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Debate

March 29, 2014

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.

Matthew wrote:

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

 

My response:

Matt,

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

Simon

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9 Comments leave one →
  1. Matt lefteris permalink
    March 29, 2014 10:19 pm

    Well put argument as to why the deal was worth taking. But I believe- wrong. For two or three main reasons on top of those repeated enough by Ian, dan bunting and matthew.
    1- one of the main objections is that we were not – whatever is said, consulted
    2- you cannot seriously compete by relying upon direct access. Direct access is at best no better than an own client contract. A duty contract is needed to survive and I don’t see a single set in a position to obtain one.
    Being better is a nice idea , but I’m afraid will not work.
    3- whilst we can’t nec fight every fight for the solrs we should not have simply looked after ourselves and discarded those who stood by us so recently.
    I don’t know what the answer is to all this. A simple return to slots for our solrs may not work when one considers the cuts. All I know is that the deal accepted was not in anyone’s long term interests and we stand to lose far more than we gain.

  2. March 29, 2014 11:16 pm

    1. We’re not a unified body – we are each self-employed individuals. We weren’t consulted about DoA or no returns either. No difference, except what you wanted to happen.
    2. If being better won’t work the job isn’t worth doing. Why do you do it? If it’s to be as good as a solicitor, even on your own assessment you will be able to. Quality is what we have. What else do you say we have?
    3. We didn’t abandon solicitors. We had a coincidence of interest with them. If your analysis is correct, why did they not abandon us by accepting their deal?

    If you don’t know the answer, why is the CBA deal wrong?

    • Anonymous permalink
      March 30, 2014 12:50 am

      1. We were consulted on doa and returns as there was enough debate for anyone to voice concerns . The march doa gave the moj 3 weeks notice! This deal gave nothing and details deliberately kept from us. And never mind what I ‘wanted’. I want to be consulted and I’ll accept the result when its the wishes of the majority who have given up a lot. Me personally – I could possibly benefit from the deal- but that’s another issue- I object because it was wrong to accept it in the way they did. I think it was wrong – detail wise – but that’s a debate. Accepting it without consultation is wrong- period.
      2- being better won’t do it- its business de skin that solrs are going to make. And the DA point is a non starter.
      3- try to justify it if you like but the feelings of betrayal by solrs are widely felt. We let them believe we were in it together and used them for our own ends.

      I don’t know what the answer is . If I did id prob be alone. There is no quick fix nor solution that will save everyone. But taking a deal like this which in reality is no deal at all, was not the answer.

  3. Russell Fraser permalink
    March 30, 2014 9:04 am

    The problem the solicitors profession has, is the curious existence of the Big Firms Group, as though there are firms whose interests and concerns are so removed from the rest of the profession that they require their own representative body. In my view it is a pity it was ever formed. None the less the BFG’s shadow looms long and large over all the firms not in its number. Mercifully, there is no equivalent at the bar.

    So whenever talk of direct action and rejecting new contracts is raised, some, but by no means all, of those members of the BFG dismisses all suggestion of doing so. And that makes it difficult for any unity to foster. That hasn’t been the case this time around with even the BFG seemingly unable to agree a common position.

    • March 30, 2014 9:31 am

      I agree with that. And – to take a point against my own argument – I think part of the reason that Tuckers, for example, belatedly joined in the action was because they were scared witless by OCOF. The deal removes the threat of OCOF insofar as we can and thereby makes it easier for the BFG.

      However, the BFG would have to revamp and get investment to deal with OCOF, whereas we would be obliterated. The BFG could do what was required (have a google of Linder Myers to see what can be done with private equity). We could not.

      The MoJ have skilfully played on that. The answer is to take advantage of the time we have to make OCOF a hammer against the government rather than a stick it can use. That means proper use of PR (a much better use of my money than the legal action against QASA). We need to change the debate and that means a political campaign.

  4. Russell Fraser permalink
    March 30, 2014 9:10 am

    You’ve also called me Russell Howard, Simon. At which I take great umbrage. He’s a singularly unfunny man.

    • March 30, 2014 9:27 am

      You’re right – I’m sorry.

      • Russell Fraser permalink
        March 30, 2014 11:37 am

        No need to be.

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