Tag Archives: strike

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.

 

 

 

 

The Cost to Justice

Darin Millar, senior partner at Bolton firm CMA, penned a blog recently called “What Price Justice?” I invite you to head over there now to read it. It is vital you do. It contains an interesting perspective. This blog is written in response to Darin’s blog so you really have to read his first. So toddle along now and don’t come back until you have read his blog. 

In case you are being lazy, here is another link to his piece. Seriously, go and read it now……you have? Good. I can begin….

Now Darin and I have a number of things in common. We are both criminal lawyers with over twenty years experience. We both write blogs. We both ply our trade in the Northwest. We both have first names that are more often spelt incorrectly than correctly (I am guessing at the last bit).
We part company when it comes to opposing the cuts to legal aid. This does not make either of us a bad person. 

However I would take issue with some of the points that Darin seeks to make in his blog. He makes the point that the hourly rate of a fee earner averages out at £100 per hour. It is important to point out to the casual observer that this is not the income of the fee earner. This is what they bring into the firm. As Darin rightly points out this is half what private clients pay. So as things stand at the moment the taxpayer is getting a whopping discount from the going market rate. That is a hell of a good deal. The £100 is already based on efficient working practices and a substantial case load. 

Yet the Government wants more. It wants to cut more. So the current £100 per hour is going to have been cut further by February 2016. In order to maintain the £100 per hour firms are going to have to do more cases with increasing “efficiencies”. Many firms are as efficient as they can be. Efficiencies are a small step away from corner cutting. 

The figures that Darin quotes are difficult to analyse without further information. I would hazard a guess that not all cases in the Police Station or the Magistrates run so easily. Or so conveniently to time that the maths seem so healthy. So the example he gives only needs another 45 minutes at the police station and another hour at court for the hourly rate to plummet. And then there will be occasions when many more hours are involved. For the same fixed fee. (I will add that the example only deals with Darin’s time engaged at the police station and the court. I don’t know, but I would imagine that there is other work undertaken on the case in the form of client care and billing. In addition there may be disbursements from the fees quoted. So the headline hourly rates may be a little misleading, with the greatest of respect. this is why the true hourly rate is more like the £100 he quoted across the full range of cases).

Now let’s take the £82,000 for the fraud case. Yes this is a lot of money. Darin works it out to be £250 per hour. That works out to 328 hours. Now what is not said is whether this figure includes any disbursements such as travel. But let’s take it as representing 328 hours work. Now if the solicitor or a representative of the solicitors attended every day of a trial, 328 hours would be exhausted in about 9 weeks. So this is is one of the “efficiencies” that firms make. Counsel are unattended. I accept that counsel can be at court on their own. Some of the time. Experience shows that we are at court on our own most of the time. And this can and does lead to delays at court and inefficiencies creeping into the system at point B due to an efficiency at point A.

(Caveat time, I am not suggesting this trial was 9 weeks, or that Darin did not attend every day, I simply do not know. The point I am making is that certain steps are regularly taken to make the money go further, and that large amounts of money can be paid in Legal Aid cases, but they are labour intensive). 

And then there are shifts made in the division of labour that has a knock on effect. Some solicitors will shift the burden of paperwork on to counsel wherever they can. So defence case statements, bad character notices, hearsay notices and the like are routinely drafted by counsel. That was the sort of work that used to be done by the litigator, not the advocate. And counsel are operating on a fee scheme that was designed when such a workload was less common. So some firms can only make the fees pay by shifting some of the work that the litigator’s fee is designed to cover on to others. This starts to seem like a very slippery slope. 

The fact of the matter is that Darin is clearly an able and committed criminal defence solicitor. He is not alone. There are many such dedicated professionals. The complaints that Darin makes about the shortfalls in the system, the difficulties we are all aware of, are only compensated for by the talent and dedication of men and women such as Darin. Professionals that go above and beyond on a daily basis to paper over the gaping cracks. 

Are such individuals going to come through in the future? Some will. There are people born with the desire to help. People who enter all sorts of walks of life because of their calling. There are a number of us who were attracted to a career in criminal law because of the opportunity for advocacy and have subsequently realised the importance of the work we do. Our eye is caught by the attractive look of life in a criminal courtroom, only later do we fall in love with the importance of what takes place there. Will the opportunities still exist for these lawyers? Will the lure of other areas of law become too great? Are we only going to be left with those coming out of university with a calling to criminal defence work?

