s Day, we kid you not). Regrettably, despite rank-and-file support from the Bar, the CBA elected not to support this action and instead to consult. In hindsight, this was a strategic disaster.

Grayling spotted the opportunity to exploit a potential division between the professions and this allowed him to use his infamous “divide and rule” tactics to great success.

Unfortunately, we fell into the trap laid for us by the MoJ and did what we had correctly criticised the Law Society for doing: deals behind closed doors. Grayling deigned to offer a 10-minute audience, during which the CBA was told the deal was (paraphrasing) a “one night only” offer and that discussion and the deal itself was embargoed preventing discussion. One only has to ask, why? The answer has been seen by all: the outpouring of rage, disappointment and dissent, “Not in our name”.

“Comments are free, but facts are sacred” C.P. Scott

For those asking why we want more than the temporary protection of our fees, let us be clear: the independent Bar will be destroyed by the proposed but temporarily deferred cuts. Moreover, justice will be destroyed. Why?

Solicitors face litigation fee cuts of 17.5%.
Profit margins for firms are between 4.8% and 8.9%.
8.75% of those cuts have been implemented.
Even if a firm survives the cuts, the MoJ plans to impose a “dual contract” system: a limited number of duty contracts and then own client contracts for the rest.
Duty contracts are too big for 93% of firms.
Those without a duty contract will not survive.
Larger firms who survive will have no choice but to employ in-house advocates and exploit a modest profit margin to offset losses elsewhere.

The deal is only a temporary stay of execution of our fees and in 15 months’ time, high street firms will have hit the wall (it is happening already). Our professional client base will have disappeared. The temporary protection of AGFS will not matter, because a 0% cut of what will be zero fees is zero. Grayling will have achieved his ultimate aim whilst maintaining a pretence of supporting the independent Bar.

Those who believe that this will lead to us being able to negotiate for an increase in our fees in 15 months are, with respect, naive in the extreme and ignore what has gone before. The MoJ will come back when we are in a significantly weaker position than we are now, and will issue the final death blow.

The BSB have issued a consultation where the proposals, if adopted, could mean that were the MoJ to impose unilateral cuts in the future, we would be unable to return such work notwithstanding that it may be economically unviable.

“Those who cannot remember the past are condemned to repeat it” George Santayana

Proclaiming that the deal protects the junior Bar is short-sighted. There will be no junior Bar. We have been here before.

Carter was proclaimed as a big win for the junior Bar. Let us recall back in 2005 that Carter was a response to a call for action with the Bar threatening “strikes”. In fact the Bar continued to work and co-operated. To the surprise of the Government, Lord Carter found “a fragmented system that has not historically recognised a duty to deliver justice at an acceptable overall public cost”. The fees paid to the junior Bar at the time were seen as too low (the irony!). There was an increase in some fees to make up for the effects of inflation. The “victory” was short-lived: by 2009 the government decided to reduce the fees once again, flying in the face of Carter’s findings and an “astonishing volte-face”. In the face of opposition from the Bar, the government then threatened One Case One Fee (OCOF) and used it to secure further cuts in fees.

A feeling of deja vu:

Each government assumes that:
there is a gross over-supply of barristers; and
when “push comes to shove” the Bar backs down.

When the Bar is united, the government offers talks with a view to finding savings. The Bar then works extremely hard to identify savings, which are then absorbed back into the MoJ.

Any apparent concession by the MoJ is then swiftly removed by applying the threat of OCOF. One only needs to recall the current Attorney-General’s comments about OCOF at the recent Bar Council conference. The MoJ relies on the Bar agreeing anything to avoid that “doomsday scenario”.

“Divide and rule” is fostered by:
playing the Bar and solicitors against each other; and
playing the senior and junior Bar off against each other (either by Carter “redistributing” top end fees to the junior end or as in the current scenario where VHCC co-operation is part of the negotiation package) enabling the MoJ to say that they are protecting the junior Bar but that the “fat cats” are letting them down.

Under the current deal, nothing is on offer at all beyond a temporary stay of execution on fees and, yet again, an offer to discuss ways of saving money for the MoJ. It also represents a betrayal of those undertaking VHCC work who have shown real courage and strength of their convictions over recent months. If any review of VHCCs come to pass, the terms of the deal specify that it has to be within the current budget, meaning that the cuts of 30% are effectively set in stone. They are not on the table.

“Defend the children of the poor and punish the wrongdoer” Psalm 72:4

We are fighting to retain a justice system in which those accused by the state are properly represented, in which victims can engage and in which society can have confidence.

However, in exchange for a 15-month reprieve with a promise of nothing, we have abandoned our solicitor colleagues at a uniquely united moment in our history, abandoned our future clients to an uncertain but almost certainly unjust future, abandoned any hope of a diverse, vibrant and skilled profession and diluted our credibility in society.

