CBA: Further Ballot – 08.08.22
Dear Colleague,
Solidarity in Action
On 27th June, the Criminal Bar commenced a period of escalating action involving a series of strike days combined with the refusal to accept new instructions or returns. It was a course supported by 81% of the 2,055 CBA members who voted in the ballot.
The reasons for the action were set out in some detail in the message to our members that accompanied that ballot: Link to previous detail
Since that ballot, criminal defence barristers have been overwhelmingly and unshakeably true to the democratic mandate delivered by our collective vote. To date, we have participated in a total of 19 days of strikes that have already had a devastating impact on the ability of our Crown Courts to function with any semblance of normality.
The extensive disruption we have seen clearly demonstrates to the public and to Government that the continuing refusal of the Justice Secretary to negotiate a fair settlement with criminal barristers comes at a very heavy price. That price is measured by the thousands of pounds wasted each day that a courtroom sits idle or underused, and the shattered lives of complainants, defendants and witnesses who have already suffered unconscionable delays only to be told that their cases cannot proceed for want of a defence barrister.
Action as a Last Resort
Every criminal advocate who has honoured the ballot outcome has made the decision to withdraw their labour with a heavy heart. It is a decision to which we have been driven after years and years of abject neglect of the Criminal Justice System and the cynical exploitation of our time, effort and goodwill by successive Governments determined to deliver justice on the cheap.
But we also know that, unless we take this final stand, our profession will continue to be drained of the talents and commitment of hundreds more juniors and Silks who have delayed their departure in the hope that we can achieve a settlement that secures a future worth waiting for.
To illustrate what is at stake, in a poll of our under 7 years’ call juniors at the national zoom meeting last Tuesday, a clear majority signalled that they are already preparing to leave the Criminal Bar unless our demands are substantially met by Government.
National Meetings
Over a number of weekly national zoom meetings, the CBA has continued to listen to many hundreds of its members and to keep them updated on developments. We also valued the input of the views of women practitioners in particular at a recent meeting of WICL. These consultations have afforded an unprecedented opportunity for the Criminal Bar to debate the key issues we face in a spirit of openness, mutual respect and tolerance.
We have held joint and separate meetings with juniors under 7 years’ call so that they have the space and opportunity to share their specific concerns about their prospects at the Criminal Bar. It is worth noting that the unanimous view of those attending a recent meeting was that there should be no pausing or halting of the ongoing programme of strike action.
In addition, we have ensured that the CBA leadership has met regularly with Heads of Chambers whose constructive input has been enormously helpful in conveying the views of their members in criminal sets across all Circuits.
Finally, we have been grateful to receive the many communications sent to us by criminal barristers through emails and messages.
Outcome of Consultations
As a result of all these consultations, it has become clear that a significant proportion of our members wish to be given an option to escalate our current action towards an uninterrupted strike in order to exert maximum leverage upon Government at this critical time.
Equally, we have listened to other voices who feel that the current action is causing sufficient, if not increasing, disruption to our courts and would therefore wish to allow that action to continue in its current form.
It is notable that we have heard no representations seeking to end our action.
At the meeting of the CBA Executive last Thursday, it was therefore unanimously resolved that the CBA should present a further ballot to its members as soon as practicably possible on whether the current action should be escalated or maintained.
As ever, an option will be included to desist from all action to ensure that those who do not support action, or the continuation of the current strike action, are heard.
Ballot
As before, you will need your unique User I.D in order to cast your vote.
If you have not received your ballot link by email – please contact the CBA Office
The closing date for completing and returning your ballot is midnight on Sunday 21st August 2022.
The result will be announced on Monday 22nd August 2022.
If there is majority support for escalating action to an uninterrupted strike action, then that action will commence on 5th September 2022 and the current programme of alternating weeks of strike action will continue in the interim.
Whether the majority view is to maintain the current level of action or, alternatively, to escalate it, any action will continue indefinitely unless and until there is a substantial positive movement from Government that would warrant a review of the CBA’s position by way of a further ballot.
Government’s Current Position
As you will have seen from the exchange of letters with the Under-Secretary of State for Justice previously published: link to the letter dated 29.07.22 and 30.07.22, we remain engaged in discussions with Government. The CBA leadership continues to meet with senior civil servants at the Ministry of Justice on weekly basis and we have repeated our request for an urgent meeting to be held with Dominic Raab MP.
To date, there have been no further meetings arranged between the Ministers and either the CBA or the Bar Council leadership. Instead, you will have read in the letter from Sarah Dines MP (dated 29.07.22) that the view of Government is that an increase to our AGFS fees of 15% restricted only to new representation orders from 30th September 2022 “is a good deal for criminal barristers” and that we should therefore “come back to work soon”.
