Monday Message 13.01.14
CBA Chairman’s Update:
Nigel Lithman QC
Monday 13th January 2014
Personal Email: [email protected]
THE GOLLUM
The Gollum was an artificial creature most widely known for its power to change its body and its mind, to appear and disappear. In the J. R. R. Tolkien Ring trilogy, the Gollum appeared first as an ordinary hobbit and then Smeagol, as it became transformed into a being suffering from identity dissociative disorder. The picture is of an unattractive and dangerous being – but more of him a little later.
MONDAY’S PROTEST
For those intent on sending a message to the government and taking a stand over the crisis looming in our criminal justice system, it could not have gone better. For several days and reported in over 100 programmes, papers and journals spread throughout the UK and the world, media coverage was given to the half day of action organised by the Criminal Bar Association. I have absolutely no doubt that it was a success. It made my heart glow as we stood there doing what we should have been doing for years.
Over the days the momentum grew as more and more articles were disseminated, often via twitter, by a profession no longer prepared to be trampled upon. There are many excellent pieces, here are references to a few examples:
DR. TOM SMITH’S LEGAL FUTURES
One of the first to enter the fray on our behalf was Dr. Tom Smith’s absolutely excellent article in Legal Futures HERE
The headline said it all: “Criminal barristers’ earnings – a new low in government strategy.” May I urge you to read it.
SEVEN LORDS A LEAPING
On Wednesday, seven Lords leaped to our defence. Why does the government issue misleading figures? Why include VAT? How can it be efficient to impair justice? It’s encouraging to know they all saw through the Ministry’s tactics.
In response, Lord Ahmad repeated the most expensive system nonsense and adopted Mr. Vara’s misleadingly false figure of £84,000 as if it were correct.
Lord Ahmad of course said we were the most expensive system in the galaxy. He added “we have engaged constructively with lawyers over a period of many months and continue to do so”. This is the cruelest cut of all. Do they truly believe they have engaged ?
Mr. Vara repeats this in today’s Times. You do not need me to tell you I have received no invitation to meet with him.
BARRISTER v BARRISTA
(Issued in ampp3d – HERE)
The next item gave us an analysis of how badly junior barristers are paid compared with coffee house workers. The conclusion? We’d be better paid serving in a coffee bar.
THE MESSAGE ON THE STEPS OF THE COURTS
For those who did not hear the message read at various courts all over the land, HERE it is.
For those of you who have not seen my conversation with my new best friend Eamonn Holmes, HERE it is.
For confirmation that the Criminal Bar already offers the British taxpayer excellent value for money, here is a little comparison I’ve received:
“No one would argue that our hard working NHS doctors offer the taxpayer good value for money. So let us look at the top end of both professions and see how we fare in comparison:
According to the NHS Careers website “Consultants can earn a basic salary of between £75,249 and £101,451 per year, dependant on length of service. Local and national clinical excellence awards may be awarded subject to meeting the necessary criteria.” With over 40,000 NHS consultants, let us take as an average a basic salary figure of £88,350 p.a.
According to statistics released to the media last week, “1200 barristers were each paid £100,000” from the legal aid fund last year. For the purpose of this exercise, let us ignore that these figures are not representative of the average earnings of the Bar; not that they do not equate to one year’s earnings or that they may include payments made by one barrister to another or may include repayment of disbursements (e.g. hotel accommodation for the barrister undertaking a case far from home).
| NHS CONSULTANT | CRIMINAL LEGAL AID BARRISTER |
| AVERAGE BASIC SALARY: £88,350 taxable income | FEE INCOME: “£100,000” |
| No VAT | INCLUDES VAT@ 20% (£16,650) i.e. £83,350 net of VAT |
| No BUSINESS OVERHEADS | LESS TOTAL BUSINESS OVERHEADS average30%: £25,000 = £58,345 taxable income |
| PLUS: |
MINUS: |
| PENSION PROVISION | NO PENSION PROVISION |
| SICKNESS & MATERNITY BENEFITS | NO SICKNESS OR MATERNITY BENEFITS |
| HOLIDAY PAY | NO HOLIDAY PAY |
| CLINICAL EXCELLENCE AWARDS POSSIBLE | NO ADDITIONAL AWARDS |
This comparative exercise can be repeated at every level from the newly qualified doctor/barrister to those of several years of experience. The result is the same. Even before any further cuts are imposed, as experienced professionals the criminal barrister represents excellent value to the British taxpayer.”
