Monday Message 31.03.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 31 March 2014

Personal Email: [email protected]

ROCKS AND HARD PLACES

This is the most important Monday message I have written to date. Forgive me if it is long. I have chosen a title that I have used before but it aptly describes the position we are all in and the difficult decisions we have faced and continue to face.
As many of you will be aware, this past week has been historic. Never before in the history of the Criminal Bar have we achieved an agreement from the Government to change its position. We have done so through sheer determination, courage and unity. To those who have sent so many messages of thanks and support, I thank you. To those who have chosen instead to vilify, insult and abuse – whether through social media or direct to my email – or as in the case of one chambers so quick to publish a spiteful “don’t blame us, we didn’t vote for him”, the lack of professionalism has been shocking.
It is very easy to forget that without the strong leadership from Tony and I, we may not have got to this position at all. There are many of you (and you know who you are, including one person now vocally pushing for the EGM) who argued against even the first half day of action we proposed as well as resisting action for the second day and the No Returns policy. We cajoled, we argued, we badgered, we persuaded you into supporting it. We did the same thing when it came to the second day of action.
When we first proposed the policy of No Returns, again many resisted this – until once again we persuaded you to support the policy, albeit for a limited 4 week period. One Circuit the North Eastern presented significant opposition to it and Tony and I fielded call after call and email upon email protesting about the unfairness of it. Frankly, this wasn’t easy but for the first time in over 25 years, we united the Criminal Bar behind us. And by doing so we showed the Government that when the Bar said it would not work at reduced fees, it meant what it said. Never again will a government take the goodwill of the Criminal Bar for granted; never again will a government misjudge the potential response of the Criminal Bar in its “impact assessments”.

THE “DEAL”
My statement last Friday (HERE) explains the rationale behind the decision of the CBA Executive, the Heads of Chambers who were informed/consulted  on 5 circuits and their Circuit Leaders to accept this offer. I don’t intend to repeat those matters here. I know many of you were unhappy and angry with the way in which the deal was presented & agreed. This ballot however places us all back in the position of Wednesday evening, each one of us having an equal say on whether to accept or reject this offer and it is that which you are asked to focus and vote on now.
I would like to add one thing to complete the picture for those that may not have read about it. Within a day or so of presenting this offer to the Criminal Bar, the Minister of Justice also agreed with The Law Society to postpone the second half of the proposed fee cuts for solicitors of 8.75% until the Summer 2015, and a package of £9million “interim measures” to assist cash flow to firms affected by the first tranche of cuts.

THE BALLOT
Tomorrow you will receive details of the ballot that will take place over the coming week among the membership of the Criminal Bar. I have only one vote – as do you all – so it is vital that you vote and have your say. The question for you to answer is this:
“Do you wish to continue no returns and days of action until all the cuts and reductions in (solicitors’) contracts are abandoned?”
Yes
No
I have been asked by some why this wording has been chosen. The wording has been chosen because it is that proposed by the group who have submitted signatures and called for an EGM of the CBA. Their position is to reject the deal and continue the campaign on this policy. These are the two options for us all to consider.

MEANING
What does this question mean?

1. “All the cuts” means those currently in force for both the Bar & solicitors i.e. 30% VHCCs, 8.75% first tranche of cuts for solicitors and those yet to come in to force i.e. “average” 6% on AGFs (due in around July) and the second tranche of solicitors cuts of 8.75% (now postponed with the agreement of TLS to Summer 2015)

2. “reductions in contracts”: This refers to the proposals to cut the number of solicitor’s duty contracts from over 1600 to 525

3. “abandoned”: it seems that “deferral” is not sufficient.

OUTCOME
If the majority vote “Yes”, this will mean a rejection of the “deal” and the adoption henceforth of the above statement as the formal policy of the CBA. I hope that answers the person who, despite the  CBA leadership issuing this ballot, thought it necessary to question their bona fides on Twitter “if we reject the deal, will the CBA respect vote and bin it?” Conversely, if the majority vote of the membership is “No”, the deal will be confirmed.
The following sets out my personal view. In doing so, I make it clear that I am not speaking on behalf of or binding anyone on the CBA Executive Committee; but it explains why I will be voting “No” in response.

