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The Vice Chairs’ commitment to you

27 POINTS TO TAKE INTO ACCOUNT IF CONSIDERING VOTING YES AND MY COMMITMENT TO YOU

 

“Do you wish to continue no returns and days of action until all the cuts and reductions in (solicitors’) contracts are abandoned?”

 

 

  1. If you vote Yes, CBA policy will change and direct action will continue until all the cuts and reductions for Bar and solicitors are abandoned. Those supporting this position must be prepared to do whatever it takes to achieve these aims. They must be prepared to demonstrate that they can lead a unified national organisation, which would operate with the full support of every circuit, to achieve their desired purpose in the way which we have demonstrated over the past 7 months, without fracturing that hard fought unity that we have achieved amongst our members by careful planning of our action.

     

  2. Prior to (in my role as Organiser of the Northern Circuit Action Committee) and, once elected as Vice Chairman of the CBA, I took two weeks out of court and toured the towns of Lancashire and Manchester and met with solicitors to try and build political relationships. It became apparent to me (if it was not already something that 32 years’ experience of practice had proved) that this would be an uphill struggle.
  3. During my time as VC (building on Mike Turner’s work) I have met with (and fostered good relations) with the current leadership of the LCCSA and the CLSA on many occasions. Bill Waddington and I spoke frequently by phone. They have a thankless task. They represent but a small proportion of practising solicitors.
  4. I have met with and spoken with members of the BFG. It is clear that they have their own agenda, which they intend to pursue in the interests of their own firms.  I have spent hours with some of them. I have tried and better tried to find a way to accommodate their position with ours. I have learned though that it is foolish to pretend that there is unity between the bigger firms and the small. What unity exists is transient and temporary. Think back to 7th March. Why were some of the BFG motivated to join us? It was because they were disappointed that contracts were to be awarded to the 525 not the 300 they expected.
  5. I have been privileged to campaign alongside a small group of Manchester solicitor practitioners since April 2013 when I began to organise the Manchester ‘resistance’, if I may call it that. However those committed to the cause have been largely a handful of individuals based in Greater Manchester.
  6. I have been privileged to share campaign platforms with Manchester solicitors over the course of the dispute (and, may I say, whilst few other members of the Bar were present). I have chosen to support them. I have encouraged them to unite behind the CLSA and fight with us. I will return to what happened on 7th March and the message I conveyed to solicitors.
  7. I do not accept nor have I accepted that the partnership has been an equal one. The leadership of the solicitor organisations believe that they have made an equal contribution to the days of action and the No Returns Policy. I am afraid I disagree. I believe that this fight has been Bar led but with the support of some solicitors – not all by any stretch of the imagination.
  8. I do not say that the CLSA or the LCCSA have not led their own fight because of course they have (and have demonstrated real leadership in the organising of events) but I do say that it has been the Bar who has been united in not attending at Court and consequently the Bar that have had to make the majority of the economic sacrifices and who have run the risk of disciplinary action.
  9. Think back to 6th January. I accept solicitors had little time to prepare, but did solicitors nationwide really support the half day? In some areas support was very strong. In some areas the support was completely non-existent. The CLSA will disagree and it may be that in some areas support was strong, but what was the level of support in Lancashire and Greater Manchester and Liverpool? What degree of support was demonstrated on your Circuit?
  10. In the days leading up to the 7th March day of action, I discovered that the majority of Lancashire solicitors were all working. I discovered that the CLSA had only one representative  on my part of the Northern Circuit. I communicated my concerns to Bill and Nicola Hill by email. I was certain that if that was happening in Lancashire it was also happening in other areas outside the major cities. Eventually because I knew the resources of the CLSA were stretched I took matters into my own hands. I asked a respected solicitor friend and colleague to call a meeting of solicitors for the county of Lancashire. A handful turned up. It was plain to me that there was little unity and that any impetus for action derived from the efforts of the Bar. On the 7,th the major Magistrates’ courts of Preston and Blackburn sat. HCAs went to work at Preston. Ask yourself this question about the courts near you for 6th January and 7th March. Did those regional Magistrates’ courts sit? What was the level of support given to you by HCAs?
  11.  On 7th of March I spoke in Crown Square Manchester and then at the Friends Meeting House. (I wanted to speak in England’s first city-not London). There were perhaps 500 people outside Crown Square but later at the FMH perhaps 200 or so solicitors. Of those present only approximately 10% were members of the CLSA. 10%! I implored the remainder to join up. I spoke of my friendship and admiration for Bill Waddington and how those who were not present were letting him down personally. Of how he spent countless hours working on their behalf putting aside his own interests.
