Tag Archives: lccsa

One Small Step….

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

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

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

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

Oh the benefit of hindsight. 

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

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

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

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

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

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

Difficult Days

There’s many a slip twixt cup and lip, so the old saying goes. Is this just a drop in the saucer or are we sitting here with hot, scalding tea in our lap?

There are some things that have not changed. Have not changed one iota. As I see it dual contracts are still a poor outcome for the Bar. The second cut, imposed on 1st July, is still a bad outcome for the Bar (and solicitors). The fight against the second cut is strategically an important step in bringing dual contracts to an end before they begin. These two judgements remain unaltered. 

It also remains the case that I believe the alternative proposed by those against the taking of direct action at this time, and in this cause, is insufficient, of itself, to ensure the future of the Bar. I see no argument yet made that persuades me regulation about referral fees will be enough to secure our future. We have seen it before with Carter – the greatest threat to our source of work is inadequate remuneration to those that provide us with work. Thereafter our remuneration for that work is of paramount importance. Securing appropriate remuneration is therefore key to our survival. It is also vital to the provision of proper and skilled representation in the police stations, in the lower courts and in the most serious of cases. 

None of that has changed. 

It is folly, however, to pretend that the issuing of the second protocol is not a significant event. If any proponent of action tries to brush it off as anything other they are plainly, palpably wrong. 

It was obvious, and I apologise if this needed pointing out in advance, that the possibility existed for a change in tactics by those corralling the solicitor profession. Did I expect this change at this time? No. 

Am I disappointed by this change? The honest answer is yes. I accept and acknowledge that I am something of an extremist in this regard. I believe that we should all, barrister and solicitor alike, walk out of court until such time as Legal Aid is put on a sustainable footing. I believe Sir Anthony Hooper and I have in common the belief that the Government will only listen when we withdraw our labour. And nothing amounts to a greater withdrawal than courtrooms sitting largely vacant. 

So I am disappointed. Recently I addressed solicitors in Manchester and urged them to stay out of the police stations and out of the courtrooms. Maximum disruption provided the maximum opportunity for success. 

Direct action can and does work. We saw that, to our benefit, with the previous policy of no returns and we saw the first sign of that with yesterday’s meeting. 

(As an aside, the furore over who was there and who was invited was a storm in the said teacup. All it served to highlight was a need for communication between the “leaders” with each other and between the associations and their members.)

So my next question is whether the change to the second protocol diminishes the prospect of success? There are two ways to look at this. The first is to say maximum disruption equals maximum prospect of success and therefore the answer would have to be “yes, it diminishes the chances”. On the other hand if maximum disruption is unsustainable then sustainable and significant  disruption becomes the next best scenario.

Again I make it clear, I believe the step change has come too soon. The timing is poor, for reasons I will develop in a moment. I am confident that the leadership of the CLSA and LCCSA have taken this step in the best interests of what they hope to achieve and as a result of developing circumstances. My sense of disappointment and dismay is not the same as a sense of betrayal. 

Is the second protocol capable of success? The answer is yes, if it is widely adopted. And there is a prospect that this will be more widely adopted than the first action. I would suggest it would be folly for any solicitor committed to the first protocol to reject this one out of hand. It may encourage some of the doubters to come on board. We will see.

Now for the big question. Should the Bar sustain a commitment to support this action? Nobody is going to fall off their chair when I answer “yes”. I go back to my aims as stated at the outset. I look at what I can do and not at circumstances that are beyond my control. Does the Bar adopting no returns and refusing new work strengthen the effect of direct action? Overwhelmingly, yes it does. 

I return now to the question of timing. It is a crying shame that the first protocol was not persisted with to overlap with the introduction of no returns. Now that would have been almost the perfect storm for the MoJ to weather. My sense of regret in that regard is deep. 

The more important question of timing is one of perception. The perception created is that the Bar is now being expected to shoulder the greatest burden. We, generally speaking, earn the lion’s share of our income in the Crown Court. That work is created by new work and returned work. The current direct action turns off both taps. If solicitors feel the economic pain of bills to pay and staff to face we have mortgages and families. 

