Tag Archives: gove

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. 

Ban the Bung

I have lamented elsewhere the fact that we are voting in the CBA Ballot when we have little idea what the CBA plan includes. The most detail that we have been given is in Richard Bentwood’s contribution to the CBA blog Voting No and the Uneven Playing Field. It would appear that alterations to the AGFS and a ban on referral fees is the aim of current engagement with the MoJ. 

Let’s just imagine that the result of the Ballot is a “no” vote and all our eggs are in this particular basket. Let us fast forward 18 months. The Lord Chancellor has passed into legislation a ban on the payment of a referral fee connected with the provision of advocacy service. Now what I am about to imagine is not a prophecy. I don’t know this is going to happen. I would say it is a realistic fear. That is not to partake in scaremongering. Yet those considering voting “no” need to consider the potential consequences and the prospects of the current proposal succeeding. As do the “yes” voters. 

Firm A have lots of Crown Court advocacy. They also have an office. Advocate B used to be in chambers, she used to do a lot of Firm A’s work. Firm A offer the provision of office space and diary management to Advocate B. They charge her 15% of all her income. She is still free to work for whoever she wants. As it happens she is now very busy doing most of Firm A’s work. It is really easy for Firm A as they don’t even have the cost of doing a brief, they just walk over to the corner of the office and hand her the file. No referral fee paid. 

Firm C have a duty contract. The beauty of this is that lots of their Crown Court work ends up listed on the same day. One of their solicitors has higher rights. He can do a long list of pleas. The firm rightly earn the money form all those that plead guilty early. Those that get listed for trial can be sent out to a freelance advocate (whether they be solicitor or counsel). With the brief is sent out an invoice for the work already done by the solicitor advocate. This is greater than the Bar’s guidance on what a PCMH should cost, but it is only a protocol. The parties are entitled to enter into whatever contractual arrangement they like. In exactly the same way as counsel share fees when a case unexpectedly cracks on a mention. The advocates who are offered the case are informed up front of the intended fee for the first hearing. It is up to them whether they accept it or not. 

These are two ways which, in a moment’s thought, someone with a look at how to create the greatest profit may get round rules against referral fees. The commercial mind is alive with such things. It will always find a way. And remember, increased volumes under Two Tier will mean increased potential for revenue from advocacy fee by volume too. Making the employment of an in house advocate a more attractive proposition once again.

Yet it is also suggested that in house advocacy has proved to be too expensive. And let’s say that the referral ban has been successful in closing all potential loopholes. Let’s say that the AGFS modifications have improved payment rates. So 18 months from now you have a reduced number of suppliers with certain volumes of work provided to them under the Duty Provider Contract. These are businesses in need of profit. As some predict, the revenues from these contracts have not been sufficient to cushion the blow of successive cuts.

So where do these businesses have to go now? In house advocacy doesn’t bring the profit. Any income from fee sharing, referral fees or admin charges have been ruled unlawful. There is a new Lord Chancellor in place (a natural consequence of this office becoming political rather than legal). So these businesses, who have some quite powerful collective bargaining muscle now areas have limited duty providers, need to find a way of increasing their share of the overall pie. They go so see a new Lord Chancellor with a budget to protect. The topic of the conversation? One Case One Fee. 

Tackling referral fees levels the playing field in about three square metres, somewhere in the vicinity of the corner flag. This does not save the Bar. This is not the boy with his finger in the dam. This is King Canute, trying to turn back the tide whilst, unbeknownst to him, a tsunami brews under the seas. 

Again, I repeat, I don’t know what is going to happen. And I am not trying to scare you. Whatever happens, there has to be more than just a ban on referral fees. And it would have to happen soon. We have to hope the Lord Chancellor really does love us. And loves us a LOT. 

In reality the best way to ensure the future of the Bar is to make sure the litigator and the advocate are both properly remunerated. Then I will take my chances that my ability will get me enough work. Now that is as level as I need the playing field to be. 

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. 

