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David Wood on Voting Yes

In the words of a much younger Dave Grohl, This Is A Call:

a) To the Junior Criminal Bar – vote Yes in the present ballot. The question and indeed the strategy behind it is imperfect, and is not presently geared towards defeating Two Tier, which it should be. However, if the momentum that the present action has generated is not continued, then there is no prospect of our defeating Two Tier before it comes into force. After that, most of us will be unemployed.

b) To the Senior Criminal Bar – it’s quite clear that many of you, although not all, are reluctant to support the solicitors’ action. Please explain how you think the Junior Bar will survive Two Tier if it comes into force, beyond the belief that the MoJ will somehow allow us to recalibrate the Graduated Fee Scheme to ensure our survival. Unless that includes removing solicitors’ rights of audience, which it won’t, that belief can only be wrongheaded.

c) To the leaders of both sides of the profession – stop the slanging match on Twitter, and formulate a joint strategy that properly serves the interests of the public and the profession. That has got to include a proper commitment from the solicitors’ side to further action against Two Tier before the contracts are awarded in September. After that, it will be too late.

The basis for that call is as follows:

a) The 8.75% cut is completely unjustified. It strikes at the ability of all solicitors to provide a proper service to their clients, and it renders it much more likely that those firms intending to survive on own client work will instead go under. Those firms are very likely to be small to medium sized organisations of committed, hard working professionals. The Bar can have no interest in them being attacked, and we should be joining action against that on principle.

b) The wider evil is the Two Tier model. I have seen no argument anywhere that suggests that the independent Bar, certainly at junior level in its current form, can survive it. If anyone can point me towards such an argument, please do. The reality though is that once those contracts are in place, all but the most serious advocacy will be kept in house – not out of spite, but out of financial imperative, especially if in combination with the 8.75% cut.

c) There is clearly a groundswell of support amongst many solicitors for the proposition that there should be a large scale withdrawal of bids for Two Tier contracts. That is the only thing that will prevent that model being imposed. As yet it is not fully co-ordinated, and much needs to happen before that action becomes a reality. No-one wants to go first. Moreover there are obviously some who would not join in. A sufficient number would however, given the right co-ordination. Yet that will only happen, in my view, if those solicitors understand that the Bar are on their side and not seeking to push their own agenda with the MoJ behind closed doors.

I recognise that the leap from b) to c) will, in the eyes of some, be too large. Let me say then why I think the Bar should take the risk of placing faith in it.

The current Criminal Justice System is already broken. It is not properly funded, it is full of waste, and the graduated fee schemes are not fit for purpose. The system is in need of serious and radical reform. The MoJ are in fact right about that. However, that reform must be led by the profession with the MoJ engaging with both sides.

What is about to happen instead is that wide-ranging structural reform is going to be imposed on the profession in a manner that is demonstrably inimical to access to justice, has not been stress-tested, and is predicated on an austerity narrative which has absolutely no basis in fact. We owe it to ourselves and the public at large to prevent that.

That this has come about reflects poorly on all of us. It comes from a lack of understanding born out of a lack of communication and co-ordination. It does not help that the Bar complain about ‘the solicitors’ failure to act on Two Tier without recognising the variety of different types of firms and the different stresses placed upon them. It does not help the Bar realise now that Two Tier is the real evil here, and complain that the solicitors, post a failed JR, opted to put in contract bids in the face of apparent oblivion, whereas last year if we had continued action we could have stopped it dead ourselves. Likewise it does not help that two years after the first consultation there is still no clear method by which those solicitors, outside the relatively few who actually want Two Tier to happen, can communicate with each other and agree to take the action which really would bring it a halt, namely withdrawing their bids en masse.

I have been on the CBA Exec for over a year. I have no doubt that the leadership of that body are acting in good faith, and are working very hard to achieve what they can on behalf of their constituents, and indeed the public as a whole. However, I cannot accept that whatever the senior end of the Bar (not just the CBA) may think that ‘negotiation’ after the introduction of Two Tier will achieve, it can in any way properly mitigate the damage that is about to be done. Even if Mr Gove reviews Two Tier after six months, that will be too late. Tinkering ex post facto will not be enough.

I note as I write Mr Gove’s speech at Mansion House last night, in which he says that he wants to preserve a healthy independent Bar. He cannot say that on the one hand and introduce Two Tier on the other.

Likewise, I do not think it is good enough either for the senior end of the solicitors’ profession to state that Two Tier won’t be a problem simply because that model will not work properly. Very many firms have reorganised their businesses and hired in anticipation of obtaining a contract. Once they are granted, they will be impossible to reverse. I wholly understand that there are different factors in play when considering ‘strike’ action in respect of this issue. Again, though, action after the event will be too late. You need to stop it now, and that requires, in my view, a consolidated agreement between sufficient firms to pull out of this ridiculous process now.

I do, however, strongly believe that the large majority of criminal solicitors firms do not want Two Tier to come into force. It is clear to me that if it were not imposed on them, they would not choose to operate in that way. And it is clear to me to that those firms still look to the Bar in a significant way for leadership, even if they do not require it from us. The reaction to those sets which have publically declared their support for solicitors demonstrates that. Although the time frame is very short, there is still enough left for the required consensus to be reached for the Two Tier process to be halted now, and for the readjustment of the professions that Mr Gove wants to achieve to take place with proper engagement all round. If the Bar do not join in now, that will simply not happen, whereas if we do, it might.

I would rather place my faith in the solidarity of those who care about access to justice and the protection of what remains good in our CJS, and be wrong about it, than not have that faith at all.

Vote Yes.

David Wood
Charter Chambers

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