The Top 7.
I have updated the Editorial. That and the following Posts should be regarded as 'must read' in that they deal with the topics most often raised.
So far, no one has answered the questions posed yesterday. According to Facebook there is a solicitor (I think Ash Bhatia but the post was a little ambiguous, so if it isn’t him I apologise) who has powerful answers to every point, but he isn’t going to give them. Caveat emptor.
However, things are a little clearer because some people have commented on some issues:
- Michael Turner has made it clear that the CBA’s absence – as observers – from the meeting was not the CBA’s cock-up and was not a conspiracy. Although David Allen Green begs to differ (in deference to him, on the question of whose cock-up) I see no reason not to take Turner at his word. Please don’t let that put you off Jack of Kent generally – it’s usually a good read, and thoughtful about substantive issues.
- That does rather support the view that the absence of attendance is an irrelevance. That’s rather a shame because nothing is more exciting than a good conspiracy, but we are a fact based profession.
- As those on the LCCSA mailing list now know, the bigger firms (I am told this is not the BFG) were threatening to pull out of the action on Monday. The new protocol was devised without consultation with the membership of the LCCSA in order to avoid this possibility.
- For reasons that currently escape me entirely the new protocol was not announced to the MoJ before the solicitors met Gove, but it has now been made clear that the non-annoucement was deliberate. I wonder about that as a negotiating strategy. It seems to me that any discussion must have taken place on the basis that the then current action was to continue, whereas it became clear, within 2 hours of the meeting ending, that this was false, but there may be a reason behind it that is not disclosable at the moment.
- The CBA was told of – but not consulted about, or invited to approve – the new protocol on Wednesday evening.
- The necessity for the new protocol is financial.
I make it clear that I accept all those points.
There are 2 questions. First, this new protocol plainly shifts the financial burden of this action to the Bar – otherwise there is no point in the solicitors adopting it. Does that affect the CBA’s mandate, given that it is not the basis upon which people voted? There are arguments both ways: some of the Yes campaign have said we voted for action, regardless of the work solicitors did or didn’t take. Others say that the Bar’s vote was plainly taken on the basis of facts that no longer exist.
Surely, if we are going to go ahead we need to do so now. It seems to me that the Yes campaign must now step up and take responsibility. If they believe we need to reballot, I would accept the need to do so, because it would be plain that a number of barristers wish to revisit their choice. There are a substantial number of solicitors out there who would seize on that decision as a reason to stop their own action and, ultimately, carrying on with the action might be the best way to remain on speaking terms with the solicitors’ profession. If we did reballot, the Bar would be blamed, but at least it would be clear that the reason was that those who voted for action now acknowledge they did so on a premise that should no longer bind them. Otherwise, we should not reballot.
I am content to abide the ballot we took and I acknowledge the Yes campaign may be right. In my view it is more important that we do not lend ourselves to a narrative that suggests this could all have ended in glorious victory had the CBA not stepped in to stop action after we voted for it. I am chiefly anxious that we act responsibly, and it seems to me that the best way to ensure this is to put the Yes group in charge of determining whether and how to continue. That involves no abdication of responsibility by the CBA Officers: they would merely be delegating the strategy of the campaign to those who always asserted they were most in touch with ordinary barristers and, thus, best placed to run a successful action.
Of course, no one has yet answered the questions I posed below. Those do need answering urgently, particularly the one about when we stop.
The second question is whether this action is going to work. In my view – and I say this as someone who is committed to carrying it through – those running the action need to considerably up their game. A financial issue is the easiest of all things to predict – you crunch the numbers and you get an answer. Why those running this action didn’t take those basic steps is unclear. If they had, they would have known that the action could not continue for more than 3 weeks and there could have been a consultation and a more informed choice. It may be the information was so sensitive that even 3 weeks’ advance notice was thought to be too much sharing, in which case we urgently need procedures to ensure that doesn’t happen again. We cannot succeed unless people are prepared to put their own interests aside in the cause of the group.
Equally, I cannot conceive why no one campaigning for action asked the solicitors how long this could continue and what the plan was when it could not (imagine the furore had anyone suggested this hadn’t been done…). I am aware there is already an attempt to blame the CBA for being so slow but that is a poor argument. It was plain that there would have to be time for a protocol to be agreed and some lead in. Moreover, if the solicitors believed this would be over within 10 days of the Bar beginning action, they would have carried on.