  12. Importantly that day I addressed that meeting on the concept of “sacrifice”. I told them of the sacrifices that were being made by people around the country; I told them of Tim Thomas  and of how he had effectively returned all his work; I told them of the sacrifices that the junior Bar were making as a consequence of the No Returns policy.
  13. What did I ask them to do? I asked them to unify and to refuse to work at the reduced rates. I asked them not to accept the 8.75% cut. I implored them to unite to refuse to work at the new rates. It was obvious to me that this was the only way forward. It had been obvious to me that this issue would arise for months. I had asked them to prepare for it, they had not done so.
  14. Do you remember the pledge? I know the vast majority of your chambers signed it. Remember the pledge:- that it would be unprofessional to work at the new rates. That pledge, which you signed, was not the creation of solicitors. It was my creation. It was designed to get solicitors to state publicly that they could not work at the new rates. I took the idea to a young solicitor named Alistair Parker after I heard him speak passionately at Camden Town Hall in September 2013 and he persuaded the CLSA and the LCCSA to adopt it.
  15. So at that meeting on the 7th I asked solicitors from the BFG and firms of all sizes to unite to refuse to work at the new rates. I asked them to make the sacrifices that our members were doing. I told them that they had enough time to organise themselves and they had. I left that meeting to rousing applause. I believed that solicitors were finally going to unite.
  16. In effect I asked them to be faithful to the pledge that they had signed.
  17. On 11 March I attended (by phone) a meeting of the NJC. It was a long meeting but that night I learned of something which caused me great sadness. I learned that our solicitor colleagues were resigned to accepting the cuts and that their fight should turn in effect to judicially reviewing the MOJ. However, they decided to look at options for a national meeting.
  18. That led me the next day to write to Bill Waddington. I did not believe that the fight should end. I felt that if they worked at those rates then they would be defeated. It was time for them to really test unity. The full text of that email is HERE.
  19. I did not get a reply.
  20. On the 13th the CLSA announced their national meeting for the 19th in Manchester.
  21. I wrote to BW again. I offered him the logistical support of the Bar. I did not get a reply.
  22. I was extremely concerned that the meeting would be a failure. Some present say it was. Only approximately 500 firms turned up from the whole of the country. They couldn’t agree on the major issues but did agree to support probation on the 31st March and  the 1st of April. I have an email from a solicitor who expresses support for my position who described the meeting as a shambles.
  23. However our solicitor colleagues effectively conceded defeat by agreeing to work at reduced rates at that meeting, it seemed to me that either they were not able (they say for contractual reasons) or were unwilling to do what they now expect our members to do on their behalf and that is to stop work and to suffer the economic hardship that was required of our own members.
  24. I knew then that although their fight was not over that they had weakened their position perhaps irrevocably.
  25. Since then the CLSA have sought to remedy this situation by not applying for through orders. Will this work? Is it a national scheme? Will it be supported?
  26. I have sought to work alongside our colleagues. But I am not VC of the CLSA. I represent Barristers. I cannot fight their fight for them. Our relationship with the Leadership of the CLSA and LCCSA seems badly damaged. I am sorry that that has happened. I dare say that had they been in the same position as us with the MOJ they would have taken the same decision and by a similar route. Do you believe that solicitors would have refused to accept the withdrawal of the 17.25% fee cuts until the Bar had got what they wanted? What would have been the reaction of their Solicitor members?
  27. I though have not withdrawn my support for Bill Waddington and Nicola Hill. I will continue to work with them if they wish so. We share many similar beliefs as to the structure of the CJS. I though firmly believe in the unique value that an independent Bar has for the CJS.

My commitment to you

Many of you are frightened that the reduction in the number and type of Solicitor firms will mean the end for the Bar. I do not agree. The CJS needs a strong independent bar. Remember my question of the Attorney General and his answer at the Bar Conference HERE Without a strong Bar and thriving sets of Chambers the system will crumble. Talent will go elsewhere. From where will the great prosecutors and defence counsel come? From where will the Judiciary of tomorrow come? Judges at all levels will be left with a rag tag and bob-tail of “Tied’ advocates, HCAs and who knows what else. Justice will be denied and delayed. We know this, the Judiciary knows this and I believe so does Mr. Grayling.  I give you this undertaking. I will fight to ensure that the Bar has its rightful place in the system and the supply of work to support our members. I will work to ensure that those who support us are heard. It is time to unify our support:- from solicitors, the bench, and political organizations who believe in us and the value of an independent bar and make it heard. If any system is devised which threatens that service which we give to society and have done for centuries then I shall call upon you to demonstrate that you will not accept it.

