Monday Message 10.01.22

Ready for Action?

We began this year much as we ended the last one: exhausted by the continuing and intolerable pressures placed upon us as advocates working in a system that exploits our labour and pays scant regard to our welfare; frustrated beyond measure with the delay in the delivery of the CLAR recommendations, and angry with the indication from government that their response to those proposals will not be forthcoming until the end of March, a full four months after they received the report.

In my meeting with the Secretary of State for Justice on 25th November, I stressed that time was of the essence and that the Criminal Bar needed a settlement on pay with the minimum of further delay. In a subsequent meeting with the Under-Secretary of state for Justice on 15th December, I made it abundantly clear that it would be utterly unacceptable for the Criminal Bar to wait another fifteen weeks to hear the government’s verdict, not least because the ensuing statutory consultation means that we might not know the final outcome of this long and tortuous process until the summer.

In my last MM just before Christmas, I summarised the key recommendations for criminal advocates contained in the Independent Review and encouraged you to familiarise yourselves with the detail of those recommendations over the break. I emphasised that “nothing less than a significant injection of new funding to make up the substantial decline in real incomes for the Criminal Bar will be sufficient to forestall the continuing haemorrhaging of prosecutors and defenders from the profession.” While many of the individual substantive changes proposed in the CLAR reflected specific demands made by the CBA, I was unequivocal that an overall annual injection of £35m into the AGFS scheme failed to come “even close to offering a panacea to the longstanding grievances of the Criminal Bar.”

 

At the webinar for our members held on 20th December, I was emphatic that “it’s not enough that it’s a 15% increase, it’s not enough that it converts into £35m; the crisis in our system is so serious and so longstanding that we take the view that much, much more should be invested, not just into the system, but into the profession if you want to have long-term sustainability.” As a warning to government, I added that they “need to understand that there are options available to us, and that if we have to exercise those options because we have nothing left but our labour to withdraw, then that will be the natural consequence of a government that has simply not done its duty by us”.

I stand by those words, all of them. For a profession that has experienced no increase in real incomes for a quarter of a century, and for whom the burden of work has risen exponentially over that same period and with much of it unpaid, the prospect of such a modest increase in overall funding translates into an insultingly small improvement in annual incomes for the individual women and men who have bailed out the criminal justice system year after year. Nor will it do anything to discourage hundreds more of our colleagues from leaving legal aid work because they too will lose all hope of securing a viable and fulfilling career as criminal advocates doing their best to serve the public.

For too long we have been fed the excuse that fiscal pressures for government meant that the Treasury could inject no significant additional investment into publicly funded work. Yet we know that, in consequence of the pandemic, by April of this year government will have saved an estimated £440m in unspent AGFS payments. Further, this past week, an investigation has revealed that the Ministry of Justice has wasted £160m of taxpayers’ money in the last year alone. It is in that context that the recommendation of a paltry £35m annual increase for the AGFS has infuriated criminal advocates right across the country.

Survey

As Chair of the CBA, it is only right that I share with you my own perspective on whether the sums recommended in the CLAR are sufficient to abate the unprecedented crisis that continues to envelope the criminal justice system and our profession. My position should be abundantly clear: without a swift and fair resolution of our pay we must never relinquish our right to take action. It is a personal view and one that has never wavered. But it is your opinion that counts. We are a democratic association that represents the views of the Criminal Bar and we will reflect your collective judgment in the decisions that we take. That is why we promised to carry out a survey this month to hear your direct response to the proposed changes presented in the Independent Review. Should the survey indicate support for action, then a ballot will follow on the timetable and the specific action to be pursued.

We need your engagement and we need government to hear your voice. This is your opportunity to deliver your own verdict on whether the key recommendations go far enough and whether the government’s timescale for reform is acceptable to you. Please use this link to complete the survey which should take no more than a minute of your time. The survey will be open for 7 days.

CBA C-21 Report

The Report commissioned by the CBA on the day to day issues affecting criminal barristers in the Crown Court has now been published. Its purpose is to inform any future Royal Commission on the CJS about the realities of our work on the ground so that Government, the Judiciary, HMCTS and all court users make proper efforts to ensure that the CJS is fit for purpose in the 21st Century.

An immense amount of work has been invested in the research and drafting of the C-21 Report through the extraordinary collective efforts of a working group of criminal barristers from all Circuits, led with energy, skill and commitment by Ed Vickers QC. The Report is rigorous in its methodology and analysis and is based upon survey responses from around 1100 of our colleagues. Some of the key themes covered include: the urgent need to reform listing practices, the benefits of CVP and the desirability of a national protocol, the desperate lack of investment in the fabric of our court estate, and the consequences of a failure adequately to remunerate our criminal advocates on their morale and willingness to continue to undertake publicly funded work. The Report deserves the attention not just of the Criminal Bar but of the wider public. I strongly commend it to you as essential reading to better understand the challenges that we all face in the years ahead.

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