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Kicking Up the Dust Before It Settles

March 28, 2014

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. 

 

 

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40 Comments leave one →
  1. March 28, 2014 4:10 pm

    Simon. Yet again we find ourselves at loggerheads. I can accept that we are probably never going to agree about very much, but when you start your piece with “The reality is that advocates who shout, threaten, insult and coerce are crap advocates” and then, in the same piece, you describe the position of those who disagree with you using terms such as ‘demented’, ‘thick’ and even ‘moronic’, I feel the need to ask whether you wrote the whole piece yourself in one sitting. Now, it may be that it wasn’t me, and the views I have expressed, that you had in mind when you used those terms, and I am just wearing a cap that you would say just happens to fit me, but if you want to have a reasoned debate without resort to such language, I for one am ‘up for it’. If you want to engage in a slanging match, have it with someone else.

    • Simon Myerson permalink
      March 28, 2014 4:31 pm

      Ian,

      I agree that we are not going to agree. I am not sure that I agree that my words – which are used with at least a sense of fun – are quite the same as some of what I have read on twitter. That, I made clear, is not from you.

      I am happy for you to respond to the substantive points I made. It may be that the language I used – and I did write it all in one sitting – is not entirely helpful, and if you are offended then I apologise. It was not aimed at you – except for the bit about prognostications of gloom, which is, I think, fairly described as your stance.

      I like you and I respect your integrity, even though I think you’re wrong.

  2. Anonymous permalink
    March 28, 2014 4:56 pm

    Oh dear.

    It is all very easy being sanctimonious and patronising with a cloak of silk which may well explain why the leaders of the CBA and the circuit leaders (similarly cloaked) made such a terrible mistake. Very few firms can afford to have criminal silks in house so, unlike juniors, the silk fee is pretty much ring fenced.

    The years of endless cuts have taken a terrible toll on the criminal bar. Have a look at the London Gazette where you will see that on average a member of the bar is being bankrupted every week by HMRC. These aren’t under 7 year call practitioners. These are people in their 40s or 50s with established practices who have now lost everything. There s anecdotal evidence of members of the bar who cannot meet their monthly mortgage instalments.

    These people are nearer the end of their careers than the beginning. The cuts, which have been relentless but usually brought in with little or no warning, prevent any long term planning. Not because people are doing less work or lower quality work, but because arbitrarily the same work is valued at a fraction today of what it was yesterday.

    On Thursday of last week criminal solicitors took a hammering. Crown court litigator fees were cut by what was said to be 8.75%. I calculate (from a raft of real world cases) that in what are no fixed fee cases the cut is more like 17%. Police station fees (for going out in the middle of the night) have been cut by 8.75%. I don’t know what the cut in magistrates court fees but there were cuts.

    The “average” criminal firm has been cut by at least 8.75% but in all probability more. To many firms it represents their profit margin. As well as those weekly bankruptcies, almost every week news breaks of a criminal firm that has gone to the wall, e.g Swinburne Jackson (Gateshead), Andrews Angel (Ilford & Durham) Meldrums (South Hertfordshire). The demise of Medrums put 55 people out of work.

    The solicitors are faced with yet more cuts next year.

    Where are they supposed to get the money from to cover these losses ? In the absence of a flood of new clients (and common sense tells us that that isn’t going to happen), the only way that any firm can hope to survive is by bringing the crown court advocate’s fee into the firm. Not for riotous living but just to survive.

    The current struggle was trumpeted as being about “saving UK justice”. We were all “in it together”. Barristers and solicitors standing side by side. It was not about pay.

    And suddenly, without warning, it is over. As soon as the Bar get a good offer on pay sand is kicked in the faces of solicitors. Those same solicitors who send their work to the junior bar. Or rather, sent it to the junior bar.

    There is a very very real prospect that the junior bar (those who do not have silk cloaks and not just those under seven years call) will now lose their work to in house advocates.

    Like him or hate him, Ian West is the one who got it right. Taking the foot off Grayling’s throat now outs the future of the junior bar in real jeopardy. Work will drop off fast as solicitors feel the impact of last week’s fee cuts. Ian probably talks with the benefit of experience – he will have suddenly found work drying up from a firm, not because he isn’t up to the job but because it has gone to an in house advocate. Perhaps an HCA who has 20+ years less experience than him and considerably less ability.

    It would be interesting Simon to hear: (I) why you think what Ian said in his resignation letter is wrong; (ii) what you think the impact is upon solicitors of last week’s fee cuts; and (iii) how you think solicitors will make up the fee income that they have lost from those cuts.

    Be afraid. Be very afraid.

    • March 28, 2014 5:13 pm

      Anonymous – I think you have perfectly demonstrated Simon’s point. Personally, I agree with everything you say about the substance of the argument, but the first two sentences are unnecessarily antagonistic and hostile.

  3. March 28, 2014 5:06 pm

    Simon,
    I’m writing a longer piece as to the substance (I’m certainly one of the doom and gloom merchants!) but quickly – I completely agree as to the way any debate should be conducted, and I suspect that in fact everyone does. Many of us say things in haste which we later regret.
    It is perhaps a good moment to pause, take stock, take a deep breath, and have some healthy and open debate. That must include the question of work to rule (although I disagree with it).
    Dan

  4. John Hammond permalink
    March 28, 2014 9:16 pm

    I am but a clerk, but my god, if there was any aspect of this deal designed to divide the membership then it has certainly succeeded. Focus has very quickly shifted to infighting instead of addressing our real attacker and this has happened entirely in accordance with their timetable. This is becoming shameful. Sorry!

  5. March 29, 2014 12:07 am

    Simon,

    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.

    Matthew

  6. Angry Northerner permalink
    March 29, 2014 2:38 pm

    If the proposed changes to solicitors rates/terms of work remain then one way or another the junior criminal bar will perish. Either firms will survive by taking most of their work in house or they will be replaced by megafirms who do the work in house already. The loss of our supplier base is a bigger threat then the reduction in AGFs. This will particularly hit the most junior end of the bar and it seems to me to be erroneous to suggest that the “deal” protects them.