Given that those who campaigned for a yes vote have continually been taken by surprise by eminently predictable events, such as the need tho establish a protocol and the likelihood that solicitors would have to take new work, I believe this all needs to be better thought through. I don’t stand for elected office – this profession doesn’t really permit Orthodox Jews to properly serve because meetings are usually on Saturdays (not a complaint) – but I want those who are elected to demonstrate competence and, preferably, more. This point is important because if the CBA officers (none of whom are personal friends and most of whom I wouldn’t recognise if I bumped into them in the street) are going to be attacked for incompetence and self-interest, those taking that line must be held to the same standard.
If – and only if – there is a new ballot, I invite consideration of whether the assurances that Gove cannot be trusted, that we have a sufficient community of interest with the solicitors to justify risking our own livelihoods to assist them, and that the action we are taking will succeed are reliable. It may be that what has happened disposes us to give more weight to the assurances of the CBA leadership and the Circuit Leaders to the contrary.
NB: Some of the information about the announcement to the MoJ may be wrong. I am seeking further info and will amend when I have it. In the meantime, what is up is what I read in the LCSSA communication sent to all on the list.
The position is this:
- The Bar has come out to support the solicitors. Extraordinarily, that part of the motion proposed that permitted the solicitors to tell the Bar when they could go back to work remains unaltered and unclarified.
- The Bar having accepted no returns, the solicitors are refusing to do Crown Court work. That means the main type of work for the criminal Bar will dry up shortly.
- It is therefore imperative that this action is concluded swiftly. Before people go bankrupt.
- Today, having met the MoJ, the solicitors have announced that they will return to work in the Magistrates Court. The fees that they earn are, apparently, going to filter through to the junior Bar via Magistrates Courts briefs. No word on anyone who makes their living from the Crown Court – and in the Circuits that includes just about anyone of more than 2 years call with any ability.
It is clear, therefore, that the solicitors can now hold out much longer than the Bar. It is also clear that the financial risk of this action has been very largely transferred from solicitors to barristers.
I entirely understand why solicitors would wish to do this: they have obligations to staff and they do not wish to go out of business. I am also resolved that, having voted against action, I am personally going to honour the majority vote. And, as previously, I am offering my services (obviously for free) via my Circuit to anyone experiencing judicial interference.
That does not deal with the position we are in however. In particular:
- We do not know at what stage the Bar can go back to work in its primary centre of practice, the Crown Court. Is there yet a mechanism for the solciitors to permit us to do so? Which solicitors, or solicitors’ group (the CLSA, the LCCSA, the BFG or the Law Society) will make that decision?
- How is it now asserted that there is a community of interest? Having obtained the Bar’s support, the solicitors have opted for unequal pain. As I say, I understand the economics completely. What I do not understand is whether this is what the proposers of action contemplated. I certainly do not recall being told that within days of a vote for action, this is what would happen.
- In what way does this differ from the ‘deal’ done by the Bar last year? Obviously, it is not an agreement with the MoJ (see below). But the effect of it seems to me to be to leave the Bar doing the heavy lifting, in exchange for the prospect of some Magistrates Courts trials. Is that not the objection to ‘the deal’ – that the Bar acted only to protect its own position and left the solicitors exposed?
- Who, for the solicitors, is putting in the hard yards working out precisely how an accommodation is going to be reached with the MoJ? For all the cries of betrayal, the fact is that what the CBA and the Bar Council achieved for the Bar was an annulment of the proposed fee cut, and a relationship with the MoJ that is patently wholly different to the one before the action last year. That clearly involved a huge amount of hard work, not trumpeted on social media and not paraded before a cheering crowd of angry barristers as a triumph – presumably because to do so would be to undermine the very foundations of what had been built. Who is doing that for the solicitors?
- There are only 2 possibilities: there is more money for legal aid. Or there isn’t. If the former, then what is being done by the solicitors to secure it? Whatever the economic merits of today’s decision, it certainly doesn’t exert any more pressure. If going back to work in the Magistrates Courts is the only way for solicitors to carry on why weren’t we told? What consideration, for example, has been given to withdrawing bids for the 2 tier contracts that we are assured will wreck solicitors’ practices? What consideration to a mass breach of contract by refusing duty work, so that the MoJ would either sue all or sue none?
