Tag Archives: legal aid

The U-Turn

I blame Thatcher. 

In fairness I blame Thatcher for most things. I am of that generation – she snatched our milk and we will not forget such deeds. I am also that way inclined, I possess a left leaning streak that some times manifests itself in outbreaks of Labour voting and always ensures an antipathy to M H Thatcher. 

But this bit of Thatcher blaming is quite specific. I blame our former premier for a political mindset that traces its direct lineage back to Maggie. From the moment she uttered the words “the lady is not for turning”, politicians have recoiled in horror at the thought of the dreaded U-Turn like pre Christopher Eccleston Daleks reacted to stairs. 

The “U-Turn” has become politician shorthand for weakness and lack of leadership. The odd thing about it is that the deathly accusation of a U-Turn is reserved for things that have previously been put in train. It seems you can promise to do something and then not do it. That is, after all, just a broken promise and why should we hold that against our political classes? You can break promises with impunity but woe betide the politician who performs a U-Turn once they have embarked upon a course of action. 

Which is a crying shame because we desperately need the Lord Chancellor to perform a U-Turn. He has demonstrated a willingness to think again. He has demonstrated a willingness to think differently from his predecessor. Suadi prison contract? Ripped-up. Huge Youth Prison? Scrapped. Book ban? Reversed. Criminal Courts Charge? Days are numbered?

A prudent Lord Chancellor would pause the Duty Contract process whilst claims from a whistleblower are investigated. This is absolutely crucial. He cannot look back at this a year from now and realise they have got it wrong. 

Yet he seems wedded to TT. Today the contracts have been awarded. We step closer to the precipice. There are so many good reasons why there should be a whopping great big, tyre-smoking, handbrake turn on this one. The consequences of getting this wrong are not capable of retrospective repair. Which is why an intelligent Lord Chancellor should be for turning. 

There are so many reasons why this process has to be paused:

  1. The MoJ have a poor history of procurement (interpreters??);
  2. This procurement process has already been amended by reason of the JR;
  3. Questions are now raised as per the whistleblower above;
  4. This is the same MoJ that were simultaneously entering into disastrous contractual agreements with Saudi Arabia;
  5. Just about every informed observer raises concerns over the procurement model; and
  6. The recent consultation on advocacy recognises that quality assurances provisions need to be put in place, sense dictates you do this before altering the market place and in more than just Crown Court advocacy.

There is no prospect of action being taken by those who have been awarded the contracts to derail the process for the greater good. We are left only with the hope that good sense will prevail. It is the only way we have left to turn. 

Ten Green Bottles

Ten green bottles hanging on a wall, ten green bottles hanging on a wall…..

It was anticipated that the announcement as to who had “won” (I use the word somewhat loosely) the new duty contracts pursuant to the Two Tier system was coming last Friday. Then it was not. It was put back to 15th October.

The MoJ informed those anxiously waiting that “(w)e regret that we will not be able to notify bidders this week about the outcome of the crime duty tender, as previously indicated. We understand the anxiety this could cause bidding organisations and are working hard to finalise the quality assurance required to make sure these important decisions are right.”

Now if one green bottle should accidentally fall…..

So what happened to cause the announcement to be put back? We do not actually know because the MoJ, despite their concern and their regret, have not actually deigned to tell those anxiously waiting what the hold up is.

It could well be that the delay is related to developments with a firm of solicitors called Blavo. It may be that it is  not. It may well just be one hell of a coincidence. 

For those that missed it in the middle of last week Blavo, a firm with a national profile and with areas of work including crime and mental health, announced that they were consulting on redundancies. There was talk of the impact of legal aid cuts and the need to restructure. The firm, it was said, was still financially secure.

Then the story took another twist with the LAA announcing that they had terminated all Blavo’s contracts and had referred the matter to the police

Now I do not know if Blavo had applied for a Duty Contract. Given the nature of their profile I anticipate that they have. I do not know if they were to be awarded a contract. And we have no way of knowing if they are on the brink of collapse, are financially secure or have done anything to justify the action taken by the LAA. And, because the MoJ are not providing information, we do not know if this has caused the delay. 

But let’s just imagine the worst case scenario for a moment. Let us imagine that they are really struggling. Let us imagine that there are some “irregularities” concerning their current contracts. Let us imagine they were just days away from getting one or more than one of the contracts on offer. 

