Deal or no deal?

 

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Introduction

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.

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9 thoughts on “Deal or no deal?

  1. As you might expect, Dan, I agree with 95% of this beautifully written, powerful piece. The bit I don’t agree with is the inevitability of the demise of the independent Bar. I prosecute as well as defend. Most barristers out of London do. I happen to believe that doing both not only keeps my ethical standards high (not that I’m criticising yours or anyone else’s who only defends – fewer prosecute only) but I also believe that doing both makes me better at each. I also think that the best judges are those who have done both. For those reasons, I want the independent Bar to not only survive but flourish. I suspect that the Attorney-General understands this, and that the Lord Chancellor doesn’t. Or if he does, that he is more interested in the price of criminal advocacy than its value. Which is a shame.

  2. Once again, Dan, you enlighten us. May I ask this? What commitment is there by the Labour party to change all this? My understanding is that at the last party conference there was no commitment to public funding whatsoever. I know that Sadiq Khan purports to support the work of publicly funded lawyers, but in the 12 months leading up to the election, the lawyers and offenders are going to be even further down the list of priorities than they are already. Grayling has won the best of both worlds here. He can show the public that he is committed to the criminal Bar and – be prepared for it – he will use this U-turn as a means of trying to say that he is pumping money back into legal aid…. that will be the spin in the run up to the election. And the chances are, he will be met with zero policy from the hapless opposition.

  3. I’ve replied on my own blog.

    But I repeat part of what I have now continually asked here.

    First, if all the people you laud for their nerve and courage accepted this deal, why do you think you would have done better. The team that met Grayling is as good as it could be.

    Secondly, what would you do and where would it get us? Don’t simply give the best scenario. The CBA said it wanted a postponement until after Jeffrey and got it. We can still refuse VHCCs – and I am. You want us to renege. What will the MoJ do? Why do you think so? What if you’re wrong? What is the worst you say could happen? What are the chances of it? Why is reneging a risk worth taking? Who is going to negotiate for us after you have taken over, assuming there is a negotiation to be had? What experience do they have? How good are they?

    If you want to continue the fight you owe it to all of us to answer these questions. Frankly, you should not have to be asked. They should have been answered already.

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  5. I have spent the last few months being as robust in talking with my fellow Counsel about taking as much direct action as possible. I argued that should the Government not consider the reasonable demand of the CBA (I spotted the ‘pause and wait until after Leveson’ request from the CBA back in the Consultation Response and have no idea why nobody else saw it) then any action we take is not unreasonable including a complete downing of tools. In fact I have argued for, and continue to believe that in the background should remain the possibility of downing tools completely. Our greatest weapon in the absence of Government negotiating is withdrawal of our labour. I also tried to generate as much media attention as possible on the issue and I too stood shoulder to shoulder with solicitors.

    Whatever your view of the proposal it was an achievement the leaders we barristers chose (Circuit, CBA, Chambers Bar Council) to represent us that they negotiated ‘the deal’ with Grayling. The idea that we ‘had him by the throat’, ‘dragged him kicking and screaming’ and begging us to accept the first offer is nothing more than fanciful. Do any of the people who negotiated that – who were closest to the storm – who were there and who the day before we considered of the highest judgment agree with that? There are some supportive MPs on this issue – have they reported bumping into Grayling crying in a corridor in Parliament? Have they reported seeing him biting his fingernails and talking to himself whilst trying to hide the self-inflicted marks on his wrists? Have any of our political contacts, many as they are, who are close to this given you this information or are you all acting upon an assumption? An assumption that presumes you are right? I want people to consider the question “what if I’m wrong?”.

    Our leaders got this because of a careful balance of the following:
    1) the possibility of further and more intense action.
    2) because the Bar was united and made very simple demands (depending upon the size of the law firm and the geographical location the ‘bottom line’ for solicitors shifts)
    3) because of constant persuasive pressure, on key Bar demands in every possible forum from Parliament, MPs, representatives bodies and political contacts (the leadership of the law society being made to look entirely ineffectual, redundant and unfocused in comparison).

    All the above factors gave our leaders political capital which it banked. Whatever our view on whether we should have reached this position we are in it. All our political muscle, all our influence and all our credibility now rely upon us trying to deal with Grayling. It may be the wrong road but it may be the only possible road now. All our eggs are in that basket.

    It may also be the reality that now we have reached this ‘deal’ the best chance for solicitors may be Lithman sitting down with Grayling because he, the Bar Council and the Leaders of Circuit have shown that, on some level, they can influence him. The Law Society not having generated anywhere near the same amount of influence.

    It did however put us in a very precarious position. I concede that. If this gamble goes wrong we may lose everything. But we run that risk either way and one way may destroy the influence and position we have generated.

    As Counsel we should always “aim for the best but plan for the worst”.

    The best if we reject this ‘deal’ – the Bar (potentially now hopelessly split) and solicitors (to date lacking anywhere near the same level of unity) through various forms of direct action manage to force a Tory Government (always known for responding well to such strike tactics) completely reverse the cut already brought in, promise not to cut any fee at all and reverses the policy on dual contacts. They go on record as having saved all the lawyers whilst cutting other aspects of public funding. How many actually see this as a realistic possibility?

    The worst – the Government, in anger at what they will spin as the Bar breaking it’s word says to solicitors “Ok, we will reduce the cuts significantly, will abandon dual contracts, will find our savings from advocacy fees and to make the system more cost-effective will take away ring-fenced Crown Court fees and introduce One Case One Fee to help firms cope with the reduction”. The cynic in me does not have a lot of faith in there remaining unity between the professions if that was offered. The Bar would be destroyed, after having broken our word.

    The CBA request for this delay, having been published for many months, may have been a mistake and upon reflection many may feel we should not have gotten ourselves into this position. I can understand that view. But we deal with the position we find ourselves in rather than the position we used to be in and we play the cards we are dealt.

    I am reserving my vote until the last moment. I am open to persuasion on this issue because it is the most important vote I have ever had on the future of the profession I love so much (I am nothing without this job), the system I’m proud of and the colleagues (both barristers and solicitors) who I see as friends and some of whom are the most admirable individuals I could ever hope to meet.

    I write this because of the black and white fevered arguments I have seen. I know from private discussions I have had with fellow Counsel that many have the same concerns as me. However they fear the reprisals from people threatening to try and ruin their practices if they say so and are therefore unwilling to speak openly.

    Like I say, I want to be open to the arguments, I want to be wrong, but the above thoughts and concerns are very real in my mind and they dominate my thoughts. I understand that the cuts to firms will ruin the Bar as a consequence. I just have genuine trouble believing that throwing away our current position, fracturing the Bar in the process and pulling the CBA apart has any change of success. Could we ever have the same unity again if that happened? I need to be convinced that the road we are now on (whatever the many obstacles and odds we face) is not the only chance either profession now has.

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  7. I have negotiated with HMG over many years. Reading Dans powerful and accurate piece reminds me that all the enemy understands is power strength and unity of purpose.

    I gave far more than I should have. I should have just said ‘never never never’ and sat on my hands. They would have come round as Grayling just did.

    No returns was working – well – and it could not be countered or answered. We should return to ‘no returns’ the day the vote is counted.

  8. Pingback: Why the Criminal Bar has no choice but to vote yes by James Vine | criminalbarassociation

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