The CBA has now published its survey. I regard it, sadly, as an opportunity lost and I want to suggest a way of answering it that may avoid meltdown.
Before that, I do want it to be clear that my disagreement with the CBA is only about strategy. We all agree that doing nothing is not an alternative. There are, I think, 3 categories of criminal practitioner insofar as these proposals are concerned. There are those who truly cannot afford these cuts and will have to leave the profession. The profession will be infinitely worse off for their loss. Then there are those who can successfully move into other types of work and are doing so. Finally there are those who can actually absorb these cuts. Many very junior practitioners in the provinces are in that category. They will never make a better living than a head teacher (or even a senior teacher), but they have not yet committed themselves to mortgages, school fees, or a standard of living from which they cannot extricate themselves. However, it is clear that the MoJ simply cannot be trusted when they say that this is it. I don’t believe that this is it. If these cuts are not resisted, the MoJ will be back for more. They will persist in their salami tactics until we resist. And whilst I do not think that ramping up the temperature by hyperbole about not another penny is sensible – and nor is pretending that we will all have to quit if these cuts are implemented – it is nonetheless the case that this is a genuine tipping point for a very large number of people.
So, we must resist now. The question is not whether, but how.
That involves identifying what we think we can achieve. The CBA questionnaire gives no indication of the answer to that question. I have no idea why not. It ought to have done. It still ought to. Nor do I do know why the survey is so rushed. The Chairman’s message says time is of the essence, but doesn’t say why. That’s not good enough. Time isn’t of the essence. Our cuts do not come in until June at the earliest. Cuts for the solicitors have already come in. The solicitors are going to accept new work, but resist the cuts. There is nothing here that could not wait another month. That being so, the CBA ought to extend the time to reply and it ought to enter into proper debate about different options.
It seems to me that what we can achieve is the disruption of the criminal justice system for long enough for it to become a political embarrassment. Nothing else will work because we actually have answers to the MoJ’s question about saving money, but the MoJ will not listen to Nigel Lithman, any more than they would listen to Michael Turner. That is not the fault of the CBA. That is – wholly and entirely – the fault of the MoJ. Face saving, if required, would have meant getting the answers from the Bar Council – which has also tried to give them. The MoJ is not interested in those answers.
If we want to disrupt the system for long enough for political pressure to tell then we have to do it for a long time. Months, not weeks. The timing actually isn’t bad. An election is 14 months off. How many disrupted trials and custody time limit failures will be acceptable?
But 2 things are required for that pressure to build. First, we must be able to do it. A strike/refusal of work won’t work. No one believes it would last more than a couple of weeks. No one is advocating more than a couple of weeks. Once a strike breaks we can never be viewed credibly. We just don’t have the resources to do it for long enough. Secondly, a strike permits the government to bring in OCOF, on the basis that it has a duty to keep access to the courts available. That is politically acceptable and the public are not well enough informed to object. And, once OCOF is in, all the rhetoric about “I’ll never work for the reduced rates” will be correct, because none of us will have the opportunity.
That is the second thing wrong with the CBA survey. Question 1 asks for agreement without identifying the risks in the policy. That is simply inadequate. Policies need to be justified and that doesn’t happen unless the question “what might happen if this doesn’t work?” is asked and answered. The third thing wrong with question 1 is that it provides no alternatives. Alternatives allow risk to be measured. There are obvious downsides with a work to rule – it needs us to be strong in front of difficult judges (although so does a day of action – which we all managed to handle perfectly well). It needs a proper identification of why we are picking a set number of hours for our working day. But, it also lessens the risk of OCOF because access to justice will be being delivered – simply more slowly to the detriment of the system overall.
At the moment we are given one choice and we are simply asked to tick it, or not. The problem, fairly obviously, is that unless the survey gives alternatives to the policy, disagreeing with it is essentially saying ‘let’s do nothing’ – the one thing that everyone agrees we should not say. That’s not ok – if the CBA is really only presenting one policy then it shouldn’t consult its membership. It should simply tell us this is how it’s going to be. For consultation to mean anything, there must be alternatives. I asked the CBA to put alternatives on the survey. I do not know why they haven’t.
The final problem with question 1 is that it is unfair. We are asked 2 questions not 1. The first is do I agree with “not a penny more in cuts”? That is a policy. The second question, included in question 1, is whether I agree not to accept work at new rates. That is a strategy or a tactic. The 2 issues should properly be isolated. I do not know why they are not but the effect is to persuade people to agree with the strategy whilst answering a different question about policy. If my pupil had drafted that I would hand it back and ask them to do it again, better.