Perception does create a skewed picture in this regard. Not undertaking new work in the Crown Court still will have a significant financial impact on solicitors. Their HCAs will be underused. Their clients will still be being turned away. Poaching will still be a risk. The system is such now that the Crown Court workload subsidises less profitable police station and Magistrates’ work. So the second protocol is not all jam for the solicitors. Far from it.

The perception is still very important. We may all be lawyers but we are also, mainly, humans too. Cold, hard logic is not always where decisions are made. Anyone dismissing this perception as nonsense does the owner of the perception a grave injustice. 

That being said, the implementation of the second protocol does shift the comparative burden. I am afraid the suggestion that those following the protocol should brief out Magistrates’ trials to the junior Bar does not ease the burden signicantly. It is a well meant gesture. Gestures do not pay the rent. 

So it is both the reality of a shifted burden and a perception of hardship falling only one way. 

So, what am I saying? I do not ignore the fact that the second protocol changes the situation. It is a development which could cause people to change their mind. No doubt in the coming days there will be meetings of solicitors that will allow them to reflect and make decisions. The Bar should do the same. 

And I’m afraid that means another ballot……please do not throw things. It is the only sensible way forward. People should not claim to speak for others, everyone should be allowed to speak for themselves. And that requires a ballot. 

The ballot should be organised quickly and should conclude in a short space of time. In the meantime I would still invite my colleagues to respect the decision made recently. That is why I will still not accept new work and will not accept a returned brief. 

If a new ballot is organised then I would respectfully suggest the Bar should ease the burden on itself. I would suggest a new protocol that the returns policy only applies to trials. That, in some way, reflects the shift made by the solicitors. 

I have no doubt that some will say I do not have all the answers. You would be wary of me if I claimed I did. These are not easy times. We are all trying to find solutions. Time once more for the Bar to consider and to speak. 

Back to the Future

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

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

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

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

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

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

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

Paddington Bear and His No Returns Dilemma 

Yesterday I Tweeted about the fact that I was a 44 year old barrister watching Paddington Bear on my iPad whilst on the train. This provoked nearly 60 responses on Twitter. Far more than any uttering I may have made about Legal Aid and the CBA ballot (ok this may be a lie, but it helps me make the point and gives me a cracking title so cut me a bit of slack).  

The last two weeks have seen urgent and urging missives flying hither and thither about the decision that faced the criminal bar. Ultimately 45% of CBA members voted in the ballot. A pretty decent turnout for a general election but a surprisingly low number for the effort put in by some on both sides of the divide. I don’t ascribe to the “you can’t just snipe from the sidelines, stand for office” line (which comes as no surprise, as I am someone who sits on the sidelines like the worst kind of father of a seven year old footballer), however clicking a link and filling in a form was not the most arduous of commitments for the CBA membership. 

I suppose it may not represent lethargy and apathy. People may have been turned off by this endless, bitter battle against cuts in recent years. People may have abstained, finding neither the wording of the question nor taking no action as representative of their own view. That is not to criticise the question. It is just a realistic analysis of what some may have thought. 

However, the CBA is a representative body and they asked their membership how they wanted that representation to be performed. There was a democratic vote and the decision was in favour of direct action. To their massive credit the CBA Exec have acted upon this and produced a protocol. Furthermore, and I cannot emphasise how grateful the “yes” campaigners should be for this, they have indicated that they will individually observe the protocol. I commend them for the dignity of that response and for the leadership it shows.

We cannot ignore the fact that some voted yes, some voted no and some did not vote. So what are individuals to do? The CBA represent their membership, they do not govern them. 

I suppose there are four options. 

  1. Work as normal. 
  2. Observe the protocol in its entirety.
  3. Only adopt a policy of “no returns”. 
  4. Only adopt a policy of no new work post 01/07. 

If you have read any of my non-animated-bear related posts you will not be surprised that I urge everyone, including the “no” voters and the abstainers to adopt the protocol in its entirety. I have seen little by way of people saying that the recent cut is a positive thing. So the aim of the action will be laudable, to one extent or another, in the eyes of most. This is the approach the CBA membership have chosen, the choice being made in the most appropriate fashion. 

