Life at the Bar · The Future

The Dark Side Speaks

Come-to-the-Dark-Side-We-have-Cookies-2You know your readership is growing when the opposition ask you to post their stuff. I am happy to do so for 3 reasons. First, the debate is important however you vote. Secondly, we will all have to try and get along later and, although I have used fairly strong language in arguing my view, I believe that most barristers are able to approach this professionally. As I said to my last opponent – kick lumps out of each other in court and have a drink afterwards. That’s how we do it. This helps. Thirdly, it is fair. The Bar has to make up its own mind.

My short answers are after this.

This is what Sam Parham  and Joanne Cecil have written.

A Call to Arms: Why we Must Hold the Line

“The greater danger for most of us lies not in setting our aim too high and falling short; but in setting our aim too low, and achieving our mark” Michelangelo

  1. The ballot is a referendum on the merits of the deal and not on the leadership. We respect Nigel Lithman QC, Tony Cross QC and members of the CBA executive who have worked tirelessly on our behalf and in what they believed were our best interests. The CBA secured concessions but our demands were too limited in the wider context of the criminal justice system as a whole and it would be wrong to agree the terms of this deal.
  1. The proposed deal and its aftermath have the potential to be the most positive development of the campaign so far. Holding a ballot and a full and open debate is a sign of strength and should be applauded.
  1. We only need to look at the timing of the MoJ’s “ultimatum” and the tactics involved to understand just how effective the campaign had been. The Bar was operating a successful “no returns” policy, combined with days of action. VHCC cases (one of the strongest weapons in our armoury) were about to implode within weeks.
  1. Solicitors had mobilised: supporting our days of action, placating our lay clients and the courts and voting to join with probation officers for two days of direct action, coinciding with Grayling’s birthday (April Fool’s Day, we kid you not).  Regrettably, despite rank-and-file support from the Bar, the CBA elected not to support this action and instead to consult. In hindsight, this was a strategic disaster.
  1. Grayling spotted the opportunity to exploit a potential division between the professions and this allowed him to use his infamous “divide and rule” tactics to great success.
  1. Unfortunately, we fell into the trap laid for us by the MoJ and did what we had correctly criticised the Law Society for doing: deals behind closed doors. Grayling deigned to offer a 10-minute audience, during which the CBA was told the deal was (paraphrasing) a “one night only” offer and that discussion and the deal itself was embargoed preventing discussion. One only has to ask, why? The answer has been seen by all: the outpouring of rage, disappointment and dissent, “Not in our name”.

“Comments are free, but facts are sacred” C.P. Scott

  1. For those asking why we want more than the temporary protection of our fees, let us be clear: the independent Bar will be destroyed by the proposed but temporarily deferred cuts. Moreover, justice will be destroyed. Why?
    1. Solicitors face litigation fee cuts of 17.5%.
    2. Profit margins for firms are between 4.8% and 8.9%.
    3. 8.75% of those cuts have been implemented.
    4. Even if a firm survives the cuts, the MoJ plans to impose a “dual contract” system: a limited number of duty contracts and then own client contracts for the rest.
    5. Duty contracts are too big for 93% of firms.
    6. Those without a duty contract will not survive.
    7. Larger firms who survive will have no choice but to employ in-house advocates and exploit a modest profit margin to offset losses elsewhere.
  1. The deal is only a temporary stay of execution of our fees and in 15 months’ time, high street firms will have hit the wall (it is happening already). Our professional client base will have disappeared. The temporary protection of AGFS will not matter, because a 0% cut of what will be zero fees is zero. Grayling will have achieved his ultimate aim whilst maintaining a pretence of supporting the independent Bar.
  1. Those who believe that this will lead to us being able to negotiate for an increase in our fees in 15 months are, with respect, naive in the extreme and ignore what has gone before. The MoJ will come back when we are in a significantly weaker position than we are now, and will issue the final death blow.
  1. The BSB have issued a consultation where the proposals, if adopted, could mean that were the MoJ to impose unilateral cuts in the future, we would be unable to return such work notwithstanding that it may be economically unviable.