I intend to answer question 1 in this way: I agree with the policy of not a penny more in cuts. However, it is currently impossible to answer question 1, because I have not been told where the CBA Executive expect it to get us to, how long it is going to last, or what its risks are. There is ample time for all of that to be made clear and then is the time to ask for support. I would like to have an input into CBA policy along with the rest of the membership. In order to do that the CBA ought to invite suggestions as to how to respond to the cuts. Each suggestion should identify where it leads in terms of succeeding in resisting the cuts and should identify the risks of adopting it. That will clarify thinking, mean that an expression of support actually means something and provide a policy behind which the entire Bar can, hopefully, unite.
Meanwhile, if anyone is thinking of not accepting work at the new rates they ought to be saving money, because they will need it to live on. In those circumstances I wonder why the CBA is contemplating extending the no returns policy. That policy disproportionately hits very junior barristers who have less income from other sources and are more reliant on returns. In creating difficulty for those junior tenants – the very people least able to resist perceived pressure on them to conform – the CBA is sewing the seeds of the earliest possible collapse of any strike. The policy is bone-headed.
What’s more, it has already worked. Unless the policy is to bring the Criminal Justice System to a halt (and it may be, but if so the CBA has not disclosed that to its membership or asked them about it – and it certainly doesn’t identify that policy in the questionnaire), we have already shown that we can bring the CJS to a halt and thus demonstrated our strength.
Instead of pursuing a policy which has already worked, and now only acts to deplete our already scarce resources I propose to answer questions 2 and 3 like this: No. I wish to build on the success of the no returns policy by ensuring that the public understands that the CJS only works because the Bar picks up an enormous amount of work at no notice and does not get properly thanked or remunerated for it. In order to do so I suggest that the CBA works with the Circuit Leaders to obtain some political PR advice and then hits the media with the reality of how we work and why we do it. In order for that to be effective – and subject to the advice we receive – I suggest that this is done by the largely young barristers who are most affected and who are seeing their idealism and work ethic crushed by this government. The money for this might come from the appeal regarding QASA in respect of which I would like to see Counsel’s advice on the prospects of success, which I believe I am entitled to because I am amongst those paying for it. However, if the CBA is not going to urge us all to refuse all new work, my answer might be different and I would like to know that now.
The last day of action received significantly less press than the first. That is unsurprising. The first DoA was a first for the Bar. It was a declaration of intent. It was interesting. It did little damage to the Court system and that was not its aim. Damage to the system was the aim of the no returns policy. The second day of action was a sequel and – as sequels usually do – it did less well than the first. And so it goes on. Days of action serve a purpose in terms of rallying the troops but we do not need rallying. We all know that we have to act and we are all committed to it. I don’t need to stand on the steps of Leeds Combined Court Centre again. I already know I will resist this.
So I propose to answer questions 4 and 5 like this: No, unless we have already decided that we can keep up what is, essentially, an on-off strike for long enough to achieve the objective of pressuring the government into a change. I know that I believe this will take months, but I do not know how long the CBA say I need to do this for, because the CBA has not told me. Nor do I know the risks of a long on-off strike. It will certainly delay existing cases but I have no sense of how the judiciary would react to constant disruption and whether it would feel that, for example, juries needed to be protected. If so then that would inevitably lead to disciplinary referrals and a confrontation with the judiciary, which is otherwise sympathetic. These risks need thinking through and assessing and, at present, I am being asked for my views without any sign that such an assessment has been made and without any discussion about the results. Given that alienating the judiciary would, in my view, be a monumental error, I believe that this risk needs proper discussion. There is no real urgency in this questionnaire and I do not want members to think that the questionnaire is said to be urgent in order to prevent discussion. No organisation can survive once that idea takes hold and I am sure that the answers to my questions can be provided very quickly. I suggest we send a further questionnaire out 2 weeks after those answers are provided and allows a further 2 weeks for discussion. We will then have an answer by the end of April.
Combinations of action are, equally, subject to identifying what they will achieve, by when and at what risk. I intend to answer question 6 by saying that until I have the information I have already asked for, it is simply impossible to answer.
Question 7 is, frankly, insulting. There are other options out there and the CBA know there are. If this were a genuine information gathering exercise it would be fine, but it isn’t. A genuine exercise would not ask questions 1 – 6 first and it wouldn’t demand a response by 28th March. I do not know why the CBA does not want genuine debate – it may feel that its Executive know best and that may actually be right, but that is no reason not to genuinely test the waters.
