The Criminal Bar Association is only too well aware of the upsurge of anger within its ranks, in reaction to proposals by this and the previous government to destroy our system of publicly funded legal services.
Much is said in robing rooms, whether in quiet corners, or more openly, about what is perceived to be a lack of positive action by the CBA, the Bar Council, or both.
Worse, it is thought by many that voices, particularly those of the junior bar, are not being listened to, and that the powers that be have simply given up.
The increased use of Social Media, particularly in recent months, has meant that those voices are now making themselves heard.
The CBA Twitter account was relaunched in order to ensure that not only could those voices be heard, but that we had a means of listening, responding and spreading that word.
This blog is a natural progression.
It’s here for us to post articles, in addition to MTQC’s weekly email, as well as for all to respond.
You can do so by sending in articles of your own for publication, or by responding to existing posted articles.
They will be moderated, but ONLY in the event of gratuitous abuse, or anything defamatory. We want to hear your views, and will not edit out the ones we don’t agree with.
You can choose to be anonymous if you wish. It will be respected.
We want to hear what you think particularly about direct action. The CBA has NOT abandoned that as an idea. We need to weigh the views of members in support, and against, if any.
You may have specific concerns to raise about #QASA or #OCOF. we are actively pursuing alternative approaches to these issues. The views of those at the junior end are possibly even more important than those at the top. You after all have your entire careers ahead of you.
Oh and it isn’t all London either! One of the government’s guiding principles has been “Divide and Rule.” A perfect example of this has been the rolling out of #QASA on a piecemeal basis, effectively to coerce those on the initial launch to fall into line. Thus the remainder would have no option.
The government clearly thinks that we will all fall like dominoes, and that those circuits unaffected to begin with will not be interested in protecting the interests of those first in the firing line.
The front ranks fear that if they take action, those following behind will simply sweep up their work.
That CANNOT be allowed to happen. Those two circuits MUST be given the full support of all others.
We are NOT defending our own self interest, we are defending our profession, and the right of the public to a quality Legal Aid service. Anyone who still suffers from the “I’m all right Jack” mentality should monitor this blog. Hopefully they will soon realise that they are in the wrong job.
So there you are. You have your voice and your forum. Time to speak up. No time like the present!
All contributions to criminalbarassociation@gmail.com
criminalbarassociation 
I wholly support the CBA stance as an employed barrister who manages a solicitors practice specialising in criminal litigation and advocacy.
Direct action is now the only way forward so long as the MOJ refuse to engage and listen.
If we break ranks now that will be the end of the criminal justice system as we know it. The MOJ want to break the profession and we should fight tooth and nail to prevent this from happening.
Hallo there (whoever you are). I’m not sure sarcasm is the answer to the problem the Bar is facing at the moment. If you’d like a grown-up discussion about it I’m sure you’ve got my email address.
Legal Futures (Friday 11 October) carried a piece about a major solicitors’ firm predicting a significant reduction in the numbers of lawyers and firms over the next few years.
http://www.legalfutures.co.uk/latest-news/addleshaws-lays-future-vision-fewer-lawyers-fewer-firms-new-business-models
If this is anywhere near right it spells more trouble for the Bar than the current criminal legal aid issue. The challenge for barristers will be how they react to that and position themselves in the market to remain attractive to the new, and quickly evolving breed of solicitors.
First, though, the Bar might need to work out how many barristers the new market is going to need. Some do think that there are too many barristers now.
In March 2009 Jack Straw, then Lord Chancellor in the last Labour government, gave a speech at the LSE entitled ‘Constitutional Continuity’. One of the points he made was that there were too many barristers engaged in legal aid work. It was he who put it at 30%
Ken Clarke repeated the message (Legal Futures, October 11 2011) and Peter Lodder QC, then Chairman of the Bar Council, reported, after a meeting at the MoJ in October 2011, that “Although Ken Clarke praised the efforts which the Bar has made to improve access to the profession, he expressed the view that too many are trying to practise at the self-employed Bar.”
In The Law Society Gazette (30 September 2013), Dominic Grieve returns to the subject; ‘legal aid cuts hurt but the Bar is just too big’.
It is likely that all three were referring to those barristers engaged only in legal aid work and not the more specialist and, probably, less competitive, areas of advocacy. Indeed, the current Chairman of the Bar Council, Maura McGowan QC, has talked about a ‘two-tier’ profession.
It might be worth considering, then, the size of the self-employed Bar and the number of barristers in it.
The Bar Council reckons that there are about 12500 self-employed barristers. Of these about 400 are sole practitioners, who normally have very specialist skills, and the rest, about 12100, are in chambers. As there are about 330 chambers the average membership is about 37. Experience shows that, at any one time, about 10% of the members of any chambers aren’t fully engaged. Maternity leave, sickness, ‘life-style’ members, etc reduce the active complement in chambers to about 10900.
