The Top 7.
I have updated the Editorial. That and the following Posts should be regarded as 'must read' in that they deal with the topics most often raised.
Dan has written a powerful post on why he will vote yes. He is one of the good guys, like Matthew, who is both genuinely troubled and is prepared to think through the consequences of what he is urging us all to do. He has not dodged the questions and he has answered them. He is a powerful example of what Grayling is endangering and why the country would miss us if we go. We must make up our own minds and as profoundly as I respect him and his arguments, I equally profoundly believe he is wrong. I have posted this on his blog as well.
You say, in answer to my first question, that you are questioning the wisdom of the decision, not the fact that it was the best deal we could have got. I understand that, but that does mean that we are unlikely to do better – even if your argument is correct – without significantly ramping up what we do. That, obviously, is a change of course, given that what Lithman got is most of what the CBA said we wanted.
Your suggested course of action is, in fact, to go back to where we were and ramp it up. More financial pain, with cuts in July. As that goes on, it is inevitable that the action will start to splinter because it will have to. Never mind supporting solicitors – how many of us are really going to fail to pay our mortgage and heave our families into the street? It’s the beginning of April, so this is going to go on for May and June and then get worse. Most of the junior bar to whom I have spoken haven’t got anything like the resources to manage for that long.
You don’t address this, but go on to talk about the MoJ response. The difficulty is that their response – leaving OCOF entirely aside for now – is likely to be to do nothing but impose the cuts and carry on waiting us out. We know that because Lithman has told us. We can’t pick and chose on this: if they are evil and will impose the cuts anyway in 2015 then they will certainly do so when we renege next week.
As they do nothing, we fade away. People will go and do returns. Or they will go bust and be struck off. Or leave. And your strategy will achieve – all on its own – exactly what you say the MoJ wants. Your only hope is that the MoJ buckles before we do. I can’t think of an example where a small group of people, about whom the public cares not very much, have achieved that. That is why the current deal is the limits of the possible.
You postulate OCOF as the worst thing and then say it isn’t. OCOF is the end of the Bar because the only competition will be on price. We will bring nothing to the party. Good advocacy will be a random event. But OCOF will be irrelevant if we do it to ourselves. As each person goes bust or returns to work, our ability to negotiate anything diminishes. We will make ourselves vanish. You say that this is what will happen anyway but that is such a counsel of despair I can barely bring myself to believe you mean it. It says nothing for the solicitors you urge us all to support. It is far from certain. It does not begin to factor in the Reviews that are to come.
Most of all, it argues that we should bring about the certain destruction of the Bar, because it is doomed anyway. What happened to fighting? To persuasiveness? To advocacy? You may be right – if we have stopped believing in the things we exist to do then we may as well pack up and go home. This is truly a Darwin moment. We are being urged to be the profession that commits suicide today, so that we aren’t strangled next year.
You explicitly say that we will never win. If that is your view then I think you ought to leave the decision to those who genuinely believe we can. Because, once you have accepted that nihilist position, it is impossible for you to be sure that you are voting responsibly. You are certain that nothing good can happen and your choices – as outlined above – will actually make certain that your prognostications of doom are correct.
And that, ultimately is where I think the Yes camp are. So convinced they are powerless that they would rather have a massive row they lose, than dare to dream of winning. For some – for you – I think it is genuine despair, and I am touched and sorry. For others – I fear – it is the excitement of leading a ‘glorious’ last charge, and I am dismayed.
Don’t do it – please. In 1918 Hopkins addressed this precise dilemma:
Not, I’ll not, carrion comfort, Despair, not feast on thee;
Not untwist—slack they may be—these last strands of man
In me ór, most weary, cry I can no more. I can;
Can something, hope, wish day come, not choose not to be.
Words to live by.
You know your readership is growing when the opposition ask you to post their stuff. I am happy to do so for 3 reasons. First, the debate is important however you vote. Secondly, we will all have to try and get along later and, although I have used fairly strong language in arguing my view, I believe that most barristers are able to approach this professionally. As I said to my last opponent – kick lumps out of each other in court and have a drink afterwards. That’s how we do it. This helps. Thirdly, it is fair. The Bar has to make up its own mind.
My short answers are after this.
A Call to Arms: Why we Must Hold the Line
“The greater danger for most of us lies not in setting our aim too high and falling short; but in setting our aim too low, and achieving our mark” Michelangelo
- The ballot is a referendum on the merits of the deal and not on the leadership. We respect Nigel Lithman QC, Tony Cross QC and members of the CBA executive who have worked tirelessly on our behalf and in what they believed were our best interests. The CBA secured concessions but our demands were too limited in the wider context of the criminal justice system as a whole and it would be wrong to agree the terms of this deal.
- The proposed deal and its aftermath have the potential to be the most positive development of the campaign so far. Holding a ballot and a full and open debate is a sign of strength and should be applauded.
- We only need to look at the timing of the MoJ’s “ultimatum” and the tactics involved to understand just how effective the campaign had been. The Bar was operating a successful “no returns” policy, combined with days of action. VHCC cases (one of the strongest weapons in our armoury) were about to implode within weeks.
- Solicitors had mobilised: supporting our days of action, placating our lay clients and the courts and voting to join with probation officers for two days of direct action, coinciding with Grayling’s birthday (April Fool’s Day, we kid you not). Regrettably, despite rank-and-file support from the Bar, the CBA elected not to support this action and instead to consult. In hindsight, this was a strategic disaster.
- Grayling spotted the opportunity to exploit a potential division between the professions and this allowed him to use his infamous “divide and rule” tactics to great success.
- Unfortunately, we fell into the trap laid for us by the MoJ and did what we had correctly criticised the Law Society for doing: deals behind closed doors. Grayling deigned to offer a 10-minute audience, during which the CBA was told the deal was (paraphrasing) a “one night only” offer and that discussion and the deal itself was embargoed preventing discussion. One only has to ask, why? The answer has been seen by all: the outpouring of rage, disappointment and dissent, “Not in our name”.
“Comments are free, but facts are sacred” C.P. Scott
- For those asking why we want more than the temporary protection of our fees, let us be clear: the independent Bar will be destroyed by the proposed but temporarily deferred cuts. Moreover, justice will be destroyed. Why?
- Solicitors face litigation fee cuts of 17.5%.
- Profit margins for firms are between 4.8% and 8.9%.
- 8.75% of those cuts have been implemented.
- Even if a firm survives the cuts, the MoJ plans to impose a “dual contract” system: a limited number of duty contracts and then own client contracts for the rest.
- Duty contracts are too big for 93% of firms.
- Those without a duty contract will not survive.
- Larger firms who survive will have no choice but to employ in-house advocates and exploit a modest profit margin to offset losses elsewhere.
- The deal is only a temporary stay of execution of our fees and in 15 months’ time, high street firms will have hit the wall (it is happening already). Our professional client base will have disappeared. The temporary protection of AGFS will not matter, because a 0% cut of what will be zero fees is zero. Grayling will have achieved his ultimate aim whilst maintaining a pretence of supporting the independent Bar.
- Those who believe that this will lead to us being able to negotiate for an increase in our fees in 15 months are, with respect, naive in the extreme and ignore what has gone before. The MoJ will come back when we are in a significantly weaker position than we are now, and will issue the final death blow.
- The BSB have issued a consultation where the proposals, if adopted, could mean that were the MoJ to impose unilateral cuts in the future, we would be unable to return such work notwithstanding that it may be economically unviable.
“Those who cannot remember the past are condemned to repeat it” George Santayana
- Proclaiming that the deal protects the junior Bar is short-sighted. There will be no junior Bar. We have been here before.
- Carter was proclaimed as a big win for the junior Bar. Let us recall back in 2005 that Carter was a response to a call for action with the Bar threatening “strikes”. In fact the Bar continued to work and co-operated. To the surprise of the Government, Lord Carter found “a fragmented system that has not historically recognised a duty to deliver justice at an acceptable overall public cost”. The fees paid to the junior Bar at the time were seen as too low (the irony!). There was an increase in some fees to make up for the effects of inflation. The “victory” was short-lived: by 2009 the government decided to reduce the fees once again, flying in the face of Carter’s findings and an “astonishing volte-face”. In the face of opposition from the Bar, the government then threatened One Case One Fee (OCOF) and used it to secure further cuts in fees.
- A feeling of deja vu:
- Each government assumes that:
- there is a gross over-supply of barristers; and
- when “push comes to shove” the Bar backs down.
- When the Bar is united, the government offers talks with a view to finding savings. The Bar then works extremely hard to identify savings, which are then absorbed back into the MoJ.
- Any apparent concession by the MoJ is then swiftly removed by applying the threat of OCOF. One only needs to recall the current Attorney-General’s comments about OCOF at the recent Bar Council conference. The MoJ relies on the Bar agreeing anything to avoid that “doomsday scenario”.
- “Divide and rule” is fostered by:
- playing the Bar and solicitors against each other; and
- playing the senior and junior Bar off against each other (either by Carter “redistributing” top end fees to the junior end or as in the current scenario where VHCC co-operation is part of the negotiation package) enabling the MoJ to say that they are protecting the junior Bar but that the “fat cats” are letting them down.
