Dear Members of the CBA,
We knew we couldn’t please everyone and today has shown us that in equal measure – those who have thanked us for what we have achieved on their behalf and those who have voiced angry criticism of today’s announcement. Why have the CBA agreed to this deal? What was the rationale? And why did we not consult the full membership? The following explains the decision taken by the CBA Executive.
However, in the light of the opposition to the announcement expressed publicly by many of you, the most logical and most democratic next step is to ballot the whole membership of the Criminal Bar. Aaron has received a sufficient number of calls to be required to constitute an EGM. Hence the question to be answered by the ballot is that set out by those seeking the EGM. The question is:
“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned”
Details of the mechanism by which it will be held to follow.
Meanwhile Let us go back in time. I was elected to represent the members of the Criminal Bar and both Tony Cross and myself have worked pretty tirelessly on your behalf on a platform of “not a penny more in cuts”. We have worked closely with our solicitor colleagues and encouraged them to be unified with each and to present a strong face to government. No one can doubt we have fought day in and day out on your behalf.
At each turn we have conducted our campaign openly and we believe more democratically than any time in history. We have a very large executive meeting regularly, national conventions, the recent consultation on steps etc etc and the weekly messages.
We have come an enormous distance. I of course am saddened by the apparent need for virulent abuse as to how we have dealt with difficult issues.
I have fought everybody, every day in every way.
But we also recognise that we do not enjoy the exclusive right to represent the views of the Bar. Circuit Leaders, Heads of Chambers and the Bar Council are also at the centre. I understand that many of you say well all of us, or nearly all of us, have got this wrong. You also know I see it as getting an imperfect but great deal. We will not see the AGFs cuts again and the VHCC system will change and the lawyers will be respected and heard ever after.
The campaign we ran was incremental, increasing in seriousness the steps of non cooperation. I promised that the Bar would fight for its rights not to face further cuts. It was the CBA who initiated and led the first half Day of Action in the history to the Bar (& indeed the second). Slowly the Ministry of Justice learned from the refusal to undertake VHCCs at cut rates, the Days of Action and the No Returns Policy that we were deadly serious that we meant what we said – the Bar would not work at reduced rates.
Despite our campaign, the Statutory Instrument regarding the VHCC cuts was introduced at the end of last year. We reached stalemate on these, the Bar refusing to accept new work at these rates, the Government unbending. At the end of February, we received the Government’s response to their second Transforming Legal Aid consultation. We anticipated that this would not bring good news and it was the CBA who drove forwards and put in place two actions to show we would resist the new cuts announced for AGFs: the Day of Action on 7th
March alongside the No Returns Policy. The Government announced new rates on AGF’s of an “average 6%” (in reality, we worked out this would be much higher) to be brought in sometime in July.
We said these were unacceptable. They would lead to the individual ruination of young members of the Bar, discourage new entrants to the profession unless they had private funding, force others out and have a real impact on the delivery of high quality criminal justice. We said we would fight these cuts. I made no secret in my Monday messages that we were campaigning for these cuts to be reversed or at the very least frozen until after the outcome of the Jeffrey and Leveson reviews into criminal advocacy. We did this with the resolve of the practitioners behind us.
We knew that the No Returns would be a particularly effective policy but we were also aware that it was at a real cost to individuals at the Junior Bar and a large number of them, along with many Heads of Chambers, expressed their concerns as to how long they could sustain this policy.
It was in response to this that we limited the No Returns Policy to a period of a month and agreed to keep it under review. At the same time, we came under increasing pressure to consult the membership as to the way forward – we were told by many we did not have “a mandate” for further action, there were those who pressed for a “negotiated settlement”, those who pressed for “increasing action” and those who argued about the next steps they were prepared to support.
In response, we issued a consultation to the Heads of Chambers asking them to report back the views of their members by this Friday as to what further action they would countenance. We made the tough decision to do this first rather than going ahead and calling for more days of action next week at the short notice chosen by the solicitors. I told Bill Waddington that we supported the action but their decision had given us too little time. We hoped for a clear mandate from chambers in response to the consultation to enable us to call for increasing action.
At that time, we had no idea the government were about to offer us most of what we have campaigned for. No meetings were arranged. This is not some jobs for the boys deal. The MOJ, I doubt, see me as one of the boys.
The government before hearing what we would do next, in my view threw in a very large flannel, if not a towel, by way of submission. After months of our demands, they called us along with the Vice Chair of the Bar Council and the Circuit Leaders to a meeting on Tuesday evening. There was no mediation and no negotiation. Believe me we tried but they would countenance neither. They presented us with a non-negotiable and non-divisible “one off” deal- if not accepted, there would be no more offers.