The CBA claims that it has membership of about 5000 criminal barristers which means that almost 50% of the self-employed Bar are engaged in crime work. I’ve spoken to three of the major chambers in Birmingham lately (but not that of the last respondent) who tell me that, while a few criminal barristers have stopped doing crime and more are looking to diversify, there hasn’t been a significant reduction in numbers. A similar exercise in Manchester reveals the same. In any case, we’d need some firm, quantitative evidence on the exact numbers of those leaving before any plans, which might become strategies, could be laid.
If the Bar is over-manned by only 10% and, given the previous remarks, that is concentrated in the legal aid Bar then the ‘market’ can’t support about 500 criminal barristers. 20% over-manning is about 1000 and so on.
If this is anywhere near right then there’ll be a lot of criminal/legal aid barristers looking to gain new skills and experience in areas of advocacy on which they have, previously, not concentrated. Except in the most recherché areas of practice and where chambers have their clients tightly bound in this will, undoubtedly, put pressure on many sets who don’t have much exposure to legal aid and might consider themselves thus protected. They might find their market positions under attack.
Indeed, given the expected reduction in PI work as a result of Jackson and the recently reported news of ‘1000 small solicitors firms go out of business’ and ‘175 firms can’t find PII cover’ (both in The Law Society Gazette last week), the Bar’s traditional client base seems to be precariously placed.
It may well be that the numbers of those practising criminal defence work decreases over time. However, it’ll be a long, long time before that matches the demand for those advocates and the balance between the buyer’s market it now is and the sellers’ market from which any increase in rates might result applies. Indeed, given the continued reduction in cases coming to court it will be even longer. The departing DPP has added his valedictory voice by saying that he thought that there were many cases that didn’t even need to be brought before a court. Of course, he wouldn’t be saying that if it wasn’t going to become government policy soon.
Perhaps it’s time for the Bar to look at these problems through the other end of the telescope and create a viable series of strategies based on some new thinking? If there are too many barristers fighting for work from a smaller, more technological-savvy and faster-moving client-base to support the current, traditional, chambers set up there might need for the Bar to discover a new way to do business; much as Tooks have recently found out.
Hmmm. Perhaps this means we should all rush out and spend lots of money on a “consultant” like errrr… I know…. Ian Dodd! #sorted
Beating the MOJ’s proposals is not enough if it simply means the status quo will continue. The current system neither works for them nor us. The list of people leaving the bar is attestation to that.
However the suggestion that there is 30% oversupply is now out of date. The market is clearing and clearing quickly. There are but a handful of people at the bar in England’s second city prepared to do crime. The government is about to be hit by a tidal wave of undersupply. The government cannot beat the market whatever it says.
So, in answer to the question ‘what is the strategy?’ I would suggest that, time and the markets will come to our aid. If we can defeat the more damaging proposals for the next 2-3 years the market will force the MOJ to increase rates (and substantially) whatever they say.
By then it will be too late for some, and irreparable damage will be done. For those left I am optimistic
I’m not going to make any comments about the rights and wrongs of the MoJ’s proposals on legal aid for criminal defence cases. I’m not a lawyer.
However, I do know about running businesses and the strategic planning required to cope with major changes in the commercial environment.
The BC/CBA have fought the proposals with energy and ingenuity and seem to have the backing of most of the Bar about rate cuts/freedom of choice of solicitors and the like. Have they, though, been concentrating on the right issues?
In order to consider that we might look at the bigger picture; the future of the criminal Bar and, by association, that of the Bar itself.
A question I keep asking and to which I’ve not yet had a proper answer is, what will the criminal Bar look like if the PCT proposals are defeated?
I, of course, don’t know but I can hazard a few guesses. As we never have all the facts about anything we have, the better to plan for the future, to make plans which might change when new information is available.
The first thing is that it won’t be better than it is now. ‘Now’ is a branch of the profession where the value of work has fallen by about 20% in the last three years and, according to the LAA’s recent figures, the volume has fallen by 15% in the last year alone. On top of that a significant but unquantified amount of work has been kept in-house by solicitor HCAs. So, an ugly picture and, despite the brave face put on by some, there can’t be a chambers in the land where income from crime isn’t falling and will continue to fall.
Add to that the fact that there’s at least a 30% oversupply of criminal barristers in the system and salvation looks even further away. It’s a buyer’s market and the MoJ have no obligation to give the Bar work while the Bar have no entitlement to expect any. It’s also, then, a competitive market.
So, even if the status quo is preserved, it isn’t a good future.
However, the one thing we can predict is that things will get worse. No matter what level of ‘victory’ the BC/CBA achieve, fees and volumes will fall and income, personal and chambers, will plummet.
