Monday, 17 November 2014

The Tuesday Truth

This week's Tuesday Truth is written by Mark George QC
We either stand and fight together or we all go down to defeat!

I recently attended the CLSA conference in London.  Having felt deflated ever since the leadership of the Bar did its dirty deal with Grayling back in the Spring it was an uplifting experience.  At least one side of the legal profession is still up for a fight against Grayling’s plans to decimate criminal legal aid.  And no one can be in any doubt how high the stakes are here.  The livelihoods of many solicitors and their staff are at direct risk.  Our clients face a future of minimum standards representation by demotivated half-qualified legal operatives.  And the criminal Bar faces extinction.

Many reading this will already be well aware of all of this.  Unfortunately I am not so sure the leadership of the Bar in general and the Criminal Bar Association in particular has yet grasped this inconvenient truth.  Of all of my objections to the Grayling deal I will repeat just one.  The Bar and solicitors fought together earlier this year.  The days of action and the “no returns” policy could not have been carried out by the Bar without the full and enthusiastic support of criminal solicitors. It was they who amongst other things had to smooth the feathers of clients no doubt angry that their “brief” had not turned up and consequently their case could not be dealt with as they had expected.  If solicitors had not supported the Bar the action simply could not have taken place.

There can be no doubt that the “no returns” policy in particular was a spectacular success.  It rapidly brought the criminal courts to the edge of total chaos.  It was that that brought Grayling to the table after a year in which he had refused even to talk to the previous chairman of the CBA.  Quite how he was in a position to dictate terms to the Bar is beyond me.  I am in no doubt that the Bar should have told Grayling there would be no deal with them unless he also made an acceptable offer to settle with solicitors.  The reason is simple.   We had fought together and you don’t leave your allies high and dry by making peace with the enemy on your own.  If Grayling wasn’t prepared to do a deal with solicitors as well as the Bar the Bar should have told him what he could do with his deal.

So I completely understand the fury and anger of all those solicitors who think the Bar sold them out. We did, and I am sorry the leadership of my side of the profession let you down so badly when I thought we finally had a leadership who understood the need to fight together and win together.  Many of you I know feel that now it is everyone for themselves. The Bar has shown itself to be treacherous and unworthy of trust.  Unity has no chance now.

And that will come as music to Grayling’s ears.  The fact is there is still much to fight over.  Dual contract have to be smashed.  There is no alternative.  This is every bit as dangerous as the threat of PCT last year.  Equally barristers must assume we will have to fight whichever party is in government next year as they will almost certainly seek further cuts in advocacy rates.  Solicitors know that it is almost impossible for them to take direct action against the MoJ.  Equally we all know that the Bar not only can take direct action but if it is willing to do so again it can easily bring the justice system to a juddering halt.  That however requires unity.  Solicitors need the criminal Bar to be prepared to stand up to bully-boy Grayling and take direct action in whatever form.  And the Bar needs the support of our solicitors for the same reasons as earlier this year.
I therefore ask all solicitors to please be prepared to forgive our leadership and if the Bar is prepared to work with you to accept that offer.  The chairmanship of Tony Cross QC did not start well.  His Monday Message in September offended many solicitors because of his apparent call to turn the clock back about twenty years to the days before solicitor advocates.  We all know that Tony represents the criminal Bar but this approach was unfortunate and ill judged to say the least.  Fortunately many barristers appreciate that the realities of life mean solicitor advocates are here to stay.  I am glad to read in the most recent MM that Tony does at last seem to appreciate the need to “build bridges” and to seek to work together with our solicitors.  It would be easy for solicitors to turn away and tell him it is far too late for that.   I understand the sentiment. But for the reasons I have given that would be a fatal mistake.  We have to work together, we have to take up arms together against the MoJ and this time we will not do any deal unless both sides of the profession agree.    This time its death or glory.


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  2. I disagree that "unity has no chance now". It has every chance if the two professions are determined and have bold and effective leadership. Despite the controversial stance taken by the CBA leadership in agreeing to the "deal", only two silks put themselves forward to take up that challenge. A missed opportunity surely for those wanting change.