The Future

Yes or No is an Individual Choice


aggressive-argumentationIt’s good that the CBA has published an article by Simon Csoka QC about why we should take action. These are important decisions: both sides need to be heard.

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.

Why Simon Csoka QC is voting yes.commentary

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’.

Life at the Bar · The Future

What Are We Gonna Do Now?


What Are We Gonna Do Now
What Are We Gonna Do Now?

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:

  1. 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.
  2. 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.

Life at the Bar · The Future

Different Evidence, Different Conclusions


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.

The figure of 45o hours was not challenged by the MoJ when it intervened in the Court of Appeal case. It was relied on by the FCA. At para 4.1 the FCA asserted the case was trial ready.

Oh dear.

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.

Yours sincerely

ANNEX:
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 =
£79,100
• 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.

Humour · Life at the Bar · The Future

Maths 101 – Special Lessons for the MoJ


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?

Life at the Bar · Qualities Required · The Future

A Reply to Dan Bunting


Dan has written a powerful post on why he will vote yes. He is one of the good guys, like Matthew, who is both genuinely troubled and is prepared to think through the consequences of what he is urging us all to do. He has not dodged the questions and he has answered them. He is a powerful example of what Grayling is endangering and why the country would miss us if we go. We must make up our own minds and as profoundly as I respect him and his arguments, I equally profoundly believe he is wrong. I have posted this on his blog as well.

 

Dan,

You say, in answer to my first question, that you are questioning the wisdom of the decision, not the fact that it was the best deal we could have got. I understand that, but that does mean that we are unlikely to do better – even if your argument is correct – without significantly ramping up what we do. That, obviously, is a change of course, given that what Lithman got is most of what the CBA said we wanted.

Your suggested course of action is, in fact, to go back to where we were and ramp it up. More financial pain, with cuts in July. As that goes on, it is inevitable that the action will start to splinter because it will have to. Never mind supporting solicitors – how many of us are really going to fail to pay our mortgage and heave our families into the street? It’s the beginning of April, so this is going to go on for May and June and then get worse. Most of the junior bar to whom I have spoken haven’t got anything like the resources to manage for that long.

You don’t address this, but go on to talk about the MoJ response. The difficulty is that their response – leaving OCOF entirely aside for now – is likely to be to do nothing but impose the cuts and carry on waiting us out. We know that because Lithman has told us. We can’t pick and chose on this: if they are evil and will impose the cuts anyway in 2015 then they will certainly do so when we renege next week.

As they do nothing, we fade away. People will go and do returns. Or they will go bust and be struck off. Or leave. And your strategy will achieve – all on its own – exactly what you say the MoJ wants. Your only hope is that the MoJ buckles before we do. I can’t think of an example where a small group of people, about whom the public cares not very much, have achieved that. That is why the current deal is the limits of the possible.

You postulate OCOF as the worst thing and then say it isn’t. OCOF is the end of the Bar because the only competition will be on price. We will bring nothing to the party. Good advocacy will be a random event. But OCOF will be irrelevant if we do it to ourselves. As each person goes bust or returns to work, our ability to negotiate anything diminishes. We will make ourselves vanish. You say that this is what will happen anyway but that is such a counsel of despair I can barely bring myself to believe you mean it. It says nothing for the solicitors you urge us all to support. It is far from certain. It does not begin to factor in the Reviews that are to come.

Most of all, it argues that we should bring about the certain destruction of the Bar, because it is doomed anyway. What happened to fighting? To persuasiveness? To advocacy? You may be right – if we have stopped believing in the things we exist to do then we may as well pack up and go home. This is truly a Darwin moment. We are being urged to be the profession that commits suicide today, so that we aren’t strangled next year.

You explicitly say that we will never win. If that is your view then I think you ought to leave the decision to those who genuinely believe we can. Because, once you have accepted that nihilist position, it is impossible for you to be sure that you are voting responsibly. You are certain that nothing good can happen and your choices – as outlined above – will actually make certain that your prognostications of doom are correct.

And that, ultimately is where I think the Yes camp are. So convinced they are powerless that they would rather have a massive row they lose, than dare to dream of winning. For some – for you – I think it is genuine despair, and I am touched and sorry. For others – I fear – it is the excitement of leading a ‘glorious’ last charge, and I am dismayed.