- Under the current deal, nothing is on offer at all beyond a temporary stay of execution on fees and, yet again, an offer to discuss ways of saving money for the MoJ. It also represents a betrayal of those undertaking VHCC work who have shown real courage and strength of their convictions over recent months. If any review of VHCCs come to pass, the terms of the deal specify that it has to be within the current budget, meaning that the cuts of 30% are effectively set in stone. They are not on the table.
“Defend the children of the poor and punish the wrongdoer” Psalm 72:4
- We are fighting to retain a justice system in which those accused by the state are properly represented, in which victims can engage and in which society can have confidence.
- However, in exchange for a 15-month reprieve with a promise of nothing, we have abandoned our solicitor colleagues at a uniquely united moment in our history, abandoned our future clients to an uncertain but almost certainly unjust future, abandoned any hope of a diverse, vibrant and skilled profession and diluted our credibility in society.
“Fool me once, shame on you. Fool me twice, shame on me” Anon
- The time to win once and for all is now. There is a perfect storm brewing over Petty France: prisons are rioting; private sector MoJ contracts are in tatters; probation officers are striking; for the first time in history, the Bar is striking; the judiciary overwhelmingly oppose these cuts; Treasury Counsel are in revolt; VHCC trials are on the brink of implosion and members of his own party are “railing against Grayling”. He is teetering and now is the time to press home our advantage.
- We understand that the Northern Circuit is “not for turning” and is maintaining the “no returns” policy. Those on other circuits should respect their decision and show solidarity by refusing returns in such cases. We salute their courage and frankly, if they hold out, the deal is dead in the water.
- The question posed in the ballot is not ideal. It ought to have been a straight question about whether members supported the deal or not. The CBA refuse to alter the question and so we ask members to see this for what it is: a referendum on the deal.
- What can be achieved and what price failure? If you, like us, agree that so much more can be achieved, vote yes.
- If you vote no we sign our own death warrants and succumb to a lingering death.
- If you vote yes, at the very worst, we go down fighting. This is a time of unprecedented unity within the legal profession as a whole. The prize is a properly functioning and funded justice system with a sustainable future and it is within our grasp: it is our duty to fight for it.
Sam Parham, Garden Court Chambers 31st March 2014
Joanne Cecil, Garden Court Chambers
Sam and Jo,
Thanks for posting this. You bring my humble blog much honour.
Although you offer a fulsome tribute to Lithman and Cross, you are not supporting them. You assume – rightly or wrongly I don’t know and haven’t asked – that they will be willing to carry on if you defeat them. I think that is a touch too easy. You ought to be putting forward a team. Then people would understand what was at stake. As it is, you expect them to negotiate from a position of going back to Grayling as people who can’t carry their own membership. I don’t think we could expect much after that.
You begin by accusing the people you support of a strategic disaster. Hmm. Can I suggest that you are simply seeking to minimise the divisiveness you are actually promoting?
Not only is this a strategic disaster, in your terms. The CBA tactics then turn into idiocy, by allowing Grayling to exploit us. This is where we part company entirely. That team was packed full of people who negotiate and plan strategically for clients. They also did that for us. It is far, far more likely that they are not strategic incompetents or idiots who permit Grayling anything. You have mistaken assertion for proof. I think that the Bar as a whole is looking for the evidence before the final speech.
The evidence is what Lithman and the Circuit Leaders have given us. I believe that the proper thing to do is to actually engage with the substance of what they say. You gloss it over. It is the equivalent of the “golden thread of English justice” submission. Every barrister knows it sounds great. And every barrister knows it is what you use when you don’t have anything of substance to say about the evidence.
Your explanation of why we are doomed is, if I may say so, a trick. At paragraph 7, your points 1-6 are accurate. your point 7 – presented as if it were in the same category – is actually an enormous assumption. The Practice Manager of Tuckers has today said something entirely different. He may be wrong as well. No one knows. But, given that you are guessing, you should have said so.
In my view we will retain work. We will have to compete for it and I believe that this should now be our focus. Sadly, your determination to press the case that we have failed has done us all a disservice. We won. Not entirely but we won. The Bar should now be moving forward, secure in the knowledge that we can take on the government and win. Instead we are staring at our navels, gloomily contemplating a decision as to whether those we voted for and backed can actually be trusted to do the job we asked them to do.
Similarly, you will not accept that the cuts are gone. You seriously propose that after a year, 2 serious reviews and an election they will still be implemented. You do not accept that anything will make any difference, yet the call made by the CBA to postpone the cuts until after those 2 reviews was not a call you opposed. Forgive me, but it seems that you have changed your mind about those reviews. I looked hard to see if I could see why that is, but I cannot. Perhaps the MoJ is more untrustworthy because it backed down?
The BSB consultation – only a consultation – is about how to protect vulnerable clients. I don’t like it but a case that overstates itself is a bad case, and you hugely overstate it. We could always return the work: the only question is when. You don’t adopt the conspiracy theory which is bringing orgasmic despair to some on Twitter, that this too is part of a government plot (I can see all the Barristers and decent lay people on the BSB even now getting their kickback from Grayling – what a load of bastards) – for that, at least, I am grateful.
You invoke the spectre of Carter. Unlike Ian West you simply use it as an example of the government reneging on a deal. You condemn that. The irony is that you expect us to do the same. But this is not Carter: this is simply no cuts. And we can carry on refusing VHCCs.
You are right that OCOF is a threat. That is why I will vote No – to avoid that threat. But your position is wholly inconsistent. If OCOF is a threat we should, surely, seek to avoid it. However, you work on the basis that the government – the same government that means to renege on this deal and will stop at nothing to destroy us – will not introduce OCOF. Even when we renege.
I think this is where your argument falls to its own inconsistencies. There is no basis – on your own case – to assume that the government will act decently. Yet the one things it is most likely to do is the thing you ignore and pretend it will never do. I think this is because you wish to win the argument, regardless of the evidence. But the evidence is what counts.
I do agree that Grayling would love to divide and rule. He has already done so as regards the solicitors. But at least they lost. They agreed to work under the new rates – precisely what Lithman ensured we avoided. They are not striking about that. Yet you propose that we ought to strike for them. If we are divided it is because you have felt unable to join us and unite.
Moreover, the solicitors could carry on taking action with us. They could work to rule and we could refuse VHCCs. Unity does not mean we do everything together, in lock step. That is why HCAs took returns when we did not. Unity means that we share aims and purposes and talk to each other. We have that unity – it is simply waiting for us to pick up and go.
I can see an advantage to certain sets of Chambers in being perceived as the solicitors’ friend and therefore, in some way, a better Chambers to brief, because of that. The same thing has been assumed over the years as regards human rights, refusal to prosecute and a myriad of other trendy causes. But that does not assist unity at all. I am concerned that you risk using unity as a convenient label, and thus inhibit, rather than encourage, the pursuit of it.
Having talked up the doom I looked – as I have so often this week – for a description of the positive result you offer by reneging on the deal, having our fees cut and risking OCOF. After all, there must be something in it for those voting Yes.
I haven’t got it. You have looked into your own crystal ball and, unsurprisingly, seen an outcome which would be wholly positive. Personally, I like my leaders to confront what happens when they’re wrong, not to assure me that it will be all right in the end. I don’t know what your plan B is, but it seems to be to go down fighting. There’s a lot about fighting. But the essence of a good general is that he (and it’s always a he) doesn’t hurl his troops over the top to certain death without good cause. Good leaders assess the risks. I don’t know if you have done that. If you have, you haven’t shared it with us.
You point about the Northern Circuit wrecking the deal anyway is a mistake. It sounds like blackmail and it must be wrong. I am absolutely confident that the Northern Circuit will accept the result of the ballot. Otherwise they ought to say so and not to vote in it.
You ask me to vote yes because so much more can be achieved. You don’t say what it is, or how we’re going to obtain it, or how long it’s going to take, or who’s going to lead us to it. Personally, I despise Republicans but the phrase is apposite: where’s the beef?
Funnily enough though, I agree with you that much more can be achieved. That’s why I’m going to vote No. Then we can get on, support the leaders who’ve achieved so much and plan the next victory.
It has been a busy few days…
Herewith my response to the BSB Consultation. I hope it helps to clarify your own views. If you would like to borrow any of it, please feel free.
Name: Simon Myerson QC
Contact details: firstname.lastname@example.org
I am not responding on behalf of an organisation.
I am content for my position to be made public. Indeed, I am publishing it.
I have answered the questions below.
- I am submitting this response in my own name, rather than via my Chambers or Circuit. I am doing so because I am one of the few barristers left who maintains a fully mixed civil and criminal practice (virtually 50:50) in Silk. I hope, therefore, that my experience may be of some assistance.
- I have also served on the BSB’s sub-committees for many years and I understand, I think, the way it works. I know the people involved and I trust them to do a proper job regulating our profession. I do not subscribe to conspiracy theories and I do not regard the BSB as a Regulator owned by the Bar, although I believe it regards itself as one sensitive to professional concerns, and that it should so regard itself.
