The Tuesday Truth

Written by Jon Black President of the LCCSA on behalf of the LCCSA and CLSA

And our ballot, sorry survey, sorry purely non- advisory response of random people not creating anything like a consensus says….It’s the same battle 

Reading this week’s Monday message from the CBA, you could be forgiven for thinking the most significant threat to our failing justice system is the existence of Solicitor Advocates .  To many this obsession is like being irate about the pointing around your windows when your house is falling into a sink hole.

It appears to many to be a diversionary tactic when the CBA had a clear mandate to take action.  It yet again serves to help the government in dividing the profession.  It has been clear for some time that Mr Cross sees the solicitor advocate as a bigger threat to the bar than the current policy decisions of the Ministry of Justice. 

Moving the goalposts and other clichéd metaphors

When is a ballot not a ballot?  When the CBA decide they do not like the answer they get, it appears.  If you call a thing something else when it appears in front of you it confuses the rational order of naming things. “Look it’s a sheep !”  “But when we sent it out to graze, it was definitely a horse. It still looks like a horse, its brown and has long legs and sticky up ears and  is not woolly in any way. “   “ No, no,  you’re wrong its definitely a sheep. “  “Umm confusing. “

 It’s almost as if those who voted to discount the response on the CBA Executive were attempting to circumvent the democratic process in which 96% of those voting supported action by suggesting after the event that this was a ‘survey’ and not a ballot.  This did not seem to have been made clear before the result was known.  Had CBA members in March 2014 voted against the original deal would that ballot also have been called a survey after the event  ?  When is a mandate not a mandate?  When is it a sounding? A toe in the water?  A discussion document?   A sop?

We want a level playing field too but the pitch is being dug up

It is with sadness that we again need to respond to this issue and waste time addressing a point that we hoped was far behind us.  The LCCSA and CLSA have previously publicly embraced the recommendations of the Jeffreys Report and agree that training and education should be on the same terms for each part of the profession.  The LCCSA and CLSA have frequently suggested that this issue could be resolved through private discussion between the representative organisations, including the Law Society and the Bar Council.  The Bar has never taken us up on this offer and instead has chosen to discuss the issue with the MOJ who we are told “feel their pain”.  Given the brutal economics that department has unleashed on both sides of the profession lets see how far that professed empathy gets the Bar. In the zero sum game it’s leadership is now engaging in, the junior bar lose as much as the solicitors. 

What the justice system deserves, what our clients deserve, are the best advocates, irrespective of whether they are solicitors or barristers.  Solicitors understand the importance of instructing the appropriate advocate, it is their professional duty to do so.  There has of course been a significant increase in the amount of advocacy being conducted in house but that does not automatically mean that those advocates are not well qualified or experienced.  All lawyers want to win, if they don’t win enough then irrespective of whether they are solicitors or barristers the best professional training should be available.  Standards across the board should be raised.  The solicitors associations have been engaged in nearly three years of campaigning and litigating in a fight for survival, continuing advocacy training will be a priority but at present fighting for access to justice and for professional survival has had to come first.  

But what are solicitors prepared to do ?

It is a frequent gripe, not just from barristers, that we are not prepared to take action.  Consider this, we have tried to negotiate with the government; we have tried to reason by way of statistics and reports and when this failed the LCCSA and CLSA invested heavily in litigation to stop the two tier process.  As those who were present during the National Justice Committee meetings know it was the solicitors who wanted to call a date for direct action weeks before it happened but had to wait while the CBA and Circuit Leaders conferred and the stars aligned.

But the question being asked “What are solicitors prepared to do?” is a fair question although open to manipulation by those who do not want to confront the government.  We have picked up the gauntlet and are asking our members if they would be willing to refuse work at the new rates and support a return to no returns.

The CBA should not underestimate the importance that the support of solicitors meant to the effectiveness of the No Returns policy which the CBA claim has led them to the sunny uplands of “being left alone”  with an overall decline in work and no sign of fee rises. Hurrah!  The responsibility of calming angry clients when they arrived at court unrepresented was not a pleasant one, but we stood by the Bar. There were a renegade few firms who did otherwise but like turkeys opting for bread sauce rather than cranberry their lack of unity has not improved their survival prospects. Indeed there were also barrister chambers in some regions of the country who did not support the CBA policy on No Returns.   

At the height of the Bar’s greatest negotiating strength many think the leadership disastrously surrendered the advantage obtained through the determination and sacrifice of masses of juniors up and down the country and like turkeys voting for the slow roast, non fan option settled for an agreement that there would be no direct action so long as the bar was left uncut.  

Two months before, the then CBA chair had publicly resolved to negotiate jointly with solicitors. https://www.criminalbar.com/latest-updates/news/q/date/2014/01/20/monday-message-20-01-14/

 To suggest we are suffering from ‘blinkered prejudice’ which leads us to be mistrustful is patronising and wrong.  We are asked why are we cautious and perhaps cynical as to how far the CBA can make progress with the MOJ?  It is because it is clear that these further cuts were always planned , that they ultimately harm the bar as much as the solicitors and that no amount of deal making in the manner  that took place last year and in the last few days would have changed that.  

But why did some of you bid ?