Don’t do it – please. In 1918 Hopkins addressed this precise dilemma:

Not, I’ll not, carrion comfort, Despair, not feast on thee;
Not untwist—slack they may be—these last strands of man
In me ór, most weary, cry I can no more. I can;
Can something, hope, wish day come, not choose not to be.

Words to live by.

Simon

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.

Life at the Bar · Routes to the Bar · The Future

Responding to the Consultation


It has been a busy few days…

Herewith my response to the BSB Consultation. I hope it helps to clarify your own views. If you would like to borrow any of it, please feel free.

Name:                        Simon Myerson QC

Contact details:          simon.myerson@me.com

I am not responding on behalf of an organisation.

I am content for my position to be made public. Indeed, I am publishing it.

I have answered the questions below.

 

Introduction

  1. I am submitting this response in my own name, rather than via my Chambers or Circuit. I am doing so because I am one of the few barristers left who maintains a fully mixed civil and criminal practice (virtually 50:50) in Silk. I hope, therefore, that my experience may be of some assistance.
  1. I have also served on the BSB’s sub-committees for many years and I understand, I think, the way it works. I know the people involved and I trust them to do a proper job regulating our profession. I do not subscribe to conspiracy theories and I do not regard the BSB as a Regulator owned by the Bar, although I believe it regards itself as one sensitive to professional concerns, and that it should so regard itself.
  1. I regard the timing of this consultation as unfortunate. In my view it would have been both straightforward and wise for the BSB to explain the timing. It appears to be a reaction to the recent ‘industrial’ action. That, of course, does not provide any basis whatever for dismissing the proposals – it is axiomatic that new problems arise from new situations. However, the action was taken by the Bar as a result of a quite unprecedented attack on justice, on fees and on the Government’s relationship with the Bar, which had previously been marked by at least some willingness to listen on the part of the former. That much was, surely, apparent to the BSB. As such, out of simple self-interest a little more explanation was warranted.

