Monday, 6 July 2015

The Tuesday Truth

by Zoe Gascoyne and Paul Harris

It is just under a week since many criminal lawyers across the country began their action against the 1st July fee cuts.

A keen observer of social media could be forgiven for confusing the announcements by different cities of support with the scoring section at the Eurovision Song Contest or perhaps more appropriately General Election night.

Merseyside in: Manchester in: Hull in: London in: Leeds in: Bradford in: Bristol in... and on it goes

There has suddenly been a sea change in the response by many firms. They now realise that they have no choice, these cuts will finish them and of course more importantly substantially restrict access to justice.

Solicitors and barristers together stand up for the vulnerable, for the wrongly accused, for those persecuted and harassed by state authorities.

They have so much more in common than divides them; their input together is worth so much more than in isolation. As the Junior Bar realised what was at stake they and many senior barristers have started to make their feelings known. Over the past few days   we have seen many declaring their support against the cuts that they know will be the end of them. This week already has seen an impressive roll call of chambers keen to support their professional colleagues;

Exchange Chambers: 9 St Johns: Kenworthy, Lincoln House, Garden Court, 25 Bedford Row, Mansfield Chambers  and many others

Even though the protest is only 6 days old the resolve and determination of those involved is growing. It will not be long before the Crown Courts are full of unrepresented defendants clogging up the lists causing greater public expense. A picture that will be indicative of the future of Gove's criminal justice system where access to justice is restricted.

These are sad and difficult times, no lawyer feels comfortable about clients being unrepresented, but they recognize that unless such action is taken the long term position for those caught up in the criminal justice system will be much worse. Cut price lawyers only able to deliver cut price representation leading to injustice for those most vulnerable.

Mr Gove says that the rule of law is the most precious asset of any country, but his actions and those that precede him tell a different story. He talks justice but seemingly has no intention of delivering.

We want to work with the Ministry on improving efficiencies and welcome the proposals of the Leveson report which places great emphasis on early ownership of cases and early engagement responsibilities which fall to Solicitors. They need to be properly funded to deliver such recommendations which ultimately may well deliver savings for all , the defence, the crown, the Court Service.

Todays Monday Message was a further plea by Tony Cross, chairman of the CBA to encourage his members not to vote to join the action. He rehearses many of the arguments that he has rolled out before, the majority of which appear to have been rejected by his members who appear to be moving in favour of action including his own chambers.

Over the last few days we have seen a sad pattern developing and one would be forgiven for thinking that Solicitors are fighting a battle on two fronts; the MOJ and the CBA/ Senior Bar. In particular Twitter has been home to some desperate attempts by Senior QC's to undermine the unity of solicitors themselves and also the Junior Bar. Interestingly although they are keen to ask questions they are not so keen to tell us what it is they are seeking to protect. Those attempts have been designed to undermine the leaders of the CLSA and LCCSA and pose numerous questions all designed to try and create division. The simple fact of the matter is that there is no ulterior motive for solicitors. We are not interested in preserving one side of the profession and hanging the other out to dry. We want access to justice. We want a profession to be proud of. We want to preserve a quality independent bar properly funded together with properly funded solicitors. This has always been our position.

It appears that there is still a limited understanding of our position by some barristers and so we make a final attempt to clarify the situation in the simplest possible form;

Two Tier

1)   Many firms contract only with LAA therefore this is their sole source of income

2)    Many firms heavily rely on work generated through the duty solicitor schemes and therefore cannot afford not to have duty.

3)    Two tier is unpopular with the vast majority as demonstrated by 2 judicial reviews

4)    The tender timetable was accelerated and the majority felt they had a gun to their head so felt forced to tender (no contingency plan and facing huge financial ruin) Tender submissions do not guarantee contract. The offer of a contract does not mean you have to take it; the tender just gives you the option.

5)    The cuts were originally to be carried out in two stages because Grayling accepted the "market" couldn't cope with 17.5% and he needed consolidation to help absorb the second cut - the ONLY reason for consolidation was to enable the second cut.

6)    The first 8.75%  cut happened in March 2014. We were led to believe that the second cut would take place only after consolidation (two tier) and review (Leveson).

7)    Two tier was not what the MOJ had hoped, there were less applications than expected and some areas were not covered.
Leveson's review is helpful and says don't cut legal aid, but focusses on early engagement, IT and finding savings elsewhere.

8)    Gove was appointed Lord Chancellor. He had one short meeting with Solicitors and after just 4 four weeks in post he decides to cut anyway, ignoring Leveson and the evidence of the risk of market collapse.

9)    The decision was possibly made because two tier is unlikely to succeed and he needs the profession to self-consolidate.The second cut was announced on 10/06/15 to be implemented on 01/07/15 with further substantial  cuts in January 2016.

10)    The simple fact is CUTS ARE URGENT.
The cuts are the uniting factor.

11)    Two tier can wait, it will either;
a) be academic because it was only to be introduced to get the second cut in.
b) be unachievable because of quality and low number of tenders or
c) the profession (with new found strength and unity) will withdraw bids or decline contracts.

Cuts are the one thing that individual firms are addressing through action.
The simple fact is if that if cuts were reversed we wouldn't need indefinite action for two tier because we have proven ability to take a stand and there are other ways of dealing with two tier as above.

As far as the Bar is concerned we would like your support. We are grateful to the many barristers and chambers who have joined forces with us. We need to fight this together, but  we will fight with  or without you. We would rather stand as a united profession and we trust that you now understand our position.
The bottom line is you choose to fight for survival of the profession or you allow it to die through apathy. This is a decision for both solicitors and barristers. That decision will not wait.