During the remaining week that the ballot is running, the CBA will be posting different viewpoints as to whether to vote for action, or not. We do this so as to inform debate and to try and get as large a turnout on the ballot as possible. It is no exaggeration to say that the outcome of this ballot will shape the direction of the criminal bar for years to come. Anyone who has a submission for publication, please email it to firstname.lastname@example.org
Why I Voted Yes and an Alternative to the Monday Message
In April last year I was part of the minority who voted to continue with direct action until all the cuts were reversed and the two tier contracts were scrapped. I believe that the Bar was offered a fait accompli then and that many voted to end the action because the alternative may have been the resignation of the leadership of the CBA at a critical time. What has happened since has been entirely predictable – the cuts continue as scheduled for solicitors and the two tier system trundles ever nearer like a steam roller towards the junior bar.
I would emphasise that nothing is being held back by Tony Cross QC. What he has revealed in his Monday Messages is an accurate portrayal of meetings with the MOJ. There is no hidden agenda. There is no secret deal to protect the Bar. There have been no quotas promised for work to be briefed out. No promise has been made to scrap QASA. No promise has been made to have selection of the advocate an issue to be addressed by the judge at a PCMH. No promise has been made to prevent a firm from instructing an HCA with another firm. All there are in fact are words of comfort from a seasoned successful politician and senior civil servants. All this from a ministry which has been gleefully cutting fees to the bone for the last 20 years. I would never say it to a jury in a defence closing speech but we all know that the best predictor of future behaviour is past behaviour. You are putting your faith in a jury of one – Tony. As he says, “I am trained to assess the evidence and the witness.” But there is no evidence and nothing said on oath. But politicians always keep their promises.
As you can imagine, there was discussion before the general election by the CBA Committee about whether a future government would impose the deferred cuts on AGFS. My response to that was that I hoped that they would, but I did not think any government would be so stupid to. Many thought that I was being sardonic. I was not. Had they done so we would not be having this ballot. We would have been immediately taking action together with solicitors. No government would be so ill-advised as to unite a profession. Instead, under the reign of the deal, we have become the chained up obedient dog who barks at everyone apart from its master. If Mr Gove respected a fearless independent bar then the price of that would not be obedience.
This exposes the fallacy in the argument that the majority of the CBA Committee cling to. If Mr Gove and the civil servants sincerely believed that it was necessary for the greater good of civil society to protect the Bar then they would do so. It would cost nothing in a direct sense financially to impose large quotas upon briefing juniors. However, the cost to the government would huge. The firms that rely upon HCA fees to remain solvent would require an increase in LGFS to stay afloat. The MOJ would put us back into a near monopoly over advocacy. This would make us a much more powerful opponent in any dispute. The truth is that they have us where they want us to be and they intend to keep us there. It is in the interest of the MOJ to keep the Bar in fear of the continuing increase in the use of HCAs. It petrifies many into submission. It makes them thankful for their lot. It makes them oh so grateful for the pitiful fees that many now just about survive upon. It is not even a masterclass in crowd manipulation; it is almost obvious.
Let us not forget our own history of shambolic action against cuts over the last 20 years. The first AGFS scheme in 1997 was supposed to be cost neutral. It contained arithmetical errors which were admitted by the MOJ to have crept in. They promised to resolve them quickly within a few months. They never did. We did nothing. Thereafter this flawed scheme was extended from 10 days to 25 days, to 40 days and now to 60+ days. This same flawed model, based upon a faulty statistical analysis of cases up to 10 days and up to 250 pages PPE surveyed in 1995, has been used on each occasion. It was never modelled on the longer cases or high volume of evidence cases. Despite this we never took action. In addition to pusillanimity over the relentless destructive extension of AGFS, neither did we take action on AGFS cuts until 2014. We took no action when Ken Clarke imposed cuts of more than one third. We have caved in for no apparent reason apart from kind words during every VHCC dispute. Putting to one side the total absence of any fight over the red corner, we are now down over 50% on many AGFS trials since the 2007 AGFS scheme. We are down up to 80% on many AGFS cracks. We have done nothing about the ridiculous and iniquitous level of CPS fees that are destroying the junior bar. Who are we to lecture solicitors about how to take direct action? Our own history is shameful. We always thought we could not trust each other. We finally took action in 2014. Were you happy with your fees before you took action? I doubt it. But now you should be grateful for your lot even though you are paid less than in 1995. That is the proud history of the Bar’s efforts at direct action. So, whatever the product of the discussions about replacing AGFS I can be sure of several things: there will be no more money; it will be merely shuffling the money in the envelope and there will be some appalling concession or promise we have to make. It might be worse – it may be less money, like every other occasion we have been cheerfully encouraged to “move forward” by the MOJ.
