Strike while the iron is hot?

Introduction

Last week I wrote an article for the new CBA blog about the state of the Bar (and legal aid generally) and proposed that the time had come for direct action, all other avenues having been explored and failed. I was slightly nervous that I was out on a limb – that the views I set out were a minority. It is great to see that, seemingly, we are all of the same view.

The question is – what do we do? The comments expressed on the CBA website (with views from barristers, solicitors and clerks) were, as you would expect, sensible and reasonable (as was a piece in response by @SkyLinePM). That there is anger is clear. Where should it be directed? How do we take that forward? Ultimately, it will be for the CBA and its members, but I’m putting forward a few ideas for discussion. I know there was a meeting of Heads of Chambers last week and I don’t want to go behind anything that the CBA is doing, just to encourage debate.

I’ve written another piece (‘One Case, No Fee) looking at other possibilities relating to fees and OCOF, but it seems to me that the most immediate problem the bar faces is QASA.

QASA

There is really no compromise on this. There have been various consultations, but a strong suspicion is that the purpose of these was to cover the JAG (Joint Advocacy Group) rather than to genuinely listen.

The implementation of QASA has been delayed again. It seems to me that we have to make it clear that we will not be engaging with the scheme as it is and, more importantly, JAG cannot think they can tinker with it and it will be okay.

There is already a suggestion that Plea-Only Advocates may come out of the scheme. Is this is an attempt to listen, or is it an attempt to pacify the Bar and split us off from solicitors? I strongly suspect the latter.

This is one issue on which all branches of the profession must stand firm on. The signs are good – see the press release from the LCCSA published by the CBA. On this matter we must stand united across the Bar and Solicitors. There will be attempts to play one group of us against another. We must be alive to that and not be seduced by partial compromises. The scheme is fundamentally flawed and has no evidence base. I’ve written before about the reasons for my opposition (here and here). Most people will agree with some of that and disagree with other parts of it.

What we can all agree on, I believe, is that the scheme is flawed. The JAG must go back to the drawing board and start again with an evidence base and come up with a scheme which will work, and which will carry the profession with it. Research was started on forms of QASA, but not completed – why not? Is it because JAG knew the scheme they wanted and collecting the evidence was therefore not relevant?

What can we do? One possibility is to compile a list of all the barristers and solicitors affected (I’m sure it is possible to get one, but anyone could start with the Bar Directory and the Law Society). Whilst the Magistrates’ Court raises issues and solicitors have already had to register, if QASA is killed off in the Crown Court, then it will be stopped in its tracks in the Magistrates’ Courts also.

We can then publicly have a list of names of people who indicate that they won’t comply with QASA. If ten people don’t sign up, or a hundred, we lose. If thousands indicate that they will refuse to co-operate (and see that through), JAG loses. The regulator cannot take action against us all. And a public statement that we will not co-operate with QASA is a strong one – if we see hundreds of colleagues of the same mind, it will only stiffen our resolve.

 

A way forward?

It seems clear that the CBA are behind some kind of action (see, for example, the Legal Futures article on last week’s meeting). I don’t want to tread on anyone’s toes, but it seems to me that the more different angles that we come from on this the better.

The email from the Chair of the Bar Council (4th February) is somewhat depressing – it reads rather like the Bar Council are accepting QASA and will just monitor how it goes. It seems to me that the best way of protest is through the CBA (who are sympathetic to a rather more robust response).

All the people I have spoken to have been concerned as to the timidity of the Bar Council’s response – I understand that, but, ultimately they are our ‘union’ and we need to engage with them to show them the strength of feeling at the criminal bar. There is a similar procedure for calling a ballot with the Bar Council as I mention below in relation to the CBA. However, I think we can trust the CBA to feed back our concerns to the Bar Council.

The Constitution of the CBA is, I imagine, wearingly familiar to you. But in case you need a refresher … r9 allows the Committee to call an Extraordinary General Meeting. This needs 50 members to send a written request stating the subject matter for that meeting.

For direct action, it seems to me that, politically, we would have to have a ballot of members. There appears not to be any regulations on having a general ballot of the Criminal Bar on policy matters (but there is on changes to the constitution and election of officers). There is no suggestion that one cannot be held however.

A meeting called by the members will be ‘listed’ for not later than six weeks. Whilst it can be called by the CBA executive, the advantage of one called by the members is that it gives proper time for a proper debate to be had before the meeting and will ensure that the ‘rank and file’ are involved. It also make it clear to the government that we are serious. My proposal is that there should be such a meeting to discuss the question of Direct Action and to call a ballot.

I say this not because I think that the CBA has done a bad job – quite the opposite, they have been excellent. If it is called by the membership however, it may well have more impact with the Bar Council and government.

We would need 50 members to sign up to something along the lines of :

To – the Secretary of the Criminal Bar Association –

We, the undersigned, request the Secretary of the CBA to call an Extraordinary General Meeting for the purpose of debating, as a subject matter, the question of conducting a combined electronic and postal ballot of the whole association on the question of taking direct action, and the finalising of such a question.’

We’d need 50 people to sign up to this. I’ve got my membership card – are there 49 others out there?

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