Why the criminal Bar cannot survive Duty Provider Contracts (despite what the CBA Chair says). Why you should vote ‘Yes’. In the ballot, and vote for Mark George for Vice-Chair.
Unless the current ‘wildcat’ action by solicitors and some barristers succeeds in derailing the process, in October 2015, the Legal Aid Agency will announce who, among the 1099 bidders, has succeeded in being awarded one of the 527 Duty Provider Contracts (DPCs) available nationwide to replace the General Criminal Contracts presently held by about 1,600 ‘suppliers’ – nearly all of them traditional ‘High Street’ firms of solicitors. What will be the effect of DPCs on the criminal Bar? Can the profession live with them? Is there some kind of deal that can be done that will ensure the survival of the profession? These are the questions that criminal barristers are asking themselves. The profession is faced with, immediately, what is described as a ‘ballot’, in which it must decide between returning to the sort of industrial action that took place in the early part of 2014, or trusting the leadership of the CBA, in the person of the Chair, Tony Cross QC, who is pursuing what has been described as ‘constructive engagement’ with the MoJ. Alongside the ballot, and mirroring it, the election is taking place for Vice-Chair of the CBA, from January 2015, when the present Vice-Chair, Mark Fenhalls QC assumes the Chair. With the noble decision of Simon Csoka QC to step aside in order to avoid splitting the ‘radical’ vote, it now appears to be a straight fight between, one the one hand, the proponent of direct action, Mark George QC, and the proponent of ‘constructive engagement, Francis Fitzgibbon QC. It is entirely likely that both elections will result in ‘the same result’ as it were – with the CBA either going to the barricades, or placing its faith in the negotiating skills of the leadership.
I support Mark George, and I favour a return to direct action. Why? Because, much as I admire Tony Cross – I persuaded him to stand for V-C, two years ago – I am sure that he is wrong to think that he can ‘do a deal’ with the MoJ that can save the criminal Bar if DPCs come to pass. And it is not just the cynicism born of having seen many Bar leaders before Tony come and go in my 12 years in Bar politics, each one attempting to constructively engage with government, and each one, to a greater or lesser degree, failing. No, it is because the simple fact of the matter is: there is no deal that could be done that would save the criminal Bar under DPCs.
Why do I say this?
It is necessary to have an understanding of how we got to the point we are at in order to understand why there is no going back to the days before the Courts and Legal Services Act 1990 removed the Bar’s monopoly on higher court rights of audience. The world has changed. In every election since 1979, the winning formula has been to promise (if not to actually deliver) lower taxes. So, in every sphere of public service, the emphasis is on ‘getting value for money for the taxpayer’. In some areas of spend, there is virtue in delivering not merely the appearance of quality services, but actual high quality services – education and health are the best examples. In the sphere of criminal justice, however, actual quality is a luxury that cannot be afforded. Instead of the highest level of service, merely adequate will suffice. The Bar, with its high standards, is simply too expensive. “But I’m not expensive!” I hear you say. You may not think so, but compared with what the government has in mind to replace you with, you are VERY expensive. Hence DPC. The thinking is: the only way of providing any level of service at these rates of pay is to guarantee volume, thus cutting unit costs. That is why DPC is so important to government, and why they will not abandon it without a fight.
Can the Bar live with DPC? No, it cannot. Why not? Because for so long as there remains a ring-fenced advocacy fee, the successful bidders will see it as a honeypot, one that will make up the shortfall in the miserable litigators’ fee. With (relatively) guaranteed levels of work, they will quickly work out their higher courts advocacy needs at all levels of experience, and they will recruit the staff they need by plundering the criminal Bar – ready trained advocates with their shiny new QASA badges.
Within a couple of years (if that) the independent criminal Bar will have shrunk to vanishing point, surviving on prosecution work (for as long as the CPS doesn’t follow the defence model) the occasional defence return, when the in-house teams are fully booked, plus the odd difficult client that the in-house advocates don’t fancy.
I say ‘for so long as there remains a ring-fenced advocacy fee’ deliberately. Of course, the MoJ will not suffer for long having to pay two fees into what is, effectively, a one-stop shop. At the first renewal of the duty contracts, what will be offered are ‘one case, one fee’ (OCOF) contracts. With the end of the ring-fenced advocacy fee, such of the independent Bar that survives even that long will truly be at the mercy of the purse-holding mega-firms, and will surely die. Referral fees? You ain’t seen nothin’ yet. Anyone who doubts that OCOF is ‘the direction of travel’ needs to wake up and smell the coffee. It has been the ‘elephant in the drawing room’ of every discussion between the Bar and government for many years now. Whatever they may be saying to Tony Cross about valuing the independent Bar, you can be sure that, in private, they are planning for OCOF. As sure as eggs are eggs. They have wanted it since before Carter, and, by God, they are finally going to have it – if we don’t stop them.
