Mark Fenhalls QC explains why he believes that the MoJ deal gives the CBA everything it had been asking for, subject to VHCC cases which ‘nothing on earth would induce him to do at the ludicrous rates on offer’.
I spent many hours last year drafting parts of the CBA’s Responses to both consultations. At the request of the Chairman and the Executive I have attended many meetings with MoJ officials over the last six months as we have sought to persuade them that we were right and that advocacy fees should not be cut further.
When I heard the news at the Executive meeting on Wednesday last week I was stunned. I had anticipated many different outcomes but not this capitulation by the Government.
That capitulation came about because of the resolve of hundreds if not thousands of barristers across the land who said “no more”. No returns and the days of action created an unprecedented change in the public and political view of our profession. But it was not the action alone that achieved this. Crucial to our success were the real numbers underpinning legal aid “spend”.
So at the Exec meeting last week I voted in favour of the agreement because it gave us everything the CBA had been asking for in our responses to the consultations and during the subsequent negotiations so often described by the Chairman in his weekly message. There is of course a caveat – we got what we asked for in relation to GFS, but not VHCCs, a subject to which I will return briefly below.
Since last week there has been an eruption of discontent. I have been spared much of it because I have never activated my Twitter account, nor have I ever had a FaceBook page. But I have to say that however well-intentioned it may be, the opposition to the deal is misplaced.
The CBA mandate was not and is not to fight the fight of others, for better or worse. Had the solicitors’ leadership been offered a deal that gave them everything they wanted but at the arguable expense of the Bar, do any of you think they could or would have said “no”? I believe the Bar got what it asked for on behalf of all advocates (and I mean advocates not barristers) because individual barristers everywhere demonstrated a cohesive and unprecedented willingness to act as one. I wish I could say the same of employed HCAs but I cannot.
The fees for advocacy have long been viewed by many solicitors as an attractive target. None of us need educating on that subject. This would have been the case whether we preserved current fees (as this deal achieves) or if they had been cut this summer. The forthcoming threats that may emerge as the new contracts are thrashed out are real threats we would have to meet in any event. This deal changes none of that.
The Government has decided to shelve part two of the cuts to solicitors’ fees. This is a major victory for them. But in relation to part one, solicitors are already accepting work at the lower rates and there is plainly no way back from that. The moment they agreed to work at those rates that battle was lost. That is not the CBA’s fault.
VHCCs. This battle will continue. Like many I think the scheme is deeply flawed and needs urgent reform. Individuals may do what they wish, but nothing on earth would induce me to do one of these cases at the ludicrous rates on offer. If others feel the same way and act accordingly, I am confident market forces will bring about a rapid review of the system.
For these reason I shall be voting to accept the deal and saying No to further action.
Mark Fenhalls QC