I’ve asked that my name is not attached to this because in many ways it doesn’t really matter who is saying it. The only significance to it is that it might be of assistance to those who are presently undecided on which way to vote. If it helps, I’m a junior who does do VHCC cases.
Importantly, I echo all that has been said about the work done by the CBA and all those who have generously given their time and effort to fight for our cause. There is no criticism of their efforts, implied or otherwise, in what follows.
However, I do believe that it is a mistake to accept this ‘deal’ from the MoJ.
The deal – in its simple terms – is a deferment of the cuts in the AGFS in return for the end of any action, the end of the ‘No Returns’ policy and an end to the objection to VHCCs. That is it. In short, we’ll defer the cuts – you keep the system afloat again.
In relation to AGFS this amounts to a stay of execution only. We wait a year and then we get kicked in the proverbials anyway. The budget has not changed and the cuts will come. If, following the next election, the Government is Blue of hue then the cuts will certainly come. If the Government is Red then that won’t guarantee the cuts won’t come but the present incumbents won’t care what happens anyway as they will have left the Reds to sort it out.
I’ve read somewhere the argument that we have demonstrated that we can stand up to the MoJ and so we can do so again in 2015. I’m afraid to my mind that is shockingly naïve. This is a fight for our survival so let us embrace that analogy. We should not allow our opponent out of the corner when we are pressing home our advantage. Our tactics have been effective. Our opponent is injured, is suffering, and is looking for a way out. We should not surrender our momentum and position of strength and allow our opponent to go away for a year, working on his weaknesses in order to strengthen himself and meanwhile weakening us, before then allowing him to start the fight again from his improved position.
Whatever people’s views are about the solicitors being able to fight their own corner and allowing them to do so, we must not lose sight of the fact that we are stronger and we have more power when we join forces. One of the tactics the MoJ has employed repeatedly is to try and divide the unity they see between the professions. They appreciate that we are stronger together and there has been an almost unprecedented degree of unity which we should maintain and use to the advantage of both professions.
We should be using that unity and pressing home our advantage until the opponent concedes. Either that or we ensure he does not want to, or is not able to, fight with us again. Too many times in the past we have observed the Marquis of Queensbury rules and dropped our guard at the point where the fight looks like coming to an end. Yet if we drop our guard in good faith here (which is what I believe we’re doing in accepting this deal) I believe we will find ourselves stabbed between the ribs by an opponent who has no intention of adhering to those rules. Our opponent is a streetfighter, not a pugilist. We are mismatched in weight, in muscle and power, in resources, and we need to be efficient and tactically astute and I believe we have been up until last week. One of the essential elements of our tactical approach must be that when we gain the upper hand we do not relinquish it. This is a fight for our survival not a challenge to our honour. We are not fighting to regain some credibility, we are fighting to survive.
This is the announcement from the Government
Update – 27 March 2014
Transforming Legal Aid
1. Following discussions with the leaders of the Bar and the Law Society, the Government has agreed a number of measures to help criminal legal aid lawyers as they prepare for the necessary legal aid savings and market restructuring.
I do not read that as deferring these cuts to such a position that they will not occur. I read that as ‘These cuts are coming whether you like it or not and the current model and practices which you have will not survive them’. Get on with ‘market restructuring’.
Furthermore, as we have repeatedly demonstrated to them and they have repeatedly ignored, these cuts are NOT ‘necessary’. They are ill thought out, counter-productive and will result in a second rate, two tier legal system.
Given that there are many who take the view that these cuts are ideological at heart, I pause there to observe that the ‘market’ (which is said by the Government to be the great panacea) is not trusted to determine who gets work in the brave new world proposed for the CJS. The small firms who presently survive by their reputation and hard work will go to the wall and the consequences for the Bar are self evident. Who amongst us believes that Serco or G4S Legal Services Ltd will have the slightest interest in our abilities or years of experience? They have one objective and one alone. Profit.
There is a YouTube clip of the late Tony Benn speaking in the House of Commons at the end of Mrs Thatcher’s time as Prime Minister in which he refers to her Government as ‘measuring the price of everything and the value of nothing’ [At approximately 3 mins and 15 – http://www.youtube.com/watch?v=ETqOvBKnKdk ] . That is the very approach that we are facing. We have repeatedly demonstrated that these cuts are not about money but we have been resolutely ignored. We have been contemptuously ignored while the Public Defender Service advertisements are shoved in our faces which offer rates of pay which are multiples of what the average legal aid barrister earns before we enter into discussions about pensions, sick pay or holidays.
2. As a consequence, the leadership of the Bar will call off their ‘No Returns’ Policy and there will be no further days of action.