“Those who cannot remember the past are condemned to repeat it” George Santayana

  1. Proclaiming that the deal protects the junior Bar is short-sighted. There will be no junior Bar. We have been here before.
  1. Carter was proclaimed as a big win for the junior Bar. Let us recall back in 2005 that Carter was a response to a call for action with the Bar threatening “strikes”. In fact the Bar continued to work and co-operated. To the surprise of the Government, Lord Carter found “a fragmented system that has not historically recognised a duty to deliver justice at an acceptable overall public cost”. The fees paid to the junior Bar at the time were seen as too low (the irony!). There was an increase in some fees to make up for the effects of inflation. The “victory” was short-lived: by 2009 the government decided to reduce the fees once again, flying in the face of Carter’s findings and an “astonishing volte-face”. In the face of opposition from the Bar, the government then threatened One Case One Fee (OCOF) and used it to secure further cuts in fees.
  1. A feeling of deja vu:
          • Each government assumes that:
              1. there is a gross over-supply of barristers; and
              2. when “push comes to shove” the Bar backs down.
          • When the Bar is united, the government offers talks with a view to finding savings. The Bar then works extremely hard to identify savings, which are then absorbed back into the MoJ.
          • Any apparent concession by the MoJ is then swiftly removed by applying the threat of OCOF. One only needs to recall the current Attorney-General’s comments about OCOF at the recent Bar Council conference. The MoJ relies on the Bar agreeing anything to avoid that “doomsday scenario”.
          • “Divide and rule” is fostered by:
              1. playing the Bar and solicitors against each other; and
              2. playing the senior and junior Bar off against each other (either by Carter “redistributing” top end fees to the junior end or as in the current scenario where VHCC co-operation is part of the negotiation package) enabling the MoJ to say that they are protecting the junior Bar but that the “fat cats” are letting them down.
  1. Under the current deal, nothing is on offer at all beyond a temporary stay of execution on fees and, yet again, an offer to discuss ways of saving money for the MoJ. It also represents a betrayal of those undertaking VHCC work who have shown real courage and strength of their convictions over recent months. If any review of VHCCs come to pass, the terms of the deal specify that it has to be within the current budget, meaning that the cuts of 30% are effectively set in stone. They are not on the table.

“Defend the children of the poor and punish the wrongdoer” Psalm 72:4

  1. We are fighting to retain a justice system in which those accused by the state are properly represented, in which victims can engage and in which society can have confidence.
  1. However, in exchange for a 15-month reprieve with a promise of nothing, we have abandoned our solicitor colleagues at a uniquely united moment in our history, abandoned our future clients to an uncertain but almost certainly unjust future, abandoned any hope of a diverse, vibrant and skilled profession and diluted our credibility in society.

“Fool me once, shame on you. Fool me twice, shame on me” Anon

  1.  The time to win once and for all is now. There is a perfect storm brewing over Petty France: prisons are rioting; private sector MoJ contracts are in tatters; probation officers are striking; for the first time in history, the Bar is striking; the judiciary overwhelmingly oppose these cuts; Treasury Counsel are in revolt; VHCC trials are on the brink of implosion and members of his own party are “railing against Grayling”. He is teetering and now is the time to press home our advantage.
  1. We understand that the Northern Circuit is “not for turning” and is maintaining the “no returns” policy. Those on other circuits should respect their decision and show solidarity by refusing returns in such cases. We salute their courage and frankly, if they hold out, the deal is dead in the water.
  1. The question posed in the ballot is not ideal. It ought to have been a straight question about whether members supported the deal or not. The CBA refuse to alter the question and so we ask members to see this for what it is: a referendum on the deal.
  1. What can be achieved and what price failure? If you, like us, agree that so much more can be achieved, vote yes.
  • If you vote no we sign our own death warrants and succumb to a lingering death.
  • If you vote yes, at the very worst, we go down fighting. This is a time of unprecedented unity within the legal profession as a whole. The prize is a properly functioning and funded justice system with a sustainable future and it is within our grasp: it is our duty to fight for it.

Sam Parham, Garden Court Chambers                                          31st March 2014

Joanne Cecil, Garden Court Chambers

My response.

Sam and Jo,

Thanks for posting this. You bring my humble blog much honour.

Although you offer a fulsome tribute to Lithman and Cross, you are not supporting them. You assume – rightly or wrongly I don’t know and haven’t asked – that they will be willing to carry on if you defeat them. I think that is a touch too easy. You ought to be putting forward a team. Then people would understand what was at stake. As it is, you expect them to negotiate from a position of going back to Grayling as people who can’t carry their own membership. I don’t think we could expect much after that.

You begin by accusing the people you support of a strategic disaster. Hmm. Can I suggest that you are simply seeking to minimise the divisiveness you are actually promoting?

Not only is this a strategic disaster, in your terms. The CBA tactics then turn into idiocy, by allowing Grayling to exploit us. This is where we part company entirely. That team was packed full of people who negotiate and plan strategically for clients. They also did that for us. It is far, far more likely that they are not strategic incompetents or idiots who permit Grayling anything. You have mistaken assertion for proof. I think that the Bar as a whole is looking for the evidence before the final speech.

The evidence is what Lithman and the Circuit Leaders have given us. I believe that the proper thing to do is to actually engage with the substance of what they say. You gloss it over. It is the equivalent of the “golden thread of English justice” submission. Every barrister knows it sounds great. And every barrister knows it is what you use when you don’t have anything of substance to say about the evidence.