- Before today, those might properly have been matters only for solicitors. But, if the belief is that there is more money available, and if the reason for going back to work in the Magistrates Courts is to enable action to bite harder then the solicitors are now reliant on the Bar. That means we are a stake holder. The issue of the CBA’s attendance at today’s meeting is irrelevant, because – as the CLSA has confirmed – the CBA was only ever to be an ‘observer’. Never mind that. Given the transfer of risk to the Bar, what are we being told about how matters will now proceed?
- Now let’s assume – as today’s developments seem to me to implicitly acknowledge – that the legal aid fairy isn’t going to wave the magic wand of restored fees. What are the solicitors going to do within the current legal aid budget? At present we are supporting action to assist them (and, it is said, ourselves). What is their plan B (assuming plan A to be the waving of that wand)? Are the solicitors in a position to suggest to the MoJ an alternative to the current plans that would be cost neutral, but would be more palatable? Or even an alternative that only involves reversing the fee cut? Or only the dual contracts? Again, as a stakeholder we are, surely, now entitled to be told.
- How does this development – which plainly places junior counsel at enormous risk and which is hardly going to be offset by increased Magistrates Courts work – assist us to the sunny uplit highlands of solicitors celebrating their own survival, thanks to our assistance and the unity for which we voted, by giving us more work (or, in the case of the BFG, not taking our work at quite such a rate)? Are we to test the certainly of that outcome by measuring the increased Magistrates Courts work coming into Chambers? Or are we to disregard today’s development and the fact that we were not told about it before we voted? And, if so, why?
Either today’s return to Magistrates Court work was predictable or it was not. If it was predictable, then why did those calling for action (barristers and solicitors) not predict it? [That question is irrelevant to those counselling against action as anyone suggesting that it would happen would have been rightly accused of asserting those campaigning for action were acting in bad faith]. If it was not predictable, then should we reconsider our position? If not, why not? And, what do we make of the irony that when the Lord Chancellor talks up the Bar we must regard it as a sinister plot, but that when those calling for unity fail to tell us that this is the plan, we must assume that, nonetheless, unity was demonstrated today?
I have noticed the distinct silence of those members of the Bar who campaigned vigorously for the position we are now in. I would like them to deal with these issues – not because it is important to settle scores or because schadenfreunde is enjoyable – but because they asserted themselves as fit to lead us. That being so, one would expect them to be able to provide answers – and soon.
Ultimately, this is where I think this debate has got to. I have taken the claims of those on each side at the proponents’ own estimation. An asterisk indicates where I think that is a higher estimation than must necessarily be taken. I have tried to set out what each side says will be achieved, or lost, first followed by what might be called more general reasons to support its position.
- It would bring the courts to a halt.
- It would thus demonstrate our ability to do so.
- Which would teach the MoJ a lesson and thereby* increase our credibility.
- And would achieve the aims of the strike more quickly.
- It is certain* that this would help the solicitors succeed in reversing the rate cut.
- It is more than likely* that without the rate cut, dual contracts would be abolished.
- It demonstrates solidarity with the solicitors.
- Lots of solicitors* would reward that solidarity by not doing any more advocacy work themselves in the short to medium term.
- It involves very little* additional risk to the Bar, as there will be much less work coming through until this is sorted out.
- The gains are thus worth* the loss of income to the Bar, especially its most junior members who are disproportionately hit by no returns.
- In any event, striking is justified because if dual contracts is implemented the number of small and medium sized solicitors firms will shrink to the stage where the junior Bar cannot survive*. The Big Firms Group will, as now, continue to do as much of their own advocacy as possible.
- Like it or not, the Bar is affected by this issue because the MoJ will* come after us next.
- It adversely affects clients.
- It is a breach of our undertaking to the MoJ, which has honoured its side of the deal we reached with it.
- It endangers our engagement with the MoJ, which is now significant and fruitful*.
- As we now compete with solicitors for our work, but they do not compete with us for theirs, there is no true community of interest*.
- If dual contracts were really the end of the road solicitors would not have bid for them and would be taking action about them*.
- Dual contracts are probably here to stay because quite a lot of solicitors want them and (because of that) they are not taking action about them.
- Unless the Bar can protect its ability to conduct advocacy, it will wither in any event. A strike would postpone the inevitable, not* prevent it.
- Striking invokes the law of uncertain consequences. The MoJ can impose cuts on us or implement things like one case one fee, which would certainly kill the Bar.
- Striking may not achieve the aims of the strike, either because the MoJ holds firm or because the solicitors do not.