The Bar Council and the CBA will also make clear that there is no in principle objection to working on VHCC cases at the new rates.
I would argue this is clearly intended to be read as ‘everybody back to work as before’. No more ‘No Returns’, no more ‘Days of Action’, no more disruptions and no objection to people undertaking VHCCs. In other words – ‘start doing VHCCs again’.
Why would the CBA need to make clear that there was no objection in principle to working on VHCCs at the new rates? It has been said all along that this was a matter for individual choice and that is still the case – so nothing has changed, right?
Wrong. We all know what this implies. We all know that once there is no unanimity then there will be those who take these cases. We all know that many people have refused or returned them because they have felt secure in the knowledge that none of their colleagues will betray them and take the cases anyway. We cannot allow that to happen and in truth it simply shouldn’t. Any suggestion they’re reconsidering VHCCs and creating ‘AGFS plus’ while they’re still managing those cases with the exact same budget is a marketing exercise akin to Alan Partridge’s PA, Lynn, (very hard-working but she’s got a moustache) trying to tell him that the new ‘Rover Metro’ was not the same as a Mini-Metro. Alan didn’t fall for it and neither should we. ‘They’ve re-badged it you fool’. We should be as determined to stick by our principles as he was : ‘I’m not driving a mini-metro, I’m not driving a mini-metro, I’m not driving a mini-metro !’
We have spent months telling the Government that such cases simply cannot be done properly for those rates. Nobody of sufficient experience or ability could afford to conduct such cases on such derisory rates. That such rates will lead to injustice, will lead to errors, will lead to appeals, will lead greater costs as a result. That paying proper rates ensures that the experienced, the able, those whose knowledge and experience will save time and money is the only way to conduct those cases. What of all of that? Has all that been changed ? Has all of that been resolved ?
Of course it hasn’t. It is as true now as it was then. But we have been able to maintain a unanimous opposition to the new rates because we have stood as one. We simply cannot afford for that resolve to be in any way diluted. We have all been able to stand firm because we knew that we were all in the same position and that nobody would accept these cases at these rates. Nobody would do the work that you were refusing to do as a matter of principle. Our principles cannot, and should not, change because the cuts in AGFS have been deferred. We voted on it. People gave up years of work on the strength of that resolve. I do not believe that we can, in good conscience, resile from that. Apart from the betrayal of those who returned these cases, what credibility would the lengthy and detailed arguments about the injustices that would occur have if we now start accepting that VHCCs can in fact be done on those rates? What credibility would any of our arguments have in the future? None.
Oh, and does anybody think that the other arm of the Government a few blocks away won’t think to themselves : ‘Hmm. So the defence representatives CAN do VHCCs at those rates after all. Well, the same must be true of prosecution counsel as well’. It is inevitable that the CPS would look to implement the same rates once it has been established that these cases are being done again.
We have to show the Government that we stand strong on VHCCs and this deal undermines that position. It may be said that nothing has changed it is a matter for individuals as it was then but we all know it has changed, otherwise why even mention it.
My view is that the fight should be carried on both fronts. There is strength in the unified position. The VHCC boycott should continue in conjunction with the ‘No Returns’ policy because their combined effect is so much greater. We must not let the MoJ divide these issues into smaller more manageable chunks. To return to the fight analogy, why should we only hit them with one hand when we can finish this fighter far more quickly and effectively punching with both.
3. The Government will defer changes to the Advocates Graduated Fee Scheme until Summer 2015, to align with the second fee reduction for litigators.
This will allow us to take into account the outcomes of the reviews by Sir Bill Jeffrey and Sir Brian Leveson, as well as any impact on legal aid spend from falling crime rates, and earlier remuneration changes. In the same way, we will consider any impact from the above factors before introducing the second fee reduction for litigators.
All very interesting but they’ve already told us in paragraph 1 that the cuts are coming. We’re surrendering a position of real unity with the solicitors, we’re surrendering the combined effect of No Returns and No VHCC’s, and we’re doing that so that they can consider the reviews which will take place and then implement the cuts anyway when we’re in a far weaker position to do anything about it.
There were thousands of articulate, well argued replies to the consultation papers which were insultingly ignored. The inspiringly impressive response from Treasury Counsel was criminally ignored. The MoJ will not listen to anything that doesn’t suit their agenda. We have surely learnt that by now!! Does anybody genuinely believe that deferring this argument for a year or 18 months strengthens our position ?
Let’s not back off now. Let’s tighten our grip, increase the pressure and let’s achieve what we set out to achieve in the first place. ‘Not a penny more’ was the mantra we got behind. It was not ‘Not a penny more until 2015 when we’re all doomed anyway !’.