- I regard the timing of this consultation as unfortunate. In my view it would have been both straightforward and wise for the BSB to explain the timing. It appears to be a reaction to the recent ‘industrial’ action. That, of course, does not provide any basis whatever for dismissing the proposals – it is axiomatic that new problems arise from new situations. However, the action was taken by the Bar as a result of a quite unprecedented attack on justice, on fees and on the Government’s relationship with the Bar, which had previously been marked by at least some willingness to listen on the part of the former. That much was, surely, apparent to the BSB. As such, out of simple self-interest a little more explanation was warranted.
Current Position and need for change
- Currently, the return of instructions involves a balancing of the following factors: client confidence in the barrister; the duty to the Court not to advance a case the barrister knows to be false; the interests of justice as expressed by the Court; payment. However, the latter is normally treated as a termination of the retainer, rather than as a return. Hence, another barrister will be briefed afresh, rather than picking up an existing case.
- In the context of publicly funded work a return is not treated as a termination of a retainer. My experience during the recent action included advising members of my circuit who had been compelled to return work when a conflict arose. It was clear that, in those circumstances, the LAB would not pay a further brief fee and that, in consequence, there could not be a new “instructed advocate”. Had it been the position that there was a new instructed advocate, I would not have regarded the work as a return. Rather it would have been a new set of instructions, to a new instructed advocate.
- The current guidance therefore permits counsel to treat their instructions as terminated by a unilateral variation in payment terms. That is also consistent with the normal contractual position.
- Paragraph 8 of the consultation assumes the existence of a presumption that the guidance is based on decisions as to fees being made by the client. I am not convinced that such a presumption exists. Nowadays, civil work can be funded by third parties and some of my cases are so funded. I have always taken the view that unilateral changes to funding arrangements would terminate my retainer at my option and I have said so to the clients and solicitors involved. It is not my job to ensure that the actual client is properly covered for fees by those who fund him – it is my job to deal with his case. The client is responsible for ensuring that payment can be made. That is so both in cases where the third-party funder takes a cut of any damages, and in cases where they do not (for example, CFAs without ATE Insurance).
- Any civil case involving a third-party funder is, in these times when the government no longer regards it as a duty to ensure access to justice via state aid, likely to be with a commercial organisation. It would normally, although not always, involve a no-win no-fee type arrangement. In every such case the barrister now has the right to propose terms of engagement. Solicitors have recently asserted that they will not agree various versions of standard terms, particularly as regards personal injury work. That has led to negotiation with different barristers and different sets of Chambers taking different views about different solicitors. If agreement cannot be reached then the barrister does not accept instructions from that firm/funder.
- The difference insofar as legal aid is concerned is that the funder holds a monopoly position. Save, perhaps, for a fortunate few, doing criminal defence work means doing publicly funded work. That has a double impact: it means that clients have no influence over fees and it means that there is no work save at the rates the government are prepared to pay.
- The purpose of the above analysis, which differs relatively little from the BSB’s save for questions of emphasis, is to reframe the balancing exercise referred to in paragraph 10 of the consultation. I believe that the balance in the consultation is inaccurately identified. The decision made by the third-party funder will not simply address the single case, which is the basis of the exercise in the consultation. It will address all similar cases, at least. That means that every client represented by the barrister at the time the decision is made will be affected.
- Because a huge number of those practising at the criminal bar now live on a financial edge, this multiple effect is an important consideration, to which I cannot find reference in the consultation. It is far from an exaggeration to say that the effect of requiring barristers to carry on regardless may be to remove that barrister’s services for every other client. But even that doomsday scenario is not the main point. All the published research suggests that a demoralised, disregarded workforce performs sub-optimally. Barristers at the publicly funded bar do not feel valued. Their Instructing Solicitors – defence or prosecution – are under severe pressures. Mistakes, misjudgments and even legitimate differences of opinion are not quietly resolved, Rather they become flashpoints as the time and money required to resolve them is unavailable. In those circumstances, unilateral changes in remuneration – always downwards – add disproportionately to the pressures and disproportionately impede performance.
- It seems to me therefore that the analysis in the consultation is incomplete. To the ‘considerations’ that the consultation addresses I would add:
- The effect on the barrister as an individual;
- The effect on other clients to whom the barrister, at that time, owes similar obligations.
- I also believe the analysis is insufficiently rigorous. It correctly identifies the fact that, in a publicly funded case, the client has no responsibility for the unilateral alteration of terms. However it fails thereafter to address the issues of how that situation is dealt with in private civil work. That means that a contractual solution is simply not contemplated. Moreover, in my opinion, the consultation does not sufficiently acknowledge or deal with the monopoly position of the government.
- Both these matters are important. In a non-monopoly situation, the obvious answer would be that an alteration to the terms of the contract would have to be agreed with the client, or at least be one which was directly explained fully to the client by the funder and which could be challenged at the instance of the client. Equally, in a non-monopoly situation, a client who wanted to retain the services of the barrister and solicitor could seek another funder, perhaps with a stay from the Court whilst this was done.
- In the consultation, neither step is contemplated. I believe that to be wrong: in a civil case there would normally be no question of the funder for one side owing a duty to the other side. In publicly funded criminal work (and perhaps in family work as well, about which I lack sufficient expertise to speak) the government does owe a duty to the victim to ensure that the trial is quickly and fairly heard.
- Accordingly, the effect of the analysis within the consultation is the unstated one of making the barrister responsible for the bad faith of the funder. I use the word bad faith advisedly and base it upon the recent consultations run by theMoJ. It seems to me that bad faith is evidenced by the following, and that consideration of all those matters together makes bad faith the only conclusion that can properly be drawn about the reasoning behind the consultation:
- The stated aim of the consultation was to meet Treasury targets for the coming year. The deal just done makes no alteration to fees in most cases and halves the cuts to solicitors’ fees. Therefore, either the stated aim of the consultation was false, or the figures on which it was based are unreliable.
- The MoJ has not indicated which alternative is correct. Indeed, although it is the funder owing the obligation to the client, it has not said anything.
- The Bar Council’s own analysis suggests the figures were wrong. That is based on statistical evidence by Prof Chalkley, made available to the Ministry. The Ministry, of course, could always have obtained its own statistical evidence.
- Therefore, either the Ministry has ignored the statistics or it has internally acknowledged them to be accurate but failed to say so. That latter alternative is, patently, the very epitome of bad faith.
- The impact assessments prepared by the MoJ have been rigorously scrutinised and criticised by the Bar. That criticism is, in my view, compelling. Tellingly, the MoJ has simply not dealt with the criticism. Instead, it has ignored it.
- One is left, therefore, with the unpleasant but seemingly accurate view that the MoJ is doing this because it lacks the facility to acknowledge that its initial plans were unnecessary. That, in turn, suggests that the plans had no rational basis but were persisted with in any event. When one factors in the absolute refusal to engage with the substantive arguments in any meaningful way, one is left with an explanation of bad faith, and nothing else.
- Accordingly, the proposal in the consultation is that the Bar takes responsibility for the bad-faith acts of a monopoly funder about which it can do nothing. I do not accept that using the Handbook to impose that responsibility is necessarily lawful. But, on the assumption that it is (again, I leave that issue to others), it is a bad idea. It is not the function of professional rules to make individually employed citizens responsible for the acts of government. The Bar cannot make the government act in good faith. Consequently, it will always be at risk of having to bear the financial burden of others simply at the whim of government. That cannot be right. In my view, if that result is what the BSB wants (and I profoundly hope it is not) then it ought to seek legislation to enact it.
- Moreover, by failing to recognise the real effect of the proposals, the consultation inaccurately states the balancing exercise to be performed. Viewed in the light of the government’s behaviour, the proposals require the Bar – at its own expense – to cover up the real consequences of governmental bad faith. Given the barrister’s obligation to promote the interests of the rule of law, access to justice, and the administration of justice, I would have expected that all matters pertinent to those obligations would have been considered. That seems not to have been the case.
- Finally, the proposals fail to consider the role of other organisations and bodies with equivalent obligations to promote the interests of the rule of law, access to justice, and the administration of justice, particularly the Courts. It is, I think, a mistake not to do so. For example, it may be possible to reach an agreement with a client that, in the event of a unilateral change of terms, the barrister would forthwith seek a stay of the case from the Court. The Court’s decision, if a refusal would lead to an absence of representation, might be affected by that agreement.
- I accept that the issue is one of weighing competing factors. As I have said, it seems to me that the various competing factors referred to in paragraph 13 of the consultation have not been fully or accurately identified or weighed.
- I do not believe that any change is required. However, on the basis that additional clarity is necessary, it seems to me that the various factors should be properly set out and should include:
- Whether, in view of the profession as represented by the Bar Council, the changes to remuneration are justified by the express purposes of the alterations.
- Whether those expressed purposes can be met, from the same departmental/organisational budget, but in another way.
- The effect on other clients of the barrister, taking into account the barrister’s own circumstances.
- The effect of any terms agreed between barrister and client about what would happen if such alterations were made.
- I have not attempted to draft the relevant guidance, because I know my limitations. However, I do want to address paragraphs .6 and .7 of the proposed new guidance.