Now that throws up a whole load of questions. If all of the above imaginings are correct what does it say about the application and scrutiny process? If they were about to be awarded a contract and it transpires that they were in financial troubles and circumstances existed to justify termination of their contracts how did they pass “the quality assurance” tests?

And what if these circumstances came to light after the award of the contracts? Would other firms who missed out not be able to question how it is that an unviable firm got a contract and their viable firm did not? What if it took nine months of the contract irregularities to come out? So the firm already had a number of duty contracts and now the LAA realise that there were problems with their previous contracts. Nine months after consolidation their rival bidders may have been consolidated all the way to the dole queue….

That prospect is of particular concern when the firm undertakes other areas of “niche” work. Let us say Blavo do most of the mental health work in a town. They have one competitor that also provides that service. Both firms have been finding it tough since the Legal Aid cuts. Blavo get a crime contract, the other firm does not. The other firm goes out of business as a result. Then the irregularities come to light and the LAA terminates all the contracts. Suddenly you have no provision for mental health representation in that area. That is an advice desert. That is the game of Russian Roulette the MoJ are playing with our justice system. 

Remember that the Duty Contract is no guarantee of long term security. There are more adjustments to the fees coming along. When I say “adjustments”, I mean cuts. Court closures can threaten the viability of firms (imagine Firm A have a healthy amount of own client work that tends to be in the court building just down the road from their office, when that court closes and they have to travel for up to an hour each way to represent these same clients that can suddenly impact upon the meagre profits they previously made). 

On top of that there is uncertainty about how firms are going to be able to keep work in house. I do not for one moment imagine that there is going to be some sort of ban on in house advocacy but there is, now, uncertainty. If a firm was banking on being able to keep a percentage of work in house, they cannot bank on it any more.

This is the precarious market that the MoJ seem to make more precarious with every step they take. Hopefully Blavo’s current problems are all ironed out smoothly. Hopefully this is only a warning to the MoJ. It is, however, a warning they should heed. It does not take much for there to be…..

……no green bottles hanging on the wall.

Horses with Parachutes

To misquote Hot Chocolate: “It started with a consultation, never thought it would come to this….”

It seems like a long time ago that we all responded to the first consultation entitled “Decimating Justice” or some such. Then we had “Decimating Justice: The Next Slaps in the Face”. Or something like that. And now we have a consultation about how we go about papering over the cracks that the Government have caused. 

I am all consulted out. I will, of course, respond to it in due course. Not now, however I do have a few immediate thoughts to share with you. 

We seem to be on the eve of the age of Two Tier. This is a dark day indeed. I would just take the opportunity to remind one and all that TT is not the Bar’s fault. It is important that we all remember that. I cannot think of one barrister or representative body that has said “Yeah, TT, that’s grrrrreat.” This was the product of the Government failing to place proper value on the work of criminal solicitors and then the Law Society trying to ameliorate the impact of “consolidation”, that being a euphemism for putting people out of business. 

What is more the Bar have tried to oppose Two Tier. Both in words and action. That opposition has not always been as direct as many of us would have wanted. That was quite hard to achieve without solicitors mounting a concerted effort to defeat TT. That is not to say that there were not concerted efforts by some. The JR was a tremendous effort in terms of energy, money and personal endeavour by many. Clearly many solicitors have forcefully argued against TT from the outset. 

When the Bar voted in significant numbers to return to direct action in order to support the action of solicitors, the underlying motive for many was to try to defeat TT. Sadly the collective will has never been there to directly oppose TT by means of direct deed, the most obvious direct deeds being not bidding, withdrawing bids or not signing. I understand the reasons why that has never happened. That does mean I think it should not have happened. It should. Time and time again the Government point to the fact that we work at those rates or we sign those contracts or we do the work. TT could have been avoided. But who knows what would have risen in its place!

So we are where we are. And the response to the consultation has to be with a view to protecting the administration of justice in a post TT landscape. And if you are at the Bar, it has to be about how to survive in a situation that is not of our making. 

The other most striking thought this evening is that this is all the wrong way round. It strikes me that the Government are now consulting on whether to introduce legislation to make the closing of stable doors mandatory when the horse is already in the next County. 