    The only way the bar can survive is by ensuring that these proposals are withdrawn in full. It is unfortunate, to put it mildly, that solicitors are apparently unable/unwilling to fight for themselves. It would be nice if they looked at our unity and resolve and followed our example, but it seems they will not. My initial response to the deal was to take the view that if solicitors could not fight their own battles that was their problem. The reality is that it is our problem too.

    It is not good saying that we can survive by being better than solicitors. Quality doesn’t come into it. Solicitors will be forced by the need to survive to use HCAs even when they are not up to the job. That is one of the reasons these proposals are damaging to the criminal justice system. There is anecdotal evidence that some solicitors are already telling clients that they are no longer allowed an independent barrister and that they have to choose an in house lawyer.

    This offer is a very good one for Mr Grayling. He retains all the cuts to solicitors fees and the cuts to VHCCs. All he loses is the 6% cut (as he believes it to be) to AGFs. Given that a fair chunk of the £220m saving will happen as a result of reductions not taken in top account by the MoJ, he gets his savings and the bar goes back to work…except that there is unlikely to be any. I don’t suppose that concerns Mr Grayling in the least. It is therefor not surprising that he wanted to bounce the CBA into accepting. His tactic is that use by car salesmen: “I’ve just spoken to the manager and we have an extra special offer provided you buy the car today”. It was rather naive to think that the offer would go away if we didn’t accept it.

  7. Russell Fraser permalink
    March 29, 2014 4:10 pm

    Simon, respectfully, this is casuistry. No analysis of the deal and its merits is required. One only needs to consider whether it was correct for our leadership to meet with the MoJ alone, cutting out the CLSA and LCCSA. It was not and the principle of unity, which we have all been advocating and celebrating for the last year, was at once extinguished. No deal, was worth sacrificing that principle. Imagine if it had been the other way around. That those in the room did not anticipate this fall out is concerning. What is even more concerning is that perhaps they did anticipate it and yet it did not deter them.

    As one of the most junior of juniors at the criminal bar I am sceptical of the suggestion that what has been agreed has been done to protect us. It was clear that the no returns policy was launched without any thought of how the junior bar would react. When many of its number reacted negatively some acknowledgement of its effect was given. And now, that effect is being used as a justification for agreeing the deal and stopping the action.

    But more frustratingly often senior members talk about the cuts as though the 17.5% reduction is nothing to do with us. Indeed, you do so to some extent in the article above. Yet those of us in pupillage or only a few years out of pupillage are deeply affected by these cuts. We are still in the magistrates’ court for the bulk of our working week. I don’t know what we are likely to receive for magistrates’ court work done since 19 March. But I’ll wager the cut will be greater than 8.75%. Yet this is rarely if ever discussed. The Bar Council certainly hasn’t, to my knowledge, issued any new minimum recommended rates. Not that every chambers ensures those minimum rates are met.

    What happened on Wednesday night is indicative of the problem which we have demonstrated all along. Mark George QC and I put forward a combined motion in November which read:

    The calling of a day or days of action on which no members of the criminal bar will undertake work in either the magistrates or crown courts. We will ask for the support of the representative bodies of the solicitor’s profession in standing by us on that (those) day (s). The purpose will be to demand that the government stays all its current proposals for legal aid and that the justice secretary engages with us meaningfully.

    It was unanimously approved but wasn’t observed. It was meant as motion promoting stopped TLA, not simply protecting fees. That’s why working together was important. You say above ‘we did not do this for solicitors. Not because we don’t care but because we can’t.’ But we had the power to bring the courts to a halt with their assistance so I believe that on the contrary we could do this, not simply ‘for solicitors’ but for the entire publicly funded legal aid profession.

    • March 29, 2014 7:54 pm

      Russell,

      I can tell you that my immediate reaction to the no returns policy was that I would not support it because of its effect on the junior bar. That view was initially very widely shared, but it was not publicised out of deference to the CBA declaration that no returns was what we were going to do. What then happened is that (probably because no other view was being publicly espoused) everyone fell into line behind a policy which sacrificed the most junior and I kept quiet out of a desire for unity. That position can be confirmed by the CBA and those who comment on here.

      In fact, I accept the policy worked despite its unfairness to you. Whether that was worth it is a matter for each individual. I am myself unsure of whether I and people who felt like me played it right. That it has now stopped is an obvious assistance because the more junior you are the less you can survive sustained financial pressure.

      Your point about the Magistrates Court is, I think, less compelling. The Bar cannot operate in the interests of magistrates courts practitioners because it is everyone’s aspiration to move on. The answer, by the way, is to come to the provinces. That is not ignoring you – it is looking to the interests of every barrister. Ultimately, if solicitors don’t pay the proper rate you have to decide whether you work for them or not. I know that if you don’t then you won’t get work – but that is the same decision you were making about legal aid cases in the Crown Court.

      The remainder of your point doesn’t engage with what Lithman said. As I have made clear, I think your views are both hopelessly optimistic and far too big a gamble. I may be wrong but I have yet to hear anyone set out the consequences of a vote against the deal, who would run the Bar to ensure compliance (aiming this at the CBA is daft) and what the MoJ would do in any analytical, professional way. All I have heard is the equivalent of “it will all be all right” coupled with “we’re all doomed if we don’t”.

      I am truly fed up with that. I have a right to be given chapter and verse of someone’s – anyone’s – thinking, demonstrating that they have thought throughout the consequences, anticipated the reaction, planned to deal with it, estimated the time frame required, ensured that we will stay united long enough, obtained the support of at least enough solicitors to ensure that the slack won’t be taken up. In fact I – and everyone else – has had nothing. That is irresponsible and – worse – incompetent. That is why I question the abilities of those proposing this – not because I am anxious to insult anyone but because those who purport to lead should expect to demonstrate that they can.

      The questions are simply in the extreme. Either they can be answered or they can’t. Looking at the evidence, they can’t.

      Now, if you would like to answer them please post a link or – if you wish – take an unedited, unmediated slot here and I will publish whatever you send me. Then there can be a debate about how the 2 competing views will work. At the moment there is no debate, because only one side of the argument is doing anything more than complaining.

  8. Russell Fraser permalink
    March 30, 2014 8:52 am

    Simon, I was not commenting on your view of no returns, simply that the leadership apparently hadn’t considered the likely reaction to it from juniors.