- .6 imposes an obligation which I do not think a barrister has, or ought to have, namely to consider prejudice caused to witnesses for the other side. In some ways, it is a barrister’s duty to cause prejudice to witnesses for the other side, albeit that we must do so properly. But there is no current obligation, for example, to consider the prejudice to prosecution witnesses when a defendant seeks an adjournment. That is a matter for the Court. It may very well be in the interest of the criminal client to seek a course which prejudices the other side’s witnesses and I do not presently see how obliging a barrister to consider that as a reason for doing or not doing anything is consonant with the central obligation to the client.
- Moreover, in the protocols agreed for the recent days of action the same position was addressed in what I believe was a better way. Barristers were obliged to consider issues of vulnerability on the basis that vulnerability was an issue that went to the Courts’ obligation to ensure justice. That had the advantage of leaving the responsibility where it properly lies – contrast to paragraph 16c of the consultation, which I believe to be wrong.
- If that protocol position were adopted in the context of this consultation, one could add to paragraph 21 above:
- The vulnerability of any witness and the effect on the administration of justice of any course the barrister adopts.
- The difference between that and the protocol is that vulnerability is not an automatic reason to continue but a factor to take into account, amongst others.
- To an extent, .7 recognises the effect on the individual. It may be that this was always intended and that the consultation did not address it because it was intended to keep it as short as possible. However, it seems to me that including any means of redress the barrister has is more likely to cause confusion than clarity and comes close to the type of micro-regulation I understood the BSB to wish to avoid.
- What is prejudice? Is it monetary only? Does it include morale? Does effective redress mean a group judicial review, or individual negotiation with a manager? How is effective to be judged? Judicial review is famously not concerned with merits but with a decision being unjustifiable/unreasonable/unlawful. Does effective include a reference to the barrister’s own pocket/state of mind/health? What is redress? Is it monetary compensation? If so does it include the prospect of irreversible financial damage before the redress is given (something the big banks are currently resisting with all their might in the interest swap cases and therefore something which, it can be reasonably predicted, the government would also resist)?
- All these questions are unanswered and I would not expect the BSB to answer them, or to be able to answer them. Rather, it seems to me to show the futility of attempting to micro-regulate these matters. I believe that paragraph 21 above deals more effectively with these issues.
A Further Point
- Many at the Bar take the view that this consultation is aimed at VHCC cases. This analysis may be wrong because if a barrister were now to accept a previously declined VHCC case, or a VHCC case which would have been declined had it been offered in the last few months but can now be taken, it seems to me unclear whether the approach to any change to remuneration would be determined by the rules in force at the time the case is accepted, or those in force when the change to terms is proposed. I would welcome an assurance that these proposed changes are not to be made retrospective, and will only apply to cases accepted after the changes come into force.
- Whether current fears are right or not, they illustrate an important point about the reality in which the BSB must operate. That is that barristers doing publicly funded work do not trust the government.
- That being so, and without debating the merits or otherwise of that view, which has no place here, it seems to me that this guidance might ultimately be affected by the law of unintended consequences. The unintended consequence is that barristers will not accept publicly funded work if there is any issue about a unilateral change to fees. Such changes are, of course, customarily announced after public spending rounds. That would have the unhappy consequence that citizens charged with criminal offences at certain times of year would find it difficult to obtain representation.
- Moreover, should the current mistrust progress, it may be that barristers would rather delay the acceptance of new instructions than take a risk. That would produce the unintended effect that a refusal to take work would be triggered not by an announcement of a change in fees, but by the fear that such an announcement might be made in the foreseeable future. Both of those scenarios would lead to clients being unrepresented when they may otherwise have had representation without bother.
- If the changes are going to apply to all cases held at the date upon which the changes come into force, I predict that the changes will act as another reason to refuse, especially, VHCC cases. That is because those cases are customarily very lengthy in terms of trial and lead up to trial, and are therefore more vulnerable to fee changes. Any barrister defending a VHCC case originating in 2009 (and there will be many) will have already seen 2 or 3 such changes. Moreover, such cases represent a large investment of time for a barrister and they may well decide to focus on smaller cases, which may not pay as well now, but may pay better by the end of the process. Finally, the deal announced last Wednesday strongly suggests another change to VHCC rates, thereby increasing the risk.
- As most barristers feel that the current rates offered for VHCC work are unattractive, it seems to me a moot point as to whether the BSB wishes to introduce a further reason to refuse that work, which cannot be done by anyone save the highly skilled barristers who currently do it, as the recent refusal to do VHCCs has made clear. That is, of course, also a matter concerning the administration of justice and access to justice.
- I recognise that the BSB’s concerns are to ensure that the Handbook represents a professional way to behave in the light of changing circumstances. I entirely acquit the BSB of accusations of seeking to do the government’s work. I have read Baroness Deech’s speech in the House of Lords about the proposed cuts and I recognise the real passion and belief that informed what she said. It seems to me that, even were that only a personal view, it would be incompatible with her continuing chairmanship if the BSB were really a government agency
- However, in my view these proposals do not deal with all the issues surrounding unilateral changes to fees by a monopoly supplier, which acts in bad faith and is unaccountable in a private law action. Because of that, the balancing exercise proposed is so skewed as to lead to the wrong result in practice. Further, in principle I do not believe that such enormous changes to the obligations of individual citizens should be effected through the medium of their professional rules.
- It is a cliché that if something is not broken it should not be fixed. But it is true for all that. Recent events have shown that the Bar is both able and desirous of dealing with exceptional problems in exceptional circumstances by means of protocols, which are rigorously observed. The absence, as I understand it, of any professional complaint by a member of the Judiciary, supports that thesis. The BSB should only act if it can do so in the certain knowledge that action will improve matters and is necessary. In my view, neither criterion is satisfied here and the BSB should leave the current guidance as it is.
Matthew Buckland posted a comment on my last post. He’s worth listening to. I reproduce his comment below. I do so, because I began to respond to it and then thought that the comment and the response were probably easier to find and assimilate if they were posted together.
I am probably in the group you have described as moronic demented hypocrites. I think that your passion for this deal comes out of your desire to see the most junior members protected and no-one would suggest that is anything other than the type of sentiment that makes us all so proud to call ourselves members of the bar. But I do believe that this is a massive error at a time when the momentum had swung behind us and that this was a last desperate bluff by an embattled politician who really had no cards that could trump ours.
The strongest language I used yesterday was to describe the deal as “tawdry”. I used that word having been assured that we had not been consulted by the CBA. What I was not aware of was the HOC chambers meeting that had apparently ratified this deal, albeit that the information on which they acted may have been a somewhat optimistic view of the deal that had actually been reached.
I don’t know if you have seen the exact terms of that deal. What the Chairman presented today was a very generous interpretation of those terms. Here they are in full
Elements of Proposal – Advocacy Fees
No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014.
Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that:
1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below. This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind.
2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence.
3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular:
• Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy;
• Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;
• criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;
• any impacts on legal aid spend from falling crime rates; and
• a comprehensive analysis of income and earnings of criminal advocates, including effects from changes in recent years.
4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported.
5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament.
6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.
7. The Officers of the Bar Council and the Criminal Bar Association, and the Circuit Leaders, have stated that, in return for the Government’s proposed approach (outlined above):
• whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs
• there is no reason why barristers who want to work on VHCCs should not do so;
• the ‘no returns’ policy should be withdrawn; and
• normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action.
8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.
So, the concession is that the cuts to AGFS are deferred for a year. The view that they will not be seen again is spin, not fact( see 4). All that is promised is that there is currently no intent to go beyond the cuts announced in February.
Para 6 means that any VHCC scheme/replacement proceeds on the basis that the bar agrees that it will be within the budget as of now- ie with the 30% cut. Agreed, by us, before a negotiation.
The mechanics of this are murky. Grayling summons the CBA on Tuesday, lays down a take it or leave it deal and says you have 48 hours. Why impose a deadline that is too tight for meaningful discussion?Why do that? To put the opposition under pressure?- and what did we do, despite the strength of our hand? We panicked.
Information was not given to committee members until they attended, clock at 24 hours. No time for reflection or thought as to what we have given away compared to what we have gained.
I make it clear that this deal is very very bad for me personally. I also believe it will be a catastrophe for the junior bar. I have spoken today to several solicitors from diverse firms. All of them envisage keeping more work in house. Most do so more in sorrow than in anger, out of a necessity and knowing it is not best for their clients. I share your concerns that the solicitors have failed to unite and are to an extent the author of their own misfortune.
That may be partially true, but we need them. The relationship with those firms is symbiotic, for better or worse. If the big firms take a bigger share of the work, less will come to the bar. Those firms who are bar friendly may be driven to find another way to meet the advocacy needs of their clients, and not one that puts quality at the forefront.
Can we criticise them for that? Of course, but it is a commercial imperative for them to make a profit and their profits from the LGFS will be wiped out by cuts.
As such it is no answer at all to be better than HCA’s; it isn’t now and it will be even less true in the future. The game will no longer be about quality, just survival.