People who have such a calling often work in the charity sector. Theirs is a calling to help others, regardless of monetary reward. This is noble and vital. But this should not be the way of ensuring the proper governance of a nation and the nurturing of democracy. We do not rely upon the good people of the St John’s Ambulance to provide trauma care in the local A and E. The Government should not be planning the health and the future of the criminal justice system on the willingness of people like Darin to strive and adapt no matter what remuneration they receive and no matter how else the system crumbles. 

Of course anyone is perfectly entitled to come to a decision about actions they take to protest about changes made to their professions or the nature of their remuneration. People are entitled to say, as Darin does, that they can make the new system work for themselves and that others should be able to do the same. I would, however, ask those people to think not only of their economic resilience or of their determination to continue to provide quality representation but to look at the risk that such Government policy creates.
And the risk is obvious. If there exist people that are less dedicated than Darin, that are prepared to put profit before quality, a system of poor remuneration actively encourages such an approach. 

Whereas Darin attends the police station, thus providing the client with the benefit of 20 years of his experience, another firm may take the option of sending the cheapest representative with the barest competencies required to maximise the profit. Another firm may fall into the temptation of advising the fraud client who should be pleading to have a trial, just to secure the £82,000 litigator’s fee just to survive that month. These are all risks that a smaller pool of suppliers and a diminishing rate of remuneration create. 

In an ideal world, we would all be Darins. But we are not. And in those circumstances perhaps Darin, whilst not joining us, understands why we see the falling remuneration as something that is not just about lining our pockets. It is about the future of the profession and the future of the system.  

Keep Off the Grass

In the robing room at Bolton Crown Court there is a sign that announces the prohibition of smoking. Transgressors will be reported to the “senior judiciary”, or so it tells us. Some wag has added “what? The Supreme Court??” Although when I say “some wag” I, of course, mean prescient sage. 

Today the Northern Circuit has been issued with an edict from the Presiding Judges. It has come to their attention that meetings have been held in the robing rooms of Liverpool and Manchester to debate the future of the professions. Apparently “no further meetings are to be held or arranged in court buildings.” By order of Her Majesty’s Judiciary. 

On a plus point, at least the dire future of the professionals that appear before them has come to the attention of the senior judiciary. Their conduct otherwise could leave you wondering. But now we know they have it at the forefront of their mind. Not access to justice but access to the robing room. 

From today onwards each practitioner is on a DAPO, a Direct Action Prevention Order. The terms of the Order are that no relevant person (for the purposes of the Order relevant person is anyone paid from the Legal Aid Fund) may gather together in groups of three or more within the curtilage of the Court Building save for in circumstances unavoidable in every day life and the conduct of multi-handed cases. Furthermore, relevant persons are expressly prohibited from discussing, chatting or whining about the level of remuneration. Participation in a ballot and/or survey whilst within the boundaries of the provided map is also strictly forbidden. 

This prohibition is not “taking sides” or an effort to stifle debate. We are reminded that “robing rooms are provided to facilitate the day to day business of advocates in the court building. They are not made available for any other purposes including meetings – regardless of the perceived merits or demerits of the proposals being debated.”

Plain and simple. Court buildings are reserved for court business and court business only. Rules are rules after all. 

Which is a shame, because the concourse at Crown Square is regularly used to host a Macmillan Coffee Morning to raise money for the cancer charity during normal opening hours. This does nothing for the day to day business of the staff and users in the building. So it can no longer happen, regardless of the perceived merits or demerits of charity. 

And then there are the countless retirement parties of the Judiciary that have been hosted in the Court Buildings of Manchester and Liverpool. A table set out with wine and nibbles as the Judiciary chat about their pensions (conversations which I presume are now verboten in the Judical dining room). All banned. 

Of course these other things are not banned. Just the hard pressed criminal practitioner grabbing a few moments before the court day to discuss their future and the health of the CJS. That is banned. 

What a terrible message that sends. 

I am reminded of the park-keeper from days gone by who would chase off the girls and boys whose only crime was to use the public facilities. Who would imagine that one of the core competencies for senior judicial office was policing what counsel did in the robing room?

I am currently on holiday. Next week, when I am back, I suspect I may want to catch up with my colleagues to find out what has been going on. I will now arrange that in a nearby coffee shop. And then we can all turn up to get through security at 10.15. That’ll make the day run smoothly. Particularly if lots of you join me. 