As you can see, there are only 3 virtual certainties of note: that the Bar could halt the system; that without advocacy we cannot survive and that competition between solicitors will involve them doing more advocacy. The first 2 are obvious. The last seems obvious to me, but I have repeatedly asked whether solicitors will do less advocacy if they win and the answer is no – at least if payment for other work is not increased.
The rest of it is about where you personally put the emphasis and what your own take is about the asterisked issues. The asterisks essentially represent the areas of risk that you need to assess when making your decision.
I can see why those people whose primary motivation is kicking the MoJ and solidarity want to strike. I’m not interested in the former (although I believe the MoJ is second rate at present), but the latter is important. I can see why you could honestly and passionately vote yes on an assessment of the issues. I would very much like to vote yes, because I believe the solicitors’ cause is just, and because I admire them, what they do and their commitment to it.
Yet, I still cannot accept that the Yes side has properly assessed its case, because almost every asterisked issue has been answered with a statement of faith, rather than a substantive argument. I think that to vote yes you have to be persuaded that the chance of saving the current level of work is worth the risk that the MoJ will not negotiate with us again and that the work will be available both to the solicitors who brief the Bar and to the Bar itself.
I also think that, perhaps because much of it is an issue of faith, the tone and shrillness of the Yes campaign has been a turn off. It certainly has been unpleasant to me personally (with some important exceptions), but it has also descended into personal attacks on honesty and ability. That’s demeaning and I cannot rid myself of the feeling that it indicates something about the merits. I wonder how broad the support for it really is, with the most vocal supporters coming from a handful of Chambers. That isn’t a problem in itself, but it suggests that volume of advocacy isn’t equivalent to volume of support.
I would very much like to vote Yes. I hope the solicitors succeed. But I am going to vote No. I do not consider myself bound to support the solicitors. I do not believe that the prospect of their victory offers the Bar what we need. That being so, the fact that they may lose and that their defeat might affect the Bar is not a sufficient reason to support them. If there were nothing else for the Bar, then solidarity – for me – would suffice. But we have negotiated with the MoJ successfully and we are on the verge of a new relationship. That has been forged because we did a deal and both sides have honoured it. I have heard those words spat out too often. Negotiation is what we do. On what basis is it properly said to be an act of betrayal? Who makes an argument so much about emotion and not enough about hard fact? Normally, the party who knows the case needs a bit of oomph.
Of course, it may all go wrong. But at this time, and in this place, you have to make a hard headed assessment of where we are. The answer lies with those who can assist our futures and who are saying that they will. Hard as it is to stomach, that’s the MoJ.
I have read the piece with care. I believe it is inaccurate and weakly argued. If you click on the link below, you will see the piece and my comments. Please feel free to make up you own mind. And, whichever way you go, please vote.
There is no question but that the cuts will hurt solicitors and that they are unfair. I do not believe that the solicitors will go bust – if that were true, no one would have bid for a contract that cannot make them a living. It’s a shame the case was overstated, and it doesn’t help (when does it ever?). But the essential point is right.
The question is what we should do. What do we gain from action? Will your Solicitors survive and be grateful? Will that mean they send you more work? Are firms who do not brief you going to start briefing you?
What do we lose from action? Will the MoJ withdraw from what is currently the most active and positive engagement with us in a generation? Will it impose the cuts we successfully avoided last time? Will it impose OCOF? What affect would that have on your practice?
What does the future hold? The Big Firms Group will compete with the Bar (Tuckers are absolutely up front about that). Will they take your work? Will they brief you? How are we best placed to compete against them? Do the answers to those questions affect you if your small firm clients survive? How are they likely to affect you in, say, 5 years time.
I am not giving answers because – as I hope the above list makes perfectly clear – it is an individual decision. You may wish to take the interests of others in your Chambers – or even outside – into account, but the decision is yours. Chambers where those individual decisions have occurred in lockstep, have far more tightly focussed criminal teams than any of the 3 sets of which I have been a member.
But either way, publishing a group decision isn’t, in my book, about helping anyone decide. It’s about proclaiming publicly that the ‘right’ decision (whatever that is) has been taken. As to which, in my view, the better counsel is ‘do right and fear no one’.
As readers will know, I have been distinctly uncertain about calls for industrial action, particularly the no returns option, which I regard as seriously disadvantaging the junior bar. Whilst it was on I offered my help to barristers needing it, because I went with the flow, but I was not terribly convinced by the arguments, the procedures or the options we were offered. I was also a supporter of the agreement that was reached with the Ministry of Justice, and I still am. That agreement was heavily supported by the Bar. It has, thus far, been honoured. It would be wrong to make any decision based on either of the following:
- A confident prediction that the MoJ will dishonour the agreement. There is no basis to adopt that position. At best it is a wild guess. At worst it is scare-mongering.