That is why we needed to stick together, to hold the line for now. What we have been offered when looked at objectively, is nothing more than a stay of execution. Why won’t whoever is in power in 2015 look at the 30% cut achieved to VHCC’s and use that as a benchmark to cut everything else.
It troubles me to be on the opposite side of an argument to you; it makes me question whether I am right. But I am also in good company here, and I think this vote will be very close. Even those chambers who have welcomed this deal have said that they remain opposed to the 30% cut in VHCC’s; which means that they haven’t looked at the deal at all just read an interpretation of it from the CBA.
I believe that each of the above is a perfectly valid objection and I will vote against this deal.
You and I know each other well and – although you are ridiculously kind about disagreeing with me – respect each other. So I exempt you from being a moronic demented hypocrite and deal with the substantive points you make.
Thank you for setting out the deal proposed, which I assume is something distributed to HoC (of whom I am not one). I agree that whether further cuts actually happen is interpretation. I do, however, agree with Lithman about that, because of exactly the CBA’s case that the savings will already appear from the previous cuts which have not yet worked their way through. That has been the CBA’s consistent position and I accept it. That being so, it seems to me that further cuts will arise only if the CBA is wrong or if the MoJ break their part of this bargain and seek to make further cuts.
I don’t think they will, because this action has convinced them that it is more trouble than it is worth. That was our default position, our primary one being to persuade them that they were wrong in principle – an argument in which, unsurprisingly, they showed less than no interest. But holding our nose when dealing with the MoJ is nothing new – as the late, great Abba Eban said of Israel and the Egyptians, you make peace with your enemies, not your friends.
Your point is that we could have done better. And, coupled with that, that further reflection and thought might have shown a way to do better that was not otherwise apparent.
I accept your point in outline (although the irony of some CBA people – not you – demanding more time, having done their very best to curtail both the time for thought about the questionnaire and its questions, is so rich that it could pay for another round of cuts). But, ultimately, I look at Lavender, McDonald, Lithman and the CLs and I ask myself “do I trust them to do the very best they possibly can and to assess the situation correctly?” And my answer is “yes”.
A great deal of the opposition (again not yours) seems to me to consist of damaged armour propre complaining that the particular genius/saviour in question was not given the role that their own assessment believes was deserved. But I know quite a lot of these people and I can say that their collective wisdom and experience is as good as we are going to get, even though I myself was not consulted – an obvious error for which I am (still) awaiting fulsome apologies ;).
In the end leaders have to lead. As I have said to Russell Howard below, I am still waiting for a proper assessment of why they should have said no and what will happen if the CBA membership refuse to back this deal, other than the resignation of those we voted for last year.
You have suggested we could have done better. As I have said, perhaps we could. But the consequences of rejecting a deal must also take centre-stage. The risk was not that we did better but that the MoJ dug in. What I cannot really understand is why that is now being disregarded. When no one knew about this deal, it was widely assumed that we would have to go on until at least June this year and then refuse the new work at the new rates. That was West’s view when he sat next to me at Grand Court 10 days ago (although he also believed that Grayling would be moved at some stage). Now, the availability of this deal seems to have persuaded people that any deal was possible.
I don’t agree with that for 2 reasons. First, it is clear that the MoJ was not prepared to reverse the VHCC measure which had already gone through Parliament. That has all the hallmarks of a political decision. To change it may have been possible but – as we had always expected – it would have taken months. Secondly, Grayling is content to take his chances on the new rates for VHCCs because he believes people will do them. We are not obliged to do them – point 7 on VHCCs means nothing because it merely restates the position as it existed even when we were refusing to take VHCCs.I hope we continue to refuse them, although I know some people will have difficult choices to make. I hope we will refuse them as a group. I will refuse them. But I don’t believe the evidence shows Grayling would have changed his mind. Thirdly, I accept the view those at the meeting came to, which was that another deal was not possible. They consisted of good people, extremely experienced in highly charged and difficult negotiations. Being disappointed at the result is not a reason to assume they got it wrong.
I am aware that the deal is bad for you and – as I would expect – that isn’t what is informing your argument. If we can reach a profession-wide consensus on not taking VHCCs I would be delighted – after all, it only requires 11% of us (about 1500 people). I don’t believe that the CBA has signed up to the VHCC cut. Assuming that the reference to the “same overall budget” is a reference to the reduced budget, as it seems to be, all that has been said is that we will see if we can do better than the current scheme. If nothing better can be done the work remains un-deemed and thus not subject to the cab rank rule (a stance supported by the Bar Council and the much maligned BSB).
That agreement was reached because it did not alter the VHCC position, but assisted the other 89% of us. Those negotiating accepted that the VHCC position would not change – or would not change for months if at all. I don’t like the decision but that is because it was hard and nasty – not because it was wrong. The argument that it is wrong has not yet been separated from everyone’s dislike of it, as I have already said.
You also suggest that solicitors will now keep work in house as an economic reaction to their own cuts. As I have already said, I accept they may. However, I also link that proposition to the fact that solicitors agreed to work at the new rates. It seems to me that some – at least – contemplated offsetting their loss by using advocacy fees. That is why I say we cannot do the solicitors’ job for them. That is why I have yet to hear those vocal and bitter voices out there in the ether saying that they will not do so if the cuts are withdrawn. Ultimately, solicitors see advocacy fees as easy money.
You also suggest that small firms will not do their own advocacy but will, instead, go under, leaving the big firms with all the work in circumstances where the big firms do not brief the bar. But the answer to that is to compete, because the big firms are not interested in working with us. Even if little firms survived for now, the trend is for them to merge or sell up. The strategy of keeping little firms afloat in the hope that they send us their work is truly the short-term strategy. The long-term strategy is to obtain work for ourselves by taking on the big firms who use HCAs.
That strategy is easier to implement if, as you say, the big firms do not brief out. We are not therefore reliant on them and they cannot persuade us to mute our campaign by withdrawing work they do not give us. The reality is that their advocates are not as good as us. The answer is to go for direct access so that we control work (something that has worked remarkably well in civil work) as much as they do and, perhaps, a public advertising campaign. And a proper QASA, which puts poor members of our own profession in the right bracket.
I am also sympathetic to the argument that this fight came too late and we should have resisted earlier. But I don’t believe we can now roll back earlier cuts – imposed, let it be remembered, by the Labour Government in an act of spite just before it left office. That is part of the reason I take the view that, whatever Grayling’s own ambitions, this is an argument with the civil service. Proper, outside, advice might assist the politicians in charge of the legal system to appreciate the second-rate quality of the advice they are given by those who taxpayers support. At whatever the sum is, we have one of the poorest departments of state in the world.
Best as ever
We are good at outrage. Indeed, as a profession we reside in Tunbridge Wells and spend our time snorting through our moustaches. So, the cries of betrayal, infamy (infamy, they’ve all got it infamy) and doom are not unexpected. Nevertheless, there are some things to be said.
First, we are actually entitled to assess the arguments advanced by the way they are advanced. I have repeatedly said that we need to be professional about this. I will deal later with matters that have prompted me to think I have got some things wrong, but this isn’t one and I am happy to see that the CBA is (now) adopting the same approach. The reality is that advocates who shout, threaten, insult and coerce are crap advocates. It is legitimate to say, not simply that personal vilification is unacceptable (a statement so obvious that it should be unnecessary), but that such an approach calls into question whether those adopting it have any right or claim to lead the Bar. Who wants leaders like that? What qualities do they bring that makes anyone want to follow them?
Secondly, we did not do this for solicitors. Not because we don’t care but because we can’t. The solicitors have chosen to work at the new rates (only half the cut now being implemented, although no one seems to have acknowledged that the CBA did that too). The proposition that we should in some way take up the slack on their behalf is both bonkers and insulting. Bonkers because how on earth could we refuse to work in the light of the concessions made to us? Insulting because of the casual assumption that solicitors don’t want to work but have to. That may be true, but it may equally be true that solicitors have decided they can deal with this in another way. I don’t know, and suggesting that Twitter is a reliable source for the views of a profession of more than 100,000 people is not a serious stance.
Thirdly, the reason it is being said we should do this for solicitors is that otherwise they will go bankrupt and we will not get the briefs, or that – slightly irrationally – if we don’t strike for them then when they don’t go bankrupt (leaving the inconsistency aside for now) they won’t brief us but will take the work themselves. Both these arguments strike me as demented.
If solicitors’ firms go out of business the work will still be there. Whether it is done by us or HCAs it will have to be done. The proposition must therefore be that the surviving firms will be inclined – for economic reasons – to keep the work in house. That may be accurate but, if so, it simply reflects the realities of competition. The answer – as it has always been – is to be better than HCAs. The argument makes the assumption that being better is not enough, because these particular firms will brief HCAs despite the fact that they aren’t good enough, simply to keep the money.
If that is correct – and it may be – then I would expect the solicitors for whom we are asked to strike to pledge not to use HCAs at all. Otherwise we are sacrificing ourselves to them and actually improving their chances of not giving us work, by keeping them going so that they can use HCAs. That isn’t happening. Instead the complaint is that we did a deal which does not assist a group of other people who are not acting on their own account, might not be as affected as some of them say they are, but will use our assistance to compete with us (unfairly in my view) come what may. Thanks, but not thanks – if I want to commit hari kiri I’ll do it in the traditional way by disembowelling myself in front of Chris Grayling. At least then I might spoil his supper.