Gove-anomics 

Following the roaring success of Michael Gove’s “two nation justice system speech” to the Legatum Institute he has been asked to cast his eye over other areas of public life. He has considered how certain endeavours can be improved by applying his glorious logic. Below we publish the results.

The National Football Team

The Lord Chancellor has looked long and hard at sport and, in particular, football. He was at first a little confused as to how “one nation” was in fact divided into four nations with three lions. Once he had it explained that it was a form of devolution he kind of understood it and looked into the thorny problem as to why England have failed at winning the World Cup since 1966. At first he thought it must be the fault of the Human Rights Act. Then he realised we hadn’t just failed in Europe. It was a global problem. 

He looked around for inspiration. In other sports English participants win all the time. He looked at rowing, cycling and darts. The answer was obvious. Roy Hodgson is to be instructed from now on that England’s forward line should consist of Bradley Wiggins and Sir Steve Redgrave. From this day forth Wayne Rooney’s only involvement is to pay the appearance fee of Phil “The Power” Taylor who is to replace Joe Hart in goal. Job done. Football is coming home. 

Policing

At the heart of one nation has to be effective policing. The police service have not been immune to cuts. Numbers have had to fall. Those fatcat police officers just cost too much. Particularly the fatcat dog units. So Mr Gove spent minutes thinking long and hard for the solution. The answer was obvious. Crufts. Those pampered pooches put nothing back into society. So from this point on every best in breed from Crufts has to undertake at least 25 hours per month of pro bono police work. So we can expect “Debonaire’s Hold Me Now”, best of breed Yorkshire Terrier, to be conducting crowd control at a public order disturbance in the streets of London. 

That did not solve the staffing levels. Thousands of officers have been lost in making the jobs of the bankers safer. So what to do? Gove has the answer. He sees the economic success of the Marvel Universe. Millions of dollars being made by Thor, Captain America, Ironman and the Hulk. They are part of the crime fighting community. It is time they stopped fighting aliens in New York and started combatting low level anti-social behaviour in Lewisham. Of course they will have to be properly sworn in as Special Constables and will be expected to wear ill-fitting hi-vis jackets but they will be there. A visible deterrent on our streets. 

The NHS

No nation is truly one nation until you can visit your GP on a Sunday. But how was the NHS going to fund seven day opening? There are plenty of plastic surgeons earning vast sums from private clients after the NHS trained them. They could staff the surgeries on a Sunday. The only concern was that, in a hastily arranged pilot scheme, Bob Smethwick, trucker from Bootle, went to see his GP on a Sunday complaining of haemorrhoids and came away with a prescription for liposuction and a skin peel. 

Undeterred, Gove thought again. The answer was still plastic surgeons. He wondered if the plastic surgeons could help with the police crisis but then realised they would have to be Police Community Support Officers and there were already enough Plastic Coppers. No, they could solve the Sunday GP problem. But instead of being the Sunday GP they could adopt a Sunday GP. So the surgeon pays all the running costs and in return the surgeon and his family get sent a photograph of their adopted GP, a letter every three months and the children of the surgeon are allowed to name the GP and any offspring they may have. Vouchers are available so you can give the gift of GP-Adoption. 

And so it is that we will all become “One Nation Under Gove”. This visionary approach will seep through the nation. The Chief Executives of Weapons Manufacturers will double up as the SAS. Your bins will be emptied by the council. Not council employees, but the councillors themselves. Lewis Hamilton and Nigel Mansell will cut the response times for ambulances. Bankers and politicians will pocket huge pay rises and…err….be bankers and politicians. 

It is time we all bought into this. I say to you “ask not what my country can do for me, but ask how my country can make do and mend”. 

The Future

i usually try to start with something funny or lighthearted. I may not always succeed, but at least I try. Not this time though. This time things are just too damn serious. 

We now know that the CBA Exec have decided upon their strategy. The strategy is to engage with the Government to put in place measures that they believe will be advantageous to the Bar and safeguard the flow of work. They believe that the Bar is in a very strong position to compete for work when excellence and ability are key factors in the allocation of work. 