I haven’t seen any strategic activity from the BC/CBA about that. In fact, there seems to be to be a complete lack of evidence about any strategic thinking around this very important subject and I’m rather vexed about it.
Mandleson recently said of Milliband, ‘opposition and objection to everything the government does isn’t creating any strategies’. For Milliband, read the BC/CBA. Putting forward specious cost savings from other parts of the Criminal Justice System isn’t going to save the money the MoJ need from legal aid and it isn’t attending to the urgent need for the Bar to come up with the fundamental and empirical structural and management changes required for the survival of some chambers in the new reality.
So, there doesn’t seem to be any well-thought through strategy and, worse still, such is the belief that Plan A (opposition and objection) will work that there is no Plan B.
To compound matters, the BC/BCA would seem to have handed the Law Society a major tactical victory by failing to engage constructively with the MoJ and allowing the Law Society a free run to discuss how a ‘willing’ buyer’ and a ‘willing seller’ can work together for the benefit of both. A process from which the Bar seems to excluded itself.
Without some far-reaching, deep-thinking at the strategic level it’s all beginning to look a bit grim.
Ian Dodd
Bar Consultancy Network
I think the camapigning so far has been admirable and has been helpful in building a united response from members of the Bar. Although, surely we need to educate the public and grow awareness of this emergency if this campaign is to be a success?
Recently channel 4’s Dispatches produced a programme detailing the turmoil and hardships that Junior Doctors are currently facing (http://www.channel4.com/programmes/dispatches/episode-guide/series-125/episode-1) this stirred up a massive public debate and shocked members of the public into action.
Give how intelligent, creative and resourceful memebers of the Bar are, why can we not encourage a similar programme to be made for Panorama, Newsnight or Dispatches perhaps?
I think we absolutely have to get the public onside and spell out our case in clear unequivocal terms in order to successfully derail this former BBC Producer’s campaign against legally aided criminal defence.
Nonetheless, stirling work so far, keep up the good fight!
Kind regards
T Dutton.
Are the QASA dissenters really a “minority” as Baroness Deech apparently asserts? One of my (many) objections to the scheme is that, in my opinion, it has the effect of restricting access to justice for the consumer, and of restricting the ability of a barrister to act in certain cases, by assuming that there is some special sort of advocacy required for criminal cases and that only those who satisfy the QASA criteria can perform such advocacy.
By way of example, I like to think that I am a pretty good trial lawyer and advocate. Since 1976 I have had a broad “common law” practice, doing all sorts of work, including massive numbers of criminal cases at all levels of court from magistrates to House of Lords. I have for many years been a contributing editor of “Archbold” and continue to perform that role. However, it so happens that for several years I have not actually conducted a criminal trial, although criminal law has often formed a part of other areas of my work. As I understand QASA, a person in my position who now accepts a criminal brief would be guilty of professional misconduct, thereby limiting the access of the public to my services and restraining my ability to conduct my trade as a lawyer.
I have no objection to having the quality of my skills objectively assessed (although I do think that market forces perform that assessment), but I do object to the attempt to conduct such an assessment by forcing lawyers into artificial “specialism” boxes.
I agree with Ben’s comments. Consultations begin in April, governments do not listen to anything that is said, we need to actually take action!
I am concerned about the amount of rhetoric compared to actual action. Another barrister has been made bankrupt. More are unable to meet tax demands. Most are just treading water without any hope of advancement. “Things” are not going to get better, talking with the government will not lead to a new beneficial fee structure. The Bar Council do not appear to be like minded about action. In truth the different parts of the profession have nothing in common with each other save for court dress -what does a commercial silk understand about living on legal aid rates ? We are fast approaching the time that we have been hiding from – our job is not valued, regulatory boards are imposing ludicrous schemes – we have suffered financial cuts and reduction in volume of work. And still we talk. It’s all we bloody do.
Thanks Ben. You will see from Michael Turner’s weekly emails that things ARE being done.
We are working WITH Law Society and MP’s.
There is a great deal more going on behind the scenes, but just as you would not reveal your cross examination in advance, neither are we giving away too much for now.
The resurgence of the Twitter account, and the publication of this blog have encouraged a lot more response and participation by the Bar, particularly juniors. Your post isma good example of how,it works.
We need MORE comments and participation.
The more individual practitioners realise that something IS being done, the more they will speak up and show support for Direct Action.
The CBA cannot do it on its own, the Bar Generally has to get on board.
If an EGM is the answer, then YOU have to show that you are prepared to support one.
Speak up as loudly and as often as you can, and prod others into doing so!
I am pleased and fortified to see the CBA is gearing up to fight these awful proposals. I believe that many criminal practitioners are deeply concerned about the latest round of proposals and are willing to fight against their implementation.
Many thanks Bill. We would be very pleased to hear from all those who feel as you do. The message needs to get out there that there IS the stomach for a fight, and that a lot of people are prepared for it.