- That the original vote was in some way wrong (trans: its opponents do not like the result). That is navel-gazing of the highest order. It is also dishonourable. How on earth could we be trusted if our yea only meant yea for a random period and was transformed to nay without anything happening?
However, that isn’t the end of the story.
This government has determined to bring in 2 tier contracts. In truth, there is no concrete way of knowing that they will spell death for solicitors up and down the country. But, if they don’t it will be the only scheme devised by the Ministry under its current ownership that has ever worked. It will be the only scheme devised by the Ministry under its last ownership that ever worked.
The ‘reforms’ to the Criminal Justice System have not worked. They have not brought crime down. They have not made justice better or more secure. They may – just may – have succeeded politically: that is to say that in transferring the cost from the legal aid budget to the Courts budget (as waiting times for cases lengthen and the cases themselves do the same), the social care budget (as cases take longer to get resolved and stress the litigants in person who must now argue them), the education budget (as children suffer from the uncertainty surrounding their parents), and so on. In so doing the politicians may have persuaded enough people that money has been “saved” from one budget, whilst obscuring the fact that it was merely been transferred into another. But such “success” lies in fooling people with a sleight of hand. It is not designed to achieve anything save political advantage.
So, I believe we should work on the basis that what is coming, if the Tories win this election, is the catastrophe of which the solicitors warn. We can disregard the Lib Dems as they are utterly unable to resist the Tory agenda and, in the person of Simon Hughes, don’t even appear to have tried.
The solicitors cannot help themselves to the extent that would enable them to prevent what is coming. The reality is that despite the good sense and commitment of many, the big firms are less than supportive and, presumably, perceive they have much to gain. As the only way of gaining is to pile it high and sell it cheap – whether that is advocacy or advice – that seems to support the proposition that a catastrophe is truly looming.
It should not need saying, but it’s probably best to spell out that proper representation of horrible people, stupid people and desperate people is the only thing that stands between us and the horrible, stupid and desperate things that they would otherwise do. And, whilst I would welcome a bit more judicial intervention I can understand why serving Judges are silent. What I can’t understand is the silence from the Magic Circle. So, if you’re one of those – solicitor or barrister – I’d like to hear your voice.
The question therefore, is whether the publicly funded Bar – small, compact, brave and relatively united – should step into the breach.
There are some good arguments against. I did not come into the profession to strike – in any form. I want to represent clients. That’s why I am a barrister. I am not persuaded that I am justified in unilaterally abandoning today’s client on the basis that by doing so, I help tomorrow’s. Not only may that not be true – if the action doesn’t work I will simply have hurt more people – but even if it were true I am utterly unpersuaded that I can chose to abandon Mr Smith so that Mr Jones can have justice in 2 years time. No one asked Mr Smith to sacrifice himself in that way. All I would be doing is to arrogate that choice to myself, and that is the absolute antithesis of what we are about. Once you decide who to represent on the basis of your own choices, you can decline to represent anybody and everybody. The extent to which that argument is readily dismissed is a real concern. It suggests that people don’t understand what our profession stands for.
I’ve heard a lot of solicitors (and some barristers) suggest that the Bar ought to do this because otherwise we will lose out. That is also a dreadful argument. It is based on an implicit threat – and I really don’t care that the terms in which it is couched are that “we’d love to help you but we won’t be able to afford to”. It posits that the best advocate (in this case – but not necessarily always – the barrister) will not get a brief because the solicitor will decide that the client’s interests come second to the solicitor’s own.
I do understand that in desperate times people say and do desperate things, but what on earth is the point of being proud of representing people if you don’t do what is best for them? And, if you’re not proud of representing people and you are simply in it to make money, then what is the difference between the small solicitors firm adopting that approach and the huge conglomerate solicitors firms, which we are warned will take over if we don’t act?
As usual, when I see lousy arguments being advanced I am instinctively suspicious of the case they are being used to support.
But. And yet.
If catastrophe is just around the corner then representing Mr Smith is akin to putting a brick in a wall, whilst the wrecking ball is whistling over your shoulder. On a personal level, the brick may be grateful. Draw the picture even a millimetre wider and the question is “what the hell is the point’? Then factor in the possibility (only the possibility) that dropping that brick on the floor could enable you to stop the wrecking ball entirely.
