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Vote NO by Emma Nash

Why I’m voting “no” and believe it was right for the CBA to agree to the deal.

First, a bit about me so you know the context of my viewpoint. I’m from a moderate background, no rich family, no one in the law, no private or Oxbridge education. I rely on this job to pay my bills. I am basically your bog standard criminal barrister, 13 years call. I pride myself on doing the best I can in every case but I do not have fixtures booked up solidly for months on end. I rely upon the cps and on local small to medium solicitors firms which have been very loyal to me. If they go bust, so do I.

You should also know that I do not shy away from a fight. I have been very active in fighting these proposals in every way I know how. I was the person who collared Grayling at the House of Commons and confronted him. I am the one who asked him to come for a day to court with me to see for himself as my mini pupil. I took my conservative MP to court to do the same. I replied to both consultations. I went to see Grayling with the CBA delegation and spoke against the cuts. I have taken part in both the days of action and not touched a return since 7th March and supported the decision to take them. As those who know me will tell you, I say what I think and do what I think is right. I do not tow the party line contrary to my own beliefs. I am currently the secretary to the CBA having taken up that position in March.

The CBA has always argued that the cuts to AGFS fees due to be imposed in the summer are not necessary and should not be imposed. They have argued that it makes no sense to impose them before the various reports ( Jeffrey, Leveson etc) have been completed. At the very least they argued that the government should await the outcome of those reports before considering whether the cuts are necessary. The Government consistently responded by saying the cuts were set in stone and would be imposed this summer. They then made a complete u turn. Due to the cohesive action taken by a bar which had never been stronger we won that argument against a government department. That is a huge achievement which should never be underestimated. Who amongst you can honestly say that you believed the bar would achieve any real concession against the Government. History tends to show that this outcome was unlikely. But we did. It was brought about because of our strong leadership who had a clear structured plan of action and fought to put it in place. They were proven right and earned our trust and respect. I know some will say the AGFS cuts are not off the agenda, merely postponed but they are postponed to at the earliest summer 2015, importantly after the election and after the reviews report which will have had a huge CBA input. They have been ‘kicked into the long grass’. There is every reason to think they will never be imposed. We have an opportunity to argue in fact for an increase in fees. And if no satisfactory proposal is offered by the Government at that stage we take action again. The Government know now that we can and will. So, in relation to AGFS we achieved everything we had demanded.

Turning to VHCCs, those 40 odd who returned their cases when the SI reducing their fees unilaterally by 30% was introduced are to be commended. The bar is in their debt as the ‘VHCC issue’ in my view was undoubtedly one of the big factors in the Government u turn. However, the CBA accepted a deal in which VHCCs remained cut by 30%. Not exactly ‘not a penny less’ for those doing them. But in fact all that the CBA agreed was not to have any objection to anyone doing a VHCC at the cut rates. No promises to encourage or to get people to do them. Basically, a stance of “if you’re happy to work at the cut rates, please do so”.   I do not know anyone who is. The Op Cotton effect is still therefore looming large and remains a factor the Government may have to contend with in the near future. And the deal agreed does contain a commitment to review the VHCC scheme as soon as ‘normal working relationships’ are resumed. We have the ability to here work with the government to set up a scheme which is acceptable. And again, if not achieved to your satisfaction, VHCC work risks simply not being done at these rates. It needs no more than simple market forces to show this Government that the fees being offered are simply too low.

If you look back at the published CBAs requests throughout this deal comes very near to amounting to everything we demanded.

Accepting the deal meant that the ‘no returns’ policy was cancelled, ending the very real effect it was having particularly on the juniors who supported it despite the financial implications. No more days of action. No more risks of wasted costs, contempt, disciplinary action or never being sent work by the CPS again as they threatened. It would also assist and help protect the incomes of our solicitor friends as about 30% of AGFS work is done by HCAs.   And, in the absence of satisfactory agreement on AGFS rates being reached in or after the summer of 2015, well we would simply consider resuming direct action again then if needs be.

