There seem to be 2 principal arguments, which underpin the case for a No vote:
1. Solicitors have not taken action against the new DPCs, which pose the greatest threat to the bar, so why should we support them on the issue of fee cuts, which do not directly affect the bar?
2. Michael Gove is listening to us and the bar risks upsetting the newly developing special relationship with the MOJ if we support direct action.
Re 1 – It would have been financial suicide for solicitors firms not to have engaged with the contracting process. Whether, when it comes to it, a significant number of those who are awarded the contracts refuse to sign up to them remains to be seen, but it will be at that stage that they will have the best opportunity to take effective action. There has long been a split between those solicitors who have seen the new regime as providing a commercial opportunity, by among other things monopolising junior advocacy, and those who are committed to providing a decent service. The fact that those who were in favour of the DPC regime have now woken up to the fact that the cuts are too deep for even them to sustain should be welcomed. Action against the 8.75% cut (and the rest) has been widely supported by solicitors. If it succeeds it will give confidence to take action against the DPCs. Not only that, but the cut does directly affect the bar. It means that those solicitors, who continue to brief the junior bar will from now on have to find savings. That is likely to mean even more advocacy being done in-house. So the lack of direct action hitherto by solicitors on DPCs is not a reason to refuse to support the action against the cuts. On the contrary, a Yes vote provides the best platform for taking action against the DPC scheme. A No vote will further damage the relationship between the two branches of the profession.
Re 2 – Even if it is accepted that Michael Gove is receptive to the case made by the bar representatives, whatever is agreed is predicated on the DPC regime being implemented. That, as everyone seems to agree, will decimate the junior bar, either by increasing amounts of advocacy being taken in house or, as Richard Bentwood has pointed out, by consultancy/referral fee arrangements. Therefore, whatever is agreed with the MOJ will only benefit those who are able to continue to sustain practice at the bar. That, in the main, will be the senior bar. It is likely to be impossible to modify the structure of the DPC contracts in the way it is suggested by Richard Bentwood is being considered by the MOJ without holing them beneath the water line. So there no guarantee that the process of ‘engagement’ will achieve the desired result. Indeed there is every reason to believe it won’t.
The only way we have any chance of preserving what is left of our battered system of criminal justice is by unity in action. That is why I have voted Yes to support action taken by our solicitor colleagues.
Henry Blaxland Q.C.
Garden Court Chambers