I really despair that the Judiciary have done this. It serves no purpose, other than to leave a bewildered profession wondering how the Judicary can have their priorities so wrong. 

Call the Lawyer

Lawyers and midwives make unusual bedfellows. Midwives conjure up images of fresh faced, kind and brave young women on bicycles bringing new life and hope to the East End of London. Lawyers conjure up images of snakes, fatcats, rats and lizards.

For the first time in their 133 year history, the Royal College of Midwives have voted overwhelming to go on strike. This is in response to the Government’s refusal to implement an independent pay review’s recommended 1% pay increase.

That is a remarkable achievement by this Government. There is now an unlikely link between the bringers of babies and the bringers of burglars. They have managed to provoke midwives to go on strike. They also managed to provoke the lawyers to take direct action.

Whatever your view of barristers, they are, by and large, a conservative (with a deliberately small “c”) bunch. It might be said that they are as unlikely to strike as a midwife. Until now.

I would a hazard guess that the midwives will garner more sympathy than the lawyers. That is despite the fact that the midwives are complaining about a pay freeze rather than repeated pay cuts.

The only reason why the public would be so uneven in their sympathy for the cause is because of the stereotypes in the opening paragraph of this blog. Midwives are nice, lawyers are not. Medics are selfless, briefs are selfish. Nurses do good deeds, solicitors protect wrongdoers.

In a recent Twitter discussion it was suggested to me that the majority of the public would wish to see lawyers torn apart by tigers. I responded by asking why the public would want tigers attacking those who prosecute paedophiles? I was accused of responding with my normal nonsense. I rather thought I was responding with the truth.

This is the challenge that the legal profession have to grapple with immediately. Our value has to be known and recognised. We are not bystanders in the trial process. We define it. So a good advocate makes the process better for all involved.

There are many ways in which I wish we lived in a world without lawyers. If humans had no frailties we would not need lawyers. If humans did not have emotions we would not need lawyers. To (mis)quote Dr Who “good men don’t need rules, that’s why I have so many”. Society needs rules because we cannot be trusted not to transgress them. Society only needs doctors because there is disease, ill health and old age.

Whilst we still need lawyers, does it not make sense that the public have access to very good lawyers? If I need the services of a midwife I want the dedicated, brilliant, go-the-extra-mile, cycling variety. I do not want a vaguely competent, unmotivated, underpaid, forced-into-industrial-action type.

I have no idea how the 11% pay rise politicians think this is the good way to run a nation.

Act in Unison

In response to my recent blog, Another Step, I received a number of comments along the lines of “how can the solicitors unite?” Now, it is not for me to tell the solicitors how they may go about unifying, but I’ll give it a go anyway!

The Bar always had problems “unifying” before now. The first lesson the Bar had to learn was that unity was not the same as unanimity. We achieved unity by largely acting together but recognised that we would not carry everyone with us. We also learnt that acting together sometimes meant going along with a tactic we did not particularly agree with.

So the solicitors need to forget about having everybody on board. It is not going to happen. They also have to put aside the view that they may have a better idea of how to act. You need one voice announcing the plan. Of course there can and should be debate about the detail but once it is announced all those who wish to effect change need to get behind it. Whether or not they like it. In the words of that great American philosopher Nike, “Just do it.”

The other lesson the solicitors have to learn is to forget the great and the good. Forget the big cheeses. In the world of Bar politics the great and the good are often naturally conservative. They often are seeking some form of career enhancement. For years, therefore, they have been disinclined to rock the boat. In the world of solicitors you have the great and the good in the Law Society who may have lost sight of the need to fight for the High Street solicitor. It may well be that they are in the same place as the Bar Council at the height of ProcureCo – they are trying to adapt to world which they feel they cannot shape instead of trying to change the direction of travel.

The other “great and the good” the solicitors have to leave behind is the boss. The managing or senior partners of the medium to large firms. This is where all attempts at action have floundered thus far. By the time that a lawyer reaches such a position the job is far more about business and a lot less about the law. That is understandable. Such lawyers have the responsibility of the future of the firm and the employment of their staff. Retaining and growing the volume of work is the ultimate goal. If difficult decisions have to be taken to allow the firm to survive then so be it.

