A contribution from the wholly unrelated Sarah Vine @queenofjustice
So, I should start by saying that I would love – really, really love – to be for this deal. I would like nothing more than to believe that it will save the inextricable interests of the Criminal Bar and the Criminal Justice System. Personally (and I appreciate just how far from the moral high ground this sentiment knocks me) I would like nothing more than to be able to characterise this deal as a humiliating climbdown by Grayling, and then spend the remainder of his tenure sending him ever more colourful, weekly reminders of his defeat.
Needless to say, I have been disappointed in this wish. I have read every post explaining why people are voting for the deal, and I have read them with as open a mind as I can. It would be simperingly dishonest to suggest that I was ever unsure, but I was most certainly prepared to be persuaded from my initial view, not least because I really wanted to be.
But I can’t get there, because the single most urgent question for us is a practical one, and no-one on the ‘No’ side of the debate has offered any practical solution. The cut to litigation fees of the 20th March was a stab to the femoral artery for most criminal solicitors. So, what will this deal do to stem the bleeding? The inevitable consequences will be twofold and will impact directly and practically on the Bar. First, solicitors will need to find an alternative source of income to recover from the fact that this cut has transformed their already modest profit margin into a loss. Obviously, the first port of call will be AGFS, partially (through referral fees or, as we at the Bar know them, ‘bribes’) or in total. Either way, this is more work that the Bar will no longer be getting. Second, high street solicitors will start folding, at an alarming rate. You think it’s been bad recently? Just wait. Remember how long it took you to establish that relationship with your principal I.S.? Perhaps you are right in the middle of that difficult trust-building exercise. Where is your work going to come from when they are out of the picture? Nowhere. You are toast. Your vulnerability is absolute. The power of withdrawing labour, goodwill or anything else will be eviscerated, not least because the unity we have witnessed recently will have been torn, irreparably, to pieces. Accepting the deal is like feeding a starving person, while hoping that someone else will come along and deal with that severed femoral artery.
And what have I heard from the pro-deal campaign on this question? I have heard the following, which I have expressed in terms of ‘us’ (the Bar) and ‘them’ (the solicitors) because that appears to be the preferred language of those who support the deal:
i) They would take the offer if it was made to them.
ii) They have already stabbed us in the back by briefing HCAs.
iii) They will send the work to HCAs anyway (a particular favourite of mine).
iv) They can look after themselves.
v) They can’t look after themselves.
vi) Screw them, they expect us to fight their battles for them.
Assuming that all of the above statements are true (and I’m certainly happy to accept more than one of them), none of them diminishes the imperative to continue the fight, and number iii appears to underline it, although the author would probably never acknowledge that fact. Curiously, those who seek to separate the interests of the Bar from those of solicitors for the purposes of persuading people to accept this deal render the Bar a hostage to fortune, leaving us all with crossed fingers that solicitors will look after themselves and thereby save our source of work.
This division did not seem to arise when we were, almost without exception, prepared to man the barricades over the introduction of PCT, although there is no real distinction between PCT and the current ‘transformation’. The net effect of dual contracts will be precisely the same as PCT. How many of us, when drafting our responses to the consultation thought to ourselves, “Well, I’ll be prepared to down tools over these proposed cuts to advocacy fees, but if the Minister stays his hand on these, the solicitors can sort this whole PCT thing out themselves. I mean, it’s a completely separate issue.”?
There is no ‘us’ and ‘them’, for these purposes. This is not an argument about whether we have ‘abandoned’ solicitors, because our opposition has never been predicated on some fluffy idea of togetherness. The need to continue to fight, and to fight in the only way that Grayling understands, is about the absolutely coextensive interests of the Bar, solicitors and – lest we forget – our clients. It is our clients who are the weak and the vulnerable. The Bar is not being expected to look after solicitors who may or may not be able to look after themselves. We are faced with the choice to protect or fail those who emphatically can’t. Where others have borrowed from Michelangelo and the Bible, I must borrow from (and contort unforgivably) Terry Pratchett: In the preservation of justice, there is no ‘us’ and ‘them’. There is just us.