How am I so sure that the government is working to this secret agenda? Because I have been involved in criminal Bar politics for 12 years now. I was a member of the Bar’s Carter negotiating team in 2006 – 07. The civil servants who were in the Department for Constitutional Affairs under Labour’s Lord Falconer are still there now, and they still want the same thing – the destruction of the criminal Bar by OCOF. DPC is their means of lining their ducks in a row for it.
Why can’t the Bar live with DPC, at least in the short term – you, Ian, might be wrong about OCOF? Well, I don’t think I am wrong about OCOF, but even if I am, ask yourself, as I have, what ‘deal’, what measure or measures, could the government put in place that would safeguard the position of the criminal Bar under DPCs?
– a quota system, requiring the contract holders to brief out to the Bar? No. The terms of the contracts are already settled – they are on the MoJ website. People have bid for them. You can’t ask people to bid for something, and then change the terms, especially when the whole point of the limited numbers of contract is to guarantee levels of work.
– a ban on using in-house advocates? No – same reason.
– an amendment to the Criminal Procedure Rules, requiring the judge at preliminary hearing, to remind the defendant – presumably over the head of his ‘chosen’ in-house advocate – that he can have a barrister in independent practice? Even if the CrimPR Committee went along with this – pretty unlikely – how many defendants would respond by saying they wanted to take the judge up on his offer?
– something else? What? You tell me.
There is actually one thing that would preserve the position of the independent criminal Bar, or at least some of it, and for a while, and that is – I have already hinted at it – a robust quality assurance (QA) scheme. No, not the dismal QASA scheme, which, as the CBA has said, is a sham scheme, intended to fool the public by giving a cloak of respectability to cheap, bad advocates, but a real QA scheme, without plea-only advocates (POAs) and which demands high standards of advocacy, rather than rubber-stamping poor ones. Getting rid of POAs is central to this. Firms with in-house POAs are able to cherry pick the low-hanging fruit – the ‘easy’ guilty pleas. If a robust QA scheme were put in place, the mega-firms would not be able to employ cheap, newly-qualified advocates in order to claim the AGFS fee to make up for the miserly LGFS fee. They would have either to recruit from the independent Bar properly-qualified advocates, at the market rate for the grade of case being undertaken, or they would have to continue to outsource work to the independent Bar.
Like it or not, QASA is inextricably linked to DPC and the survival of the criminal Bar. Accordingly, so far as the Bar is concerned, the first step to saving both the solicitors’ profession, and itself, is to defeat the sham QASA scheme, and to put in its place a scheme that actually ‘does what it says on the tin’. The Supreme Court has ruled that QASA is lawful, not that it is any good. It is, presently, the only scheme in the marketplace. And of course, the LAA is quite happy with it – it provides the fig-leaf of respectability that is all it needs to defend the claims of disgruntled defendants who claim that their advocate was crap. The CBA must carry through its policy – never changed from its response to the fourth consultation – to oppose QASA by all lawful means. The Bar must refuse to sign up to QASA when the ‘window’ opens, and the CBA and the Bar Council (BC) must start to build a robust QA scheme to replace it. That work has already commenced – I myself chaired a BC group which proposed such a scheme. That need taking off the shelf where it was ‘parked’ and given a new lease of life.
The issue of POAs at one time was a bone of contention between the professions. It caused endless arguments in the Joint Advocacy Group (JAG) which hammered out the QASA scheme. I have argued before that the concept of an advocate who has a financial interest in his client’s plea is anathema to everything the Legal Services Act 2007 is supposed to be about, and I do not propose to repeat the arguments here. The position now, in 2015, however, is that the professions need to ‘bury the hatchet’ over POAs, and realise that removing them from their central position in the QASA scheme is essential in defeating DPC, OCOF and the end of life as we know it. Better that 1,600 firms survive without being able to cherry pick the guilty pleas, than both professions are decimated so that a few mega-firms may do so.
This is why I support Mark George for Vice-Chair, and why I voted ‘yes’ to return to NoReturns and to boycott post – 1st July work. Only by direct action is there any hope of defeating DPCs and with them the apocalyptic future, or non-future, for our profession. We must support the solicitors in defeating the present 8.75% cut, but that is only the first step. We must stop the DPC tendering process before the contracts are awarded. Once that happens, the solicitors will be divided into winners and losers, haves and have nots, and the winners will regard themselves as having a vested interest to protect.
Can Tony Cross do a deal that will save the Bar? I am afraid not. There is nothing that the government can give us that would be of any use under DPCs. And Michael Gove is not going to be talked out of them. Not a chance.
To conclude, it is not inevitable that Mr Gove’s vision of the future will come to pass. There are things we can do to delay, deflect and defeat it. We may not succeed, but we MUST try. The alternative is unthinkable. We must start by voting Yes in the ballot, and by voting for Mark George to be the next Vice-Chair.