    I find your comment on the magistrates’ court fees astonishing. Yes, everyone wants to move on. So what? There is a constant but ever changing stable of barristers – barristers – who have to work in the magistrates’ court. We all start there. They are pupils and juniors. You seem to be saying they don’t matter. You’ve also twisted what I wrote originally in your reply. Solicitors don’t pay £35 for a first appearance without the connivance of chambers. So I’m not willing to apportion blame in that way.

    Since in your reply you ignore the question of whether it’s in any way regrettable to preach unity, push the formation of a National Justice Committee, then abandon that committee, and agree a deal at the first approach of the MoJ let’s deal with what you do say.

    I think I will approach it in reverse. If the outcome of the ballot is, in effect, to reject the deal then what happens next? I think to demand a definitive answer to this is a shade disingenuous. No one will be able to give you an answer which can satisfy you. But then no one was ever able to say where direct action would lead us before so I don’t know why you demand it now. However all the signs are that if we reject the deal and return to effective and unified opposition we have the potential to get closer to what we said we had been fighting for, ie ‘not a penny more’ cuts.

    The reason I say the signs are good is the way this dispute has played out. At first we tried demonstrations, consultation responses, articles in the press and principled appeals to the Lord Chancellor’s better nature. But Grayling is not a man with any sensitivity to the burden of his office, the rule of law or argument. To him all this is lofty abstraction. He is an ideologue and a political thug backed by a phalanx of functionaries who can devote all their working time to this while we struggle to repel the advance while having to do the day job at the same time.

    So we had to change tack. You make the evidence-free claim that no returns worked but days of action did nothing. Last time I checked only one of those tactics made the papers. The point is each is part of a strategy. And when that strategy started to cost Grayling politically and, most importantly, economically that’s when we got a response. And that is why if we returned to no returns and days of action in unison, with solicitors, and, dare I say it, probation, then the same problems Grayling had previously would still exist. Yes, he’d vilify us and call us unreasonable for not taking the deal. But he’s been vilifying us and calling us unreasonable for around a year now anyway.

    So direct action and no returns brought us to the point where the LC wanted to talk (or perhaps the judiciary and the Bar Council went to him, it’s not clear). That was not the time to feel pleased with ourselves. That was the time to ask ourselves harder questions: why now? what has changed? why the reversal? For the MoJ to say ‘here’s the offer, take it within 48 hours or leave it and we won’t come back’ was clear bluster. There was no urgency in us accepting the offer. He was about to agree to postpone an element of the cuts for a year. Why shouldn’t we have said ‘We will think about it and come back to you in a week’? Put crudely, we got gamed. Grayling drew us out, isolated us from the solicitors, said it was the best we could hope for, and we bought it. Despite the fact, not a month ago he said the cuts were writ in stone.

    So I don’t know what happens if we reject the deal. But nor did we know what we would get by protesting. And I don’t see that simply because there is a deal on the table, however unsatisfactory, that we should be forced to take it. Especially, and I appreciate this concerns me more than it does you, at the expense of unity. And as Dan and others have said above we are definitely finished if we take this deal. That should be motivation enough.

    • March 30, 2014 9:18 am

      I note that you say no one could see where direct action would lead. My stance, that of my Chambers and that of my Circuit was based almost entirely on what we thought the risks were as against the benefit we believed would be obtained. We tried to adopt a professional approach. In asking for an answer that you, rather casually, assume will not satisfy me I am doing no more than adopting the same approach.

      The aim of good chambers is to start pupils in the Mags and move them out. I would be surprised to hear that being disputed. Consequently, putting the payment position in the Mags at the heart of a resolution is daft. I know that everyone wants everything, but there has to be some reality about this. Sometimes people simply can’t have what they want – that applies just as much to us as to our clients.

      My view of the tactics re no returns and DoA has been based on speaking to every journalist and every Judge I can. Most of those discussions are – as Lithman made clear and I accept – necessarily confidential and I have simply fed back the information to those who need to know it. But, as you make the guess that my view is evidence free I ought to say that. Your assumption that it is evidence free is one that suits your purpose but has no other basis in fact – you could, of course, have asked me. Moreover, the proposition that DoA works because it was in the papers is not only odd, but entirely contrary to your own stated view about Grayling and his approach. You can’t have it both ways.

      So, it comes to this on your analysis. Grayling would still vilify us. That analysis avoids the one thing we have been told will happen which is OCOF. It was a risk before the AG threatened it. It would be a risk now. You don’t even mention it. How on earth can anyone rely on an assessment that takes the one consequence mentioned by a government minister and avoids it? You thereby convert a significant risk of horrendous consequences (so, pretty well a maximum risk score) into the risk of the MoJ shouting at us. I am not willing to rely on that proposition because it so obviously fails to deal with the issues.

      What you said amounts to “I know best”, coupled with an analysis – proceeding on that footing – of how everyone representing us got fooled. Nothing in what you have said suggests you do know best – quite the contrary. Your analysis is partial. It is self-contradictory. It appears to have no research behind it. It appears never to have considered risk as opposed to benefit. It rests on distrusting everyone who was there, without saying why anyone should prefer what you say.

  9. Russell Fraser permalink
    March 30, 2014 9:44 am

    I said your view was evidence-free because you didn’t provide any evidence for it. I don’t agree that what I’m saying amounts to ‘I know best’. I’m trying to analyse what has gone on by discussing the trajectory of this dispute.

    “Moreover, the proposition that DoA works because it was in the papers is not only odd, but entirely contrary to your own stated view about Grayling and his approach.”

    I don’t see how that is the case. I said that at the point at which our actions became politically and economically damaging and embarrassing to him, that is when he responded. The DoAs raised some interest in what was happening, alongside the no returns. How do I know that? Not from speaking to judges or journalists but from speaking with people – perhaps friends of friends or clients or people I’ve happened to meet for the first time – who mention that they saw the protests and wanted to know more.

    You hadn’t mentioned OCOF until now. Yes, the AG threatened it. But the response at the time was to enrage the profession even further. I do not believe he would have found imposing OCOF particularly easy in the face of continuing no returns and DoA. If he really wanted to do that, he could have by now. This might give him greater cause but he would simply look vindictive. How credible do you think his threat is?

