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Should we bank or reject the success of our campaign? by Chris Henley

Should we bank or reject the success of our campaign?

A conversation

On Friday I was talking to a colleague about the ballot. He told me he had voted yes but hopes that the no vote wins. Was his behaviour pure cynicism? Let others take the difficult but necessary decision, whilst personally parading a clear conscience? Or was it a case of an angry heart ruling a more thoughtful and honest head? I have concluded it was the latter – we are all probably wrestling with this conflict – but that conversation in part has provoked this piece.

I would like to rewind very briefly.

Advocates fees have been cut relentlessly over the last 3 years, following years of no increases. I won’t repeat all the numbers. When I first read those notorious words ‘spiralled out of control’ in the first TLA paper, I instinctively doubted the truth of those words. Chambers turnover falling, personal annual receipts reducing, fees for individual cases sharply down in all categories; as a politician might verblessly say. No figures were provided by the MoJ to support Grayling’s claim. And we now know of course it was deliberately deceitful, tendentious nonsense. The anecdotal signs are everywhere. The number of us who make our own sandwiches is perhaps the most light-hearted example (except at the Bailey where one must keep up appearances), bankruptcy and suicide the most tragic. There is no doubt the publicly funded criminal Bar is in a perilous position. The chambers structure operates, in the public interest, nurturing the next generation, sharing knowledge and pooling experience and applying effective pressure to ensure the highest professional and ethical standards. The independent bar when it works best matches, in the most efficient way, the most appropriate, highly trained and motivated advocate, to any potential case right across the country. Our overheads are as low as any business model is likely to produce because the money comes directly from our own pockets. There is probably a law of economics which would confirm this. None of us is guaranteed an income, but when the market for our services works properly we all have a chance.

So this is the background to our dispute. This is what we are fighting for. I believe an independent referral profession provides the best safeguard for the poorest and most vulnerable in society. I am not in favour of fusion, though it is creeping towards us. We will never be able to compete with HCAs on price, as long as they are allowed to return 20%-30% of their fee back to the solicitor as some form of management fee. Our future depends on our quality; of service and performance.

The CBA has campaigned in a clear and focused way against further fee cuts for advocates. We were told repeatedly that the MoJ would not change course. Our pressure defeated PCT, and caused the MoJ to abandon plans to harmonise the brief fee so that regardless of whether the case pleaded early, cracked late or went to trial, the fee would be the same. Tapering has gone, and we won the argument over the choice between Option 1 (favoured by solicitors) and Option 2. However until 10 days ago the MoJ would not budge on the need for cuts. We have relentlessly campaigned for any further reduction to fees to be delayed at least until after Jeffrey Review is published. In support of this we played our strongest cards to date; a further full day of action on 7th March, and the refusal to do returns.

We have achieved our stated objective in relation to graduated fees. In fact we have exceeded it. We can play with words but this Lord Chancellor has abandoned any plan to reduce our fees. The decision has been formally put back until after the next election, but this means Grayling has backed down. He cannot bind the next government and so he uses language that most effectively camouflages his capitulation. But that is what it is. The same also applies to the second 8.75% cut to solicitors fees.

In relation to VHCCs the rates have not been restored and those affected are entitled to feel very let down. There is though a commitment to work with us to establish a new system of remuneration for this category of work. The Bar has been asking for a replacement scheme for a very long time. In the eyes of many the VHCC scheme is deeply flawed. It perversely rewards, slow and sometimes unnecessary working, incentivises the latest possible resolution of cases, and punishes financially the most efficient practitioners. So this commitment, if it properly rewards this demanding category of case, is a positive step. CBA pressure meant that most existing cases were spared the 30% cut, both for solicitors and barristers, but regrettably not all. I do not understand why the MoJ will not restore the rates in the meantime for the relatively small number of cases affected by the 30% cut but that battle continues. Defendants remain unrepresented in the affected cases.

Nigel Lithman is undoubtedly right when he says we have achieved most of what the CBA set out to. I suspect very few expected us to be as successful as we have been. Ironically, honourable failure might have been less controversial.