This is a legitimate avenue for the CBA to pursue. They are the body that represents criminal barristers and should be largely devoted to improving the situation of their members. It is most definitely not their job to represent solicitors. 

But in this instance they are wrong. 

I imagine this to be the point when some Silk somewhere will begin typing a comment below about how I am confusing anger with reason. How I am conflating my disagreement with the decision with ideas of treachery. 

I am not. I accuse nobody of treachery. I have been appalled by some of the comments posted to places like Twitter that speak as if the Bar have acted together and deliberately without honour. 

However I do fundamentally disagree with the CBA. Here are my reasons why. 

The strategy that they seek to pursue is one which may have paid dividends for the Bar. However this is the wrong time to deploy the strategy. It should have been deployed in 2007 when the Carter changes led to economic realities requiring solicitors to want a piece of the advocacy pie. The genie is out of the bottle. We are locking the stable door after the horse has bolted. In fact the genie is a speck in the distance atop a bolting horse. 

However that is a minor detail compared to the more urgent consideration. Given the decision on QASA this morning, a scheme to which the CBA are implacable opposed, how are the quality controls to be put in place? The sort of mechanisms that will be required will take months, maybe even years, to work out and implement. Yet the second round of cuts happen to solicitors in just seven days time. 

Let me spend a moment to recap why this is bad for the Bar. The reports that the Government relied upon for their Transfroming Legal Aid plans made it clear that the level of cuts now imposed would make many solicitors unprofitable businesses. There is just no profit to be made. This is not speculation. This is why Dual Contracts have been introduced. The Government and the Law Society both acknowledged that the cuts meant firms had to have an increase in volume to improve profit. The Two Tier system is also specifically designed to bring about “consolidation”. Consolidation means firms ceasing to exist. Again not speculation. In the style of Rafa Benitez, that’s a fact. 

So firms that currently instruct you are being deliberately holed below the waterline. They will either go out of business (bad for you) or have to find other ways of increasing the amount of money coming in. And that means wanting more of the advocacy pie (bad for you again). Fine words about choice of advocate not being based on economics are laudable. But wholly unrealistic. 

Planning for the long term future is all well and good, but a little pointless when your future is bound to the fate of your solicitors who are being hit in seven days time. This is like being distracted by the fire engulfing your house whilst looking at the architect plans for the new conservatory. 

Defeating the cut coming in just seven days is not fighting the battle for the solicitors. It is fighting a battle which is imperative to the immediate future of the Bar and your chambers. 

When I read or listen to those talking about salvaging the Bar for the future and seeing what we can be saved for those currently just starting out I am reminded of the young soldier in War of the Worlds who speaks of building a new world beneath the ground whilst the Martians bestride earth, before showing the narrator the start he has made – which is no more than digging a shallow ditch. For the Bar “survivalists” you may as well be digging our shallow grave. 

Fighting the cuts is an act of extreme self interest for the Bar. 

My objection goes far beyond self interest however. I am ideologically opposed to the Lord Chancellor. Not because of political prejudice. But because he is a man who recognises that we have a two-tier criminal justice system but thinks the answer lies with lawerly charity work plugging the gaps. The gaps that are his duty to plug. 

What the rape victim needs is a properly funded criminal justice system, not 25 hours pro bono work by some City lawyer. What does he think is going to happen? Clin Neg Silks doing their bit by prosecuting a murder for free? Of course the Lord Chancellor is not thinking that is actually going to happen. But with all his talk of efficiencies, technology and improvemental he ignores the plain truth. The CPS, the Court Estate and the provision of defence services have all been sacrificed on the altar of cost. What the hell is going on when the CBA and the Bar Council welcome this sort of nonsense?

I am ideologically opposed to a Lord Chancellor who speaks of how those who have no choice other than being within the system are let down by that system BECAUSE HE DOES NOT PROVIDE ADEQUATE RESOURCES FOR THE SYTEM TO BE ADEQUATE. And refers mainly to victims and witnesses in that regard. Not the innocent or the unwell. Now that is someone playing politics with justice. 