The CBA leadership has constantly looked for reasons not to unite with us, citing reasons such as the (limited) number of firms which did not support and participate in No Returns and the fact that after the loss of our Appeal, firms submitted bids. Barristers are self employed,  in itself a precarious and exposed position, they have responsibilities to their families and to colleagues in chambers with regards to rent but what many fail to understand is the huge burden on the small business owner not only struggling to keep what for many is their life’s work afloat but also immediately responsible for the employment of a raft of people , who has continual demands in terms of monthly salaries, topping up pension contributions and servicing loans never mind supporting their own families and paying the mortgage . The collapse of a law firm is swift and shocking but its aftermath is painful and protracted as many articles in the Law Society Gazette demonstrate. Bidding for nearly all of those who did was done through gritted teeth with enormous reluctance.  It was an agonising, dispiriting process but it was either quick and messy business death or a few more months of grinding out an existence in the hope that survival was possible.  Of course let us not forget the bar entities that are understood to have submitted bids as well.

So what has taken place behind the scenes?  I  was invited to meet Michael Gove with four other colleagues at the end of May.  The new Lord Chancellor had been in post for two and a half weeks, we understood he had only recently been briefed as to our concerns regarding closure of firms and access to justice. We spent most of the meeting explaining why the Two Tier scheme needed to be reconsidered. Although he was particularly interested to hear how our clients will be affected, he said that notwithstanding our concerns it may be difficult to end dual contracting at this stage, the ship having already left the harbour. The Titanic comes to mind. Mr Vara, the Legal Aid minister also in attendance,  hinted that they were focussing on ensuring that quality of advocacy was not impacted , which we can take to mean that the quality of litigation is for some reason not a priority.

We then heard nothing until 9th June, we now learn this was the date of the MOJ’s second meeting with the CBA post election.   I know it is often said we mustn't look back at the past but like all history lessons it helps us to understand where we are now and how we can learn from what has happened before. We had been promised in the aftermath of the disastrous deal in March 2014 and again in the Consultation documents, that a review on fee cuts would be undertaken in conjunction with a review into advocacy fees.    The Transforming Legal Aid document announced a cut to AGFs alongside the staged cut to solicitors’ fees. The 27th November response once again made reference to the cut in solicitors’ fees subject to review, but now no mention of the AGFS cut It appeared to have disappeared into the ether. On further enquiry we were told that in fact there was to be a review of AGFs , the criteria being based on crime spend and the Leveson Report  , whereas the solicitors'  cut would take into account Leveson and the impact of the first cut . 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380251/laa-crime-duty-contracts-consultation-response.pdf

(para 3.4)

Hugh Barrett head of Legal Aid at the MOJ told us in April that the second cut would be subject to a review after the General Election . So when did that review take place? In the 19 days before we met Mr Gove on 9^th June ? If so why didn't he say so? In the 7 working days after our meeting? Or the five working days between the CLSA document sent on 2nd June setting out alternative savings?

Curious, it’s almost as if there wasn’t a proper review and perhaps no real intention of having one. We have been here before in the procedurally flawed consultation. The MOJ approach to the profession now seems to have been erased from the CBA leadership’s collective memory..            

The MOJ is blithely ignorant of the fact that if you properly fund those  who are committed to their clients , who prepare and litigate fearlessly and with intelligence , persistence and skill  then the advocate is in the best possible position to advance the lay clients case. Advocates and co defending solicitors alike have had their jobs made harder by the decline in standards across the board since savage budget cuts to the CPS , to the Courts Service and the introduction of LGFs heralded the ‘stack em high sell em cheap’ mentality which prevails at the MOJ and LAA at a time when we now learn that the head honchos are lavishly rewarded for presiding over a crumbling justice system.

With the grim reality of the second fee cut and the fee restructuring to come in January 2016 has come the realisation that the government has nothing but contempt for the whole profession and is entirely reckless as to the sustainability of criminal defence never mind any pretensions to guarantees of quality.  As a result we have reached last chance saloon and there are now a significant number of big firms indicating that they are in favour of refusing to accept new work after 1st July.

It has been suggested that the CBA cannot or will not support solicitors because our ballot appears to be about the rates not Duty Contracts.   However, a boycott of new work disrupts the duty scheme creating a backlog which would stretch into January. Furthermore, may we remind Mr Cross of the pledge that he was keen for solicitors to sign in 2013, on exactly this point, namely that solicitors could not carry out their professional duties at the new rates . What has changed? A cosier relationship with the Lord Chancellor?

The purpose of historical reminder is not to perpetuate division, but to demonstrate that what has gone on here has not only been divisive but contrary to the interests of both professions. We need to build a new generation of trust. It is against our joint interests to continue on divergent paths and to allow solicitors to suffer such devastating cuts.

Those thousands at the bar who passionately  believe in the rule of law and access to justice will, we hope, join with solicitors in making it clear to this Lord Chancellor that we will fight together to withstand his attempts to destroy the provision of legally  aided  representation.

The CBA leadership claim to want a ‘level playing field’ but they are simply talking about the players on their team.  We are not asking barristers to fight ‘the solicitor’s battle for us’.  We are asking barristers to fight the war of attrition we must win to preserve our criminal justice system and with it the rule of law.