WHAT HAS BEEN ACHIEVED?
- Our message has been sent – loud and clear. The MOJ proposals, if left to proceed unchecked, will see the undoing of criminal justice in this country. They offer a false promise and a false economy. We do not want to interrupt the system – but to show that to work efficiently it needs the continued survival of a strong and independent criminal bar.
- The public are driven to conclude the government’s headline figures are largely concocted, such as reference by Mr Vara to a new headline figure that does not even appear in the Ministry’s own documents.
- They understand that if the average barrister was earning £100k p.a. they would not be protesting. Nor would so many have taken the risk of potentially being in breach of their own professional rules to do so. They have heard the uncorroborated assertion that we are the most expensive legal aid system in the World just once too often.
- The need for assurance to colleagues that they would not be disciplined nor face DPP censure in some way, has as far as I am aware, proven unnecessary.
- That unity and cohesion are our strongest weapons.
THANK YOU
I should like to thank on your behalf the Lord Chief and the DPP for responding to the protest in the “light touch” manner I was able to predict.
OTHER REAL FRIENDS
SOLICITORS of the LCCSA and CLSA galvanized their troops up and down the country to join with us in this first day of court action. Thanks to Nicola Hill and Bill Waddington to name but two.
PROBATION OFFICERS
For those who haven’t yet signed, let’s join their e petition HERE, which must be filled in by tomorrow
AND NOW TO THE GOLLUM
VHCCs
In response to an unfounded rumour that Chambers were being said to be prepared to accept declassified VHCCs, two Heads of Chambers contacted me this week to assure me that that was not so in their cases.
On Thursday morning the mythical creature appeared. A senior figure from the Legal Aid Agency contacted a leading Silk to have a personal discussion. The figure, clearly unaware of what had been going on in the country, believed he could have such a conversation without it being reported. Mistake number one.
He asked the silk what his views were on the current crisis and asked if he believed we would do the work at reduced rates. The silk replied no.
The Legal Aid Agency figure then magically transformed. He suddenly became a solicitor entitled to instruct Counsel. He asked the silk the same question in a different form. He asked if he would be prepared to take a case in May, as if it was in his gift. Our paymasters punting briefs around? It tells of their desperation to overcome their difficulties.
I wonder what a Defendant would think of his case being offered to a barrister without his knowledge? I thought the government was preserving client choice, or is it now up to the LAA to select counsel as well as pay them?
The mystery figure then spoke of how in a new world , VHCCs would become Graduated Fee Cases and the case managers would take over special prep assessment of course at reduced rates. Another attempt behind the back door to introduce cuts.
I have been asked for the CBA View. I will be asking others to look into this whole issue for us. So far I have reported the behaviour of the LAA to Nick Lavender QC, Chairman of the Bar Council.
It seems to me:
- It remains up to you as to whether you wish to accept briefs at reduced rates.
- It remains up to you whether you accept briefs that are declassified to graduated fees though they should be VHCC, to get the government off the hook.
- If they should be VHCCs, then that is how they should be offered. If they are turned into grad fees then the rate for special prep will be a reduction and hence you will be working at reduced rates.
- You have travelled a great distance in a year.
- You must decide what message you want to put out to your colleagues
WHAT FOLLOWS
Further to the promise that we will contribute to Sir Bill Jeffrey’s review of The Provision of Independent Criminal Advocacy Services, I am meeting with Sir Bill on Tuesday.
MY MEETING WITH THE LORD CHANCELLOR
His department has requested that it is pushed back to this coming Thursday, after which I will report back.
THE NEXT STEPS
Just as a refusal to take on VHCCs is clearly making the point to the government, you will have to decide if you wish to show the same resolve with Grad Fees. If you do, this struggle will be won.
Our Action Group reassembles on Tuesday afternoon to discuss Step 6.
CONCLUSION
By arranging a number of letters from the Hebrew alphabet a Gollum can be made to disappear. Instead the silk receiving the call from the member of the LAA put the phone down which achieved the same result.
This sort of thing has to be stopped. We expect government and its agencies to be straight with us, nothing less will do. Instead of making furtive inappropriate calls, just sit down with us and let’s hammer this out.
But last Monday was fantastic. The solidarity of the Bar unbroken and I have the same handbag except in red
Nigel Lithman QC