The following piece is an anonymous submission from a junior. It remains a shame that people fear the risk of vilification such that they feel they have to contribute anonymously. It is worth remembering that following the vote, we will need to move forward as one united bar. To do otherwise will surely cripple and neuter us in any future negotiations or battles that lie ahead. Let us have this debate in an atmosphere of openness where all feel they can contribute. Do not let the fact that this piece is anonymous cause you to dismiss the arguments it raises. Follow the arguments, engage with the debate and then make sure you vote.
I have read both the “Yes” and “No” arguments from Nigel Lithman QC & Simon Choka QC – powerful advocates, persuasive and equally passionate. I like the title “rocks and hard places” because that is undoubtedly where we all are and I do not pretend for one moment that I have the answers. Apart from enjoying the skill of the argument, it all makes pretty depressing reading. A bit like “damned if we do, damned if we don’t”. But I would like to contribute to the debate and raise some questions. I am a “junior” of over 20 years call and care most about the future of our profession. Some of what I say below may seem controversial so I am taking advantage of the offer to post on the CBA blog anonymously. I am not as brave as our leaders and do not wish to be vilified as a result of declaring my position openly. I hope that does not make my view less worthy of consideration.
I do not agree with the analysis that “the reality is that the ballot is about whether you accept the deal or reject it” and once we reject it we can then discuss the way forward. I believe “the reality of the ballot is that if we reject the deal, what comes next?” I prefer the fact it wasn’t posed as a straight “yes I accept” or “no I reject” but spelled out the two stark alternatives – Nigel’s rock and Simon’s hard place. Because if we vote to reject the deal, we have to be sure about where we’re going next, who will lead us, what we are aiming to achieve, what we are going to be asking the government to do – and the only logical end point is to keep fighting on for “the absolute” – the position Simon himself is in fact arguing for, the point where the government reverses its’ position completely on the “cuts in duty contracts”, abandons its “policy that most criminal firms should go to the wall” and we are able to save all the small and medium sized firms of solicitors as without them we are doomed. There is no use pretending that we have the option of some middle ground here. If the “Yes” argument is right, anything less than total capitulation by the MOJ would not suffice. That is a huge shift, I don’t think it’s something that any of us has expressed before or certainly not something I’ve heard.
So I ask myself “what’s next”? Let us imagine that the deal is rejected. What do we imagine is likely to happen? I suspect despite statements such as “we have been led with great skill. There is no need to change that leadership”, the current leaders may step aside. If they did, could we blame them? They’ve stuck their necks out, worked tirelessly for us on what was always believed to be the basis of our campaign. Theirs has been a thankless task, they must have expected that but if we are now changing the goalposts, will they still be prepared to be our goalkeepers? So who would lead us? And could they unite us? What about the other leaders, the Bar Chair and Circuit Leaders who have also been fighting for us on the old basis? Or the leaders of the other specialist bar associations (“one Voice”) – or the Lord Chief Justice, the DPP, the judges, the CPS, the BSB. How will they react? Will they continue to give a totally different campaign their support, will they understand that we are now fighting for a goal far beyond that ever set by anybody before – or might they just lose patience with us for throwing away this deal?
Just how are we going to achieve this? How long would it take? Do we really think this MOJ is going to quickly throw their hand in? Let us say those who reject this deal do refuse to take on any new legal aid cases from any solicitor that applies for legal aid as Simon is suggesting – how long for? Longer than the No Returns policy which seems to have been limited to 4 weeks because it was hurting those who could least afford it? What about those that vote to accept the deal, can they be expected or relied upon to support this on-going action too – until the bitter end?
It is good to see this may have galvanised solicitors into action, they have given our leaders a terrible kicking but they should be grateful if it has spurred them on, it certainly seems to have done more for their collective spirit than anything to date. I noted one firm announcing that “because of the U turn by the Criminal Bar, they were now going to support the days of action” earlier this week. It begged the question. Of course, we want to support solicitors firms especially the small and medium sized firms in all the practical ways we can but how do we win this for them? What about the big firms groups, are they going to join in? Where are the public statements from them? I’m also concerned about this aspect. The position taken by so many firms so far has been they wouldn’t risk their LAA contracts by refusing to work at reduced rates. Will they now risk their LAA contracts if the LAA threaten not to send new work to any firm who refuses to take on any new legal aid cases? Isn’t there a risk they may continue to accept these cases to keep credit with the LAA and then have a “get out of jail free card” because the Bar will refuse to do them for them?
I’m really worried that we may be getting a bit ahead of ourselves. Maybe the MOJ is prepared to negotiate but isn’t there a massive leap between £10m of AGF fees and their whole committed savings of £215m? The difference between a battle and a war. How can we be so sure we have them on the ropes? Who is holding the purse strings? Who can afford to wait it out? The Bar or the Government?
There are two important reviews looking into criminal advocacy. If the “Yes” camp is right & we are doomed, would it be so outrageous to look at other ways of saving our profession? In this “new world” of criminal advocacy services to look at ways to offer our specialist advocacy skills direct to the public? Or must we always remain dependent on solicitors for our work? Because if we do, isn’t this scenario going to be repeated in years to come?
I guess what I’m really asking is this: isn’t there a more constructive way of ensuring the survival of the specialist criminal bar than waging a war? Especially a war we have no guarantee of winning? I don’t know but I would put my trust in our current leadership to try. That is why I’m voting NO.