When one then considers that the people who allegedly need us have spent a considerable amount of time and inventiveness in coming up with way to abuse Lithman and threaten that they will never instruct counsel again, one is forced to ask ‘why bother’? If we don’t save them they won’t brief us. If we do save them they won’t brief us. If they go bankrupt they won’t brief us. When will they brief us? If we save them and it suits them and they can’t make money out of it. None of those 3 things are guaranteed, even if I never worked again.
I don’t blame the solicitors for competing. They are allowed to. I complain that – as a number of them told me on Twitter – they have the clients first, because that suggests that they know that the only basis the client accepts an HCA is that they don’t get a chance at a barrister. But that’s the system and we have to deal with it. I do, however, suggest that those commercial realities suggest that striking for solicitors is like screwing for virginity. If this deal does mean less work for the Bar then the answer is not to carry on striking. The answer is to develop a strategy that helps us avoid that position – a proper, gold plated, top rated, quality assurance scheme that only the best attain. Depressingly, the rejectionist wing of the CBA are also the quality scheme refuseniks who need no authentication from anyone because they know how good they are. I keep being told we haven’t been so united since 1984 but that really isn’t a reason to behave as if we’re still there.
Fourthly, when I wanted to debate work to rule – a method by which we could resist Grayling for months – or no returns of only some classes of work – which would protect the junior bar – I don’t recall anyone from the CBA’s then support group saying that this was a fair way to treat the membership. We were offered a straight choice of work or no work. We were offered a straight choice of no returns and days of action or not. There was not even an attempt to divide those two things up, even though it is a common view that no returns worked and days of action didn’t. That wasn’t fair or sensible then, because it wasn’t democratic. Democracy is debate, not a choice between 2 options – one of which is unacceptable. The CBA survey was designed to persuade people to say yes to no work because the only alternative offered was to do nothing. The proposition that we could suggest other things that no one else would know about and – therefore – round which debate and support could not coalesce – was insulting and, frankly, thick. Nor was the 28th March an important date. The matter was urgent because the CBA said it was and for no other reason.
Nonetheless we did it. Now, when what has happened is not to the liking of those cheering for that rather totalitarian way of designing a plebiscite, we need an EGM and a ‘democratic’ ballot. I’m not saying that’s hypocrisy – I’m just struggling with what else to call it. And the ballot isn’t an open debate – it’s just question 1 of the questionnaire, with all its faults.
In reality this is foot stamping. It doesn’t even engage with the debate – the calls started long before we were told why the decision was made and still don’t ask what the MoJ will do if we renege. This is a group of people for whom only one answer is acceptable and, if they don’t get it, it isn’t because of realities, or because others may legitimately hold different views – it’s because only they really know the answers and the rest of us are simpletons who shouldn’t be allowed to make decisions, or scabs and traitors who have sold us out. The language is redolent of the Labour Party of the 1980s at its most moronic.
I have a view about people like that. I don’t want them making decisions for me, because they are likely to make the wrong decision. Here, when they don’t even seek to know the consequences of what they propose, that view is reinforced in spades.
Fifthly, I’ve read what Lithman said. It sounds right. No one has sought to say otherwise. The only challenge to it consists of a message of doom which – for the reasons I’ve set out above – isn’t answered by refusing to work when we have been told the cuts have gone. For the people bashing this scenario out it is important to be as pessimistic as possible. Their own case is that the savings will be made by the existing cuts. Nothing will happen until after an election and a year. If it is right – as I and (until yesterday) they believe it to be – there will be no need for further cuts. Nonetheless, to get their way, our militant tendency now reverse themselves. Yesterday we wanted a delay. Today a delay is no good because it will happen anyway. Yesterday there was no need for cuts. Today – although the cuts aren’t happening – they will happen, in a year. Oh what a crystal ball is this. Yesterday the CBA were brave fighters going to win for us through their valour and wisdom. Today they are spineless cowards – whoops, no insults, let me correct myself – idiots who cannot see the foolishness of what they have done.
The conclusion I draw when someone will say anything that suits, is that they are wrong.
Two more things. First, I don’t want to do VHCCs and as far as I can see, I don’t have to. So I won’t.
Secondly, although I opposed the tactics and criticised the handling, I have learned that unity can be more important than the detailed measures. That doesn’t mean I am happy with what we nearly did, because I think it would haver destroyed us and I reserve the right to say so. But it means that I acknowledge that there are times when those arguments ought to give way. I think I got it wrong. I hope I judge it better if we have to do it again – and we may. But that only applies when the leadership is good, not when it’s bad.
Finally, the Circuit Leaders and the Bar Council helped the profession to confront the LC and the MoJ and they blinked and backed down. What a great thing to know. Even if you are pessimistic that is important. They played a blinder and we should be grateful – if we aren’t snorting into our moustache in Tunbridge Wells.
Before that, I do want it to be clear that my disagreement with the CBA is only about strategy. We all agree that doing nothing is not an alternative. There are, I think, 3 categories of criminal practitioner insofar as these proposals are concerned. There are those who truly cannot afford these cuts and will have to leave the profession. The profession will be infinitely worse off for their loss. Then there are those who can successfully move into other types of work and are doing so. Finally there are those who can actually absorb these cuts. Many very junior practitioners in the provinces are in that category. They will never make a better living than a head teacher (or even a senior teacher), but they have not yet committed themselves to mortgages, school fees, or a standard of living from which they cannot extricate themselves. However, it is clear that the MoJ simply cannot be trusted when they say that this is it. I don’t believe that this is it. If these cuts are not resisted, the MoJ will be back for more. They will persist in their salami tactics until we resist. And whilst I do not think that ramping up the temperature by hyperbole about not another penny is sensible – and nor is pretending that we will all have to quit if these cuts are implemented – it is nonetheless the case that this is a genuine tipping point for a very large number of people.
So, we must resist now. The question is not whether, but how.
That involves identifying what we think we can achieve. The CBA questionnaire gives no indication of the answer to that question. I have no idea why not. It ought to have done. It still ought to. Nor do I do know why the survey is so rushed. The Chairman’s message says time is of the essence, but doesn’t say why. That’s not good enough. Time isn’t of the essence. Our cuts do not come in until June at the earliest. Cuts for the solicitors have already come in. The solicitors are going to accept new work, but resist the cuts. There is nothing here that could not wait another month. That being so, the CBA ought to extend the time to reply and it ought to enter into proper debate about different options.
It seems to me that what we can achieve is the disruption of the criminal justice system for long enough for it to become a political embarrassment. Nothing else will work because we actually have answers to the MoJ’s question about saving money, but the MoJ will not listen to Nigel Lithman, any more than they would listen to Michael Turner. That is not the fault of the CBA. That is – wholly and entirely – the fault of the MoJ. Face saving, if required, would have meant getting the answers from the Bar Council – which has also tried to give them. The MoJ is not interested in those answers.
If we want to disrupt the system for long enough for political pressure to tell then we have to do it for a long time. Months, not weeks. The timing actually isn’t bad. An election is 14 months off. How many disrupted trials and custody time limit failures will be acceptable?
But 2 things are required for that pressure to build. First, we must be able to do it. A strike/refusal of work won’t work. No one believes it would last more than a couple of weeks. No one is advocating more than a couple of weeks. Once a strike breaks we can never be viewed credibly. We just don’t have the resources to do it for long enough. Secondly, a strike permits the government to bring in OCOF, on the basis that it has a duty to keep access to the courts available. That is politically acceptable and the public are not well enough informed to object. And, once OCOF is in, all the rhetoric about “I’ll never work for the reduced rates” will be correct, because none of us will have the opportunity.
That is the second thing wrong with the CBA survey. Question 1 asks for agreement without identifying the risks in the policy. That is simply inadequate. Policies need to be justified and that doesn’t happen unless the question “what might happen if this doesn’t work?” is asked and answered. The third thing wrong with question 1 is that it provides no alternatives. Alternatives allow risk to be measured. There are obvious downsides with a work to rule – it needs us to be strong in front of difficult judges (although so does a day of action – which we all managed to handle perfectly well). It needs a proper identification of why we are picking a set number of hours for our working day. But, it also lessens the risk of OCOF because access to justice will be being delivered – simply more slowly to the detriment of the system overall.
At the moment we are given one choice and we are simply asked to tick it, or not. The problem, fairly obviously, is that unless the survey gives alternatives to the policy, disagreeing with it is essentially saying ‘let’s do nothing’ – the one thing that everyone agrees we should not say. That’s not ok – if the CBA is really only presenting one policy then it shouldn’t consult its membership. It should simply tell us this is how it’s going to be. For consultation to mean anything, there must be alternatives. I asked the CBA to put alternatives on the survey. I do not know why they haven’t.