    • March 30, 2014 10:40 am

      As you know risk assessment works by allocating a factor to the likelihood of the risk – usually 1-5 – and then to the effect of the risk should it eventuate – 1-5 again – and multiplying them. Usually 20 or above is a definite no. 15 is dodgy.

      We would all agree that the effect of OCOF is a 5. I personally think the risk is a 4 – that is likely. I think that because it would be easy – if we were not working the LC would point to his obligation to keep the CJS running (he is an irony free zone, of course) and would then introduce the legislation to de-ringfence our fees. It would be a solution to the problem. If we continued to refuse work (but not if we worked to rule) it would be a straightforward political sell. It would ensure that the profession that can unite (us) was not his principal adversary. It would please those in the MoJ who are jealous of us (and in my view there are plenty of those people).

      He didn’t because it would have been politically difficult and because I think he is actually quite in favour of us, providing the price is right. The issue was whether the price would be right and whether it would have remained politically difficult. Both of those were a no.

      Even if the risk were a 3, the risk would be one I would personally be disinclined to take. We then have to factor in the deal that was offered. That left us free to refuse VHCCs, and postponed everything (including our action) for a year. I don’t see why we would turn that down for a mere possibility of doing better and a massive risk.

  10. Kris permalink
    March 30, 2014 11:00 am

    I know some people were desperately worried about how “the Public” would loathe us (even more) if we were to take direct action. That never transpired. Indeed, with Grayling’s prison “book ban”, it might be said that the tide was turning. Meanwhile, no returns was having the desired effect in that the Government found they really did need us after all.

    It doesn’t surprise me that the above brought them to the table. I do wonder how much more we could have gotten had we held out longer.

    The point is the Heads of Chambers were all notified of an urgent and very important meeting. I know that as I am head of my one-woman band and I got the email.

    I was not able to attend as I was tied up in the Mags. (perhaps this puts me at the pleb end of the Bar ;)

    The point is, a vote was taken and the Bar took the deal.

    Now, people want us to go behind that deal with a series of wildcat strikes.

    Individuals will do what’s best for them – and they should.

    I’m voting with my feet.

  11. Chris Moran permalink
    March 30, 2014 12:03 pm

    In regards to Ian West’s position. I was at a vote on the North Eastern Circuit where discussion was had regarding asking Grayling to wait any implementation of cuts to advocacy fees until after Leveson etc. He spoke in favour of the motion, stated correctly that it had always been CBA policy and voted for it. Less than a week later he was on Twitter, Facebook and Crimeline saying the exact opposite and calling the down the leadership for having such short-sighted views. His current stance is nothing short of political opportunism

  12. March 30, 2014 1:58 pm

    The accusation of political opportunism is offensive and unfair. I have been involved in Bar politics for about 11 years, on and off. I have never had any political ambitions whatever. I am often thanked for the work I do, and I always explain that I do it because I am a one-trick pony, with no prospects of ever being a judge or a QC. I’m 57 now, I have a young family, an overdraft that presently stands at £80,000 (all accruing in the past four years) and I need the job I do now – the only thing I know – to be available to me until I’m well into my 70s. I confess it freely: my motivation is entirely self-centred. I am a barrister, after all. And I shall continue to further my own interests by pressing for whatever I judge, from time to time, to be in those interests. Anyone who agrees with me is welcome to join me, on my quest for the Holy Grail – the preservation of the independent bar (and Fountain Chambers, Middlesbrough in particular). Anyone who doesn’t, can pursue their own path. Simples.

  13. March 30, 2014 2:29 pm

    I’m not sure this is the place, or that he needs my help, but I accept what Ian says. That I think he is wrong is not the same as thinking him an opportunist. At Grand Court his vote for the motion was on the express basis that it would make no difference. That may mean he didn’t see this deal coming (who did?) and now regrets his vote, but that shouldn’t be equated with opportunism. I am absolutely sure that had he been told about the deal then and there he wouldn’t have voted for the motion. And I’m sure he would have been wrong about that ;).

    • Chris Moran permalink
      March 30, 2014 2:55 pm

      He specifically said at the meeting that it had always been CBA policy and that he would vote for it. I am someone who has always looked to Ian for guidance on these matters and have previously felt he deserved far more respect and credit than he was given.

      Yes nobody believed the Bar would get ‘yes’ for an answer but at the beginning of this fight few on Circuit believed either barristers or solcitors could get serious concessions at all. Incredible now to focus the argument on the people who did what they were asked, by a number of people including Ian, and shout them down for being successful in that particular endeavour. I do not know what the answers are to the current problems all lawyers face, and I will take every view carefully on board (as I hope we all do).

      Many passionate and succinct arguments are being made and they should all be considered. But forgive me if I spend little time reading Ian’s thoughts on the matter. For all I know when the wind changes he will have drafted the ‘no’ argument in response and be furiously arguing with himself in the mirror.

  14. Omar Khan permalink
    March 30, 2014 3:58 pm

    Simon,

    You almost mock those who disagree with CBA position for withdrawing their support of the CBA, having backed it in the past. Yet you have also changed your mind on the CBA position on no returns. Surely, to mock them, is to mock yourself. For what it’s worth, I think you are entitled to change your mind, as the goalposts have been shifted, as are those who now criticise the CBA.

    You fail to grasp the nettle in your discussion of how HCAs may come to be used in the future, the nettle being that if a 17.5% cut to the litigator fee is made, the Bar becomes unaffordable, and if small firms go to the wall, those larger firms who remain will retain the in-house advocacy expertise to cut you out. To-date, the HCA referral network has not mobilised to any great extent. I have only seen it in the largest firms. Small firms want to instruct the Bar; that is why you are still receiving instructions. They have good relations with the Bar, and they do not have the will or the resources to cover all of their Crown court work in-house. This is less true of the largest firms. What is the point of a promise not to use HCAs, when past practice demonstrates that on the current rates you are still being instructed?

