Home » Uncategorized » Jaw-Jaw or War-War by Mark Fenhalls QC

Jaw-Jaw or War-War by Mark Fenhalls QC

There are people I respect and admire who have either voted, or intend to vote, “yes” to the ballot question. But I will not be joining them. I will vote “no”. Sadly I will lose friends but I think it is the right thing to do. Before I explain why, I must make three things plain.

(i) The 8.75% cut is punitive, unfair and plain wrong. I have repeatedly argued against it publicly and privately with the MoJ on behalf of solicitors. The last Government claimed that it was justified because the increased volumes created by the new “two tier” system. But this new system is now only due to start next January. So even on the MoJ’s own argument/ numbers, it is wrong to make the cut now and not before January 2016.

(ii) The “two tier” contracting scheme is significantly worse for the Justice System and access to justice. The direct effects will include stifling innovation, reduction of opportunities for young solicitors to set up firms and the elimination the personal value of solicitors who hold duty slots. Litigation will become increasingly commoditised. But the only way this will stop is if all those who have tendered for these contracts withdraw their bids. There is simply nothing the Bar alone can do about this.

(iii) I have no problem at all with advocates declining to work on cases where the representation order has been granted post 1st July. This is a principled decision which I entirely respect. Of course it becomes something else entirely when economic and social pressures are brought to bear on individuals and chambers and threats are made.

To return to the ballot question – should we contemplate no returns in support of the campaign to reverse the fee cut? No. There are a number of reasons why, but at the heart of it is my concern for the future of our profession. I say this being fully aware of all the arguments about the damage it may do to some firms and how the cut will accelerate the march of solicitor advocates into the Crown Court. Imagine for one moment that such a campaign succeeds and the cut is reversed or postponed until January. Does anyone who is honest with themselves about these matters really think that the movement of solicitor advocates into the Crown Court will reduce? Of course not; this movement is well established and is going to keep happening irrespective of whether the cut is reversed or not. It is going to keep happening even if “two tiers” were suddenly scrapped because all the bidders withdrew.

I do not care whether an advocate is a solicitor or a barrister so long as they meet the highest possible standards. I care only that s/he is able to compete fairly for work. I care only that s/he receives the work on merit – because s/he is the best available advocate and not because s/he is paying for it directly, or indirectly, through some artificial construct. Any other reason for briefing an advocate damages the integrity of our Justice System and is not in in the interests of the lay client or the public at large. It may be some people think these are pious sentiments. I happen to think they are a rather important expression of principle which we should not abandon. I am frankly delighted that both the MoJ and the Lord Chancellor appear to have agreed. If you have not seen reports of what the Lord Chancellor said to the Judges on Wednesday evening, you should read this SPEECH. I believe the Lord Chancellor intends to make good on this public declaration.

In work done over the last year the Bar Council has conclusively proved to the MoJ that fully engaged junior barristers who do nothing but criminal legal aid work have had significantly declining incomes in each of the last three years. The MoJ now accepts these figures. This is new. It is, I believe, the key reason why the Government has accepted that AGFS should be cut no further. This is a key success of engagement. The same work has identified how the AGFS flattens income and removes the sort of career progression and increasing incomes that is a feature of almost all professions where increasing skill and experience are valued. The only way to sort this out is to design a new system. That work has begun – criminal barristers from all over the country have been quietly and conscientiously engaged in the design process for some time. We are creating a new system that will reward hard work. But such work is not possible if you shriek demands, thump the table and do not engage.

In a decade of being a pupil supervisor, I have been proud to watch the talented young men and women I have tried to help teach develop and flourish. To watch them flee criminal work because they have seen little future in it has been truly depressing. Quality and independence are the two touchstones without with the Bar has no justification for existence. Independence is secured when advocates all compete on the same basis and with the same set of rules. No advocate is automatically good or bad because they are from one profession or another. Advocates (prosecution and defence) are of the quality that the public and clients deserve because of training, experience and dedication that is maintained over the entire course of a career.

I have only been involved in this process since writing large parts of the CBA response on fees in the two consultations in 2013. I have no direct experience of bar politics and meetings before then. I have of course been one of thousands of barristers who have become increasingly cross about the devaluation of our skills and our profession over the two decades or so I have been an advocate. I have no personal knowledge of the inside track of what was talked about at various turning points in our history before being elected Vice Chairman last year. But I sat in meetings with civil servants at the start of last year and saw our arguments being summarily dismissed. We engaged in “no returns” last year with great determination and courage and succeeded. The cost to the most junior Bar was very high. Since May of last year a great deal has been achieved by engagement. The numbers now show that we were right about what has happened to the junior Bar in recent years. What is more, the concerns we have so often expressed about flight from the Bar by the young (and women in particular) are now accepted by the MoJ. In recent months we have been pressing the MoJ to indicate how it intends to respond to the issues identified in the Jeffrey Report. Work is now well underway that I think will mean concrete proposals to be publicly consulted upon in September this year.

I believe this Lord Chancellor and the MoJ have at last come to see a thriving independent Bar as a crucial component of the Criminal Justice System and we are about to see significant changes that will enable us to survive. This is what you can achieve if you engage.

I urge you all to vote one way or the other.

Mark Fenhalls


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