VOTING “YES”
This is a laudable and principled position to take.  In an ideal world, we could and would achieve this. But having led this campaign from the front, I am too much of a realist to believe the CBA can deliver this whole package to the satisfaction of every member of the Bar and the Solicitors profession. For how long would this campaign need to continue to achieve all these demands and how could it be achieved? We have battled day in and day out since September and through our campaign we have come a long way – but to achieve these demands will require a 10 fold climb down by the Government over the concessions made to date.

1. Widening the Goalposts:

CBA Policy has always been clear. The Bar would not work for reduced rates. First under the “Do Right Fear No one” banner and then under the “Not a Penny More” campaign. Of course we stood on the same platform as solicitors with many aims in common -but we did not run our campaigns with identical policies. Would anyone suggest that the policy of The Law Society or the other solicitors associations was to achieve the reversal of fee cuts for the Bar? In several Monday Messages over the past months, I have stated our demand that the MOJ “must reverse or freeze the fee cuts”. I did not receive even one email (or “tweet”) either from a member of the Bar or a solicitor that this was somehow wrong in that it overlooked the fee cuts and reduction in contracts for solicitors. And so if the majority vote “Yes”, the CBA Executive will need to lead the Criminal Bar forwards with the goal posts significantly widened.

2. It Takes Two

I know that the biggest worry being expressed by many is that if solicitors’ firms flounder, the work source for many barristers will dry up. That is why those voting “Yes” say this is an “all or nothing” – we cannot stop until we get the Ministry to not only reverse its position on everything for both the Bar & solicitors but also abandon those proposals forever – and not just defer them to be reviewed next Summer after the Jeffrey and Leveson Reviews. The real issue here is whether realistically it can be achieved? Can the Bar save the Solicitors firms?
As I finish writing this at Snaresbrook Crown Court there are many HCA’s working in this building notwithstanding their day of action.  If the CBA Policy is formally changed to encompass all the solicitors’ demands, then it cannot do this, or in my view be expected to do this, on its own for solicitors. The National Meeting of approximately 500 solicitor firms took place in Manchester on 19^th March (holding approx 700 contracts); those holding the other 900 appear not to have participated that particular day and you should know that Tony Cross wrote to Bill Waddington on behalf of the CBA offering the support of the Bar and Bar Clerks to rally solicitors. They were given the opportunity to say “no, we won’t work at reduced rates”, to demonstrate unity of purpose and the same resolve as the Bar. They voted against it and are now working on the new fee structure.
Of course, one appreciates their financial pressures, their concern about LAA contractual obligations and why they took this pragmatic decision. But I do not believe that the Bar, particularly the Junior Bar on whom the financial pressures and the risks are at least as great (for example wasted costs orders, disciplinary action, letting clients and solicitors down through the no returns policy, threat of no further CPS work), can deliver this for them unless they are willing to take risks too, unify and fight for it themselves.
The offer to the Bar to postpone the AGF cuts for a minimum of a year assists many solicitors firms who undertake this work. They stand to gain from this too and for many, it will help to set off their losses from the 8.75% cuts.
Many firms know that it is easy to blame the Bar but are honest enough to acknowledge that this is first and foremost their fight and they need to stand up and fight it – & have a cohesive strategy for achieving it. It remains to be seen how many of those 1600 or so firms will support the action this week. What will be their plan of action after that?
Even assuming that unity and a clear strategy can be found and demonstrated among the solicitors profession, that  leaves one very important hurdle the height of which cannot be underestimated – how long, if at all, will it take to persuade the Ministry to accede to the totality of these demands? And if there is a change of Government, will the position for the Bar & solicitors be any different to now?

3. Risks

At the time that we were working feverishly to drum up support across the Bar for the first half day of action, we were swamped with requests that we “guarantee” individuals they would not be subjected to wasted costs orders or charged with Bar Regulatory breaches. Many of you were understandably worried. We issued guidance on this although we were unable to provide any guarantee. However, behind the scenes, Tony, I and the Circuit Leaders worked exceptionally hard to build up goodwill and an appreciation of the Criminal Bar’s position with the Lord Chief Justice, the DPP and even the Bar Standards Board to try our very best to protect individual members of the Bar from any of these potential risks. We did this again for the second day of action and were treated fairly by all – with only one member of the Bar now facing a wasted costs order (to be represented by the CBA pro bono). But it is not “a given” that this latitude from judges and the BSB will continue ad infinitum and those voting “Yes” to continue with Days of Action must be aware of the potential risks they face. Of course we recognise that some have always said that it is a life and death fight, others though have not –it has been our task and the task of our trusted Executive who have had to balance these competing factors.