And to cap it all he has the chutzpah to make it seem like this is somehow the fault of the lawyers. That we do not do enough for free. This is the man we trust will do right by us in the very moment he is pontificating about a two nation justice system when he is days away from cutting Legal Aid once again. 

So the Lord Chancellor has made the proper provision of quick, high quality Justice the centre of his agenda. We all must now hold him to that commitment. That begins by defeating this latest cut. For once self interest and the greater good collide. 

The  Monday Message concludes with the fact that the Exec anticipate an EGM and welcome it as the democrats they are. The Message is correct when it says that there are competing views, beliefs that are strong to be aired. In those circumstances the CBA should not be defiantly welcoming the prospect of an EGM. It should be calling it. This issue is too important for the Exec to decide on its own. As before with the Delegates Conference or the vote on the deal this issue is something the whole Bar should be involved in with the debate and the decision. 

In Flash Gordon, the film, Dale Arden cries out to the hero “Flash, Flash, I love you, but we only have 24 hours to save the Earth!”  Right now my cry is this “CBA, CBA, I love you, but we only have 7 days to save the Bar!” I could be wrong, I could be right. If I am right and the CBA pursue the path they currently follow then bad things will befall us. If I am wrong it is vital that the Criminal Bar decide I am wrong. For it is all our futures. 

How Much!?!?

The Daily Mail online is outraged at the £350,000 in legal aid given to Mick and Mairead Philpott. Of course, this is not entirely correct. The Philpotts were not “given” £350,000 like some sort of lottery win. What they were given was a fair trial. What we, the public, got for that expense were safe convictions. Their victims, their children, got justice. 

The outrage is sparked by the heinous nature of their crime. They were responsible for killing six children, their own children. Their notoriety was heightened by their lifestyle which was somewhat unconvential. And involved extensive reliance on benefits. 

Imagine for a moment that they were innocent. That they had not committed this terrible crime. That they were innocent parents wrongly accused of murdering their own children. As they were at the outset of the trial. It was a trial process that determined they were responsible and needed to be severely punished. And before society reached the stage of punishing them they had to have a trial in which they were properly represented. So that, if they were innocent they would not be wrongly convicted. Money well spent. 

Some of the outrage centres on the fact that fatcat lawyers got some of this money. What an incredible surprise that this story appears at a time when the Government want to cut lawyers’ fees even further. 

For the nine week trial leading counsel were paid in the region of £57,000 each and junior counsel £26,000. Outrageous. The sort of sums the average hard working taxpayer dreams of taking home in a year, let alone trousering for just nine weeks work. 

The first thing that the article does not point out is that the fees are fixed. It is not what the lawyers have concocted as a bill. It is what the Government has set as a fixed payment. It also does not point out that the reason why two counsel represented each defendant was not decided by the lawyers or by the clients. The Philpotts did not demand a QC and a Junior. A Judge decided the case required this level of representation.

So let’s have a look at those fees. I suspect that the fees quoted include VAT, as they usually do when quoted in such stories. For the Junior this would mean the fee was in fact £21,600. But let’s work on the basis that £26,000 is right. The trial lasted for nine weeks. That is 45 days. That is £580 per day. 

£580 per day is a lot of money. However I imagine most members of the public would expect barristers to cost more than £580 per day. So let’s break that down a bit more. A working day can reasonably be expected to contain seven hours. In fact many at the Bar realise that a trial of this nature will invlove longer days than this. But let’s stick at seven hours a day. So that £580 per day equates to about £83 per hour. In London the miminum living wage is £9.15 per hour. So those barristers are coining it in. Not quite the £200 per hour Lord Faulks thinks they get paid but they are still squealing all the way to the publicly funded bank with their £83 per hour. 

Except that they are not. The £83 per hour is not a wage. It is not personal income. It is a payment to a business. A business with overheads and staff. So that hourly rate is far more like the charge out rates for other professions. So how does the £83 compare?

A quick stroll around the Internet provides some interesting comparisons. In 2002, the Health and Safety executive commissioned a report about the charge out rates of their various professionals in performing their duties. Not a single hourly rate dipped below £100. 