So that is where direct action will often fail. The bosses of firms will plan how their firm can survive. They will not want to lose the contract they already have or the prospect of future contracts. They will not want to leave their clients unrepresented and at risk of being wooed by a rival. Hence they take the understandable decision that they cannot risk direct action. As soon as the senior partner in a firm in the locality announces they will not be taking part all other firms have little choice but to follow suit. Action collapses.

Of course there are some exceptions. Some leaders in the profession who are prepared to lead for the greater good. However I am afraid business people are not radicals or rebels in their market place.

So what is the answer? The momentum for action has to come from the bottom. I believe that the momentum for the fight came from the rank and file of the Bar and was then splendidly taken up by the CBA. The Manchester meeting, the first real example of direct action, came from the ground up. It was not a Circuit initiative, it was the initiative of Circuiteers. The great and the good counselled against it. It went ahead. It was a success. It crossed a Rubicon. We have not looked back.

“Barristers and solicitors are different!” I hear you all cry. If you are called Sherlock may I point out that I get that and you do not have any excrement. Which is less pithy than the well known phrase or saying. But I do get it. And it is why solicitors would have to do something different.

I get why your boss cannot take action. That does not stop you. If legal aid solicitors, caseworkers, fee earners, legal executives and support staff could join together to protest against Government cuts, then that would be a wonderful thing. “But how?” you cry. It is all about unity. And all about unions.

Form or join a Union. Unison would be a good bet. Today public service workers went on strike. You could join them. And bring the CJS to a grinding halt. And if you did, then that would get your shop stewards, the likes of Bill Waddington and Nicola Hill, in the room with Grayling.

Lawyers are brilliant at standing up for others but less good at standing up for themselves. Lawyers are brilliant at being fearless but are paralysed by fear of the competition. Take that out of the equation. Your boss does not have to risk losing their contract. It could be legitimate collective action. It would be the rank and file standing together.

Why should you? You should do it because you believe that the Government’s changes are detrimental to justice. You should do it because you believe in the principles that lie behind our criminal justice system. But you should also do it because you or your colleague or your typist or your mate from university is about to be made redundant. You should do it because you are an individual who knows what is happening is wrong.

The Merchant of Epsom

A further guest post on the subject of “the deal”. This one comes from a practitioner on the Northern Circuit of less than three years’ call. Once again posted anonymously.

“Do as adversaries do in law. Strive mightily then eat and drink as friends”. This was the message at the end of Saturday’s Northern Circuit meeting. So I ask myself, what am I striving for.

One of the speakers pointed out the debate was all about three letters. In my view it centres around three Ps: 1) the politics, 2) the practicalities and 3) the principles.

I won’t pretend to know or understand every nuance of the argument.

However, like any good debate there are polar opposites and then everything in between.

The politics doesn’t just mean Grayling’s politics, it includes the politics between solicitors firms, between solicitors and the bar, between chambers and of course, between the professions and the MOJ. I am not going to rehearse what all of that encompasses.

The practicalities include, the financial reality for all under the cuts, the financial reality for all in taking action, the financial reality for the MOJ and the ability of the professions to galvanise, organise and sustain action.

The principles. Need I state them? Integrity, independence, excellence, fairness, access to justice, equality and accountability.

Today I found every speaker’s argument valid and compelling.

I have the utmost respect for the CBA leadership, without which we would not even be having this debate. I fully understand the predicament with which they were faced. I think the current leadership is essential to our resolve and our survival in this fight. Let’s be clear. It is a fight. I sincerely hope that the leadership remains as it is.

What to do, what to do?

Here are my general thoughts:

The MOJ has not, thus far, acted honestly, openly, fairly, objectively or with the interests of the professions or the weak and vulnerable in society in mind.

The consultation was no more than lip service; a ruse intended to ensure that the decision, which was already made, was procedurally speaking, free from challenge.

The MOJ has systematically sought to publicly undermine the bar with lies and misrepresentations.

The MOJ’s decision to put the offer on the table was not, nor was it presented as, an act taken in the interests of the professions.

The MOJ will not now or at anytime in the foreseeable future act of its own volition in the interests of the professions.

If the MOJ could out manoeuvre the professions and pursue its own agenda it would.

If given time and opportunity this is, in all probability, what the MOJ will indeed do. How? ABSs, HCAs, PDS for a start.

I really cannot find one saving grace in the MOJ’s actions thus far. I have spent many hours since last week thinking, looking for one. I can’t find one.