They announced they were prepared to defer cuts to the AGFs until at least Summer 2015. They would not reverse the statutory instrument on the VHCCs. Ultimately we were left in no doubt they meant it. But they would engage on many levels to look at a new scheme in place of VHCCs and take account of the Jeffrey, Leveson and Rivlin reviews on future fees and other important changes.
We were given a two day window to decide whether to continue to expose juniors to the damaging cuts that would be introduced in July. The Circuit Leaders are traditionally more moderate than the CBA. I was there with Tony Cross QC and all of the circuit Leaders. But we all knew what we were being given was most of what we had been pressing for.
- It was what we asked for on AGF fees - 89% of the membership who only do that work and a higher % than that if we took into account those who do both AGFs and VHCCs. Kicked into the long grass. For a minimum of 15 months. Only to be reconsidered in the light of the outcome of the 3 inquiries into criminal advocacy practices and fees. We took the view we would not see these cuts again.
- VHCCs remained a matter for individual choice. They would not reverse these cuts but assured us they no more liked VHCCs then we did. The best we could do would be by getting rid of them in the next 9 months and be part of a joint committee to find an alternative scheme.
- There were 3 inquiries all having blank pieces of paper through which we could voice our demands. The CBA have been invited to join each of them.
- We genuinely believed we could get you no better
The decision to accept the offer was made in an emergency meeting of the CBA Executive. It was not practicable to ballot the Bar in the time frame. At the same time, the Circuits consulted or met with Heads of Chambers on their individual Circuits. The vote was overwhelming in favour from 5 of the Circuits, the HoC on the SE Circuit who were informed were 100%.
And so to the solicitors whom we have supported in their campaign every step of the way - both vocally and in taking action with them side by side. The leadership of their associations has been strong but they have not secured the same level of unity of purpose and resolve among their membership as has been shown by the Bar. Their members are already working at new cut rates and they admit they cannot guarantee full support from their own membership for next week’s 2 days of action. I asked what came after the two day strike and was told they did not know.
Today’s statement of the CLSA stated:
“The concessions to the Bar have been more substantial and this may well reflect their militancy and unity.” Had they agreed at their consultation meeting in Manchester not to work at the new rates, it may have been a different matter.
The offer from the MOJ was not an opening gambit. All those at the meeting on Tuesday evening were left in no doubt of that. Could we expect the juniors to continue with the pain of the No Returns policy, take the cuts in July and be unable to pay their mortgages when the solicitors themselves did not have a unified and coherent strategy or resolve to stand together and speak with one voice in fighting for their cause?
I have read nonsense that I am “anti solicitor”. Hundreds of you know that to be a ludicrous observation. You cannot survive a lifetime at the Bar and not be solicitor friendly.
The response from solicitors tweeting has been understandably angry (in my case personally abusive) with some now threatening not to instruct the Bar in future. This is unfortunate. I hope many will be honest enough to acknowledge that had they been offered a deferral of their fee cuts until at least Summer 2015, they would have taken the offer even if the Bar’s fee cuts remained. We have not abandoned the solicitors, we recognise their plight and will continue to support their campaign in all the practical ways that we can, for example we will not undertake their work during their days of action – but how can we deliver the outcome they want while they are not all fighting for it themselves?
So to those of you who are now baying for my blood, let me ask you these questions – as these are the dilemmas we faced and the same questions we had to answer:
- If this offer had been rejected, what would we have been asking the 89% of the junior members of the Bar who only do Magistrates and AGF cases to continue to fight for?
- To persuade the Government to overturn the 30% fee cuts to VHCCs affecting the top 11% of the profession – with no guarantee of success
- To help secure the reversal of the solicitors’ fee cuts and a better deal for solicitors - with no guarantee of success
- If this offer had been rejected, what would we have been asking the 11% of the senior members of the profession who do at least some VHCC cases to continue to fight for?
- The potential of a better deal for themselves but at an ongoing cost to the junior bar – with no guarantee of success
- To help secure the reversal of the solicitors’ fee cuts and a better deal for solicitors – with no guarantee of success
- How could we rationalise and explain the rejection of the MOJ’s offer to those members of the Junior Bar who can’t afford to keep going from this Summer with a fee cut of an average 6% (& in many cases the reality is more) and those that are not willing to continue indefinitely with No Returns/Days of Action?
- We must hang on and continue our actions, we may get a better deal on the VHCCs for the senior end of the profession – although with no guarantee of success
- No matter what, we must hang on and continue our actions to try and help get a better deal for the solicitors
Of course I am shocked by many responses – I now seem to have replaced Mr. Grayling as Public Enemy No.1 - but am buoyed by the support from many others. Tony Cross and I are the most uncompromising, determined members of the Bar you will meet. It is why you elected us and, along with the Executive, we have fought every step of the way on behalf of the Criminal Bar and in particular the Juniors.
Nigel Lithman QC
Chairman of the CBA