That, it seems to me, is where we are. The point at which professional ethics focussing on one client, conflicts with a possibility so grotesque that professional ethics have never addressed it, because no one has ever contemplated the necessity to do so.
Reluctantly, I have concluded that if these stupid, expensive, unnecessary, ideologically driven, prideful, changes are implemented the proper course to take is to ask clients whether they would consent to me not doing their case or doing it differently. I will try to persuade them to agree to that – either for the foreseeable future (if we agree to strike), or for particular days (if we decide on days of action), or until the original barrister is available (if it is an existing return – new returns do not pose the same issue as far as I can see), or for much longer than the original estimate (if we adopt work to rule).
I want my client’s permission for two reasons. First, that satisfies my professional obligation to seek their consent to something that is out of the ordinary and departs from the way I would normally represent them. I am far from sure there will be a conflict with the Judiciary – the trend for the recently retired to express themselves about the cuts in extraordinarily strong terms suggests not (although there will always be some martinets and some fools who perceive their prospects to be improved by cracking the whip). But if there is a conflict I will have done as much as I can to protect my own position.
On this topic, I am unimpressed by being told how difficult it is to have a row with the judiciary. That is, sometimes, our job. Moreover, it is a little inconsistent to be prepared to chuck clients overboard, but shy away from conflict with the Judge. That is a mistaken view of what our obligations are, and to whom they are owed. So, it may be difficult – well welcome to the world. Grow some. And yes the Silks should help, and I am happy to do it. But you shouldn’t need a leader to fight your corner.
Secondly, we keep saying that this is a public debate. We then bemoan the fact – true as it undoubtedly is – that, although the public love the idea of legal aid and fairness, they aren’t going to cast their vote on the basis of that issue in any large numbers (that is no reason not to campaign in marginals on the issue, because 100 people may matter). Well, we can have public debates all the time and we can start with our own clients. And we ought to be able to persuade them. They, at least, have a stake. And, judging from my last 28 years of practice, a large number of them will be repeat business….
I would try to apply the same test to prosecuting. The CPS is creaking at the seams. The new DPP – unjustly reviled by many – is the first DPP to say publicly that it cannot deliver service to the proper standard if it does not get more money. That message should have been delivered years ago, not least by the last incumbent, now offering himself as a politician. I don’t know why it was not. Maybe it was felt that advocacy worked better in private – as opposed to the usual way. Maybe it was thought better to absorb the blows than draw attention to them. If so I do not know if the question “better for whom” was asked and, if it was, how it was answered.
When prosecuting, I would seek to persuade the police or my instructing solicitor to ask the witnesses, before the witnesses provide their availability. And if they will not, then we could advertise the position – a step that would have a considerable impact. Of course, the witnesses do not have to consent in the same way that a client ought to, but this is a moral argument as much as anything else and we need to win the debate as well as satisfy professional obligations. We simply have to make the public feel part of the debate.
Exceptions may have to be made – the equation between the brick and the wall may alter if the brick is a small child or a vulnerable person. And people must always be able to say no. If we represent people, then we follow instructions. If we don’t represent them then we have abandoned our values.
Until we know the composition of the next government, there is no basis for acting in this way. Calls for action now miss both points – first that we have no justification for taking advantage of the situation now, and secondly that it won’t work. But, if the next government follows the path of the last one, that – for now at least – is where I am. I continue to favour work to rule over anything else, but action will be necessary, and if the client permits it I shall take it.
I haven’t tried to offend anyone in this critique, but the issue is too urgent to be anything other than blunt. If you have views I am happy to hear them.
At paragraph 45 of the Operation Cotton Judgment, the Court of Appeal said this:
The agreed test to be applied was “Is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?” At the date of the hearing before the judge, on our analysis, there was a sufficient prospect of a sufficient number of PDS advocates who were then available who would enable a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC and was available at the date of the hearing. Consistent with the judge’s finding at paragraph 59 that the defence should instruct its advocates at a time which “does not jeopardise the date set for trial”, the obvious obligation on the defence should have been to instruct advocates at that point so as to retain them for a January 2015 trial.