 

We have said that we will engage with Jeffrey and Leveson. Nigel Lithman has shown the Bar what determined and courageous leadership can achieve. I have witnessed first hand the quite incredible effort he has shown on your behalf. I am proud to have been his VC. His determination with the support of the Executive Committee of the CBA has given us the time, leverage, and strength to try and cure the inequalities in the way that we work and are rewarded and I give my commitment to you that I will do my level best to ensure that your views are heard. 

 

 

VOTE NO AND ALLOW ME TO CONTINUE THE FIGHT.

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7 thoughts on “The Vice Chairs’ commitment to you

  1. Quite simply, if the Bar choose not to support criminal solicitors at this time, those same solicitors will train as Higher Rights Advocates. The smaller criminal firms have to recoup future loss of profit, and individually, solicitors need to do whatever is needed to avoid any future deduction in earnings. They will undertake more Crown Court work. The net result will be a significant loss of work to the Bar, and I would say, a loss far greater than that sum the Bar consider they have ‘saved’.

    And to echo the earlier comment of Upkar Bahia, A No Vote, will result will result in complete division of the two professions, and the fittest will survive (ie those with the clients) !

  2. There are some moments in life which are pivotal to your future. As a criminal solicitor, who does a majority of work that is legally aided, I see the outcome of today’s CBA vote as one such moment. If the CBA members vote ‘no’ then the architects of the legal aid restructuring will be certain that their practice of giving piecemeal concessions, which can be retracted at a later date, is still an effective way to fulfil a long-term goal.

    The truth is that this battle has never been with Grayling, or the Conservative Government. The battle to preserve our legal aid system started long before Grayling became the Lord Chancellor, and will continue into the future when the only memory we will have of Grayling is as an effigy held aloft by those who wanted to preserve the pre-eminent legal aid system in the world.

    This battle began when Lord Carter first reported on the future of legal aid. It started with the suggestions of price-competitive tendering, cuts to police station fees, a stagnation of fees paid (which in real terms meant a fall in income for the majority of legal aid practitioners).

    Since those early days, I have seen firms that were small, but ferocious in their defence of clients, swallowed up by those members of the profession who are more commercially minded. Where firms have not been willing to shed the thickness of their defence skin, they have disappeared from the market. I have seen solicitors, who have not wanted to do Crown Court advocacy, lose their jobs as they are no longer commercially viable. The firms who lost the police station income, and who are set to lose more of that income, have had to embrace advocacy in the Crown Court.

    As the advocacy departments of firms have grown, I have seen more structured advocacy training for HCA’s, more firms offering in-house pupillages and more graduates recognising that, at a time when they have debts to repay, a regular income attached to the same work they could get at the Bar is an attractive package.
    What did we, as a profession do, while all of these irreversible changes were taking place ? The majority of us got on with representing clients. A minority also campaigned against these cuts. At the beginning there were judicial reviews; I was part of the team from the Black Solicitors Network who challenged the first tranche of these changes. We argued about the disproportionate effect the changes would have on BME firms and practitioners and that any changes should take into account savings that had already been imposed through cuts to pay and other efficiency initiatives. The LSC, as it then was, countered with the same arguments as the LAA uses now – we need to cut costs, we have a public interest in doing so and we will reconsider our position after the next round of independent reviews have been published. The arguments on both sides stay the same – all that changes are the characters.

    Even in the early days there were forward thinking barristers who foresaw what the effect of these cuts would be. They were the pioneers of the Bar’s fight against these cuts. They were faced with intransigence from the majority of the criminal bar who, just like now, had been offered a different deal to that proffered to solicitors. Despite all of our efforts, and the campaigning, together we failed to stop the insidious dismantling of the legal aid structure. We did not have the numbers, from either of side of the profession, to make a difference.
    What I learnt from that process was simple; once people feel that their efforts can be avoided or deferred, it becomes a lot harder to motivate them again. The CBA say that a ‘No’ vote is not giving up the fight to stop cuts, and I have no reason to doubt their honesty when that is said. But, what will be lost, and will not come back if the majority of CBA members vote No, is the unity of the professions to back the ‘no returns’ policy.