In a meeting very recently with a senior civil servant who was in town, ostensibly, to consult with the professions on the quality of ‘an independent advocacy service’ aka the bar, stressing he was not there to talk about cuts, the words ‘does it need to be excellent or can it just be good enough’ were uttered from his mouth in reference to the quality of legal representation. Whether this was an intended statement or a slip, I believe this is the mentality behind the culture at the MOJ which informs its agenda and decisions. In my view, this translates as, “what can we get away with”.

Grayling has no legal background and I should imagine he has no desire to preside over this branch of the executive function in the future. I suspect his lack of legal background is a factor contributing to his spectacular misjudgment of what the bar is prepared to do. He will not therefore want any issues arising in this role to jeopardise the roles he will no doubt have his eye on for the future and, in all probability, he will do what is necessary to avoid political embarrassment in that regard.

However, make no mistake, if Grayling detects a chink in your armour he will seek to exploit it because, whilst he doesn’t care one iota for the professions or the justice system he presides over, he also doesn’t like to be beaten or embarrassed. He will not think twice of using whatever means necessary to, in his mind, win. He will if necessary lie and lie and lie in the face of his lie. But, we have a significant advantage, 1) we know what we are dealing with, 2) we have the ability to be as relentless as him, 3) we have strength in numbers 4) on our side some of the finest intellectual and tactical minds on this planet and 5) at this moment we have something that cannot be replaced overnight. We ought to play to our strengths.

THREE WEEKS. Three weeks of direct action, that’s all it took to bring the MOJ to the negotiating table after it had dogmatically introduced the cuts and said in all arrogance there is no wriggle room, strikes will not change a thing. I wish we had taken action at the point of consultation. I wish then we had answered the consultation with a simple – NO MORE CUTS and immediate action. I am not criticising any person because that didn’t happen we agreed we had to engage with the process before taking action and simply didn’t appreciate our own strength at that time.

I do not believe that it is necessary to save £220 million. I just don’t. Since these cuts were announced the same amount has been pledged to a married couples allowance and pot holes. No doubt a forensic examination of the budget would establish that the cuts are not needed. Even if it was necessary there are other ways to achieve it. Therefore I treat with great suspicion the MOJ’s approach thus far.

I do not believe that setting aside the AGFS for now is an outcome we should settle for. However, I do believe that the resolve is still there to continue to refuse VHCCs which will force Grayling to act.

I also believe Grayling has already considered what he will do if we reject the deal. I’m not sure I want to give him time to put his plan B into action.

We know the nature of this beast. We know only too well the untruths and misrepresentations peddled in the press to undermine us, to cast aspersions on our intentions, to detract from the savagery of what was being done in the name of austerity and the good of the country. We can allow this beast to live and grow horns or we can destroy it before it destroys us and everything we hold dear.

We quite plainly have the power to achieve this if we want to. We really do have the power. We could bring the entire system to a grinding halt, tomorrow, if we so desire. It wouldn’t take much and it wouldn’t take long.

Why would we do this?What could we achieve if we took further action?

Firstly, the sending out of a clear message :- you’ve mistaken our past inaction for weakness. Your misjudgment is however your weakness. You have underestimated our capabilities. You have stoked a fire that exists in all of us. We came to the bar because we are fearless. Know this. We do not fear you. We will not dance to your tune. We will not speak your dishonourable language. You, Mr Grayling, shall not dictate our futures. We have the resolve to win this fight. We will not just accept your proposals and die a quiet death. Whatever the outcome you will not come out unscathed. Your career is a split second in the life time of our sacred justice system, the traditions and ethics of which our profession exemplifies. We are the gatekeepers of justice. We cannot and will not stand by and allow you to destroy it. You have overstepped the line. Now step back. Step way back.

Secondly, a platform on which to negotiate terms in line with the principles we hold dear.

Thirdly, the preservation of the independent bar and with it, the integrity of the justice system as we know it.

To return to my question. What am I striving for?

It is simply the principles I stated before. I cannot resolve what the MOJ intends to do with the principles that are at stake. They are not just principles in a court room. They are principles upon which a democracy and the rule or law must rest. They are the principles of a society that I want to be part of. The bar is one of the cornerstones of that society. We all know the line ‘kill all the lawyers’.