But what about the solicitors? I agree that the cuts and dual contract proposals are hugely worrying for solicitors and mean that, if implemented, many may or will go out of business. I fear this may include many of my own solicitors. I want to protect them if I can. I would love to stop their cuts and importantly dual contracts. I am pleased that the second round of 8.75% cuts for them will now be subject to review pending the results of the various reviews. But the question is should the CBA reject the deal offered on AGFS and continue no returns and days of action until all the solicitors cuts are reversed and dual contracts are scrapped? Not an easy question to answer. I can see the validity of both sides of the argument on this. But I have come to the conclusion that the answer is no. Let me explain why.

The CBA and solicitors organisations have been mutually supportive in their mission to protect the CJS. Fee cuts are of course inextricably linked to this due to the quality argument. We have worked well together with that joint aim. But our individual targets have always been different as we represent different arms of the profession. The CLSA in their recent protocol for Monday and Tuesdays days of action state that their purpose is to reverse the 8% cut and postpone the second until at least after the reviews. They have achieved the second of those aims. They also oppose dual contracts. The CBA on the other hand had made similar requests relating to AGFS and VHCCs. What would solicitors have done if the Government had come to them and said “OK, we will do what you have requested”? Would they have been expected to say no, although you have given us what we demanded we will not accept it unless the CBA demands on AGFS and VHCCs are also met? No, I do not believe so. They would I am sure have continued to support the bar in its fight on AGFS and VHCCs in every way they could. Just as the CBA will continue to support solicitors in every way it can.

Can the CBA realistically be expected to retain ‘no returns’ and take more and more days of action, with all the increased risks and hardship that comes with them especially for the juniors, until the solicitors get all they ask for as well? How long would this take?   Is it likely to happen at all if solicitors themselves are not taking unified action? Is it justifiable to risk the deal for AGFS? The solicitors have the ability to fight just as hard as the bar has. They can get a plan together, get unity and fight with direct action just as the bar has. The bar would support them in their action just as they supported ours. But how can the bar win a fight for solicitors which they are not prepared to fight themselves as one? I keep hearing that it is just too difficult for solicitors to take action, that the risk of a contract notice is too great and that it is far easier for the bar to fight for them. I do not accept this. Each barrister who has taken action has put him or herself at personal financial disadvantage. Some of that has been severe. We have stood up to threats of disciplinary action, of being struck off or significant fines. We have taken action despite the risk of contempt or wasted costs, in one case those have been ordered. And we took days of action when the CPS were ringing chambers finding out who was not working with the threat of no more work ever. How is that worse than the threat of a contract notice? Both destroy the ability to work. But the bar stood firm against the threats and took action en masse. It was effective with little fall out thanks in no small measure to the behind the scenes work done by the leaders of the Bar. I believe if solicitors did the same then they too could bring the government to the table to up its current offer of delaying the second 8% cuts to after the reviews and to get all of what they have been demanding. I am pleased to see that the CBA accepting the deal has caused the solicitors groups to realise that this is true and that they need to fight their own cause in order to succeed. I think that the ‘no Crown Court legal aid applications after 7/4’ idea has the capacity to be a very effective direct action IF it is widely supported. Here is an example of how the solicitors policies will directly affect the bar but where the bar would nevertheless give its support, just as solicitors did with no returns.

Every day we at the criminal bar weigh up the relative merits of every action or decision we take. We might have a client whom we really would like to achieve an acquittal for. But that does not make it the wrong thing to accept a good offer from the CPS as to alternative pleas which have become acceptable. You advise based on the relative merits and would never advise proceeding just because you’d like to succeed if that is unlikely. This is no different. There is a difference between what you desire and what you can achieve.   The CBA taking the deal it was offered was the right thing to do in my view, weighing up the risks and merits of each competing argument. There is no abandonment of solicitors. We do and must continue to support them. They too can win on their aims but only if they fight the way the bar has in the only language this Government seems to understand – unified and carefully planned direct action.

I trust the leadership and judgment of Nigel and Tony. It is their work, building on that of Max Hill and Mike Turner that has got us to this point of strength and power. I continue to trust them and their judgement. For all those reasons I have concluded that I shall be voting “no”.