In 2010 the average hourly charge out rates for PR executives ranged from £185 for the partner to £98 for an account manager to £65 for the trainee. That’s £65 for a trainee. So the barrister representing someone on a murder charge is on an hourly charge out rate closer to that of the trainee PR employee. 

But let us look at a true comparable. In 2011 the average charge out rate for a solicitor in private practice of more than eight years experience was £217. The trainee in the solicitors’ office was charged out at £118. So the barrister on public funds is being paid less than the going rate. The taxpayer is getting a discount. 

And what of the QC? We can see the Silk was on a little over double that of the Junior. Based on the calculation above the Silks’ charge out rate is £180 per hour. So that compares with the £217 quoted for the more senior solicitor. However Silks are the best of the best. The top of the profession. Men and women with years of experience, combined with immeasurable talent. The sort of lawyers that would be the partners in the best law firms in the land had they chosen a different career path. The sort of lawyers who have an average charge out rate of £725 per hour. 

All of this is very interesting but I am spouting complete nonsense. All of my sums are based on the fee being paid just for the hours taken by the time the trial ran. It takes no account of other court appearances. No account of meeting with the client to discuss the case. No account of the hours and hours of out of court preparation. The real hourly rate for the Junior? Probably half of the £83. £41.50! (Which if the fees quoted do include VAT, is actually £34.50).

The average income, the actual wage, of an airline pilot is £44 per hour. 

So what is the junior barrister doing for this money? Playing their part in defending the innocent and convicting the guilty. Doing something which few have the necessary  blend of abilities to achieve. Putting in hours and hours of painstaking work. 

And just think what sort of things they have to bear witness to. The preparation of this case would not just have involved complex detail. It would not have involved just complicated expert evidence. It would have involved the sort of material most people will go through life without ever having to see. Dealing with a case involving the death of six children is hugely emotionally upsetting. If the reader of this is a non-lawyer I hope you never have to read a post-mortem report. Or see the photographs of the crime scene. The material that the defence lawyer will be exposed to in a case like this is the stuff of nightmares. No hourly rate compensates for that. 

And yet we do it. We do it as a necessary part of a fair society. We do it at an incredibly low cost to the Government. This is the scandal. This is the true story of Legal Aid. The story that the Daily Mail would never write. The story that means Gove’s announcement of the implementation of further cuts to even the £140 to spend all night at a police station is the real scandal. 

The journalist that wrote this piece and the Lord Chancellor who acts in futherance of such nonsense should hang their heads in shame. I hold my head high. 

The Big Stick

Over the coming weeks officers from the CBA will sit down with the new Lord Chancellor and will attempt to persuade him to halt a series of damaging changes to the Criminal Justice System. A process of negotiation. 

And that is why members of the CBA need to vote “Yes” to further direct action. 

It is only right that the CBA should seek to persuade the Lord Chancellor (and the LCCSA and CLSA as well, should they get the opportunity) that the system cannot withstand further cuts and that the Two-Tier system should not be introduced. 

Is it ridiculously optimistic to hope that such negotiations would succeed? Just remember that 18 months ago we faced Price Competitive Tendering, tapering to daily rate and cuts to the graduated fee scheme. All of them have been seen off in one way or another. We can achieve positive outcomes. 

However there is still much that has to be defeated. And it can be defeated. A new Lord Chancellor may provide fertile ground upon which to sow our compelling arguments. 

And the threat of direct action is rain, fertiliser and sunshine. 

If the Bar vote “No” then we are Bob Crowe without the ability to bring the Tube system to a halt. We are the SNP without 56 seats out of 59. We do not demand attention. 

If the Bar vote “No” then we undermine the good work the CLSA and LCCSA have done by raising thousands of pounds to find the Judicial Review and by spending hundreds of hours highlighting the iniquity of the process and the changes. 

If the Bar vote “No” then we ignore the progress made by organisations such as the Justice Alliance in making the public take note of the value of those undertaking public funded work. 