The final problem with question 1 is that it is unfair. We are asked 2 questions not 1. The first is do I agree with “not a penny more in cuts”? That is a policy. The second question, included in question 1, is whether I agree not to accept work at new rates. That is a strategy or a tactic. The 2 issues should properly be isolated. I do not know why they are not but the effect is to persuade people to agree with the strategy whilst answering a different question about policy. If my pupil had drafted that I would hand it back and ask them to do it again, better.
I intend to answer question 1 in this way: I agree with the policy of not a penny more in cuts. However, it is currently impossible to answer question 1, because I have not been told where the CBA Executive expect it to get us to, how long it is going to last, or what its risks are. There is ample time for all of that to be made clear and then is the time to ask for support. I would like to have an input into CBA policy along with the rest of the membership. In order to do that the CBA ought to invite suggestions as to how to respond to the cuts. Each suggestion should identify where it leads in terms of succeeding in resisting the cuts and should identify the risks of adopting it. That will clarify thinking, mean that an expression of support actually means something and provide a policy behind which the entire Bar can, hopefully, unite.
Meanwhile, if anyone is thinking of not accepting work at the new rates they ought to be saving money, because they will need it to live on. In those circumstances I wonder why the CBA is contemplating extending the no returns policy. That policy disproportionately hits very junior barristers who have less income from other sources and are more reliant on returns. In creating difficulty for those junior tenants – the very people least able to resist perceived pressure on them to conform – the CBA is sewing the seeds of the earliest possible collapse of any strike. The policy is bone-headed.
What’s more, it has already worked. Unless the policy is to bring the Criminal Justice System to a halt (and it may be, but if so the CBA has not disclosed that to its membership or asked them about it – and it certainly doesn’t identify that policy in the questionnaire), we have already shown that we can bring the CJS to a halt and thus demonstrated our strength.
Instead of pursuing a policy which has already worked, and now only acts to deplete our already scarce resources I propose to answer questions 2 and 3 like this: No. I wish to build on the success of the no returns policy by ensuring that the public understands that the CJS only works because the Bar picks up an enormous amount of work at no notice and does not get properly thanked or remunerated for it. In order to do so I suggest that the CBA works with the Circuit Leaders to obtain some political PR advice and then hits the media with the reality of how we work and why we do it. In order for that to be effective – and subject to the advice we receive – I suggest that this is done by the largely young barristers who are most affected and who are seeing their idealism and work ethic crushed by this government. The money for this might come from the appeal regarding QASA in respect of which I would like to see Counsel’s advice on the prospects of success, which I believe I am entitled to because I am amongst those paying for it. However, if the CBA is not going to urge us all to refuse all new work, my answer might be different and I would like to know that now.
The last day of action received significantly less press than the first. That is unsurprising. The first DoA was a first for the Bar. It was a declaration of intent. It was interesting. It did little damage to the Court system and that was not its aim. Damage to the system was the aim of the no returns policy. The second day of action was a sequel and – as sequels usually do – it did less well than the first. And so it goes on. Days of action serve a purpose in terms of rallying the troops but we do not need rallying. We all know that we have to act and we are all committed to it. I don’t need to stand on the steps of Leeds Combined Court Centre again. I already know I will resist this.
So I propose to answer questions 4 and 5 like this: No, unless we have already decided that we can keep up what is, essentially, an on-off strike for long enough to achieve the objective of pressuring the government into a change. I know that I believe this will take months, but I do not know how long the CBA say I need to do this for, because the CBA has not told me. Nor do I know the risks of a long on-off strike. It will certainly delay existing cases but I have no sense of how the judiciary would react to constant disruption and whether it would feel that, for example, juries needed to be protected. If so then that would inevitably lead to disciplinary referrals and a confrontation with the judiciary, which is otherwise sympathetic. These risks need thinking through and assessing and, at present, I am being asked for my views without any sign that such an assessment has been made and without any discussion about the results. Given that alienating the judiciary would, in my view, be a monumental error, I believe that this risk needs proper discussion. There is no real urgency in this questionnaire and I do not want members to think that the questionnaire is said to be urgent in order to prevent discussion. No organisation can survive once that idea takes hold and I am sure that the answers to my questions can be provided very quickly. I suggest we send a further questionnaire out 2 weeks after those answers are provided and allows a further 2 weeks for discussion. We will then have an answer by the end of April.
Combinations of action are, equally, subject to identifying what they will achieve, by when and at what risk. I intend to answer question 6 by saying that until I have the information I have already asked for, it is simply impossible to answer.
Question 7 is, frankly, insulting. There are other options out there and the CBA know there are. If this were a genuine information gathering exercise it would be fine, but it isn’t. A genuine exercise would not ask questions 1 – 6 first and it wouldn’t demand a response by 28th March. I do not know why the CBA does not want genuine debate – it may feel that its Executive know best and that may actually be right, but that is no reason not to genuinely test the waters.
My answer to question 7 is this: the strategy of no work at new rates is already declared. That being so I am unsure whether the CBA is really committed to considering alternatives. I did not vote for the strategy which the CBA has, apparently, already adopted. I did not give a mandate to anyone to vote for that strategy. The strategy has never been on an agenda of a meeting to which I, or any delegate from my Chambers, was invited. The strategy invites the government to introduce OCOF as soon as it wishes. Even now the CBA is not including a question asking me whether I agree with that strategy.
In my view a work to rule is far less likely to permit OCOF to be introduced, because it is difficult to see how that could be justified politically when we are working. Furthermore, a work to rule would focus the public’s attention where it should be, which is on the fact that we make the system work by doing crazy hours for nothing because our commitment is to justice and not to our own comfort or our own pockets. It answers fat cat questions by replacing talk of earnings with hourly rates – paid for unsocial and exhausting hours. The MoJ already understands that what it pays us is not simply to do a case but to do so in a way that ensures that all other cases get done as well. The public does not understand that. A work to rule, which will make short cases into medium cases and medium cases into long ones will demonstrate that the actual payment – when assessed against an 8 hour day – is not enormous but small.
A work to rule will act as the no returns policy has acted and stop the system. But, when it does so, it will not be because we are not working but because we are. The only difference between the work to rule and the current position is how many hours the Bar puts in. On that basis, although I have every confidence in the Bar’s ability to stand up to Judges, I do not anticipate it will be necessary.
Finally a work to rule is easy to explain and operate. We will work an 8 hour day which will include court time. Within that 8 hours we will deal with the cases properly and professionally. We will have necessary cons. We will prepare all necessary documents. When 8 hours have elapsed – which we will log if required – we will stop and go home. That may mean that the court cannot sit at 1030 the next day because we may still have work to do in order to be ready. If so, the Judge will be told as soon as that is apparent and will be asked not to sit until we are ready to begin. If the Judge orders us to begin before we are ready we will, consistent with our professional obligations to our client, make it clear that we do not regard ourselves as having had proper time to prepare and request an adjournment. The time thus taken will be part of our 8 hour day.
If we are nevertheless ordered to carry on then it is our professional obligation to make it clear to the Judge that we are not in a position to proceed. We may then have to withdraw from the case. However, before doing so we ought to submit to the Judge that Art 6 is breached by the Judge’s failure to permit proper representation and that the Judge ought to be prepared to accept our word that we simply cannot be ready.
A Judge who responds that we have refused to do the work ought to be told that we have decided not to work longer than a normal 8 hour working day because our willingness to do so is being exploited by the MoJ, and asked politely whether they believe there is a power to compel a barrister to work to order and, if so, what it is.
Judges will have a choice. They may sometimes decide that the work – for example a skeleton argument – is unnecessary and that oral argument will suffice. If so the Bar will be as loyal to that as to any other judicial decision. They may decide to adjourn. They may – unlikely though it is – become difficult and order barristers to work. If so then core principles 2 and 4 of the Handbook come into play. We will have informed our clients of the terms on which work will be carried out – as we must. It is unlikely that clients will object to an 8 hour day. We must not permit any person to limit our discretion about how the interests of our client may best be served. That must include doing the work on the terms agreed. A Judge who attempts to interfere with that agreement should back off or recuse themselves. If they will not then we may return the case and, I suggest, our clients would permit it.
The reality is that nothing in the Code prevents a work to rule, providing we do the job properly – and we will. Whilst we do so we are able to earn – enough, I hope, to allow us to carry the action on for the months that will be required. The policy is understandable and consistent with our concerns for the CJS (which a refusal to take work is not). And meanwhile lists will lengthen, CTLs will pass, pressure will mount. And the judiciary may be able to tell the government (should they wish to do so) that this is an unhappy result of the policy of cutting fees. Rather than confrontation with the judiciary, cooperation is likely. As opposed to the result of continuing days of action.
I love my profession and I desperately want it to survive and thrive. For that reason I am begging the CBA Executive to have a genuine debate within the membership that enables realistic action, that we can sustain, that we can explain, and that will do as much as we can do to close off the risk of OCOF, which would obliterate us. More haste less speed. Please.
That’s how I’m going to ask my Chambers to fill in its questionnaire.