I was vehemently opposed to the deal. However, once the membership had been balloted, I did not agitate for further, continued action. It would seem the view from the North is often, collectively, a militant one. Not for one moment did anyone try to derail the deal by carrying on action post the ballot on the deal. By the same measure that bound us to that, perhaps the doubters will engage with the current action. 

As far as those that do not want to adopt the protocol, and I urge you to think very carefully about that, then perhaps it will be important for you to consider whether you are would be prepared to take a case which you know is available because other people are observing the protocol. What would you do, you may ask yourself, if offered a return in Manchester? These are matters for individuals to decide. The only thing I ask is for you to think about it. 

A profession committed to “no returns” is capable of speeding this matter to a conclusion. I welcome the announcement by the BFG, the CLSA, the LCCSA, the HRBL and the CBA of a joint approach on this issue. Long overdue and entirely the right way forward. (In case you are wondering, the HRBL is the Home for Retired Bears in Lima. Aunt Lucy is with us, all the way).

Perhaps the threat and reality of “no returns” adds a little of Paddington’s hard stare to the negotiators’ armoury?

Painting the Shed

No, this is not about legal aid cuts, strikes or ballots. This a snapshot, a snapshot of the criminal justice system as it exists in July 2015. And it is one ugly picture. 

Sitting around the robing room table today the hot topic of discussion was not referral fees. It was adjournments. Not lawyers eagerly in pursuit of adjournments, but lawyers desperate  to avoid them. It proved, however, impossible.

One trial had been listed on Monday. The impact of decisions taken by counsel locally meant that there was no one available to accept the defence case as a returned trial. The case had been adjourned to the following day, Tuesday (and I pause there to have a little word about strikes, if I may, with the observation “look how quickly it bites” and invite everyone to take heart from that). 

So Tuesday had come around, defence counsel was now available and the trial was all ready to go. Save for the fact that it was not. The court did not have sufficient jurors. The summoning of jurors is a fine balance, you do not want too many idly hanging around but then you do not want to adjourn trials because there are not enough.  So I suppose one trial, adjourned from one day to another is forgivable. As a bit of a one off.

But not as one of five trials to be adjourned that day, for that same reason. Five trials that were adjourned because the courts are saving money by not arranging for sufficient jurors. This is not an isolated incident. Counsel knows that this happens all the time. 

At least this one trial, the one adjourned from Monday to Tuesday was adjourned until Wednesday for them to start. And come Wednesday morning they had jurors. Ten of them. Which is a few jurors short of a picnic, sorry, a jury panel. So it still had not started. The participants in the trial were having to wait for a jury that was involved in their deliberations to return so the jurors could be recycled. Which is fair enough…..except that trial was in its third week, so jurors were going to have to be retained beyond their expected period to make up the shortfall.

Meanwhile, on Wednesday morning, another trial in the same building was waiting to go ahead. This was a case with the defendant in custody. There was a small snag…..they only had ten jurors available to them. The same jurors. As my American cousins would say “you do the math”.

I have no idea, as I write this, whether those trials got on. 

All this time one of my former pupils was painting his shed. “What’s that got to do with the price of eggs?” I hear you cry. And the answer is nothing. Nothing to do with eggs. But the reason he was painting his garden shed was because his trial had been pulled through lack of court time in a different court centre on the circuit. 

Again, listing is not an exact science. Occasionally cases are overloaded in the list to make sure that courts do not sit idle. It is a gamble, sometimes there are losers. So the shed has a touch of “it does what it says on the tin” and I should stop my moaning.

Just one small niggle though. This was the fourth time this trial had been adjourned. The second time it had been adjourned through lack of court time. To lose one trial slot is unfortunate, to lose two is positively careless. Particularly careless when the particular court centre has four courtrooms sitting empty. 

