You may ask how they, the majority of the CBA executive committee and five of the six circuit leaders could misjudge it. I believe that it was because they underestimated the degree of anger and the depth of determination that has emerged under strong leaders. I believe that it was a mistake to agree to a deal without consulting the membership. This need not have been through a ballot. The committee and the circuits needed time to consult and confer.
The reason this did not happen was because the terms of the offer were that it had to be accepted within 48 hours of Tuesday, 25th March. Neither the CBA Committee nor the circuit leaders meetings with Heads of Chambers knew the agenda before the meetings. All had to make decisions without any considered reflection or consultation. I do not believe that Mr Grayling was in a position to dictate such terms in the course of a short meeting. It is now a week after this meeting. The MoJ have not suggested that it has been abandoned. The MoJ could not set the pace; the criminal bar were setting the pace. We can again.
When the VHCC cuts were announced we doubted that there was much that we could do. We had been conditioned through previous disputes to believe that unity would not hold and some people would do the work. I was fortunate. I was not instructed on a VHCC that was affected by the cuts. I feared that we would not keep our resolve. But we did hold firm. Cases were returned at a time when it was not known whether others would swoop in to take them. Some colleagues returned their whole diary for a year. They showed tremendous courage. They were the brave first wave who proved that we had changed. No opportunists came forward.
On the day that the deal was announced I was contacted by a junior in his thirties with a family who had returned his practice and had not worked for four months. What could I or anyone else say to him? Should he just be congratulated for making a sacrifice for our benefit that most of us did not have to make? Was he not entitled to expect that we were all in this together? Was the first question in the survey of chambers not about holding firm on cuts to AGFS and VHCCs? Should he just be told that he’s in a minority and he’ll just have to fight his own battles while the majority carry on with their uninterrupted practice? This is uncomfortable but it is the reality.
You may think that the commitment in the deal to re-evaluate the VHCC scheme and reconsider GFS Plus should provide optimism. How many times have we been let down by such blandishments in every dispute from 1997 onwards. In 1997 we were told that the statistical error in the GFS scheme would be put right. It never was. We have been on a downward trend in AGFS since then. The modest gains in Carter at the expense of large cases were not just reversed but reversed across the whole gamut of cases. The best predictor of future behaviour is past behaviour. Even if it is a genuine commitment, the deal makes it clear that any amendments have to be within the current budget. That budget includes the 30% cut. It would merely be stealing from Peter to pay Paul. It has been argued that savings could be made. If GFS Plus was introduced then the CCU could be made redundant. Let us not be naïve, ministries bank savings, they do not redistribute them. Every ill-thought out time saving and efficiency scheme that we have shored up and made to work has not translated into fee increases. They never will. The MoJ is the Cinderella of ministries. No fairy godmother will increase the budget for VHCCs or GFS Plus. We can only recover the 30% by fighting for it. It is merely a Statutory Instrument, not an Act of Parliament. It does not require time in the House.
Do you not think that the CCU will deliberately try to persuade solicitors to offer VHCC cases to the CBA leadership? I have no doubt that instructions will be refused. But how will that be interpreted by Mr Grayling. The deal requires it to be the public position of the CBA that “in return for the Government’s proposed approach…there is no objection, in principle, to barristers undertaking VHCCs…there is no reason why barristers who want to work on VHCCs should not do so…” I suspect that the ministry will seek to provoke conflict by targeting the leadership with these cases. They will not see the sensible refusal as an individual choice but as a leadership position. You might think that this is excessively conspiratorial but do you not remember the misleading list circulated in December 2013 by the CCU of counsel prepared to undertake VHCC work. I hope you have all seen the threatening letter sent to solicitors reminding them of their obligation to find counsel. They have been threatened with the loss of their contracts. The real problem is that there is acceptance in the agreement that “there is no objection, in principle, to barristers undertaking VHCCs.” The principled objection is that the fees are so low that standards cannot be maintained.
I hope that whatever the decision in this ballot people will not do VHCCs under the current rates. In my view, lack of solidarity with a minority of practitioners is the best way of undermining resolve. In any event it is not just a minority. Every major criminal chambers was reliant on VHCC income. We will all pay higher expenses now. It will be a significant cut by proxy on all.
Is it worth sacrificing VHCCs and a minority of the bar for the good of the majority? I have never thought that such a utilitarian approach should be decisive. In any event I think that we lose much more than we gain and the deal is to the detriment of all. There is a stay of execution for a year. I think that this can be given its literal meaning. The only reason that Mr Grayling put this offer forward was to stop the direct action. I think everyone agrees with that. It is not out of a love for the bar. He would not have threatened cuts in the first place if he respected us. He, like previous Lord Chancellors, sees it as his place to test the market. Like most ministers, he sees it as his duty to pay us as little as can be tolerated. Do you not remember the remarks in the consultation that standards were too high and should fall? It is only by refusing to work that we avoid cuts, let alone dare to hope for an increase one day.
The only reason he wanted to stop the direct action was because it was working. There is no other rational inference. We held the whip hand. There was little very reckless intervention by circuit judges – it would only have intensified our resolve. We were winning the battle and the MoJ was afraid. They had never thought it possible that we could fight with such unity. Three weeks in to the No Returns policy and we were causing real havoc. The MoJ finally believed that we would not work on the proposed rates.