Contrary to the claims made, we did not reverse the 30% VHCC cut (which was already 33% down to begin with.) It is still there. If you refuse a VHCC you might be offered a custom contract. But VHCCs have fizzled away and are as rare as hen’s teeth now. I know of cases that have been severed so aggressively that defendants are in more than one of the resulting trials. There are next to no trials predicted at over 12 weeks now. If there are then they are severed. Who wants to do a 6 week trial with 200,000 pages of evidence? Are you going to gamble upon getting 190,000 pages paid for retrospectively as special prep? Again, another proud example of the Bar’s record upon direct action. We have replaced a cut of 30% with a reduction of up to 90% if that former VHCC huge PPE salami sliced AGFS case cracks. This has hit the finances of chambers. Chambers expense percentages have had to be increased and thus hit the junior bar. It does not sound like a success to me.
So, with this fine pedigree in these disputes, we are told by our leaders that the solicitors’ action is not worth supporting because it is not explicitly about dual contracts. It is not as expertly managed as our previous efforts. Who are we to dictate which battles the solicitors fight first? We have been divorced from a joint strategy by the terms of the deal. It is apparently about being honourable, so we were told on Monday. It is incredibly difficult for solicitors to get clients and to keep them. Firms inevitably do not trust each other. Similarly, we did not sufficiently trust each other to take action over the last 20 years. We discovered last year that we could trust each other and that we had real power when we acted as one. Our solicitors have now discovered this too. They are finally taking action together and are not being stabbed in the back by rivals. What they thought was unattainable is now realised – unity and power.
As Tony Cross QC correctly said on Monday, the justification for the cuts was that the expansion of firms through dual contracts would allow the reduced fees to be tolerated through economies of scale. This was the argument used by the Ministry in the litigation. If the cuts go then so does the justification for dual contracts. This reopens the litigation. Consider this too – how much bolder and confident do we now feel when we consider direct action as a result of last year’s unity? How fearful were we when we began direct action in March last year? The CBA acknowledge this and contend that it makes us credible in negotiations because we have shown our mettle. The same can apply to the solicitors’ profession. If they prove themselves over their stand against the cut then they are a much more credible force in relation to challenging dual contracts.
The pre-occupation about dual contracts has hidden the reality that these cuts are for own client work also. Very little quality work comes to solicitors through the duty scheme. Indeed, much of it is disposed of in the Magistrates’ Court. I know of many successful firms who do next to no duty work now. These firms will be hit hard even though they may have had no interest in providing a duty service. There is often a long time between first arrest and charge or the legal aid application. How many clients in the “good” cases change solicitor while on police bail? How many times does a solicitor pick up a good case as the duty but fails to keep the client thereafter? These smaller firms with no reliance upon the duty scheme were hit hard last year by the first cuts. They are about to be hit again. They will be hit for a third time in January. These firms tend to be loyal to the Bar. We are invited to turn our back on them because the dispute is not focussing upon dual contracts. These smaller firms who have always briefed us may go under because we would not stand with them. They will not necessarily go under because of dual contracts.
If we vote against direct action then where will we be next year? If the solicitors win without our help then they will never help us again. If they lose because we did not help them then there will be less firms. Both the cuts and dual contracts will come in. The big firms will not help us then. This will destroy the small own client firms through the cuts and the medium firms who lost out on a duty contract and suffered cuts. Saying to them that they should have listened to the CBA chairman will not help us. And crucially, when we are next inevitably in the sights of the men from the ministry, it will not help us to bleat, “But you told us you liked us, we thought you were our friends.”
The proposed action is certainly not ideal. Our relationship with solicitors is like an arranged marriage, sometimes successful and happy, sometimes destructive and resentful. But no divorce is possible for us as the wife. We need to help each other pragmatically rather than romanticise about a fantasy future. If we do not then it will get worse. If we do not act now then we cannot next year. Do you imagine that we will be able to prevail upon the mega firms to stand up for us then? There is no alternative but to vote “Yes” however dissatisfied you are with the current mess. I would rather be in a mess that can be improved than have a criminal Bar in terminal decline. No-one will care then about whose fault that was and who should have listened to who about the precise agenda to fight over. Such priggish piety will be the death of us.
SIMON CSOKA QC