2 thoughts on “Vote NO by Emma Nash

  1. A few thoughts on Emma Nash’s post


    I am afraid that I do not see how postponing cuts until after next year’s election is ‘kicking them into the long grass’. They have not gone away. The MoJ have just made a tactical decision to move their implementation to a time when they believe it will be more favourable to do so.

    VHCC cuts

    As Emma admits, the way that the VHCC cuts have been dealt with does not exactly fit with what the CBA position was before 27th March. I accept that sometimes in a negotiation one has to give way on some points but when you stand back and remind yourself of what the CBA was asking for in the first place, a payfreeze on AGFS and the return of £19m to the VHCC budget (reversal of the 30% cut), it was exceptionally modest, when the figures show that the Criminal legal aid budget had fallen by £195m, with VHCCs dropping from £124m three years ago to just £67m in 2012/13. It may have been a quirk of fate that VHCCs was the first wave of the CBA campaign but it has kept coming with Op Cotton a running sore for the MoJ. If the Government can find £200m for potholes it can find £19m for VHCCs.

    Replacement of VHCC scheme with Grad Fee+

    As for the VHCC payment scheme well I have to say that I am a little fed of those who don’t do VHCC work saying it needs changing. Grad Fee + is nonsense. Why an earth anyone has anything against hourly rates of pay I have no idea (it’s how City firms bill) but VHCCs as they are now, with a minimum of a return of the 30% reduction, proper time allowances for reading evidence , leading then to the need for less contract managers, is the solution. I say this because having been privileged enough to do VHCCs since 2006 almost exclusively, no other counsel I have co-defended with or been led by has ever complained about the principal of hourly rates and being paid every 3 months. They complain about the areas I suggested that can be addressed but not the scheme itself. The reason I say this is because of the suggestion that it is a victory for the Criminal Bar that the Government as part of the Deal will look at replacing VHCCs with Grad Fee+. It’s not a victory when VHCC practitioners know that the present scheme, even with all its imperfections, is the only one which allows them to prepare these types of cases properly. I don’t suppose we are all that naïve to think the same civil servants who rejected the CBA/BC suggestion of replacing VHCCs with Grad Fee+ have now had some sort of Damascen conversion? It’s diversion and misdirection, a cheap trick but a trick that some are falling for.

    The Wider Picture

    Emma and those in the No camp have yet to explain how a pay freeze on a brief that will not come to the junior bar is a victory for the junior bar : it’s clear that if you cut a solicitor’s pay in one area he/she has to look to other areas to make that difference up. In this case if the deal is accepted that will be the frozen AGFS fees. The deal will be Carter all over again and far, far worse.

  2. Had I known when the Bar told us on the 7th March, that the no returns policy could only work if solicitors did not threaten to pull work if chambers failed to cover a case, then I would understand the suggestion that this was a Bar alone tactic. Solicitors did not simply “give support”, we played an active role. Dealing with difficult judges and clients. Most importantly, the risk of contract notices. We saw this as a unified approach to achieve common aims. We certainly do not see ourselves as needing protecting.

    Solicitors with VHCCs have been written too by The LAA threatening to withdraw cases and take that fact into consideration when we apply for a new contract. If I follow your logic, I will instruct in-house or the PDS, in order to survive. Before this deal, I had the confidence to withstand such threats because I believed we had the MOJ on the back foot. Not now.

    You ask how long could we go on? I am confident that the tactics were working. Why would CG call a meeting? Accepting the deal showed a lack of judgement in my view. CG said the deal was on the table for 24 hours and yet now says, ok, its open until the vote has been taken. He was given a lifeline.

    You say that the second round of cuts will be considered after the next election. What if the Tories get a majority? The cuts and and certainly the dual contract need to be stopped now. If we fail, smaller firms such as mine and those who instruct you will cease to exist in a year. What then for access to justice?

    I am dismayed by the number of comments by counsel that seem to suggest that it was the Bar alone that achieved this deal, but I am more encouraged by the large number that, not only resist it for the very poor deal it is, but understand that the Bar was not alone.

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