The question for decision by the end of Wednesday is effectively do we bank these gains, and suspend our current action unless the threat to our fees returns. Or do we say to Grayling, not good enough, we are adding a series of further demands to the list and we will not work normally again until you give us all of them. Although no solicitor has refused VHCCs at the new rates, one of the new conditions would be that rates for solicitors must be restored in full too.

Not a single one of us can be sure how the future will play out if we vote yes to further action. Voting yes is a vote to restore immediate further cuts to our fees, in order to change our objectives in the most fundamental way. It is not far short of starting all over again. We might choose to do this, but we should not pretend that this is really motivated by a desire to support the 41 very brave and principled people who returned VHCC contracts when the rates were cut. If this had also been achieved the logic of the yes campaign is that this too would need to be rejected. The yes to more action is about quite different and very new objectives, which many doubt it is within the criminal bar’s gift to deliver, and the price for this very uncertain action would be paid by the most junior members of the profession.

A yes vote might in fact lead to the introduction of ‘One Case One Fee’ and a rapid expansion of the grotesquely wasteful PDS. Dominic Grieve, who has been rumoured to be in the frame to take over from Grayling, raised the spectre of OCOF at the last quarterly Bar Council meeting when asked what would happen if the criminal bar did not resolve its differences with the MoJ. We must not be intimidated from doing what is right but neither should we ignore a thorough examination of the possible consequences of the momentous decision we are taking.

Nigel Lithman and Tony Cross have worked tirelessly and behaved courageously over the past few months. The direct action they have organised is unprecedented. They have been supported in particular by Mike Turner and Max Hill, their immediate predecessors, but also by many others. These four have been closest to the process and in combination represent a remarkably broad spectrum of experience and opinion. They each bring something quite different to the debate: Max has prosecuted at the highest level, Mike is a leading member of Garden Court, Tony will be the first Chair of the CBA from outside London and there is also Nigel. They all recommend that we vote no. It seems to me that this counts for something. It’s not decisive of course but if any of them thought a return to action, and more aggressive action, would quickly knock Grayling over with no downside surely they would say so.

One of the curiosities of the last week or so has been the very different positions now taken publicly by one or two people who argued against days of action in private not very long ago. They are entitled to change their minds of course. But I worry that the course of any future CBA campaign might sit in their hands, when they opposed the action which has delivered the result we are now debating. If their voices had been heeded first time round we would not be in this position. This is after all about judgment.

I was an early advocate of days of action. It seemed to me it was the most equitable way of sharing the financial burden of our protests. ‘No returns’ is undoubtedly effective but it places the greatest burden on those juniors who have a largely warned list/return based practice. It will have cost more senior practitioners very little. There was considerable nervousness about the days of action. Nigel and Tony calibrated the steps, incrementally increasing in seriousness, with great skill and care, and consulted extensively. It is not widely known but Nigel regularly met with the Lord Chief Justice to ensure protection for us when we walked off cases. Many feared wasted costs and disciplinary action. This did not happen because Nigel committed so much time to behind the scenes consultation and persuasion.

Have mistakes been made? The Circuits consulted the Heads of Chambers across the country. There was unanimity at the SE Circuit meeting, and the CBA Executive voted by very large majority in favour of accepting. Against that background it is perhaps unsurprising that it was not felt necessary to conduct a ballot of every member. With the benefit of hindsight that was clearly the wrong decision and the ballot now underway rectifies this. We need the highest possible turnout for obvious reasons.

The principal bone of contention is that the deal has secured nothing for solicitors. The fee cuts implemented on 20th March have not been reversed, and the VHCC rates, which have been cut by 30% for solicitors too, have not been restored.

Solicitors have been hit very, very hard by the proposals. I argued for days of action and supported no returns because I always felt that once cuts had come in it would be virtually impossible to reverse them. Whatever support we have received from Sadiq Khan, and other Labour figures, they have not promised to reverse any cuts which have been implemented.

The Law Society has been a feeble advocate for the small and medium sized firms. I have heard Lucy Scott-Moncrieff and Des Hudson in public meetings acknowledge the need for ‘savings’ (meaning cuts) and ‘market consolidation’ (meaning mass closures). They never attempted to lead the fight for the rich and valuable variety of firms that has evolved over time, and which the market clearly supports. Why should every firm be the same monolithic size? Why can there be there be no new, dynamic firms entering the market, starting modestly but then developing and growing as clients reward the quality of service provided? The destruction of so many firms is as obnoxious as it is unnecessary.