Current Position and need for change

  1. Currently, the return of instructions involves a balancing of the following factors: client confidence in the barrister; the duty to the Court not to advance a case the barrister knows to be false; the interests of justice as expressed by the Court; payment. However, the latter is normally treated as a termination of the retainer, rather than as a return. Hence, another barrister will be briefed afresh, rather than picking up an existing case.
  1. In the context of publicly funded work a return is not treated as a termination of a retainer. My experience during the recent action included advising members of my circuit who had been compelled to return work when a conflict arose. It was clear that, in those circumstances, the LAB would not pay a further brief fee and that, in consequence, there could not be a new “instructed advocate”. Had it been the position that there was a new instructed advocate, I would not have regarded the work as a return. Rather it would have been a new set of instructions, to a new instructed advocate.
  1. The current guidance therefore permits counsel to treat their instructions as terminated by a unilateral variation in payment terms. That is also consistent with the normal contractual position.
  1. Paragraph 8 of the consultation assumes the existence of a presumption that the guidance is based on decisions as to fees being made by the client. I am not convinced that such a presumption exists. Nowadays, civil work can be funded by third parties and some of my cases are so funded. I have always taken the view that unilateral changes to funding arrangements would terminate my retainer at my option and I have said so to the clients and solicitors involved. It is not my job to ensure that the actual client is properly covered for fees by those who fund him – it is my job to deal with his case. The client is responsible for ensuring that payment can be made. That is so both in cases where the third-party funder takes a cut of any damages, and in cases where they do not (for example, CFAs without ATE Insurance).
  1. Any civil case involving a third-party funder is, in these times when the government no longer regards it as a duty to ensure access to justice via state aid, likely to be with a commercial organisation. It would normally, although not always, involve a no-win no-fee type arrangement. In every such case the barrister now has the right to propose terms of engagement. Solicitors have recently asserted that they will not agree various versions of standard terms, particularly as regards personal injury work. That has led to negotiation with different barristers and different sets of Chambers taking different views about different solicitors. If agreement cannot be reached then the barrister does not accept instructions from that firm/funder.
  1. The difference insofar as legal aid is concerned is that the funder holds a monopoly position. Save, perhaps, for a fortunate few, doing criminal defence work means doing publicly funded work. That has a double impact: it means that clients have no influence over fees and it means that there is no work save at the rates the government are prepared to pay.
  1. The purpose of the above analysis, which differs relatively little from the BSB’s save for questions of emphasis, is to reframe the balancing exercise referred to in paragraph 10 of the consultation. I believe that the balance in the consultation is inaccurately identified. The decision made by the third-party funder will not simply address the single case, which is the basis of the exercise in the consultation. It will address all similar cases, at least. That means that every client represented by the barrister at the time the decision is made will be affected.
  1. Because a huge number of those practising at the criminal bar now live on a financial edge, this multiple effect is an important consideration, to which I cannot find reference in the consultation. It is far from an exaggeration to say that the effect of requiring barristers to carry on regardless may be to remove that barrister’s services for every other client. But even that doomsday scenario is not the main point. All the published research suggests that a demoralised, disregarded workforce performs sub-optimally. Barristers at the publicly funded bar do not feel valued. Their Instructing Solicitors – defence or prosecution – are under severe pressures. Mistakes, misjudgments and even legitimate differences of opinion are not quietly resolved, Rather they become flashpoints as the time and money required to resolve them is unavailable. In those circumstances, unilateral changes in remuneration – always downwards – add disproportionately to the pressures and disproportionately impede performance.
  1. It seems to me therefore that the analysis in the consultation is incomplete. To the ‘considerations’ that the consultation addresses I would add:
    1. The effect on the barrister as an individual;
    2. The effect on other clients to whom the barrister, at that time, owes similar obligations.
  1. I also believe the analysis is insufficiently rigorous. It correctly identifies the fact that, in a publicly funded case, the client has no responsibility for the unilateral alteration of terms. However it fails thereafter to address the issues of how that situation is dealt with in private civil work. That means that a contractual solution is simply not contemplated. Moreover, in my opinion, the consultation does not sufficiently acknowledge or deal with the monopoly position of the government.
  1. Both these matters are important. In a non-monopoly situation, the obvious answer would be that an alteration to the terms of the contract would have to be agreed with the client, or at least be one which was directly explained fully to the client by the funder and which could be challenged at the instance of the client. Equally, in a non-monopoly situation, a client who wanted to retain the services of the barrister and solicitor could seek another funder, perhaps with a stay from the Court whilst this was done.
  1. In the consultation, neither step is contemplated. I believe that to be wrong: in a civil case there would normally be no question of the funder for one side owing a duty to the other side. In publicly funded criminal work (and perhaps in family work as well, about which I lack sufficient expertise to speak) the government does owe a duty to the victim to ensure that the trial is quickly and fairly heard.
  1. Accordingly, the effect of the analysis within the consultation is the unstated one of making the barrister responsible for the bad faith of the funder. I use the word bad faith advisedly and base it upon the recent consultations run by theMoJ. It seems to me that bad faith is evidenced by the following, and that consideration of all those matters together makes bad faith the only conclusion that can properly be drawn about the reasoning behind the consultation:
    1. The stated aim of the consultation was to meet Treasury targets for the coming year. The deal just done makes no alteration to fees in most cases and halves the cuts to solicitors’ fees. Therefore, either the stated aim of the consultation was false, or the figures on which it was based are unreliable.
    2. The MoJ has not indicated which alternative is correct. Indeed, although it is the funder owing the obligation to the client, it has not said anything.
    3. The Bar Council’s own analysis suggests the figures were wrong. That is based on statistical evidence by Prof Chalkley, made available to the Ministry. The Ministry, of course, could always have obtained its own statistical evidence.
    4. Therefore, either the Ministry has ignored the statistics or it has internally acknowledged them to be accurate but failed to say so. That latter alternative is, patently, the very epitome of bad faith.
    5. The impact assessments prepared by the MoJ have been rigorously scrutinised and criticised by the Bar. That criticism is, in my view, compelling. Tellingly, the MoJ has simply not dealt with the criticism. Instead, it has ignored it.
    6. One is left, therefore, with the unpleasant but seemingly accurate view that the MoJ is doing this because it lacks the facility to acknowledge that its initial plans were unnecessary. That, in turn, suggests that the plans had no rational basis but were persisted with in any event. When one factors in the absolute refusal to engage with the substantive arguments in any meaningful way, one is left with an explanation of bad faith, and nothing else.
  1. Accordingly, the proposal in the consultation is that the Bar takes responsibility for the bad-faith acts of a monopoly funder about which it can do nothing. I do not accept that using the Handbook to impose that responsibility is necessarily lawful. But, on the assumption that it is (again, I leave that issue to others), it is a bad idea. It is not the function of professional rules to make individually employed citizens responsible for the acts of government. The Bar cannot make the government act in good faith. Consequently, it will always be at risk of having to bear the financial burden of others simply at the whim of government. That cannot be right. In my view, if that result is what the BSB wants (and I profoundly hope it is not) then it ought to seek legislation to enact it.
  1. Moreover, by failing to recognise the real effect of the proposals, the consultation inaccurately states the balancing exercise to be performed. Viewed in the light of the government’s behaviour, the proposals require the Bar – at its own expense – to cover up the real consequences of governmental bad faith. Given the barrister’s obligation to promote the interests of the rule of law, access to justice, and the administration of justice, I would have expected that all matters pertinent to those obligations would have been considered. That seems not to have been the case.
  1. Finally, the proposals fail to consider the role of other organisations and bodies with equivalent obligations to promote the interests of the rule of law, access to justice, and the administration of justice, particularly the Courts. It is, I think, a mistake not to do so. For example, it may be possible to reach an agreement with a client that, in the event of a unilateral change of terms, the barrister would forthwith seek a stay of the case from the Court. The Court’s decision, if a refusal would lead to an absence of representation, might be affected by that agreement.