Your explanation of why we are doomed is, if I may say so, a trick. At paragraph 7, your points 1-6 are accurate. your point 7 – presented as if it were in the same category – is actually an enormous assumption. The Practice Manager of Tuckers has today said something entirely different. He may be wrong as well. No one knows. But, given that you are guessing, you should have said so.

In my view we will retain work. We will have to compete for it and I believe that this should now be our focus. Sadly, your determination to press the case that we have failed has done us all a disservice. We won. Not entirely but we won. The Bar should now be moving forward, secure in the knowledge that we can take on the government and win. Instead we are staring at our navels, gloomily contemplating a decision as to whether those we voted for and backed can actually be trusted to do the job we asked them to do.

Similarly, you will not accept that the cuts are gone. You seriously propose that after a year, 2 serious reviews and an election they will still be implemented. You do not accept that anything will make any difference, yet the call made by the CBA to postpone the cuts until after those 2 reviews was not a call you opposed. Forgive me, but it seems that you have changed your mind about those reviews. I looked hard to see if I could see why that is, but I cannot. Perhaps the MoJ is more untrustworthy because it backed down?

The BSB consultation – only a consultation – is about how to protect vulnerable clients. I don’t like it but a case that overstates itself is a bad case, and you hugely overstate it. We could always return the work: the only question is when. You don’t adopt the conspiracy theory which is bringing orgasmic despair to some on Twitter, that this too is part of a government plot (I can see all the Barristers and decent lay people on the BSB even now getting their kickback from Grayling – what a load of bastards) – for that, at least, I am grateful.

You invoke the spectre of Carter. Unlike Ian West you simply use it as an example of the government reneging on a deal. You condemn that. The irony is that you expect us to do the same. But this is not Carter: this is simply no cuts. And we can carry on refusing VHCCs.

You are right that OCOF is a threat. That is why I will vote No – to avoid that threat. But your position is wholly inconsistent. If OCOF is a threat we should, surely, seek to avoid it. However, you work on the basis that the government – the same government that means to renege on this deal and will stop at nothing to destroy us – will not introduce OCOF. Even when we renege.

I think this is where your argument falls to its own inconsistencies. There is no basis – on your own case – to assume that the government will act decently. Yet the one things it is most likely to do is the thing you ignore and pretend it will never do. I think this is because you wish to win the argument, regardless of the evidence. But the evidence is what counts.

I do agree that Grayling would love to divide and rule. He has already done so as regards the  solicitors. But at least they lost. They agreed to work under the new rates – precisely what Lithman ensured we avoided. They are not striking about that. Yet you propose that we ought to strike for them. If we are divided it is because you have felt unable to join us and unite.

Moreover, the solicitors could carry on taking action with us. They could work to rule and we could refuse VHCCs. Unity does not mean we do everything together, in lock step. That is why HCAs took returns when we did not. Unity means that we share aims and purposes and talk to each other. We have that unity – it is simply waiting for us to pick up and go.

I can see an advantage to certain sets of Chambers in being perceived as the solicitors’ friend and therefore, in some way, a better Chambers to brief, because of that. The same thing has been assumed over the years as regards human rights, refusal to prosecute and a myriad of other trendy causes. But that does not assist unity at all. I am concerned that you risk using unity as a convenient label, and thus inhibit, rather than encourage, the pursuit of it.

Having talked up the doom I looked – as I have so often this week – for a description of the positive result you offer by reneging on the deal, having our fees cut and risking OCOF. After all, there must be something in it for those voting Yes.

I haven’t got it. You have looked into your own crystal ball and, unsurprisingly, seen an outcome which would be wholly positive. Personally, I like my leaders to confront what happens when they’re wrong, not to assure me that it will be all right in the end. I don’t know what your plan B is, but it seems to be to go down fighting. There’s a lot about fighting. But the essence of a good general is that he (and it’s always a he) doesn’t hurl his troops over the top to certain death without good cause. Good leaders assess the risks. I don’t know if you have done that. If you have, you haven’t shared it with us.

You point about the Northern Circuit wrecking the deal anyway is a mistake. It sounds like blackmail and it must be wrong. I am absolutely confident that the Northern Circuit will accept the result of the ballot. Otherwise they ought to say so and not to vote in it.

You ask me to vote yes because so much more can be achieved. You don’t say what it is, or how we’re going to obtain it, or how long it’s going to take, or who’s going to lead us to it. Personally, I despise Republicans but the phrase is apposite: where’s the beef?

Funnily enough though, I agree with you that much more can be achieved. That’s why I’m going to vote No. Then we can get on, support the leaders who’ve achieved so much and plan the next victory.

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