By voting “Yes” it does not mean we will be donning donkey jackets and forming picket lines tomorrow. But by voting “No” it will mean our negotiators enter the fray with no threat. And who would take them seriously in that situation? 

This is a new situation. These are new threats. The CBA Executive would not have put this question to the Bar at this time unless they appreciated the tactical necessity of it. And there is no advantage in a “No”. 

Please vote. So few people voted in relation to the Deal. Now is the time give muscle to our voice by voting here.

A Brief Note for Briefs

Joseph Markus from Garden Court North in Manchester, attended the CLSA and LCCSA Rally about Dual Contracts. He kindly agreed to produce this briefing note. Clearly he wrote it for publication before the General Election. However, as the time for decisions about action draws nearer, it is important that as many people as possible understand what is afoot. Joe’s note is a pretty succinct explanation of what is planned and when it is coming into effect. Maybe the new Lord Chancellor may need to read it so he is totally up to speed. 

Many thanks to Joseph for producing this. 

LCCSA rally – dual contracts

Criminal legal aid services are provided under contract to the Legal Aid Agency. The current position is that an individual firm can apply for a Standard Crime Contract, which gives that firm the opportunity to take instructions from new clients as well as join a “duty rota” under which solicitors are posted to police stations (and in some cases magistrates’ courts) in order to provide legal advice and representation to those who require it. 

The Lord Chancellor intends to split criminal legal aid work into two contracts, the first for Own Client Work (“OCW”) and the second for Duty Provider Work (“DPW”). As now, the individual firm will need to apply to the Legal Aid Agency for a contract. Under the new system firms will only be able to take on a “duty” role if they hold a DPW contract and these will only be issued to a limited number of firms throughout a particular region. The geographical regions represent considerably larger areas than firms were previously required to service. These reforms are to be made in conjunction with a net fee reduction of 17.5 per cent. The first fee cut of 8.75 per cent was implemented on 20 March 2014; the second 8.75 per cent fee cut is due in July 2015.

The Lord Chancellor believes that limiting the number of contracts in this manner, and requiring providers to commit to the provision of legal advice and representation across the whole geographical area, will produce a more efficient system where criminal legal aid providers will be able to benefit from economies of scale and the ability to offset loss-making cases with those charged at higher rates. 

The effect of this reform is acknowledged to be widespread and irreversible market consolidation. That is the only way that firms will be able to successfully demonstrate an ability to service an entire region (as required). The estimates suggest that up to 1,000 firms will be forced to close as a consequence of two-tier contracting.

We know from the argument before and the judgment of the Court of Appeal in R (The Law Society & Ors) v the Lord Chancellor [2015] EWCA Civ 230 that the number of DPW contracts will be capped at 527 and the Legal Aid Agency will award contracts based on a tendering process. The tender will consist of firms applying to the Legal Aid Agency demonstrating a capability to provide duty rotations of solicitors across the designated region.

The tender process for the 527 new DPW contracts re-commenced on 27 March 2015 and will close at midday on 5 May 2015. The tendering process would be implemented such that the contracts would start on 11 January 2016.

The Bar can expect that two-tier contracting, together with the proposed fee cuts, will have an effect on the number of cases briefed out, especially to the junior criminal Bar. The need to slash costs and run economies of scale is likely to lead to an increase in the number of Higher Court Advocates operating from within firms. 

The Labour Party has committed to scrap two-tier contracting in the event that it is returned as the UK Government in May 2015. It has pledged to review the fee cut scheduled for July 2015.

And now, the bio and marketing blurb. View From the North would like to make it clear that other barristers are available…. 

“Joe is a civil practitioner with a growing judicial review practice covering his core areas of practice (immigration and housing) as well as other fields of law. He has developed particular experience of challenges focusing on Articles 6 and 8 ECHR relating to the Legal Aid Agency’s exceptional case funding regime, having been instructed in one of the lead challenges to that regime – successful both in the High Court and Court of Appeal – as well as a number of follow-up cases”

http://www.p.co.uk/gcn./barristers/markus