So, there we go… the Bar has been offered terms by the MoJ in return for calling of the current action. You probably know the background, but the position is now that there will be a ballot of the whole CBA membership, with the question being :
“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned”
On the face of it, it seems a no brainer? It leaves most things (for advocates remuneration) as they are now and pegs them there until summer 2015. Leaving aside that that is a cut (after accounting for inflation) of about 3%, the only things that get a straight cut are VHCCs (30%) and certificate for counsel (8.75%).
But, is the deal that we are offered one that we should take? Is it a good deal? My view is a strong no on both points (so I will be voting yes).
This is mainly aimed at barristers, as if you’re a solicitor you probably know all this (if you’re a solicitor and you don’t, then you’re heading for oblivion frankly).
That sounds a good result! Why are you such a moody chops?
To get a politician to back down is no mean feat. It is a great achievement. Kudos to Nigel Lithman, Tony Cross and the others involved, it is a tribute to their leadership to date. No-one should be in doubt about their bona fides, (and I don’t think actually that anyone is), they have worked tirelessly for the CBA. The biggest complaint about them is that being chair of the CBA is such a tough job that you should probably question their sanity.
And here it wasn’t just that Grayling came along with a proposed compromise, he folded like a house of cards. If this was a straight labour dispute between the bar and the MoJ, maybe it would be worth taking, but there are wider issues that need to considered.
Is Grayling on the ropes?
The first thing my wife said, when I explained to her what was happening, was “you’re not going to settle for the first offer they make?” which is a point of view that has some merit.
The fact that Grayling conceded before any but a few warning shots had been fired indicates that he may never have been that serious about this package as a whole, or wedded to any particular change. Which is a great reason to keep on pushing.
But, I understand the views of those who say that it is (or perhaps was) an all or nothing proposal and therefore we need to decide. As I say, I’m not convinced by that, but it’s worth bearing in mind. My view is, however, that even if we risk the whole deal, we should still say ‘no deal’ and press on.
As an aside, for everyone who has said that direct action doesn’t work, can I say a quick ‘I told you so’?
The future of the CJS
The bar is not the only player in the world of the Criminal Justice System. It is not the only supplier of legal services at any stage of the process. The interests of the bar and solicitors sometime clash, sometimes coincide (actually, that’s too simplistic a view as the interests of self-employed barristers is frequently the opposite of employed, etc etc).
We have seen an unprecedented level of unity in the last year, and it has been great to see. It seems to me to be a given that any agreement with the MoJ has to be done (as far as possible) with both professions in mind. There is much common cause and we need to build on this.
Can’t the solicitors look after themselves?
In this fight, if you see this as two separate negotiations, then you are deluding yourself. If you don’t buy the arguments about the importance of unity or the future of the CJS, let’s have a look at the hard reality of what’s going to happen if you are a barrister. Let’s look at your future.
If you are not a silk, then do not think for a moment that you are anything but a potential spare part. As a barrister you are not needed, you are not necessary, and you are eminently replaceable. Today you are off to do a Crown Court trial for that three person firm that gives you work? They give it to you because you’re good on your feet and good with clients, right? Well, you know what? That firm is not going to exist in 18 months time.
Look at the current General Criminal Contract, then read the MoJ’s plan. Then read it again, and crunch some numbers. I wrote last month about what will happen to Crown Court advocacy under the announced plan. Much of that holds true if AGFS stays the same as now, and even if it increases. As a criminal barrister you rely on solicitors for your work. What use is a firm to you if the firm is in liquidation (I don’t for a moment underestimate the devastation caused by these plans to many hardworking solicitors who will lose their jobs, but they don’t need persuasion of this of course)?
I did a seminar a few weeks ago entitled “Transforming Legal Aid – Just how bad is it?” – 2 hours CPD if anyone fancies it, just let me know 😉
In the introduction, I posed this question :
“Even if the [solicitors] survive [get a duty contract], remember the profit costs. In twelve months time, the solicitor will have a further cut totalling 17.5% (actually more because of inflation – it may be that employees will have a pay freeze, but other costs – premises, stationery etc, will still go up). For urban firms, by number of criminal solicitors: 1-5 : Profit margin – 4.8% 6-12 : Profit margin – 8.3% 13+ : Profit margin – 8.9%
Where will they make up the shortfall?”