Proposed Amendments

  1. I accept that the issue is one of weighing competing factors. As I have said, it seems to me that the various competing factors referred to in paragraph 13 of the consultation have not been fully or accurately identified or weighed.
  1. I do not believe that any change is required. However, on the basis that additional clarity is necessary, it seems to me that the various factors should be properly set out and should include:
    1. Whether, in view of the profession as represented by the Bar Council, the changes to remuneration are justified by the express purposes of the alterations.
    2. Whether those expressed purposes can be met, from the same departmental/organisational budget, but in another way.
    3. The effect on other clients of the barrister, taking into account the barrister’s own circumstances.
    4. The effect of any terms agreed between barrister and client about what would happen if such alterations were made.
  1. I have not attempted to draft the relevant guidance, because I know my limitations. However, I do want to address paragraphs .6 and .7 of the proposed new guidance.
  1. .6 imposes an obligation which I do not think a barrister has, or ought to have, namely to consider prejudice caused to witnesses for the other side. In some ways, it is a barrister’s duty to cause prejudice to witnesses for the other side, albeit that we must do so properly. But there is no current obligation, for example, to consider the prejudice to prosecution witnesses when a defendant seeks an adjournment. That is a matter for the Court. It may very well be in the interest of the criminal client to seek a course which prejudices the other side’s witnesses and I do not presently see how obliging a barrister to consider that as a reason for doing or not doing anything is consonant with the central obligation to the client.
  1. Moreover, in the protocols agreed for the recent days of action the same position was addressed in what I believe was a better way. Barristers were obliged to consider issues of vulnerability on the basis that vulnerability was an issue that went to the Courts’ obligation to ensure justice. That had the advantage of leaving the responsibility where it properly lies – contrast to paragraph 16c of the consultation, which I believe to be wrong.
  1. If that protocol position were adopted in the context of this consultation, one could add to paragraph 21 above:
    • The vulnerability of any witness and the effect on the administration of justice of any course the barrister adopts.
  1. The difference between that and the protocol is that vulnerability is not an automatic reason to continue but a factor to take into account, amongst others.
  1. To an extent, .7 recognises the effect on the individual. It may be that this was always intended and that the consultation did not address it because it was intended to keep it as short as possible. However, it seems to me that including any means of redress the barrister has is more likely to cause confusion than clarity and comes close to the type of micro-regulation I understood the BSB to wish to avoid.
  1. What is prejudice? Is it monetary only? Does it include morale? Does effective redress mean a group judicial review, or individual negotiation with a manager? How is effective to be judged? Judicial review is famously not concerned with merits but with a decision being unjustifiable/unreasonable/unlawful. Does effective include a reference to the barrister’s own pocket/state of mind/health? What is redress? Is it monetary compensation? If so does it include the prospect of irreversible financial damage before the redress is given (something the big banks are currently resisting with all their might in the interest swap cases and therefore something which, it can be reasonably predicted, the government would also resist)?
  1. All these questions are unanswered and I would not expect the BSB to answer them, or to be able to answer them. Rather, it seems to me to show the futility of attempting to micro-regulate these matters. I believe that paragraph 21 above deals more effectively with these issues.