We can’t trust the Ministry of Justice. The response of the Attorney-General to the current policy of no returns (with which I do not agree) at the Bar Council meeting on Saturday was to threaten the Bar with OCOF. That was, in fact, an eminently predictable position and I shall deal with the CBA’s failure to predict it (or if they did predict it to tell us about it) later. But the AG attends the Bar Council as an ex officio member. He is there as the senior member of the profession, not as the Secretary of State’s snout. It may be that he intended his threat to be a friendly warning, but as a politician his antennae are supposed to be better than that. He is perfectly entitled to be against the current policy and perfectly entitled to say so. But, in the end, he must assess where his loyalties lie. If his response to a policy supported by most of the Bar (even, however reluctantly, those of us who don’t agree with it) is to back the Ministry’s attempt to punish us for protesting – perfectly properly – then he ought to resign from the Bar Council. He is no longer behaving as a barrister debating the issue with his profession, but as an enforcer for a third-party.
It speaks volumes that the MoJ is talking in terms of threats. That the default position of Grayling and his second-rate staff is to threaten is not in itself a surprise. But history suggests that when the MoJ resorts to threats, it is losing. Making threats was how the MoJ responded the last time we refused to do VHCCs. We won that round.
The issue is critical because we have to decide what to do next. Before I address that, I want to address the CBA position. For the last 5 months the CBA have taken the stance that a meeting in November 2013 gives them a mandate. That proposition is nonsense of the highest order. There was no agenda at that meeting. There was no circulation of competing motions, or even positions. Those attending – if they had a mandate from their Chambers – could not have had a mandate to agree anything specific unless their Chambers had been daft enough to say “whatever you want to agree to, we will agree”. That is unlikely. Having no mandate themselves, they had no mandate to confer on the CBA.
Since then the CBA have produced a series of proposals – none of which have been discussed amongst the membership until after the proposals were put. Consequently, like the recent referendum in the Crimea, we have been able to say yes or no, but nothing else. Unsurprisingly, we have said yes. But that is not necessarily because the proposals were good ideas. It is because we wanted to do something, to hit back at the double-dealers and scoundrels at the MoJ, and what was proposed was the only game in town. And, as the Bar does, we have talked each other up in robing rooms and Chambers meetings. We are rightly furious and we are good at expressing it. No wonder the mood has hardened as it has.
The CBA needs to be aware that this way of proceeding is neither democratic nor professional. That is particularly important now, because there is talk of refusing all new work. However gratifying that may be on a personal level to those very senior members of the profession who loudly promote the idea, it is irresponsible to support that idea without identifying the following information clearly:
- What is the ultimate realistic aim?
- How do we achieve it?
- What are the staging points which will permit assessment of whether we are likely to succeed?
- What are the options for changing the strategy if assessment at those staging points suggests it is not succeeding?
- What is the risk if it doesn’t work?
- How long is it going to take?
None of this is remotely surprising to any competent barrister. It is how we deal with our cases. We should expect and require no less professionalism from ourselves.
I would add the following question: what is the personal position of anyone proposing a strike in terms of how long they could refuse work for, without taking their kids out of school (if applicable) or having to borrow money to keep afloat? That is important, because it allows everyone to assess their own position as against those urging them on and thus to decide if they might survive, or be cannon fodder.
That is why I raise this matter now. Too many barristers are disgracing this profession by promoting a culture of “if you aren’t with us you are against us”. That is McCarthyite bullying of the highest order and anyone doing it owes it to their colleagues to stop. Promoting the idea that if the CBA has announced it then we must support it, is the same proposition. The CBA ought not to announce anything. It ought to debate things and allow its membership to make a decision. It ought to consult with the Circuit Leaders and ensure that other voices are heard – not just by a blog post but on the discussion document that determines what we do next. Nothing else will do.
I have been at the Bar now for 28 years. This truly is a tipping point. Consequently, I am disinclined to permit public debate of the most important issue to face the Bar since I joined it to be characterised as disloyalty or troublemaking. I don’t know about you but I instinctively revolt against that type of ‘persuasion’. Professionally, I despise it. Personally, it makes me cross. As a barrister I worry that it will induce us to take the Darwin option – culling ourselves so that only a (lucky) few are left standing. Hence my belief that those urging anything should declare the consequences for themselves.
Let me answer my own questions:
- The ultimate aim is to persuade the MoJ that their savings can be found elsewhere. It is not realistic to expect them to reverse themselves otherwise, coming up to an election year, when the public don’t give a monkey’s about us.
- Action is required because the MoJ listens to neither facts, nor persuasion. It has a loose relationship with facts at the best of times. Persuasion is not something that those armed with a baseball bat are terribly interested in. The question is what that action should be. I do not believe refusing all work will achieve our aim. Too many people will crack too soon (and the current debate actually produces a false result because people feel disloyal for telling the truth about that). I do not believe days of action achieve our ends because, in the end, they are a strike/refusing work. I do not believe no returns will achieve our aim because it disproportionately penalises the youngest members of the profession who cannot afford to carry on doing it for long. I do believe a work to rule achieves our aims because it permits some income, in full accordance with our professional obligations, whilst strangling the system. And, whilst agreeing that we are paid by the case, we still aren’t paid for more than an 8 hour day – which is what we ought to work. But you can test your own preferred option out anyway, and see where it leads.
- The staging point of refusing work is when people start to go back. At that stage we are finished and we can never negotiate credibly again. Ditto refusing to do returns. On a work to rule the first staging point is whether those doing it can survive on what they earn – that will reduce because the rates will be lower and the number of cases less. Those who cannot survive ought to stop doing it – there will be swings and roundabouts because only 1 person in a 2 person case (and a minority in a multi-perosn case) needs to work to rule to effectively enforce it on others. Consequently, we will be able to see if we really need anyone to make a sacrifice they cannot afford.
- As I have set out, a work to rule permits changing options. No other course of action does so. If we refuse work and then take it we are a busted flush. Finished.
- What is the risk? Not sure. On a work to rule I think it limited because it is difficult to attempt to punish the Bar for working normal hours (as the CPS do). Introducing OCOF in those circumstances would look mean and spiteful. I don’t suppose the MoJ has much objection to that, but it would also look weak and it would be difficult to justify politically. On a refusal to work/strike the MoJ would be entitled to say that its primary obligation was to keep the court system running and that OCOF – allowing the big firms to do our work – was the only way. I don’t know whether they would do it. If it didn’t work then it would be the MoJ’s equivalent of a failed strike. If it did work the criminal bar would be destroyed overnight and briefs would be available only through fee-sharing with solicitors – a prospect that would have us looking back nostalgically at these proposals. I think refusal to accept work is a bad idea for other reasons, but because of this, it is an additional and enormous risk to the entire profession.
- It is going to take 6 months I think, and maybe more. Grayling is a man who equates toughing it out with morality. I have had clients like that and, although they are invariably idiots, they are tough to shift. We can’t keep up a refusal for that long. Or days of action. Or no returns.
The other option is to refuse to take certain classes of work – mainly those involving serious cases and CTLs. The advantages are that it would hit the senior people the hardest – which is as it should be – and that less people have to stick together. The disadvantages are that it means lots of ‘fat cat’ stories (offset by the palpable truth that we would be doing it for everyone) and potential public outrage as murderers walked out of jail. However, I believe the proposal worth discussing.
As I have said, the discussion cannot omit the factors raised above – and probably some others I haven’t thought of. Each of us must stop taking refuge in the stance so cogently critiqued by Sir Humphrey Appleby – “We must do something. This is something. Let’s do this”. And our leaders must lead by allowing us to discuss the options openly and fairly: not by presenting limited choices which stifle what we trust them to promote.
Meanwhile here are some other ideas to achieve our aim, which we should explore and think about as additions to – not replacements for – our own action.
- A national day of action supported by all members of the Bar. Those with private clients should try and sell them on the idea of a 1 day stoppage to demonstrate that the British system of justice is indivisible.
- Immediate cessation of all cooperation with events in which the MoJ are involved which promote the justice system at home and abroad. Those involved could make it clear that the MoJ is not trusted with the justice system and that the event can go ahead as soon as the MoJ is not involved at all.
- A campaign to persuade the big city firms to devote some of their (considerable) pro bono budget to paying junior barristers to do cases at the current rates. The pro bono work is vital but it is also advertising. No reason why that budget shouldn’t be spent to permit criminal clients representation. If the LSC would permit a top up payment that would be fine. It won’t, but refusal will be a political embarrassment, focusing attention on the spite that informs this debate.
- A campaign to persuade the ‘top’ commercial chambers to devote some of their (considerable) pupillage funding to the Barristers Benevolent Fund. They could agree a 20% reduction, thereby allowing them to preserve the current rates amongst themselves. They would suffer as against the solicitors, but how good is a candidate likely to be if they only come to the Bar because of the money they get whilst training?
All of these things would demonstrate support amongst the whole profession and would provide the financial support that we are going to need if we really want to tough this out. They would make the MoJ’s position difficult. They would offset the bad press we get by showing that real sacrifices are being made. They would provide a narrative from a group of people who are not the allegedly ‘fat cat’ criminal bar. They would make us all feel much better – and morale is important.
If you are going to post about the way we are treating each other, I expect you to give your real name.
Otherwise, see you on whatever barricades we erect.