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Andrew O’Byrne QC, leader of Northern Circuit, Votes No

What follows is the message Andrew O’Byrne QC, leader of the Northern Circuit, sent out to his circuit. He agreed for it to be posted on the CBA Blog.

I have a confession to make. I don’t seek to embarrass him, and my public endorsement may be fatal to his career as a blogger but I am a great fan of Jaime Hamilton’s blogs. I always enjoy them, don’t always agree with them but sometimes I do, at least in part and they invariably provide food for thought. One of his most recent, “Two Tribes”, is no exception and I would suggest everyone at the Criminal Bar should read it.

In essence, Jaime calls for tolerance of the views of others. I agree.

He calls for a considered response to the question posed in the CBA Ballot. I agree.

Not to look to the short term. I agree.

I agree that the dual contract provision is damaging to Solicitors and also the Bar.

The 8.75% cut to Solicitors fees is wholly unnecessary on any view but particularly so given the extent of cuts implemented by the previous Lord Chancellor. The Bar has and will continue to make these points to the MoJ.

Jaime identifies the two arguments; “engagement or action”. I agree.

He advocates action. There I disagree.

Before I explain why I opt for engagement I should make it plain that I do not say that the success of the action last year was solely down to the Bar and was nothing to do with Solicitors. They supported us in the pursuance of No Returns and our task would have been much more difficult without their understanding and support. Nor do I presume to tell Solicitors how they should conduct themselves. I also readily acknowledge that action did bring the MoJ to the table but it is engagement that has kept them there.

So why am I for engagement and for No to the ballot question? I advocate engagement and do so for the following reasons :

1.Engagement has meant no fee cuts last year.

2. Engagement has meant no fee cuts this year.

3. Engagement has resulted in the resolution of the VHCC dispute on terms favourable to the Bar and Solicitors.

4. Engagement has brought discussions (now at a fairly advanced stage) about a new and fairer AGFS scheme. The groups involved in these negotiations come from every circuit and involve silks and juniors.

5. Engagement has brought payment for the Advocate who actually conducts the trial, a significant and beneficial change for the Bar. A Statutory Instrument was brought forward to achieve this.

6. Engagement has brought the opportunity, through dialogue with the MoJ to influence change in how the Bar will operate in the light of Leveson, Jeffrey and Rivlin.

7. Engagement has brought us to a position where, unlike last year, our very survival is no longer under immediate threat and we are in a position to influence events.

8.Engagement has lead to the “mothballing” of the PDS , an organisation that I always felt if properly funded represented a great threat to the Criminal Bar. There are, however, disturbing reports that they are now being deployed again.

9. Finally, a policy of No Returns is a very powerful weapon. It should be deployed judiciously and, in my view, ought not be deployed in response to the question posed in the ballot. In respect of no fee cuts there are other ways in which we can, and should, support Solicitors.

My judgement is that the better course for the Bar, at this stage, is to continue engagement. I base that on my experience of dealing with the MoJ over the past 18 months where we moved from outright suspicion on both sides to a reasonable working relationship which ultimately has worked to our advantage. I do not pretend that everything is perfect but have simply addressed the question posed. Nor do I pretend to have a monopoly on wisdom as to what is best for the Bar. My personal voting intentions are of little interest to anyone but the reason I state my position is to encourage those people who email me and privately express reservations about what is proposed.

Jaime and I do agree, always have, always will, that individual members of the Bar should be free to state their case without fear or favour. Whatever answer you ultimately decide upon please Vote. Do not leave it to others. It is your decision, your vote.


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