A Further Point

  1. Many at the Bar take the view that this consultation is aimed at VHCC cases. This analysis may be wrong because if a barrister were now to accept a previously declined VHCC case, or a VHCC case which would have been declined had it been offered in the last few months but can now be taken, it seems to me unclear whether the approach to any change to remuneration would be determined by the rules in force at the time the case is accepted, or those in force when the change to terms is proposed. I would welcome an assurance that these proposed changes are not to be made retrospective, and will only apply to cases accepted after the changes come into force.
  1. Whether current fears are right or not, they illustrate an important point about the reality in which the BSB must operate. That is that barristers doing publicly funded work do not trust the government.
  1. That being so, and without debating the merits or otherwise of that view, which has no place here, it seems to me that this guidance might ultimately be affected by the law of unintended consequences. The unintended consequence is that barristers will not accept publicly funded work if there is any issue about a unilateral change to fees. Such changes are, of course, customarily announced after public spending rounds. That would have the unhappy consequence that citizens charged with criminal offences at certain times of year would find it difficult to obtain representation.
  1. Moreover, should the current mistrust progress, it may be that barristers would rather delay the acceptance of new instructions than take a risk. That would produce the unintended effect that a refusal to take work would be triggered not by an announcement of a change in fees, but by the fear that such an announcement might be made in the foreseeable future. Both of those scenarios would lead to clients being unrepresented when they may otherwise have had representation without bother.
  1. If the changes are going to apply to all cases held at the date upon which the changes come into force, I predict that the changes will act as another reason to refuse, especially, VHCC cases. That is because those cases are customarily very lengthy in terms of trial and lead up to trial, and are therefore more vulnerable to fee changes. Any barrister defending a VHCC case originating in 2009 (and there will be many) will have already seen 2 or 3 such changes. Moreover, such cases represent a large investment of time for a barrister and they may well decide to focus on smaller cases, which may not pay as well now, but may pay better by the end of the process. Finally, the deal announced last Wednesday strongly suggests another change to VHCC rates, thereby increasing the risk.
  1. As most barristers feel that the current rates offered for VHCC work are unattractive, it seems to me a moot point as to whether the BSB wishes to introduce a further reason to refuse that work, which cannot be done by anyone save the highly skilled barristers who currently do it, as the recent refusal to do VHCCs has made clear. That is, of course, also a matter concerning the administration of justice and access to justice.

Conclusion

  1. I recognise that the BSB’s concerns are to ensure that the Handbook represents a professional way to behave in the light of changing circumstances. I entirely acquit the BSB of accusations of seeking to do the government’s work. I have read Baroness Deech’s speech in the House of Lords about the proposed cuts and I recognise the real passion and belief that informed what she said. It seems to me that, even were that only a personal view, it would be incompatible with her continuing chairmanship if the BSB were really a government agency
  1. However, in my view these proposals do not deal with all the issues surrounding unilateral changes to fees by a monopoly supplier, which acts in bad faith and is unaccountable in a private law action. Because of that, the balancing exercise proposed is so skewed as to lead to the wrong result in practice. Further, in principle I do not believe that such enormous changes to the obligations of individual citizens should be effected through the medium of their professional rules.
  1. It is a cliché that if something is not broken it should not be fixed. But it is true for all that. Recent events have shown that the Bar is both able and desirous of dealing with exceptional problems in exceptional circumstances by means of protocols, which are rigorously observed. The absence, as I understand it, of any professional complaint by a member of the Judiciary, supports that thesis. The BSB should only act if it can do so in the certain knowledge that action will improve matters and is necessary. In my view, neither criterion is satisfied here and the BSB should leave the current guidance as it is.