Could we repeat this in summer 2015? I believe we will be powerless by then if the deal is accepted. We will have accepted the precedent of a 30% cut to VHCC’s. Even if we hold out on those, the bigger problem is who will instruct us.
The biggest threat to the existence of the bar is the threat to small and medium sized firms of solicitors. It has become the mantra of the MoJ that bigger is best. I do not see how a bigger firm could properly prepare a case with less preparation hours. I do not believe that they do. That is not the real issue. The real policy is shrinking the market so it can be more easily controlled. It is official policy that most criminal firms should go to the wall. Criminal solicitors are facing the biggest threat to their existence ever. The huge national cuts in the number of duty contracts means that most firms will disappear. They will not be able to survive on own client work. They need the bread and butter from the duty scheme and the odd big case that they pick up.
Added to that, the cuts in fees they are now facing across the whole of their practice means that they cannot remain solvent without change. The easiest way to make up the shortfall is to do more advocacy in house. It is Carter all over again. The criminal bar will not survive if it cannot feed its young. If a firm can only survive by doing its own advocacy then why should it instruct a junior barrister?
The problem does not end there. Adam Makepeace of Tuckers has published on April Fools’ Day in the Solicitors’ Journal the article “Do We Need Barristers Chambers?” http://www.solicitorsjournal.com/comment/do-we-need-barristers-chambers . I encourage you to read it. It is well argued. It is his reaction to the deal. He argues that barristers should simply be the agents of solicitors. We do not need chambers. We should just pay a percentage of our fee to the solicitor instead of to chambers. He claims that we should stop being sanctimonious about referral fees and work like independent HCAs from home. There is an irresistible logic to this if we lose the smaller firms that rely on us for advocacy. We will merely be locums. It is an inevitable consequence of the deal apart from for the lucky few able to survive upon private work. The decline to locum status will not start at the bottom. It will start at the middle. Hungry experienced and talented juniors will be starved into it. The new juniors will go to the wall. Why will they be used when there are many more experienced locum practitioners available? There might be the odd small set of silks. Those will wither on the vine like the Serjeants-at-Law. The deal does not protect the junior bar, it will destroy them.
Do not forget that during the No Returns policy there has been the utmost support from solicitors. They have turned up at court and pacified anxious and angry clients who have been unrepresented. We could not have done it without them. Nobody sensibly believes that we will not be threatened with cuts to AGFS again. If it’s not summer 2015 then it will be summer 2016. Do you really think that what remains of the solicitors firms will support us then with a No Returns policy? What direct action could we even threaten, let alone actually achieve? We would be laughed at as relics, living in the past.
Like everyone else, I have been frustrated and dismayed by the lack of unity amongst solicitors. What the offer has shown is that the MoJ is prepared to negotiate. It had been Mr Grayling’s position that none of the cuts could be reversed. We have demonstrated that nothing is set in stone politically. I think that solicitors are now rallying into action. I do not believe that abandonment of this policy will ruin Grayling. We are low on the political agenda. Agreeing to our demands will not end his career. This has been an overstated obstacle throughout.
There is now a proposal gaining real ground that solicitors do not apply for legal aid on new cases. We could support that by refusing to take that work if it is picked up by a solicitor who does apply. But why should they believe us if we accept the deal? What possible hope is there that they will fight if we are not fighting with them and for them? We take the risk of quelling this overdue rebellion with which we have a shared cause.
You might not like the question for the ballot. You may think that it is too absolute. It was a question I proposed for an EGM of the CBA. It effectively restates the mandate of the National Delegates Conference in November 2013. The cuts in fees and the cuts in contracts are interlinked and will lead to the death of the criminal bar. What use are the fees if no-one can afford to instruct us? More importantly, cuts in fees and contracts will destroy the criminal justice system irreparably. It is in our hands to prevent that.
Please discuss this with your colleagues and deliberate. There is no need to vote until next week. Please hold meetings. Please consider the blogs that have been published. There will be links on the CBA blog. I include some below in support of a Yes vote which are perhaps better argued than this. There is no need to rush into this. We must not dance to the ministry’s tune. We were setting the pace.
If you accept the deal, then I think you have to accept that the criminal bar will be gone within a few short years. We will either be locums, or employed with no control over our future. Do you want to go back to quiet resignation or at least fight it out? I cannot guarantee that we can win, but I would at least like to try.
The reality is that the ballot is about whether you accept the deal or reject it. There will still be an EGM as called for under the constitution. If the deal is rejected, the EGM will be the place to discuss the way forward. It will enable us to restore the power we were wielding and plan ahead, just as we did last year. We were all surprised by the strength and unity that we found, and displayed, last year. We have been led with great skill. There is no need to change that leadership. The rejection of the deal will strengthen the hand of the CBA with the MoJ and reinvigorate the solicitors.
Remember that we were made an offer because we were winning. It was a highly divisive offer which was calculated to stop the one policy that was stopping the cuts. I think that we will give Grayling what he wanted by accepting the deal. We will throw away the most effective weapon we have. We will have completely disarmed by next year. We will just be a timid residue of what we used to be proud of.
Vote YES to reject the deal.
SIMON CSOKA QC
Sam Parham and Joanne Cecil: http://tinyurl.com/m27p3o9
David Osborne http://t.co/q4sojAljXg