Lord Carter made it quite clear in his review that, before any consolidation in the market was attempted, a proper tested system of quality control needed to be put in place. It seems the Government are now thinking about how to ensure quality in a market that has been consolidated. That is folly in the extreme. What if the necessary quality assurance measures prove impossible to put in place? What if they are not put in place in time?

It is like jumping out of plane hoping someone will throw a parachute out after you. 

It also strikes me that this is all very unfair to those that did bid and those that did not bid. It is a distinct possibility that firms which have been relying upon an income stream from advocacy will have that curtailed or cut off. Which is why it makes more sense to do it the other way round. Establish the framework then get people to bid with the requisite knowledge. 

The current consultation keeps referring to the fact that the threat to quality is not the fault of the Government’s actions. It must just be a coincidence. It saddens me that the Government cannot see that the threat exists to the entire Criminal Justice System. Remuneration is a driver of quality in the police station, in the Magistrates’ and in the preparation of Crown Court litigation. Where is the consultation on how to maintain quality in those areas?

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. 

Another Day, Another Dollar

I write this as I am on a train on the way to court. I have forgotten my headphones so, unless the whole carriage feels like sharing in the experience, no Paddington Bear for me. Which, if this is the first blog of mine you have read, may seem like an odd statement. You will have to forgive me. I am over tired. 

The reason I am over tired? I have only had five hours sleep. You see I was up last night until 1.20 am drafting a skeleton argument for today. Any of you legal types reading this will say “Par for the course, get on with it”. And of course it is. But let me write a little more about the context and potential consequence. 

Two and half months ago I travelled to court for the same trial I am engaged in now. On the first day there was a problem which was beyond the control of anyone and meant the trial could not start that day. We all spent four days that week turning up at court to see if the difficulty could be overcome. Unfortunately it could not and the trial was adjourned. 

Those familiar with the payment structure will realise that was financially a bit of a disaster. Four days and the trial did not start. The payments for those days will probably, just, cover my train ticket.

For good reason the Judge had to force the case into the list. The trial is scheduled for about four weeks. The judge tried very hard to accommodate the availability of the advocates. Four out of six of us originally there have made it back for the second trial date. I have had to return other work to be here. 

We are now Day Three of the new trial. We have yet to swear a jury. The problems that beset the trial last time have led to various legal arguments. As things developed on the first day the Judge needed assistance in the form of skeleton arguments about matters that had only arisen that day. So on the first evening of the trial I got home at 7 pm and worked until 11pm.

The next day there were more developments. Hence the fact that I was working on the train on my return journey, walked in through the door at home, kissed the dog and tickled Mrs VFTN behind the ear, searched for a mallet (yes, you have read that correctly, and no, don’t ask), got changed and headed into chambers because I needed something from there for today. Then back home for dinner and then worked until the wee small hours. 

Of course the keen eyed amongst you will have noticed we have not sworn a jury. We may not. There is a prospect the trial could adjourn again. For the uninitiated amongst you, this is another financial disaster. The bulk of the fee is only due once a jury is sworn or the case otherwise finished. I still do not know when that is going to happen or even if I will be there when it does. 

If I am not the barrister doing the case at that point of time? Well leaving aside the hours I have spent otherwise preparing this case, with the seven days at court and nine hours of work in the evening in the last two nights alone the best I could hope for is that I will break even on my travel and my chambers expenses. 

This is not a moan about the level of remuneration. This is not a moan about working at night. Many people have to work hard. I knew this was one aspect of the career I embarked upon. I am not proclaiming myself the doer of heroic deeds. I am just doing my job and all it entails. 

Unfortunately my job entails a crazy system of remuneration whereby we all gamble on a daily basis as to whether and what we will get paid. The circumstances that lead to appropriate remuneration rely upon a series of events entirely beyond our control. It is like inviting a plumber to come fix a leak on the promise of payment should England win the 2018 World Cup. 

The graduated fee scheme was meant to be a system predicated on swings and roundabouts. On days like these (which, let’s face it, is most days) it feels like a helter skelter. A helter skelter with right angles instead of curves. And razor blades embedded in the side. And a six foot drop when you shoot out of the mouth of the slide. 

Oh well. As they say, “Another Day, Another Dollar.” Or not, as the case may be. 

Everybody’s Talkin’

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

A lot of talk but a complete dearth of communication. 