“Fool me once, shame on you. Fool me twice, shame on me” Anon

The time to win once and for all is now. There is a perfect storm brewing over Petty France: prisons are rioting; private sector MoJ contracts are in tatters; probation officers are striking; for the first time in history, the Bar is striking; the judiciary overwhelmingly oppose these cuts; Treasury Counsel are in revolt; VHCC trials are on the brink of implosion and members of his own party are “railing against Grayling”. He is teetering and now is the time to press home our advantage.

We understand that the Northern Circuit is “not for turning” and is maintaining the “no returns” policy. Those on other circuits should respect their decision and show solidarity by refusing returns in such cases. We salute their courage and frankly, if they hold out, the deal is dead in the water.

The question posed in the ballot is not ideal. It ought to have been a straight question about whether members supported the deal or not. The CBA refuse to alter the question and so we ask members to see this for what it is: a referendum on the deal.

What can be achieved and what price failure? If you, like us, agree that so much more can be achieved, vote yes.

If you vote no we sign our own death warrants and succumb to a lingering death.

If you vote yes, at the very worst, we go down fighting. This is a time of unprecedented unity within the legal profession as a whole. The prize is a properly functioning and funded justice system with a sustainable future and it is within our grasp: it is our duty to fight for it.

Sam Parham, Garden Court Chambers 31st March 2014
Joanne Cecil, Garden Court Chambers

Why I Support the CBA but Oppose the Deal

I am a Manchester United fan. This season that makes me something of an expert when it comes to witnessing capitulation. So I know what I am saying when I say that the deal announced last week between the Bar and the MoJ was not a capitulation. It was an error, but to suggest it was a capitulation would be to suggest that it was the product of a lack of desire to fight. The CBA have demonstrated ample appetite for the fight.

Nonetheless I believe the deal is not a good one for the Bar. And I believe it should be undone by the Bar and the CBA asked to continue their splendid fight. There are a number of reasons why I suggest you should urge the CBA to ditch the deal but before I turn to those if I may suggest some things not to base your decisions on.

Do not base your decision on blind loyalty. Do not base your decision on the desire not to rock the boat. Do not be timid or reckless. I would invite you to follow as much as you can of the debate. There is plenty out there to read. Take some time to read Matthew Scott’s blog If This Is A Victory……. I would imagine you have all read Nigel Lithman’s announcements and Monday Messages the last two weeks, but if not check them out here. The always admirable Andrew Langdon QC wrote this explanation/defence of the deal. Simon Myerson QC has had plenty to say across a plethora of social platforms but his blog and the comments section make an interesting read on both the “Debate” blog and the “Kicking Up The Dust” blog.

So equip yourself with plenty of information and discuss it with your colleagues young and old. Then think and think some more. I will add some of my thoughts now. This is not a complete answer. It is not a complete strategy. These are just some of the reasons I do not support the deal as a good enough deal to reward the actions of us all.

As a general point I worry about the nature and terms of the deal given the body with which whom we have entered a compact. I anticipate there are not many of us who trust the MoJ one bit. We have every reason not to trust them. They have shown themselves undeserving of our trust at every turn. And now we have to trust them. Worse than that we have given our mendacious and manipulating foe a series of weapons with which to beat us.

It has been said that the delay to AGFS changes have “kicked them into the long grass” such as we have seen the last of them. That would be a fantastic result. If we could be confident it was the case. The rationale as I understand it is that the Government who do not like to be seen in an embarrassing climbdown will announce a delay rather then a cancellation. Then it is just never resurrected. Added to this is the hope that there will be a new regime, either in Government or at least in the Minister’s chair.

There is a problem with this however. The tactic of delay is often used as just that – a delaying tactic to hope the political conditions improve so the policy can be implemented at a later day. The badger cull was a fine example of the delay being just that. Not a cancellation but just a delay in the face of concerted opposition. So will the General Election save the day? I am not going to place my hope in the current Opposition. You will find no commitment from them anywhere to reverse a single one of these changes and cuts. I confess I used to be a member of the Labour Party. I ceased to be due to their approach to public funding in about 2000. How about if there is just a new Minister regardless of political persuasion? The Civil Servants are still there. And they dislike us more than badgers.

So which do we think it is? Well nobody can know. I have not heard a convincing argument as to why it is cancellation by another name. There is plenty for the Government and the unchanging Civil Servants to gain by this simply being a delaying tactic. By the time the question of cuts are back around the department will be dealing with another reduction in their budget (in all likelihood). At that stage much of the “consolidation” in the solicitors’ profession will have happened (that means lots of small businesses providing essential legal services to the community will have gone to the wall). The PDS will have expanded and it is no coincidence that the Government have changed the PDS code of conduct to allow them to appear in the same case even where there is a conflict of interest. That happened just this month. Could it be that the delay allows the Government to regroup, garner the resources to combat our most potent weapons and be able to concentrate on just one side of the profession at a time?