4. Financial impact

We all know what we earn and how that differs from the Government’s figures. Taking days of action means loss of income for those days but it is the No Returns Policy that is particularly difficult for a number of individuals to sustain, particularly those juniors who rely on returns as their sole or main source of work. This has meant sacrifice by those of you who frequently can least afford it – and that is why the CBA leadership was pressed by so many practitioners and, on their behalf, heads of chambers, to keep the time period of the policy short. If a “Yes” vote means continuing the No Returns Policy indefinitely until all the new demands are met, then how long will juniors be able to continue to support it? And if the solicitors firms are continuing to work (albeit at reduced rates), how long can one expect the juniors of the Bar to go without an income so as to achieve the reversal of fee cuts on VHCCs, the fee cuts for solicitors and the increase in solicitors contracts required by this policy?

5. Summer 2014

Let us imagine the majority of the Bar vote “Yes” in this ballot. The “deal” with the MOJ will then be rejected and will be taken “off the table”. That means that in all likelihood during this coming summer, there will be an “average 6%” fee cut (which we all know means more) brought in for AGFs. The Bar’s position has been to maintain that it would not work at reduced rates. How long will the individuals be able to sustain this? I ask myself this: is it right that to secure a fair deal on contracts and fee cuts for solicitors, the Bar has to maintain its stance that it will not work at the reduced rates, while the solicitors firms continue to work & earn? The financial risks involved are surely the same for everyone and therefore ought to be fairly shared.

VOTING “NO”
If you vote No, it means you support the acceptance of this deal. It is not perfect, of course it isn’t. It doesn’t deliver everything we campaigned for. But we believe it achieves 89% of what we asked for and the CBA, Circuit Leaders and the HofC who voted upon it, believed it was the best that could be achieved at that time. The decision to accept was taken after consulting closely with the Executive of the CBA, a committee which Tony and I are proud to lead. Consisting of young and old from every Circuit in the land; importantly, a committee which you have trusted to get decisions right in the past in difficult circumstances. They give of their time voluntarily and did what they felt was right. Placed between a rock & a hard place, we made the decision we did. We consulted as widely as the rules of engagement allowed in particular we consulted our immediate predecessors Max and Mike. We could have rejected it and continued to campaign for a better deal. But we had to assess the risks of there being no further offers and we firmly believed there would be none.
Between Max Hill, Mike Turner, Tony Cross and myself, we have been dealing with an intransigent Ministry in one way or another for 2 years and 7 months. Together with the Circuit Leaders and the Vice Chair of the Bar, we know when we are faced with an immovable position and when there is any window of possible bargaining left available. Of course, at the Ministry last Tuesday we tried to achieve more than we were offered but we were left in absolutely no doubt that the Government had moved its position as far as it would go; it would not reverse its Statutory Instrument on VHCCs & the only way forward would be to find an alternative scheme for these high costs cases. For the solicitors’ profession, the Ministry has moved its position even less. If voting to reject this deal, there is a risk of “throwing the baby out with the bathwater”.
I would like to add that a “NO” vote does not equate to the Bar ignoring or walking away from the support we can give to our solicitor colleagues in every practical way we can in their fight for a better deal. For example, we have already made it clear that we are confident members of the Bar will not wish to cover solicitors work while they are participating in days of action and will continue, come what may, to speak out and publicly help their cause whenever they can.

THE FUTURE LANDSCAPE
The legal landscape is likely to change in at least some aspects following the Jeffrey and Leveson Reviews and there will be new costings undertaken for any changes as well as a review of AGF fees, taking into account any impacts on legal aid spend from falling crime rates and a comprehensive analysis of income and earnings of criminal advocates. By Summer 2015, we firmly believe it will be clear that this will involve savings that will make it unnecessary for the deferred cuts to be introduced, either for the Bar or solicitors. This will be an opportunity for both the Bar & the Solicitors’ professions to contribute to the work and recommendations of those committees and work constructively on a way forward that assists both sides of the profession to survive as key and complimentary parts of our criminal justice system.
 
As I said, these are difficult decisions and difficult choices. A rock and a hard place. But I believe a “No” means we have a start point on which we can build, a “Yes” means we face AGF fee cuts in July and may be waiting a very long time for the offer or any better offer to come round again.
 
Nigel Lithman QC

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