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

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

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

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

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

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

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

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

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

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

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

Difficult Days

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

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

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

None of that has changed. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

Yes or No

I invited anyone who wished to contribute to the debate to email their blog to me and I would be happy to host. Kent solicitor Oliver Kirk has done just that. Here is his contribution. 

A response to Mr Myerson QCs response to Mr Csoka QC

I am writing this brief response, I hope to clear up what some see as ambiguities or inconsistencies in the position of solicitors, and to help those who may still be undecided in their decision on the current ballot.

In case it is not abundantly clear- many solicitors firms are currently in a precarious state: their futures uncertain awaiting the outcome not only of the current action- but also of their LAA bids- or indeed for the fall-out from their failure to bid. All are united in their uncertainty as to whether the new, significantly lower rates can possibly be financially viable. (My own view is that they are not.)

Why don’t solicitors withdraw their bids?

The LAA is the principal provider of work. The only show in town. So, if a firm either fails to bid- or withdraws a bid, then it is then condemned to rely only on private and own client work. In the case of most firms large enough to bid, those two sources of work are simply not a viable option.

Own client contracts are, by their very nature wasting assets- criminal clients often find themselves in custody for lengthy periods have difficult personal circumstances, which result in tragically early deaths, and of course some reform or were never guilty in the first place- all of which mean that repeat business cannot be relied upon. Furthermore, clients, as well as being fiercely loyal, can also be a perfidious bunch, meaning that it is never really possible to count upon return business. An own client contract alone may only provide an unstable and unpredictable revenue stream over any significant period of time. Unsurprisingly, most firms need the new blood of duty cases to refresh their client base.

Why not withdraw a bid to do economically unviable work? Once your bid is withdrawn- that is “Game Over”; if some form of improved deal is put on the table in due course- you won’t be part of it. If some firms withdraw their bids, and others do not, those who have withdrawn make their own situations worse, not better. Think of it in these terms as well: most owners of firms will have made significant personal investments in their businesses. The buck also stops with them if the business fails- their homes, and any other assets are quite likely to be tied up by way of personal guarantees to banks. It would therefore be personally and professionally reckless in the extreme to withdraw a bid in the hope that a better deal might emerge that the firm could be part of.

Bidding and getting a contract therefore becomes the only possible way of surviving- in a sort of “gruel tomorrow” pact that allows a firm so stumble on in the hope of staving off insolvency for a little longer. The alternative of withdrawing a bid would, for many firms mean the prospect of having to make significant redundancies at time when it is unlikely that the funds are available to pay even those.

Please consider also that many of the bidders may be consortia of smaller firms and sole practitioners, who have already invested many, many hours putting a bid together. To withdraw such a bid now after making such investments of time when to do so might be curtains for the firms involved is a gamble too far . This is especially so, when you consider how effective the current action appears to be in its early days in getting the MOJ to think again.

No-one should be under any illusions- the current rates of pay do not incentivise work. They do not encourage a “no stone unturned” approach to a clients’ case. They encourage the opposite. Equally, the current rates of pay are such that solicitors have been forced out of the lower courts into the Crown Court as a means of remaining in business.

If reduced rates and DC come in, various things will almost certainly happen:

1) A significant number of small “High Street” firms will pull out of Criminal Legal Aid altogether whether as a commercial decision or because they do not get a contract. Many such firms or departments are operating on such tight margins that the July cuts followed by the January 2016 cuts will finish them off before the MOJ even start their “2016 Review of legal aid rates”.

2) Other (probably smaller) firms who do not get duty contracts will soldier on with own client contracts- but with diminishing volumes and cuts to remuneration, will probably go under. I pause to ask myself whether it is these same firms who currently instruct the Bar?

Of course they are! These are the firms who instruct the junior Bar on a daily basis, whether to do their Magistrates Court trials or their Crown Court cases; the same firms who once discovered and instructed those who now lead the Bar. Those firms will wither and die.

3) Those larger firms who do get contracts undoubtedly keep as much advocacy in-house as possible. They will recruit from the ranks of an underemployed Bar who will be wondering where their instructions have gone….

So- when asking yourself Mr Myerson’s questions and deciding how to vote, please remember that if you are currently briefed by a solicitor- that firm may not be around for long to brief you if it has not applied for or does not get “awarded” a contract. As for those who apply for and get a contract the margins will be such that they will have to try to keep all their work in-house.

This is the Bars decision.

This is the Bars vote.

Make no mistake, this is for Our future.