Elsewhere I have heard a mood of optimism that we will be able to go back to them in June next year and have a root and branch reform of AGFS, seeking an increase in the fees. Well I suppose we can ask. However the Government has given no indication that they will even entertain this. Quite the opposite. The MoJ make it quite clear “the (AGFS) review is not intended to go beyond the savings from AGFS proposed on 27 February”. It is my understanding, reading those words, that the only question on the table will be whether the cuts that come in are introduced in whole or in part. The most optimistic hope could be for no cuts at that stage. We can make all the forceful submissions we want but do not vote for this deal thinking it leaves us with fertile ground for an increase.

In fact this deal concedes the principle of cuts. These lines are crucial “whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs; there is no reason why barristers who want to work on VHCCs should not do so”. That is said to be the stated position of the Bar Council, the CBA and the Circuits. Well I am afraid there is an objection in principle. There is the principle that the cases have been cut below the irreducible minimum. There is the principle that the current fees on offer are not sufficient remuneration. There is the principle that pricing such cases at such a low rate means that advocates of lower quality will be attracted to such work, potentially leading to greater cost to the taxpayer. Those are all points of principle that we cannot now make. When we do, the Government will simply be able to point to those few words.

There is also principle that goes beyond the political point we are trying to make. There is the principle that we have actively encouraged people to return that work in order for us to make a point. You can have all the “individual decision” caveats you want but when the message went out “we will not work at these rates” those who decided not to, those who gave back cases, made a difficult and principled decision adverse to their own personal financial well being. I am afraid to argue otherwise ignores the reality. And they are now abandoned. I, for one, am not prepared to do that. They stood by me, I shall stand by them.

Yes representations will be made about AGFS Plus in relation to these cases. But that will have to made in relation to the existing financial envelope (as Grayling would say). That financial envelope is now 30% lighter. The reason why we could get no better on VHCCs? Apparently because they have been approved by Parliament. I reach for my Hansard. I look for the tense debate in the House where Grayling carried the vote with soaring rhetoric…. and I fail to find it. The approval of Parliament is in reality no more than the stroke of a pen. If he wanted to, the Lord Chancellor could reverse those cuts by the end of this month. He does not want to. Now he does not have to.

It is said that the deal is good for 89% of the Bar. A deal which is good for 89% of the Bar must be good. That statistic makes me very sad. The 89% of the Bar refers to the proportion of us who do Grad Fee work. That is me. I am one of the “89 percenters”. However it makes me sad because that means the fight and the deal is about one thing and one thing only – money.It is said that the deal is good for 89% of the Bar. A deal which is good for 89% of the Bar must be good. That statistic makes me very sad. The 89% of the Bar refers to the proportion of us who do Grad Fee work. That is me. I am one of the “89 percenters”. However it makes me sad because that means the fight and the deal is about one thing and one thing only – money. When I spoke at the CBA delegates rally I spoke to a motion that was not about simply my fees. That was not sophistry by me. I was not hiding my wage demands under lofty ideals. I meant it. I meant the fact that we should use every tactic available to us to repair the damage that was being done to the Justice System of this country. This deal cedes all of my most potent weapons. I must work within the system, as imperfect as we all see it to be, because I have taken the King’s shilling. Yes I can still rant and rave but I am denied the right to take any action that effects the normal smooth running of the courts. That is not just a ceasefire. That is unilateral disarmament.

Ultimately that is all this deal is. A ceasefire. Unfortunately it is a ceasefire that leaves behind our allies amongst the solicitors. I will probably make myself fantastically unpopular here by saying this but the solicitors have yet to come anywhere as close to being as effective as the Bar have been. If they are defeated it is not simply because the Bar did this deal. It would be a defeat caused by an inability by some to act with unity. It would be cause by a reluctance by some to expose themselves and their business to risk.

However we do have much that is common interest. The defeat of dual contracts and the preservation of many of our sources of work is such an obvious advantage to the Bar. What has now happened is we have left the weaker ally fighting our foe alone. We can give them tremendous support form the sidelines. We can pen letters to the Times, bombard the Ministry with briefing papers and deliver powerful speeches. However we cannot enter the fray. We have promised not to. Let us say that this has kick started solicitors into seeing that direct action can cause the Ministry to yield. Let us say that they get something going in the Crown Court like the LCCSA proposed yesterday. We are powerless to play our part in that. As soon as we do this deal is finished.

These are just some of the reasons why I oppose the deal. My opposition to it is not a personal attack or slight on those who agreed to it. I still consider myself a member of “Team Nigel”. He may not want me but tough. I simply think this deal is a mistake. I have made many mistakes in my life but I still back myself to get things right. This is but one mistake. I still back the CBA 100%. It is simply that this deal is so crucial to my personal future, the future of my colleagues and the future of the profession, the profession that I have a passion for, that I cannot place my loyalty and faith in the leadership of the CBA before my reason.

Inform yourself. Decide for yourself. Vote. Then lets move forward. Together.