You will also have read the CBA’s letter in response where we drew Government’s attention to their own figures which show that the cost of applying the 15% uplift to all future AGFS work carried out on the current 58,000 cases in the backlog is a very modest additional £1.1m per month. This amount is dwarfed by the cost of disruption to our courts consequent to the ongoing CBA strike action. Our members will therefore form their own view about whether Government’s claim that the additional £1.1m per month is unaffordable carries any credibility.
In a further letter from Sarah Dines MP received today: Link to letter received today – 08.08.22, she reiterates Government’s refusal to apply any 15% uplift to current cases, again citing “significant operational issues”, whilst repeating the claim that there are insuperable financial constraints, as reasons for their decision.
It is a matter for our members firstly to assess whether the content of the letter adds any real substance to what we have already been told by the Ministry of Justice. Secondly, whether the reasons provided are, in fact, excuses rather explanations for the failure to ensure that we are paid at least the minimum 15% on future work carried out on existing representation orders. You will also read in the letter that the current Ministers continue to refuse to negotiate on any aspect of the increase to fees.
Political Timeline
We anticipate a new Prime Minister and cabinet will be in place by 5th September. Given the expectation that the ongoing strike action will inevitably lead to the progressive incapacitation of court business, there is no doubt that resolving this dispute will be the critical priority of any incoming Justice Secretary.
Our members are aware that 30th September is currently set by Government as the date from which the increase of 15% will apply to new representation orders.
Therefore, time is of the essence. When deciding which option you prefer on the ballot paper, it is important to have regard to these key dates.
Supporting Criminal Barristers
We are acutely aware that it is in everyone’s interests that a settlement is achieved with Government as swiftly as possible. We are pursuing every route to securing a resolution, including a campaign of intensive political lobbying of MPs and key decision makers. Your assistance in that campaign by providing information about your parliamentary constituencies has been an essential part of that process.
No strike action can be implemented without hardship to our members. That is why we are setting up a CBA hardship fund and have worked closely with the Bar Benevolent Association to ensure that it can also be accessed by colleagues in need.
We organised a specific national zoom session for members on 4th August to ensure that anyone who needed financial support understood how that support could be obtained. A fact sheet will be circulated summarising the key sources of financial assistance for criminal barristers.
Although hardship is not confined to our most junior criminal barristers, we received some reassurance through our poll of those under 7 years’ call that only 20% of those juniors felt they had an immediate need to seek funds.
Focussing on AGFS
The new ballot remains restricted to action on AGFS fees. This has been the consistent position across all three ballots. We have listened carefully to the views of those who feel that action should also include those barristers who prosecute as well as the views of those who feel that the current approach should be maintained. The question was considered at our recent national zoom meetings and at the CBA’s Executive meeting last Thursday.
The unanimous view of the Executive is that it is neither necessary nor justified to instigate a dispute with the CPS over fees at this late stage as part of our dispute with Government. The reasons for that stance are as follows:
Firstly, the CBA programme of action since its commencement with no returns on 11th April has always been focussed on the insufficiency of the minimum recommended increase of 15% to defence fees in CLAR, the inadequacy of the proposed reforms to the AGFS, and the unacceptably slow timetable for implementing those reforms that could bring some positive change. To widen the goalposts now without having pursued a dispute over prosecution fees with the CPS would be wrong in principle.
Secondly, we have good reason to be confident that any increase to defence fees will be matched by the CPS in setting prosecution fees, not least because parity must be maintained to prevent any further drift away from prosecution work.
Thirdly, we know from action taken in past years that prosecuting barristers were threatened with being removed from CPS lists if they refused to conduct work on cases in which they had accepted instructions. Whilst there may be a reduced risk of that sanction in the current circumstances, it could not be ruled out.
Fourthly, the available information from across the jurisdiction demonstrates the very significant extent to which trials have been rendered ineffective by the absence of defence barristers taking strike action. Put simply, the mere refusal of defence barristers to attend court has prevented almost all affected trials from proceeding. It is therefore doubtful whether the withdrawal of prosecutors would cause any measurable additional impact to the levels of trial disruption.
Finally, the overwhelming support for action in our past ballots would likely be undermined if prosecuting barristers were now asked to extend the action to CPS work.
As ever, we take great pride in the fact that we are a truly democratic association. Our members have always respected the outcome of a free and fair voting process, whatever the result. We will therefore be faithful to the ballot.
Our unity is forever our strength.
Yours,
Jo Sidhu QC – Chair
Kirsty Brimelow QC – Vice Chair
Laurie-Anne Power QC – Treasurer
Lucie Wibberley – Secretary
Mark Watson – Assistant Secretary