Judge Leonard QC’s Judgment worked on the basis that the preparation time for Opinion Cotton was 450 hours. He said so at paragraph 63, and he thereafter adopted the 37 hour week, which the PDS requires of its employees, when not engaged in a trial. It is clear that was his own view, because the FCA’s skeleton argument for the Court of Appeal makes it clear that the Defence were saying it would take longer. The Judge knew that junior counsel for the prosecution had spent over 1,000 hours on the case.
Enter Tim Storrie of Lincoln House Chambers, Manchester. Like me, he could not reconcile what the MoJ were saying about barristers’ earnings in Operation Cotton with what HH Judge Leonard QC said. Unlike me, he did something about it. He wrote to the UK Statistics Authority. He asked them to have a look at what the MoJ said. With his permission I set out their reply below.
Dear Mr Storrie,
Thank you for your email of 5 May 2014. I am sorry that it has taken some time to reply whilst I sought advice from statisticians in the Ministry of Justice (MoJ).
We have examined this case carefully in line with our role as regulator of Official Statistics. As you will see, we are not inclined to describe these figures quoted by MoJ as particularly misleading. We do, however, believe the issue you have brought to our attention is important and we propose that MoJ should enhance the official statistics it makes available on barrister earnings. I have attached some more detailed analysis as an annex to this letter. We will write to the Chief Statistician at MoJ suggesting that it should enhance its range of official statistics to inform public debate.
1. We have been advised that the basis of your calculation – that 450 hours of preparation was thought to be needed to prepare the case properly – differs from what the judge actually said: “it is hard to imagine that it would be less than, say, 450 hours. That would only allow … an hour to read every 100 pages without consideration of the 194 spreadsheets”.
2. It would seem therefore that the judge was saying that the 450 hours might be an absolute minimum for some of the preparation needed for this particular case.
3. We are also advised that the calculation you provided does not cover all the preparation an advocate would do. It covers reading of evidence but does not include consideration of the significant volume of evidence contained in spreadsheets (as the judge noted). Counsel would also need to consider the client’s instructions and defence case statement, review witness requirements, consider experts reports, review jury bundles and have conferences with all the defence team and the client to agree and review the defence strategy. In addition, in cases of this kind, there is a substantial amount of work required during the trial itself.
4. Ministry of Justice (MoJ) statisticians have told us, by way of further explanation of the figure, that the Legal Aid Agency, based on its experience of managing Very High Cost Cases (VHCC), calculated the following example for a category 2 fraud case with a trial lasting 60 days:
• Trial: 60 full day advocacy fees @ 333.20 per day = £19,992
• Pre-trial preparation: 1000 hours (165 hours per stage) @ £79.10 =
• Trial preparation: (10 hours per week) = 120 hours @ £79.10 = £9,492
• Total: £108,584 excluding VAT
5. We further understand that, of those trials which have run for around 60 – 70 days over the past 5 years and which involved a single QC representing an individual throughout the proceedings, the average preparation time has been in the region of 1300 hours. Given the example provided was based on 1120 hours, MoJ statisticians consider that it was not an unrealistic case example to have used.
6. Nevertheless, we conclude that fuller evidence should be made available to inform the debate on barristers’ earnings. The figures used above have not been published as Official Statistics as they are an exemplification of a case study for a particular kind of VHCC case, and our team has not validated them since they are based on high level assumptions and not a detailed analysis of empirical data gathered on a case-by-case basis. We consider that it would inform debate if MoJ were to consider enhancing its range of published official statistics with more information about the components and distributions of barristers’ earnings. We will write to the Chief Statistician at the Ministry accordingly.
It seems, therefore, that in order to get its figures, the MoJ more than doubled the Judge’s estimate. It accepted that the figure used by junior prosecuting counsel was also the correct figure for defence counsel. It was assisted by the LAA – known far and wide for its willingness to permit counsel the hours necessary to prepare a case properly. That, by the way, is sarcasm.
However, the Judge said something different about the necessary preparation. At paragraph 63 he expressly found that Defence counsel would require less time than junior counsel for the prosecution. At paragraphs 44 and 45 the Court of Appeal stressed the need for instructed advocates to be ready by January and concluded that, in order to do so, they should be instructed immediately. The Court of Appeal said the case could proceed on that basis.