    So if small firms survive, which they will not under the duty contract proposals, and the cut of 17.5% is avoided, the Bar will still be instructed. You are not being asked to fight to preserve solicitors’ ability to bring more work in-house; you are taking action to try and ensure that the hand that feeds you is still there 12 months down the line. You may point to a decline in instructions over the years, but that is a direct consequence of the same mistakes being made by the Bar prior to the Carter reforms, and reinforces the warning that instructions will drop once again if a further cut comes in.

    To say ‘if the solicitors are not going to instruct us in any event, we may as well takes this deal’ squarely ignores what is being said and, in my view, is cutting off your nose to spite your face: the CBA taking this deal means that the bargaining position of solicitors groups is so weak that there is an inevitability to both the 17.5% cut and the limited number of duty contracts proposals coming in. Big firms + heavy cut means far fewer briefs: the best way of avoiding this was to tell the MoJ that no cuts means no cuts across the board, not just to the AGFS, which is what Tony Cross promised at the LAPG conference in October 2013. The weakness of this position is that there was much less chance of the MoJ backtracking on the 17.5% and limitation of duty contracts, as well as AGFS. It would have been almost incredible had it done so. But I would say that the consequences for those working in both arms of the profession are so bleak if the litigator fee cut and limited duty contracts come in, that it was necessary to hold out. Perhaps we would have secured a lower cut, more duty contracts. Anything that would have assisted solicitors, would also have assisted the independent Bar.

    You will say I am part of the doom and gloom brigade. But when you are cut by 17.5% while you only have single-digit profit margins, you are doomed to fail unless you use fewer and cheaper staff to do the same amount of work, staff who are already working very hard, in the round, and who have only seen pay cuts not rises for many years. So yes, there is doom, and what of that is not gloomy? Quality will suffer. When instructions to the independent Bar decrease, and fewer barristers can survive in crime, what of that is not gloomy? When fees paid to the independent Bar in the magistrates’ court are also reduced, which will directly hit those trying to grow their practice, thereby reducing social mobility, isn’t that quite gloomy? And of course there are those members of the Bar who practise extradition at Westminster; how do they feel about the prospect of a 17.5% fee cut?

    Your solution is to ‘be better’. That, in my view, ignores the reality of the financial situation we face, and should provide little comfort to those at the very junior end of the Bar, or those from less well-off backgrounds aspiring to join the Criminal Bar.

    I do not agree that NLQC’s CBA statement ‘sounds right’. I think the most telling part of it is where he says that had solicitors agreed not to work at the reduced rates introduced on 20 March, ‘things might have been different’. For the sake of clarity, I am reading this to mean that the CBA might not have supported the MoJ deal on AGFS had solicitors demonstrated that they were also prepared to feel the pinch. So there was an alternative. He did not have to take this deal. But the solicitors according to him were insufficiently committed/militant. If he was thinking along those lines, he should have said so. After 12 months of the rep bodies working hand in glove, after everyone agreeing so wholeheartedly with his suggestion to form the National Justice Committee, and agreeing to meet each and every week to co-ordinate policy and action, he should not have felt so shy or the need to be so coy.

    It speaks of division, and I don’t know whether this attitude came from the No Returns policy: “we are suffering here; what are you doing for the cause?”. If No Returns was so unsustainable, they should never have introduced it. That was your position before this deal was announced, and I would agree with it, if it actually was so unsustainable. However, the less senior juniors with whom I spoke during the operation of the policy, always indicated their full support for its continuation.

    From my point of view, the situation is a mess, and had the CBA not allowed itself to be pressured by time to decide whether to accept this deal, we would not be in it. I join the sea of voices who do not subscribe to this point about the time-limited, one-time only offer. It reminds me of telephone frauds where vulnerable people are told they have been specially selected to benefit from a lucrative investment opportunity but must pay up immediately or the offer will expire.

    And I refer just to the CBA and not the Circuit Leaders as it has been obvious throughout the past 12 months that the Bar’s response to the proposed cuts has been led by the CBA, and it by far enjoys the greatest influence in negotiations. Had the CBA said no to the deal, there would not have been a deal. While NLQC is right to point out that most Leaders supported the deal, I think it is disingenuous to begin shifting responsibility on to them when the CBA enjoys so much influence and has been happy to take the credit for everything achieved by the Bar during the last 12 months.

    It is also disingenuous for NLQC to say that the CBA initiated the day of action on 7 March. Those present at the meetings know as much. This is a small point, but significant in that it demonstrates NLQC’s willingness to take full credit where it is not due, and his willingness to misrepresent the facts; this leaves a bad taste.

    My own hope is that CBA members can persuade their leadership to abandon this deal and resume the unity, weaker though it will be.

    You say you want chapter and verse on what will happen if the Bar does reject this deal. I’m afraid you cannot have it. We do not know what will happen. What we hope will happen is that the pressure on Grayling becomes so great that he sits down with all rep bodies, not just the Bar, and makes us an offer that we cannot refuse. And we will only be unable to refuse it if it preserves the existence of small crime firms, ensures that it will still be profitable to instruct the independent Bar, and ensures that it is still profitable for the independent Bar to continue accepting instructions from criminal defence lawyers.

    The pressure that I hope will secure such an offer can only be generated by all rep bodies continuing to work together, as they had been doing for a whole year until 24 March. Solicitors need the Bar to be involved in the fight. No Returns needs to be regularly reviewed, perhaps at monthly intervals, not just done away with overnight. If the Junior Bar are prepared to stomach the pain, it should continue. If some cannot afford to continue, they should be prepared to accept returns. It does not have to be all or nothing. When solicitors demonstrated on 6 January and 7 March, some firms did not participate. They sent their lawyers to court. There was still widespread disruption. Work to rule has been implemented by the solicitors, and should be discussed by the CBA (I’m not sure whether it can work, but welcome its discussion as that could well lead to some other resolution).

    Over 500 senior solicitors convened in Manchester to discuss a way forward. This was at extremely short notice. Franklin Sinclair rightly pointed out that not all were there to participate and voice agreement, some just to observe. But he also noted that it was some achievement for so many to have convened at such short notice. Refusal to work at the new rates was mooted, but it was felt that there were not enough present to secure agreement. It was agreed that it would be discussed at a later. Just the fact that such a drastic measure was discussed demonstrates the willingness of solicitors to also get their hands dirty in this fight.