    This time around junior barristers, and those who rely upon ‘returns’ for the cash flow that allows them to remain at the Bar, were willing to take a hit. Will they still have that resolve when all that loss gained them was a stalemate? If the Bar needs to re-introduce the ‘no returns’ policy it is doubtful that as many solicitors will support it; now it will be seen as an opportunity for HCA’s to step into the breach and support their firms. Once members of the Bar see HCA’s in court, working, helping to keep the courts going, building up the goodwill between themselves and the judicial structure, will their resolve hold firm? In the face of practical everyday reality, it would be perfectly understandable if it did not.

    At this moment, the firm I work for is not applying for legal aid in cases that are destined for the Crown Court. Many other firms up and down the country are doing the same. The LCCSA called out for this action and the solicitors are responding. It would be a memorable day if the CBA membership today vote Yes to continue their action. The joint effect of a continued ‘no returns’ policy and defendants attending the Crown court without representation, will be the greatest challenge to their policy that the Ministry of Justice has ever faced. The MoJ know it, which is why the offer to the Bar came at the time it did. It is now for us, as a joined profession, to know it and say enough to these cuts.

    I hope that tomorrow morning my Twitter feed will be full of little memories, each saying that the Criminal Bar decided to continue its fight and voted Yes during this pivotal moment.

  3. As a solicitor I have to concede many of the points you make about my side of the profession. I do, however, ask your members to consider the following when they cast their vote.
    -The BFG is not united with the 93% of firms who do criminal legal aid work, never has been.
    -Small and medium firms consider the Bar to be our natural allies, which is why the dual contract is such a problem for the Bar and us.
    -There are far fewer barristers, with clear objectives, than solicitors, and so, in my view, it is easier to organize.
    -Had firms rejected new work after the 20th March, we would have faced contract issues. For example, to refuse to represent someone at the police station because of the cut, would be a clear breach of the contract. Tactically, the smaller firms would have made a massive error. The BFG were never signed up and had the former taken that risk, within 6 months or less, we would have been gone. Consolidation, to the advantage of the BFG. By extension to the detriment of the Bar and more importantly, justice.
    -This deal will destroy the unity between the Bar and solicitors. The BFG has been less effective because of the no returns policy, this has given confidence to smaller firms to hold steady. At the moment we have received letters from the LAA threatening to cancel VHCC
    contracts if we do not find alternatives, for example, in-house or the PDS. We will hold out, but only with the support of the Bar. Any contract cancelled could prevent us getting a new contract period.
    -You place too much faith in the belief that the government will do the right thing. It will not. It does not care about justice. See how quickly Simon Hughes was silenced. Grayling and his lot, will not be around when the system crumbles, as it certainly will.
    -This campaign has been so effective because of the unity between the Bar and smaller firms. Coming up to an election, imagine how much more we can achieve if we continue in this vain. Grayling crumbled after 3 weeks, that we are certain of. You argue for a “no” vote on the basis that we can then campaign for more, but what if we as a profession are unsuccessful? He is in trouble, he needs this deal more than any of us, we cannot let him off the hook. With a “yes” vote that will encourage the possibility of the creation of one representative body for small and medium firms and the Bar, which can then effectively fight against the MOJ and the BFG, thus maintaining a solid criminal defence service for years to come.

  4. The MOJ have already said that they want the profession to provide an “adequate” level of service, as opposed an “excellent” level of service. To suggest that they want to preserve a top quality independant bar is naive. A No Vote, will result will result in complete division of the two professions, and the fittest will survive (ie those with the clients) !

  5. I have read virtually every word that has been posted on this blog in the hope that I might be persuaded that the ‘deal’ is a good one. Given the amazing leadership shown by the CBA and the Circuit Leaders in recent years, leadership that forced Ministers and civil servants to come back to the table when they would rather have sold their own grandmothers into slavery, I really want to believe that we have got the best deal that was possible in the circumstances.