1,000 hours preparation divided by 37 hours a week equals 27 weeks or 189 days. One assumes that the PDS advocates will take advantage of their generous (5 weeks pa) holiday scheme and take at least 2 of those weeks in the summer. One assumes also that they will not work on the August Bank Holiday and Christmas and New Year Bank holidays (as us independent advocates regularly do). To start a trial in January (say Monday the 5th), would require preparation starting 30th June, without those days being factored in. Assuming 3 weeks lost to holidays and bank holidays means preparation starting on 7th June, or within 2 weeks of the Court of Appeal Judgment. Of course, if the PDS advocates chose to take all their holidays between the Judgment and the case, the preparation would have to start before the Court of Appeal gave its Judgment.
Although it said instructions should be given immediately, the Court of Appeal made no reference to any real urgency. It would have been open to them to direct an urgent hearing before the Judge, or that the identity of instructed counsel be communicated within, say, 7 days. In these days of judicial case management, that is what I would have expected. If the Court of Appeal had been working on the LAA’s own figures for preparation as adopted by the MoJ. Which they weren’t.
It leaves open the fascinating question of whether the MoJ’s estimate for preparation is designed to justify its public bleating about how much we would be paid if we did this case. Or whether it really believes that the Judge was completely wrong about prep time but that the Court of Appeal should not be told about that error. It’s got to be one of those.
Meanwhile, I’m glad that the Statistics Authority doesn’t regard a discrepancy of over 110% as “particularly misleading”. That provides an interesting insight into the standards expected of those who take taxpayers money to do their job – and I don’t mean the Bar. Perhaps “particularly misleading” is reserved for claims that the PDS offers value for money. At 1,000 hours and a 12 week trial Operation Cotton represents 9 months work. The holiday and public holiday entitlement given to PDS employees take that up to 10 ½ months. Extrapolating for the full 12 months – which is giving the PDS all the best of it and assumes each employee will be fully engaged on every working day – produces a yearly earnings figure of £124,200 for those on legal aid rates. Bizarrely, Silks joining the PDS were offered up to £125,000 pa plus a pension scheme, 5 weeks holiday plus all public holidays and – and how we need it, we barristers – free eye tests.
That means that the MoJ – trumpeting the cost of these cases, admits that the costs of the PDS increases the cost of those cases to the public. So much for the ruthless war on waste. Perhaps that isn’t “particularly misleading” either.
I’m sure none of this would have changed the Court of Appeal’s judgment. But I would be fascinated to hear the reasoning, had the actual evidence been known. And I wonder about the propriety of permitting a Judge to assess the position on a basis which is known to be false within a very few days, even if it isn’t at the time (as to which there is no evidence). It should not happen.
Grayling’s minions suggest that the greedy bastards in silk who turned down Operation Cotton (i.e. me and anyone and everyone else able to do VHCC work) would still get paid £100,000. This has, as per usual, been adopted by lazy journalists who would like to do v little work for their money but would simultaneously like to criticise the bar for allegedly adopting precisely the same stance. Ross Clark of The Times took this line on Saturday.
The reason I call it lazy is that the maths are so simple that even I can do them. We don’t need the wizardry of Dan Bunting for this.
Step one: at §63 the Judge said that the PDS advocates (working a 37 hour week!) would take 12 weeks to prepare the case. He even helpfully calculated the hours as 450 (actually 444 but who cares?).
Step two: the case is, presumably, a category 2 case. Silk rates under the new proposals are £79.10 per hour.
Step three: taking out my phone and using its calculator function I multiply 450 by 79.10 to produce £35,595. If Cotton is a cat 3 case that figure would be £28,665. If it is a cat 1 case the figure would be £45,675.
Step four: I can do the same calculation for the juniors, who the Men from the Ministry said would earn £60,000. Assuming the prep to be the same – which is probably giving the MoJ the best of it – the figures are: Cat 1 – £28,665. Cat 2 – £22,995. Cat 3 – £19,215.
Step 5: I add the daily refresher. Op Cotton is said to be a 5 month case. Let’s assume that is 100 working days. For silks that produces another £33,320. For juniors another £17,640.
Step 6: I add these figures together. A silk gets a likely figure of £68,915 (maximum £78,995: minimum £61,985). A junior gets a likely figure of £40,635 (maximum £46,305: minimum £36,855).
These figures share something. They share the fact that the MoJ have overestimated them by approximately 50%.
On the basis that Op Cotton is 8 months work, it also means that a silk doing this work would expect to earn £100,000 pa, assuming that they were employed 52 weeks a year without a holiday, and a junior £60,000 pa. Making it unlikely that the MoJ’s view of our average earnings is any more accurate than its spin on the figures for this case.
Of course, it is possible that the MoJ simply couldn’t do the maths. What do you think?