    The fact is that we are dealing with uncertainty, so your demand for certainty is not one that anyone can meet. Ideas are evolving all the time. The National Justice Committee was only formed in January 2014, 9 months into the campaign. Work to Rule kicked in very recently, as did No Returns. If the Government holds out for longer than solicitors/the Bar are able to, then of course it will mean defeat. But the MoJ making the AGFS offer is the best demonstration yet of whose resolve is weakening the fastest, in my view. You seem to ignore that divide and rule has been a popular tactic of the Government in the past, and here it is clearly rearing its ugly head once again. Why else would Grayling have made this offer? Why else would he have placed an absurd and arbitrary time limit on the offer? If solicitor rep bodies accepted a deal to reverse their cuts while AGFS cuts remained in place, the Bar would also complain of being sold down the river.

    I note that you have not given chapter and verse on what will happen to the Bar if the deal remains in place. You just say that there is a need to ‘be better’ than HCAs. You dismiss those who fear the worst as doom and gloom merchants without stating how rosy you think the picture will be for the Junior Bar if the litigator cuts and changes are made. What will happen to the Junior Bar if litigators are cut by 17.5% and small firms go to the wall?

    Just to be clear, I say nothing here that is intended to offend. I just question some of your reasoning and conclusions.

    Thanks

    Omar

  15. March 30, 2014 5:43 pm

    Omar,

    Thank you for your thoughtful and considered response.

    I don’t think I have failed to grasp the nettle. You say that solicitors will brief in house if they have their fees cut. So they may – even though they are only getting half the cut (again, because of the deal that was struck). But solicitors look for profit and, if they think they can get it by doing the Bar’s work, they will. I made that clear. I see no value in turning our back on this deal, because the return for turning it down is that solicitors may continue to brief us instead of going out of business. That is a may. We will then have the cuts. That is a will.

    The hand that feeds me is the hand that accepted the cuts and carried on working. The hand that now wants unity is the hand that went off to work on the new rates. Am I sorry about that? Yes. Does it inspire me with confidence? No.

    Solicitors are behaving as if they were the weaker partner in this unity. They have 5 times the membership and 10 times the money. If they are really prepared to keep all work with HCA’s then quality isn’t their driver. If quality isn’t their driver, the only way the Bar can appeal is by referral fees, which are illegal and stink. So I am cautious about promises of future support.

    I don’t agree with your interpretation of Lithman’s comments. What he clearly meant by things being different was that if the solicitors had refused to work, different concessions might have been made. But solicitors stopped fighting for themselves.

    Of course, the optimists say we will beat the government. But I have now been asking how for 4 days and I haven’t had an answer. I have concluded that I would rather trust those who were there and can explain their thinking than those who weren’t, and can’t. That seems reasonable.

    What isn’t reasonable is to say we don’t know what will happen. It is madness to act without doing the best you can to ascertain that and I am unpersuaded that abandoning the attempt is legitimate. Although you put it nicely, you don’t know and won’t say. That marches in step with you not wishing to accept that those present got the best deal. I don’t agree or accept that – lots of people don’t like the deal but not one has been able to explain why I should accept that this means there was a better deal on offer. That is no more than (convenient) blind faith.

    In a sense, given that I do not think we can save solicitors by ourselves, and therefore cannot save ourselves by saving solicitors, the issue of what will happen to the junior bar is irrelevant to this debate. But I think it will probably shrink. What I don’t think it will do is collapse. And it would have done had OCOF come in.

    However, I may be wrong. Amidst all the wailing and gnashing of teeth about how the junior bar cannot carry on I note that it is not noticeably shrinking at the moment.

  16. Nick permalink
    March 30, 2014 6:52 pm

    Hmm, openly admits he’s been wrong about everything thus far but insists he is right now.

    • March 30, 2014 11:13 pm

      I think comments that appear terribly clever when you write them, might appear less so on re-reading. This is a serious debate and a serious attempt to get this right for a profession I love. A cheap remark is hardly a contribution of substance.

      However, if I’m wrong about that, just provide everyone with your real name.

  17. Omemiserum permalink
    March 30, 2014 11:37 pm

    May I as a solicitor explain some of the reasons why Solicitors have not been as forceful as the Bar in their opposition to Grayling’s proposals?

    1. We, unlike you, have Criminal Legal Aid Contracts. If we do not perform our obligations under those contracts then we are at real risk of a Contract notice. Get one of those and that is the end of your firm. Goodbye, goodnight and good riddance from the LAA. Have no doubt that the LAA would do this. Its probably fair to say that they are itching to serve such notices already. We are consequently in a far weaker position that the Bar.

    We have already had a warning letter telling us that if we fail to secure CC representation for our clients then we could get a contract notice.

    2. Greed. The bigger firms are already eyeing up the prospects of a duty contract with the rest of us gone and forgotten. The smaller firms by and large would honestly be more aggressive in their opposition to the cuts were it not for the fact that they know that the bigger firms would simply sweep up their clients.

    3. We have failed to grasp that our power lies not at court but at the police station. If all solicitors were to refuse to attend the police station then this would undoubtedly bring the system to its knees. Having days of action that only affect courts is utterly useless. But we won’t stop going to the nick because of reason 2.

    We are doomed.

    • TheGoodWife permalink
      March 31, 2014 7:54 am

      Omemiserum, I disagree about your third point. I think the police would be rubbing their hands with glee at the prospect of another “training” day that included a refusal by solicitors to attend the police station. Whilst the cat is away the mice will play. I expect to see custody suites cleared out the night before, all prepped and in readiness for the start of the dawn raids at 5am. I see it as an opportunity for the police to execute special operations, gather up the n’er-do-wells and bring forward bail to return dates, all in the safe knowledge that there won’t be a brief in sight. Those detained in custody will be told that solicitors are striking and not attending the police station. The vast majority of detainees will choose to go into an interview without a solicitor. I can also foresee record numbers of TICs on such a day. There is nothing like a lack of a solicitor and a McDonalds meal (Go Large of course) to induce vast numbers of TICs. We would not bring the system it’s knees. The police will be over the moon. No briefs in the police station, lots of confessions and a load of unsolved/non-investigated crime off the books. The police will think Christmas has come early.