This is not the responsibility or fault of a listing officer or a judge. But this is the reality of life within the CJS. Yesterday I gave a speech to solicitors in Manchester where I said this 

Whilst I cannot speak of what motivates everyone, I believe that many have reached the point of taking action because they see that the cuts and other associated changes threaten not only their livelihoods but also the provision of a proper criminal justice system. And when I say proper I don’t just mean functioning, or adequate, I mean one that offers protections to the vulnerable, that safely convicts the guilty, a criminal justice system that is fair to all.

We have never been further from the system functioning adequately. Years of underfunding in the court estate, in the system, is now slowing and destroying the system to the extent that victims, witnesses and defendants wait endlessly for justice. And despite the delays, nothing is ready when it should be. This is not a two tier justice system, at least not a two tier criminal justice system. It is one tier, and it is the basement. A mouldy, damp basement. With a broken little skylight. And a rusty bike in the corner, behind some empty tins of paint. 

This needs the urgent attention of everybody. The press need to see what is happening. The CBA, the Bar Council, the Judiciary, the CLSA, the LCCSA and the Law Society need to be shouting about it. It is a such a disgrace the RSPB and ABBA should get involved too! I don’t care who, but this needs shouting about until such time as Mr Gove sees that the basic system is failing. And puts it right. 

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.

Be There Now

It is Monday afternoon. By now the week for many a criminal barrister will be crystallising. There will be some of you for whom this week promised fixtures, floaters and warned list cases that have already been shunted off into the ether, to come back at some time you cannot do and your week already yawns wide open, like Nigel Farage laughing at one of his own jokes in the Clubhouse. 

For others of you, this morning or this afternoon will have seen your trials adjourn because of the lack of defendant/witness/disclosure/Judge/jury (delete as appropriate) and you will wander back to chambers to stand by the desk of your clerk, bowl in hand to see what gruel there is left in the stockpot of chambers. 

Most Mondays that end up like this are the cause for gloom and despondency. These are the terrible £46.50/£100/£nil days that make us all rotund felines. But not this Monday. This Monday the listing officer is your friend, not your diary devastating foe. Because the gap that has opened up in your diary for Thursday has a ready made “must do” to plug the void. Ladies and Gentlemen, I give you The Vote for Justice Rally – organised by the CLSA and the LCCSA at Central Hall in London.

This is the moment to do something. This is no longer the time for you to leave it to others. This is the time to book the advance train ticket or bring out the Oyster Card and give a few hours of your time to show the next Government, whatever their composition, that the Bar stand with their colleagues in the other branch of the profession. This does not involve you having to give endlessly of your time. This involves every single one of you who is going to be out of court on Thursday, and there will be hundreds of unemployed barristers that day, booking a ticket to the Rally and getting yourself to London. There can be no excuses. 

Just a few reminders of why we need to make a stand. The cuts to Grad Fee still hang over the head of every advocate. Every day you will see the impact of lacking of funding to the CJS. Poor advocacy standards, poor case preparation, injustice, incompetence. These are the everyday hallmarks of our justice system. It is your duty to stand against further degeneration. Your source of work, your loyal solicitors, may find themselves consolidated out of existence within 12 months. 

Will attending the Rally stop the rot? I can’t promise that. But it stands a greater chance than not doing anything. 

Now, you solicitors out there. Don’t think this message is just for Mr Under-Employed of counsel. There are something in the region of 1,800 providers of criminal defence services out there. If each entity sent just ONE representative on Thursday, there should be barely standing room for the out of court, self-employed advocate. 

The Government is about to run a lottery, the prize of which is barely worth winning and the entry fee may cost your very livelihoods. Today is the day to make sure you are represented at the Rally. 

This is a policy, the Dual Contract decimation of our justice system, that has to be stopped. We have to make this an election issue and a news story. We have to make this our business. 

Unity is not about agreeing over everything. Unity is not about sharing exactly the same vision for the future of your business with people who may be your competitor. Unity is not about being happy about what has happened in the past. But unity is about coming together to defeat something you will all agree is wrong. And unity starts with a room full of people on Thursday. A stand out, sell out demonstration. 

Get it booked. Now. 

The share this with your friends, with your enemies and with strangers in the street. Fill the hall.