Currently, 93% of firms have fewer than 10 duty solicitors. Look at the size of the duty contracts that are proposed. Then look at the new rates. Even in London, you will probably need more than that to service the contracts. Existing firms will have to merge or be taken over by the big boys. Those firms that get the duty contracts will have to have their own in-house advocacy units. This won’t be personal choice, it will be a financial necessity.
By way of example, Newham in London (close to me geographically, if not my heart) will have 9 duty contracts. Go and count the number of criminal firms on the rotas there now and you will see that there is a cull coming.
There will be 525 duty contracts. This won’t mean 525 firms as there will clearly be some firms getting more than one contract (especially in London where the neighbouring rule will still apply). I’d guess at 200-300 firms with a duty contract in two years time. Almost no firms without a duty contract will survive. A further consequence (in London at least) is that the duty contracts will, I believe, lead to a geographical consolidation of work as the duty/own client split moves away from 50/50 to more like 75/25.
This means that it becomes even more practical to do your own advocacy, as they will be more likely to be concentrated in the one court centre. As to the question I posed : “Where will they make up the shortfall?” there is only one untapped source of revenue, and that is AGFS.
`Isn’t this going to help the juniors though’?
No. In a word.
Looking at the magistrates court first – at the moment most firms pay £50 for a hearing other than a trial. Not generous, but fast forward 18 months and the firm will have had cuts of 17.5% to their income, as well other structural changes. What answer is there to a request from solicitors to reduce our magistrates court fees? Already, the amount of work a pupil gets has dropped off dramatically in the last ten years, and I imagine that this will get worse as there is market ‘consolidation’.
But what of the Crown Court – where every junior barrister wants to end up? Imagine you’re a solicitor in a firm. Maybe you’re a partner, maybe not. Maybe there are four or five other fee earners and you’re in a consortia, or your firm was taken over. Whatever. You’re up against it trying to manage the loss of a sixth of your revenue.
Look at the recent Crown Court cases you’ve had come in off ‘your’ duty rotas (actually no longer yours). A guilty plea on a benefit fraud, a two day burglary trial, a committal for sentence, a 10 day violent disorder with a health page count. Where are these cases going? There are three choices – your in-house unit, that keen barrister who you saw in the mags court and did a great job, or that now freelance solicitor with higher rights that was out of a job when her firm went into liquidation?
The plea stays inhouse, no question. The violent disorder as well almost certainly. The burglary and the committal for sentence won’t bring in much by way of advocates fees. Say a total of £850, not a fortune, but every little helps. So what do you do? If you had higher rights, you may be tempted to ‘double up’ on the LGFS and do it yourself, but if not, then first refusal goes to your inhouse team.
If they say no (and it they’re in the same court they might as well pick up the committal for sentence), then that freelance solicitor will do it for you and you get to keep, say, 20% of the AGFS fee – £170, for doing nothing. If the barrister gets it, then you get nothing. It would be an extremely brave or foolhardy solicitor to send that out to the bar. If you’re a junior barrister, be very very worried.
This is a disaster for the junior bar.
You’ve always wanted fusion so isn’t this good?
Well that’s a fair point. I have always advocated a fused legal profession, so in the long run this may be a positive. But I didn’t want it to come about this way, I’d rather it was a more managed process, a merger rather than a takeover. Frankly, the barrister-in-chambers model was dead before this I think. At least it’s death was probably inevitable, but the latest cuts will certainly hasten it. Carter was the beginning of the end of the independent bar. Plenty of junior people (me included) saw that at the time and pointed it out to the Bar Council, but weren’t believed. Instead, we sold the solicitors down the river only to find it lead us straight to a precipice. Hopefully we have learned those lessons.
“Let’s take this deal – I don’t care about solicitors, they’d stab me in the back if they could”?
Finally, this may be the view of some barristers. If you think like that, think again. We are ‘all in this together’.
You will be handing the solicitors a knife and turning your back on them. Don’t be surprised at the result.