  18. Omemiserum permalink
    March 31, 2014 9:37 am

    TGW -sorry but simply do not agree.

  19. Angry Northerner permalink
    March 31, 2014 3:13 pm

    Looking at the various well thought out posts, there remain a few points that cannot seriously be in doubt. The effect of Grayling’s proposals, especially so far as solicitors are concerned, has always been utterly unpredictable. Smaller firms may survive by amalgamating into larger firms but they may not. Existing huge firms might take over but, again, they may not. The only certainty is that those doing the solicitor’s work will have to do so for less money. The easiest way, if not the only way, for them to do this is by taking as much work in house as possible. Quality doesn’t come into it when survival is at stake (think Maslow’s Hierarchy). This means that if these cuts come into effect the junior Bar is effectively finished. That is a virtual certainty.

    The Bar has to consider carefully where it goes next. There is not much point in securing our payment rates if the work disappears. It is clear that solicitors will not fight the way the bar was prepared to. The reasons are set out by Omemiserum and reflect what a lot of solicitors are saying. Do we fight the fight for them?

    If we do fight we risk ending up with nothing (not a big risk in my view). But then the present “deal” gives us nothing for the reasons set out above. If we fight on we have at least the prospect of further concessions. It is, of course true that if we fight on and win there is the risk that solicitors will still take huge amounts of work in house. Mr Grayling has created an environment in which nothing is certain.

    What the Bar needs is some way of preserving its market. This cannot be just through excellence. Quality is, sadly, out of the window. The only possibility is through a version of QASA with real teeth. Perhaps that is the next battle.

    It does seem to me that the CBA have been a little naive in their dealing with the MoJ. “This offer expires in 48 hours” is the stock in trade of the shady salesman and I am surprised the CBA fell for it. The problem is that we are rather stuck with it now. “Bar welches on deal over pay” would not make good reading.

    Perhaps your contributors can think of a practical and constructive way forward. I don’t know that I can.

    • March 31, 2014 6:35 pm

      Complaints about the actual QASA have been going on for years. Quality is the only differentiator for the Bar. It is time for the Bar to make a robust scheme that measures Excellent Advocacy (avoids the word “quality” which leads to ambiguity of initialism). Put up, or go under.

  20. Anonymous permalink
    March 31, 2014 3:59 pm

    I am a solicitor, and an HCA. I run the criminal department in a mixed practice in the provinces. My department has 9 solicitors and 3 support staff, but my firm has over 100 staff.

    If I stopped taking work at post 20th March rates, I would suffer myself but my staff would be the first to suffer. I would either have to make pay cuts all round or commence redundancy procedures, probably by the end of April, and all whilst other, less scrupulous local competitors, or more likely from a neighbouring city, attended and represented my clients.

    The fact that someone else will do the work means that I am only harming my own practice.

    By July, the work would still be done by the competitors and so the courts would still run and cases would still progress. I would of course have informed the LAA that I was not prepared to carry out work at the lower rates. The LAA would have suggested I apply for a contract to allow me to run down my existing work.

    My partners would undoubtedly say to me by then that we would have to close the department, or I would have to go back to work, at the lower rates.

    If I did not, neither I nor my colleagues would be on the next rota, removing any prospect of new Duty work being obtained. The work of the last dozen years would be undone and I would be out of business.

    At least my staff have the prospect of redundancy pay as I am part of a mixed practice. Think how swiftly those firms who are “crime only”, both big and small, would run into financial difficulties. That would lead to staff being laid off without any prospect of redundancy or any form of ordered departure. It would lead to bankruptcy for the firms’ owners, and I am not exaggerating to say that this could easily occur within 3 months.

    The overheads incurred in running a business are frequently underestimated.

    Bankruptcy precludes firms resurrecting themselves, even if MoJ did reinstate the pre 20th March rates. This would also lead to severe financial difficulties for the staff, both solicitors, barristers and support staff.

    Grayling’s aim of reducing the number of firms MoJ has to deal with would be achieved.

    I am not blind to the fact that the no returns policy which appears to have brought MoJ to the table was causing significant problems to many members of the Bar, but the Bar had strong leadership from CBA and there was unity.

    Solicitors have The Law Society whose preferred negotiating technique is to roll over and have their tummy tickled.

    Without The Law Society advising every firm not to work at post 20th March rates, I, and I suspect many others, would be out of business inside 3 months. That is why solicitors are continuing to work, and will continue to look at any legitimate method of making up the financial shortfall. This will necessarily mean that the amount of work being retained in house will increase. I am not happy about this, but I can’t see a way round it. Whatever occurs, the face of the criminal defence, and criminal justice system, is going to change irrevocably in the next 2 or 3 years.

    Now, where did I put that text book on Land Law?

  21. K Payton permalink
    March 31, 2014 4:18 pm

    It is not that Solicitors don’t want unity; it is that we cannot have unity.

    The very people who stand in the way of unity are the ones who want dual contracts so they can suck up all the work, who will employ HCA and take work away from the Bar and want rid of the smaller firms (who remain ever loyal to the Bar).They are called the BFG and right now the Bar needn’t worry about them… but once they hold all the contracts and once they have got rid of the smaller firms they will undeniably be the Bars problems and unity will be gone, followed shortly by the independent Bar.

    We are not asking you to fight for us – gather the evidence (what size firms instruct you regularly, will they get a contract in your area?) and fight for yourselves.

  22. Omemiserum permalink
    March 31, 2014 5:21 pm

    K Payton – absolutely spot on. BFG are the ones who are preventing the smaller firms from being more militant and BFG are doing this purely from self interest. They have no concerns about the effect on clients or the criminal justice system as a whole.

    Add to that the Law Soc seems to spend all its time promoting the interests of BFG and you have a perfect storm.

    The time might now have come to tell Law Soc that you do not have authority to negotiate on our behalf and tell Mr Grayling to negotiate (or not) with CLSA.