    Unfortunately that faith still eludes me, and the reason is that I simply cannot share our leaders’ optimism about the discussions with the MoJ between now and June 2015. Nothing that we have seen from the MoJ in the last 15 years gives us any reason to think that will conduct those discussions in good faith. Everything tells us that they will lie, cheat, divide and rule, and exploit their dominant position as the purse-holders to make us work for the least possible cost. Everything tells us that they could not care less about quality, or about fairness (who knew government departments did irony?), or about the long-term survival of a criminal justice system in which (mostly) the people of this country still have both faith and pride. They will seek to ‘privatise’ what they can to the big ‘public-sector delivery’ conglomorates, and the rest they will starve of resources until it has gone. They will do so simply because it costs them less in this Parliament.

    Those who advocate accepting the deal are making a fundamental mistake about the long-term aims of the MoJ. They seem to believe that the survival of the CJS as currently structured is as important to the MoJ as it is to us. In other words, that ultimately our respective interests coincide and are capable of resolution through discussion.

    That is simply wrong. No government department wants spend more money than it has to. That will be the MoJ’s starting point when it conducts its talks with the CBA et al. The interests of the Bar involve getting the MoJ to do something that it doesn’t want to do, and once the pressure is taken off it simply will not give in. The only way to get it to do what it doesn’t want to do is to make it – no matter how good your advocates you will never ‘persuade’ it to do it voluntarily.

    The proponents of the deal say that if the discussions do not bear the promised fruit then we can always deploy the tactics we have already used this year. The problem with this is two-fold – firstly, it takes time to build and maintain the unity that made our recent action so effective. To be effective, ‘No returns’, ‘Days of Action’ and refusing to accept big cases require fire in the belly of everyone not just the few. That cannot be re-kindled overnight, if at all. Second, it pre-supposes that our actions will have the same effect on the MoJ as they did this time around. I don’t believe that they will. I’m afraid that what follows is more of discussion of the politics of our plight than its merits, but that is how we need to view it because it is the politics not the merits that will determine the outcome.

    In 2015 there will be a new government – of whatever composition. They will have a fresh mandate to govern, and 5 years before they have to go to the people again. That is the worst possible time to be asking a government department to do something that it does not want to do (spend money). No newly-appointed SoS is going to start their term of office by capitulating to the demands of an interest group. As soon as the election is over the delayed cuts will be re-introduced, irrespective of the outcome of the reviews.

    The best possible time to make your demands is in the run-up to the election, when the incumbents want to get rid of awkward headlines and questions about their record of government. More so, when the SoS in question is wounded and vulnerable and looking to his future after the election. What better way to curry favour with the bosses than by quietly solving an awkward industrial and PR relations disaster shortly before the country votes?

    The election in May 2015 will be fought largely on this government’s stewardship of the economy and its pursuance of ‘austerity’. It will want to be able to say “yes we’ve made hard choices, but we are saving money and all of our public services are functioning as well, if not better, than before their budget reductions. That is because we have trimmed out the fat and left them leaner and more efficient than before”.

    That will be a harder message to sell if the criminal justice system is in disarray with trials collapsing and suspects being let out due to Custody Time Limits failures. That will gift the opposition and the press the chance to say “you have gone too far, you are starving public services of vital resources” (whether they actually believe it or not) and to argue that the ills of the world are due to the government cuts. It may or may not be a message the people will listen to, but with an election looming the government are unlikely to want to take the risk. They are far more likely to see things our way when they are vulnerable than when they are strong, and they are most vulnerable before an election and least vulnerable after it. That surely is why the MoJ suddenly came back to the table and made concessions last week. CTLs were starting to go wrong and there was the fear that multiple days of action would start to hit trials. The opposition would have field day and the press would be full of it.

    The advocates of the current offer hope that the merits of their arguments will win the day – after all, they are advocates and highly able ones. But they are dealing with people who couldn’t care about the merits; they are dealing with people who care only about the politics; how it will play in the press and in the ballot box. The politics of this deal are sadly quite clear. We have all the advantages now and will have none in 2015. The only way for us to achieve a fraction of what we want is to press home that advantage now and to be brutal in doing so.

    I would very much like to believe that the merits of our arguments would win. If I did I would unhesitatingly vote to support the current deal. But while cogent argument is valuable currency in the barrister’s world, it is wasted on the MoJ. For them the only currency worth trading is the politics of a situation and we can win only if we exploit our current political advantage.

  6. Thank you for this Tony. To call it illuminating is a massive understatement. The members of the CBA and the wider CJS owe you and Nigel (and before you, Mike and Max) an enormous debt for three years of courageous and inspiring leadership.

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