Solicitors will benefit to a limited extent from the decision not to cut advocacy fees. 30% and increasing is the proportion of advocacy now undertaken by employed or freelance advocates. The instruction of HCAs rather than junior barristers by firms is done for hard headed business reasons but it has impacted very heavily on the most junior practitioners – the very ones who are also hardest hit by no returns – and the ripples have been felt much further up the experience tree. The second tranche of cuts to solicitors’ fees has also been explicitly put back until after the next election as a direct result of the CBA’s action. There is no reason why we cannot act together to defeat should the need arise.

The two tier contracts and the reduction in firms will radically change the legal landscape and unquestionably for the worse. Of course this issue is of the most profound importance Discussions are taking place between solicitors and the CBA about how to devise new campaigning strategies to defeat these proposals. I have heard of a number of inspiring ideas which if implemented must receive the Bar’s full support. There is no reason to believe that we can’t collectively force an indefinite rethink to two tier contracts.

But the immediate question is should we bank or reject the success of our campaign? Would the current leadership of the CBA have any credibility if we vote yes to further action and different objectives? Would Nigel and Tony have credibility in future negotiations or credibility with the senior judiciary? Our demands have been largely met, but only following a very determined protest galvanising the very broad coalition of opinion within the criminal bar. The public perception is that we have largely got want we wanted. Do we seriously throw this away, risk our unity, destroy the credibility of the CBA leadership and with it any chance that we might be able to take effective action in the future in support of our solicitor colleagues? We need to vote No, rather than just hope for it.

By Chris Henley

 

 

 

 

 

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3 thoughts on “Should we bank or reject the success of our campaign? by Chris Henley

  1. Chris, the Criminal Bar and particularly those who do VHCC work owe a huge debt to you for the numerous articles you have written in the Barrister magazine and in the Financial Times setting out the real figures for VHCC spending with clear analysis. I do not share your analysis of the situation we find ourselves in now though.

    ‘We have achieved our stated objective in relation to graduated fees. In fact we have exceeded it. We can play with words but this Lord Chancellor has abandoned any plan to reduce our fees. The decision has been formally put back until after the next election, but this means Grayling has backed down. He cannot bind the next government and so he uses language that most effectively camouflages his capitulation. But that is what it is. The same also applies to the second 8.75% cut to solicitors fees’

    You cannot bank something that is not bankable. In the real and political worlds postponing something does not mean you are not going to do it ever. In the real world it is usually because you don’t want to do it and in the political world it’s because it is not politically advantageous to do so at the time. The Lord Chancellor has not abandoned his plan to cut AGFS – he has simply moved the implementation date for the cuts and is trying to convince us that he has given way. We would be very foolish to believe otherwise. True he cannot bind the next Government but what if the next Government is either a Conservative administration or a Conservative-led coalition? The cuts will just be implemented in the first few weeks after the election in the new Government’s honeymoon period. Indeed even if it were Labour government recent history has taught us that despite change from one political ideology to another New Governments very very rarely deviate from their immediate predecessor’s spending plans and Labour have made no formal commitment to reversing the AGFS cuts.

    ‘VHCC scheme is deeply flawed’

    Being paid on an hourly rate for reading all the evidence and unused material in a case seems to be far less flawed than what happens on a Grad Fee (no guarantee of being paid for reading after 10,000 pages and no payment at all for unused material). I don’t think it has perverse incentives within it either or rewards those less time efficient practitioners. What it does is allow those who wish to specialise in long and complex cases the freedom to do the work that is required and be paid for it without the need to have full time Crown Court practice alongside it.

    The agreement by the MoJ to review the payment system on VHCCs is no victory. Firstly no regular VHCC practitioner has an issue with being paid every 3 months -it’s the only way to properly prepare these cases. Secondly the MoJ were opposed to Grad Fee+ two/three years ago and this isn’t some sort of Damascene conversion on their part : they are snake oil salesman with their latest wheeze being apparent conversion to what is a deeply misguided idea that Grad Fee + is better than the VHCC system in order to distract from the Deal they want. It’s a cheap trick but a trick nonetheless.