    • K Payton permalink
      March 31, 2014 7:48 pm

      We did, the vote of no confidence… Hudson is resigning and Fluck has the hide of a rhino! TLS are not the CBA, they don’t pretend to be our trade union yet they insist on meeting the MOJ when it should be CLSA/LCCSA (who at least try and speak for the many different interests of different size firms). Is it vanity that makes them try? I don’t know but whatever it is, I wish they would quit!

  23. April 1, 2014 7:22 pm

    A slightly longer response – http://wp.me/p2ctNi-qY

  24. Chris Moran permalink
    April 1, 2014 8:10 pm

    I have spent the last few months being as robust in talking with my fellow Counsel about taking as much direct action as possible. I argued that should the Government not consider the reasonable demand of the CBA (I spotted the ‘pause and wait until after Leveson’ request from the CBA back in the Consultation Response and have no idea why nobody else saw it) then any action we take is not unreasonable including a complete downing of tools. In fact I have argued for, and continue to believe that in the background should remain the possibility of downing tools completely. Our greatest weapon in the absence of Government negotiating is withdrawal of our labour. I also tried to generate as much media attention as possible on the issue and I too stood shoulder to shoulder with solicitors.

    Whatever your view of the proposal it was an achievement the leaders we barristers chose (Circuit, CBA, Chambers Bar Council) to represent us that they negotiated ‘the deal’ with Grayling. The idea that we ‘had him by the throat’, ‘dragged him kicking and screaming’ and begging us to accept the first offer is nothing more than fanciful. Do any of the people who negotiated that – who were closest to the storm – who were there and who the day before we considered of the highest judgment agree with that? There are some supportive MPs on this issue – have they reported bumping into Grayling crying in a corridor in Parliament? Have they reported seeing him biting his fingernails and talking to himself whilst trying to hide the self-inflicted marks on his wrists? Have any of our political contacts, many as they are, who are close to this given you this information or are you all acting upon an assumption? An assumption that presumes you are right? I want people to consider the question “what if I’m wrong?”.

    Our leaders got this because of a careful balance of the following:
    1) the possibility of further and more intense action.
    2) because the Bar was united and made very simple demands (depending upon the size of the law firm and the geographical location the ‘bottom line’ for solicitors shifts)
    3) because of constant persuasive pressure, on key Bar demands in every possible forum from Parliament, MPs, representatives bodies and political contacts (the leadership of the law society being made to look entirely ineffectual, redundant and unfocused in comparison).

    All the above factors gave our leaders political capital which it banked. Whatever our view on whether we should have reached this position we are in it. All our political muscle, all our influence and all our credibility now rely upon us trying to deal with Grayling. It may be the wrong road but it may be the only possible road now. All our eggs are in that basket.

    It may also be the reality that now we have reached this ‘deal’ the best chance for solicitors may be Lithman sitting down with Grayling because he, the Bar Council and the Leaders of Circuit have shown that, on some level, they can influence him. The Law Society not having generated anywhere near the same amount of influence.

    It did however put us in a very precarious position. I concede that. If this gamble goes wrong we may lose everything. But we run that risk either way and one way may destroy the influence and position we have generated.

    As Counsel we should always “aim for the best but plan for the worst”.

    The best if we reject this ‘deal’ – the Bar (potentially now hopelessly split) and solicitors (to date lacking anywhere near the same level of unity) through various forms of direct action manage to force a Tory Government (always known for responding well to such strike tactics) completely reverse the cut already brought in, promise not to cut any fee at all and reverses the policy on dual contacts. They go on record as having saved all the lawyers whilst cutting other aspects of public funding. How many actually see this as a realistic possibility?

    The worst – the Government, in anger at what they will spin as the Bar breaking it’s word says to solicitors “Ok, we will reduce the cuts significantly, will abandon dual contracts, will find our savings from advocacy fees and to make the system more cost-effective will take away ring-fenced Crown Court fees and introduce One Case One Fee to help firms cope with the reduction”. The cynic in me does not have a lot of faith in there remaining unity between the professions if that was offered. The Bar would be destroyed, after having broken our word.

    The CBA request for this delay, having been published for many months, may have been a mistake and upon reflection many may feel we should not have gotten ourselves into this position. I can understand that view. But we deal with the position we find ourselves in rather than the position we used to be in and we play the cards we are dealt.

    I am reserving my vote until the last moment. I am open to persuasion on this issue because it is the most important vote I have ever had on the future of the profession I love so much (I am nothing without this job), the system I’m proud of and the colleagues (both barristers and solicitors) who I see as friends and some of whom are the most admirable individuals I could ever hope to meet.

    I write this because of the black and white fevered arguments I have seen. I know from private discussions I have had with fellow Counsel that many have the same concerns as me. However they fear the reprisals from people threatening to try and ruin their practices if they say so and are therefore unwilling to speak openly.

    Like I say, I want to be open to the arguments, I want to be wrong, but the above thoughts and concerns are very real in my mind and they dominate my thoughts. I understand that the cuts to firms will ruin the Bar as a consequence. I just have genuine trouble believing that throwing away our current position, fracturing the Bar in the process and pulling the CBA apart has any change of success. Could we ever have the same unity again if that happened? I need to be convinced that the road we are now on (whatever the many obstacles and odds we face) is not the only chance either profession now has.

  25. Anonymous permalink
    April 2, 2014 11:43 am

    I disagree with most of what you say, but may I take issue with one discrete point? You say that we (the junior bar) can compete with HCA’s by being better. The word we would find ourselves in is one where cost is king. Quality would have nothing to do with it. Winning or loosing is irrelevant, indeed if doing the job well mean; more work for the I/S, instructing experts or preparing the case in depth, quality becomes positively unattractive to solicitors.

    • April 2, 2014 5:23 pm

      If so, why are you at the Bar? I ask because, possibly by mistake, the email that came with your comment is that of a firm of solicitors. That may be some sort of tech error I have misinterpreted, but if cost is king then on what basis do you believe the Bar get work for which we are paid a ring fenced fee?

Trackbacks

  1. Legal Cheek » Morning round-up: Monday 31 March
  2. If this is a victory for the bar it certainly doesn't feel like one | Barrister BloggerBarrister Blogger
  3. Why I Support the CBA but Oppose the Deal | A view from the North
  4. But, what are you for? | Dan Bunting - A Life in the Bus Lane

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