When I was 14 I studied Shakespeare’s Merchant of Venice. It struck a chord with me and is still my favourite play. For those not familiar with the plot. Shylock is an unscrupulous money lender. He is also a Jew in Venice and the victim of racism and prejudice. Either his spitefulness has contributed to his unpopularity or his unpopularity has caused him to become spiteful. Either way, despite his shortcomings I felt the treatment of him by the people of Venice was an injustice and that aspect of the story is unresolved for me.

Antonio is a Merchant; he and Shylock are enemies. However, one day and much to his regret, Antonio is forced to borrow money from Shylock on the promise to pay it back when his ships come in.

Shylock sees an opportunity to exact his revenge on Antonio and sets the following term of the contract. If you do not pay the money by the due date you will pay with a pound of your flesh.

Antonio’s ships don’t come in. The money is not paid on time. Shylock goes to court to enforce his contract.

Portia, a woman of wealth, hears of Antonio’s plight. She dresses as a man because a woman in her time cannot do what she is about to do. She makes for Venice, and presents as Antonio’s lawyer at court. In doing so she puts her own liberty at stake.

She invites Shylock to accept three times the amount that Antonio owes him as settlement of the debt. Shylock refuses. He wants his pound of flesh. She invites him again to take the money and again he refuses.

She then says something like this. Very well Shylock take what you are entitled to under the terms of your contract. He gleefully picks up his knife. Before he makes his cut she passes him some scales. For a moment he does not appreciate the point. Then before he makes his cut she says. Let’s be clear. A pound of flesh no more, no less, is what you are entitled to. No blood can be spilt. One cut is all you get. It doesn’t take him long to realise he cannot do it. He tries to relent and take the money she first offered but she tells him it’s no longer on the table. He leaves court with nothing. He has lost his money and his pride. Worse still, his daughter has fleeced him for everything he had left and has done a runner with her lover.

I still feel sorry for Shylock. But I feel an even greater admiration for Portia. She took a risk, stood up for a good cause and, it paid off.

We have consulted with the MOJ. We have given Grayling an opportunity to gracefully turn this around and stop his decimation of the professions and the CJS. If he, like Shylock, cannot see past the end of his arrogant nose then he also stands to lose because, the embarrassment of further and escalated action, will in my view, be too much for him to cope with and survive. He still has a window of opportunity to make good his wrong if he is smart enough.

I realise that there are stories and plays more analogous with the current situation. I just like the Merchant of Venice.

The themes in the play struck a chord with me, along with other factors it sparked my interest in becoming an advocate. After I had read the play I told my careers advisor at school I wanted to be a barrister. She told me it was not achievable and offered me leaflets on being a nurse, a secretary and working as a bank cashier. All worthy and dignified jobs but just not what I wanted to do.

That encounter set the tone. When I first embarked on my quest to become a barrister it seemed an insurmountable hurdle. I am not seeking to blow my own trumpet, I know many a journey to the bar will reflect mine and, I had amazing support from many amazing people but, I undertook my legal studies part time whilst I worked full timed, I had a child and the ordinary family and financial commitments to meet. I spent the best part of 10 years, with my job and studies combined, working approximately 70 – 80 hours a week, at exam, competition and pupillage application times even more hours were involved. The entire process has probably cost me somewhere in the region of £50,000 and, the evenings, weekends holidays and christmases I spent on my studies and not with my family can never be taken back.

Now I am at the bar, I work approximately 70 hours a week and it sometimes costs me to do the job, I still sacrifice many of my weekends, holidays and christmases and the MOJ’s suggested barrister earnings are a joke as much as they are a lie.

The point I am trying to make is that I, like most at the bar, have sacrificed a lot to get here and continue to do so to do this job. Why? For the principles. I am not about to quietly give up now, am I?

There is something important at stake. More important than me or you. The principles. This is what I strive for. I do not wish to look back in 10 years time at the decimation of the professions and the justice system and wonder whether I should have had the courage of my convictions. I have my convictions and I have the courage.

I do not trust Grayling. I do not take the view that his first offer is his best offer. I do not take the view that this offer will achieve what I am striving for. I do not wish to negotiate in his dishonourable language. I am not prepared to allow him to set the tone or the terms. Much to his misjudgment we are in the position of power not him. We know our intentions are honourable. We know that what we seek is for the good of our society. The time is now. The feeling and support is now. I believe we can achieve something great. I agree that the question is imperfect, however I am voting yes.