    ‘Not a single one of us can be sure how the future will play out if we vote yes to further action’
    You may be right in this assertion but I am certain of what will happen if we vote No: taking protected- from- cuts AGFS briefs in-house will be the means by which Solicitors make up the catastrophic cuts of 8.75% this year and 8.75% next year and that will destroy the Junior Criminal Bar. At least with a Yes vote we have the option of uniting with Solicitors and stopping it from happening.

    ‘A yes vote might in fact lead to the introduction of ‘One Case One Fee’ and a rapid expansion of the grotesquely wasteful PDS’.

    OCOF will always be a threat no matter what we do but it seems the Government is much keener on having it as a threat than as an actual solution. I am sure you read the LAA business plan which talks of a rapid expansion of the PDS in the coming year and of the LC’s confirmation during a meeting with CBA last week of his commitment to the complete opposite of that plan. I will be kind and say left hand does not know what right hand is doing but I think we can assume that how we vote is not going to play a part in how the LAA waste taxpayers’ money.

    ‘One of the curiosities of the last week or so has been the very different positions now taken publicly by one or two people who argued against days of action in private not very long ago. They are entitled to change their minds of course. But I worry that the course of any future CBA campaign might sit in their hands, when they opposed the action which has delivered the result we are now debating. If their voices had been heeded first time round we would not be in this position. This is after all about judgment.’

    Since you were one of the earliest voices urging days of action and now you are suggesting we stop without having succeeded with what we asked for the same analysis you apply to others who were against days of action and were then converted to it should apply to you should it not? As a VHCC practitioner who returned a case in late November might I not be entitled to worry that in now suggesting we stop our protest having not got the restoration of the 30% cut in my fees that your judgment is questionable in terms of how it informs the future leadership of the CBA?

    Tim Thomas, 1 Pump Court

  2. Simon, if solicitors decide not to apply for through-orders, there will simply be no briefs in those cases, just unrepresented defendants in the Crown Court.

    The firms that do apply for through-orders will either brief in-house or will seek to instruct the independent Bar. As Graduated Fee cases are undeemed, it will remain the choice of individual barristers whether to accept those briefs, just as with VHCC’s at the new rates. The MoJ know from the meeting last Thursday, that there is no active encouragement to barristers to take on new-rate VHCCs.

    I have interpreted the return to “normal working practices” as a direct reference to a resumption of accepting returns, since that is the action which has brought about the situation we now face. If the MoJ sought to interpret the “normal working practices” in a deliberately provocative way, I have no doubt that “No Returns” would be back in place very quickly.

    Our only credibility with the ministry and the press is the way the Bar has demonstrated its ability to organise itself and to act in a unified way. It is still an aspiration too far to think that we have any credibility with the public.

  3. Chris, I know personally of the huge amount of your time you have invested to debunk the figures and fight against the cuts. You have played a major role for which we all should be grateful.

    You acknowledge realistically the huge challenge we face as a result of the twin attack upon solicitors – cuts and two tier contracts. You rightly say, “I have heard of a number of inspiring ideas which if implemented must receive the Bar’s full support. There is no reason to believe that we can’t collectively force an indefinite rethink to two tier contracts.”

    However, I do not think voting No means that AGFS is “banked.” It is more like a suspended sentence as Jaime Hamilton puts it. As soon as we support solicitors, for example by refusing work from firms that apply for through orders and/or for those who poach work from those who do not, we are taking direct action again.

    Of course the cab rank rule does not apply to legal aid. But it is undoubtedly a normal working practice to take AGFS at the current rates. The terms of the deal expressly require us to restore normal working practices [ https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/user_uploads/advocacy-note.pdf ]. As soon as a large proportion of us decide that we will not work for solicitors who fail to take or who subvert direct action we become in breach of the deal. If your thinking is correct then AGFS cuts are then immediately re-imposed.

    Grayling would then say he gave us an honest settlement which the Bar voted to accept but then dishonestly breached it at the first opportunity. That would leave us with no credibility with the ministry, the press or the public.

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