My answer to question 7 is this: the strategy of no work at new rates is already declared. That being so I am unsure whether the CBA is really committed to considering alternatives. I did not vote for the strategy which the CBA has, apparently, already adopted. I did not give a mandate to anyone to vote for that strategy. The strategy has never been on an agenda of a meeting to which I, or any delegate from my Chambers, was invited. The strategy invites the government to introduce OCOF as soon as it wishes. Even now the CBA is not including a question asking me whether I agree with that strategy.
In my view a work to rule is far less likely to permit OCOF to be introduced, because it is difficult to see how that could be justified politically when we are working. Furthermore, a work to rule would focus the public’s attention where it should be, which is on the fact that we make the system work by doing crazy hours for nothing because our commitment is to justice and not to our own comfort or our own pockets. It answers fat cat questions by replacing talk of earnings with hourly rates – paid for unsocial and exhausting hours. The MoJ already understands that what it pays us is not simply to do a case but to do so in a way that ensures that all other cases get done as well. The public does not understand that. A work to rule, which will make short cases into medium cases and medium cases into long ones will demonstrate that the actual payment – when assessed against an 8 hour day – is not enormous but small.
A work to rule will act as the no returns policy has acted and stop the system. But, when it does so, it will not be because we are not working but because we are. The only difference between the work to rule and the current position is how many hours the Bar puts in. On that basis, although I have every confidence in the Bar’s ability to stand up to Judges, I do not anticipate it will be necessary.
Finally a work to rule is easy to explain and operate. We will work an 8 hour day which will include court time. Within that 8 hours we will deal with the cases properly and professionally. We will have necessary cons. We will prepare all necessary documents. When 8 hours have elapsed – which we will log if required – we will stop and go home. That may mean that the court cannot sit at 1030 the next day because we may still have work to do in order to be ready. If so, the Judge will be told as soon as that is apparent and will be asked not to sit until we are ready to begin. If the Judge orders us to begin before we are ready we will, consistent with our professional obligations to our client, make it clear that we do not regard ourselves as having had proper time to prepare and request an adjournment. The time thus taken will be part of our 8 hour day.
If we are nevertheless ordered to carry on then it is our professional obligation to make it clear to the Judge that we are not in a position to proceed. We may then have to withdraw from the case. However, before doing so we ought to submit to the Judge that Art 6 is breached by the Judge’s failure to permit proper representation and that the Judge ought to be prepared to accept our word that we simply cannot be ready.
A Judge who responds that we have refused to do the work ought to be told that we have decided not to work longer than a normal 8 hour working day because our willingness to do so is being exploited by the MoJ, and asked politely whether they believe there is a power to compel a barrister to work to order and, if so, what it is.
Judges will have a choice. They may sometimes decide that the work – for example a skeleton argument – is unnecessary and that oral argument will suffice. If so the Bar will be as loyal to that as to any other judicial decision. They may decide to adjourn. They may – unlikely though it is – become difficult and order barristers to work. If so then core principles 2 and 4 of the Handbook come into play. We will have informed our clients of the terms on which work will be carried out – as we must. It is unlikely that clients will object to an 8 hour day. We must not permit any person to limit our discretion about how the interests of our client may best be served. That must include doing the work on the terms agreed. A Judge who attempts to interfere with that agreement should back off or recuse themselves. If they will not then we may return the case and, I suggest, our clients would permit it.
The reality is that nothing in the Code prevents a work to rule, providing we do the job properly – and we will. Whilst we do so we are able to earn – enough, I hope, to allow us to carry the action on for the months that will be required. The policy is understandable and consistent with our concerns for the CJS (which a refusal to take work is not). And meanwhile lists will lengthen, CTLs will pass, pressure will mount. And the judiciary may be able to tell the government (should they wish to do so) that this is an unhappy result of the policy of cutting fees. Rather than confrontation with the judiciary, cooperation is likely. As opposed to the result of continuing days of action.
I love my profession and I desperately want it to survive and thrive. For that reason I am begging the CBA Executive to have a genuine debate within the membership that enables realistic action, that we can sustain, that we can explain, and that will do as much as we can do to close off the risk of OCOF, which would obliterate us. More haste less speed. Please.
That’s how I’m going to ask my Chambers to fill in its questionnaire.