It is Time to Vote For The Future of The Criminal Justice System

I haven’t always agreed with CBA management.

I do this time.

I make no apology if you are now having to sponge coffee from the front of your shirt.

Tony Cross’s explanation in the MM, here of the need for the Criminal Bar to give him a mandate for action, is right. He has my full backing – for whatever that is worth.

It is vital that anyone who has not yet voted Yes, should do so now. If you are a CBA member,  you can follow the Link in that MM to the voting page.

This is not a time to say we should hold back a minute, and “engage.” and nor will we lose the opportunity to do so if we vote “Yes” now. I’ll explain why a little later on.

We must give the CBA that mandate now. We may not need to use it immediately, but it has to be a weapon at our disposal.

Let me ask you this:

How much did you earn in the last year from Direct Access work?

In a year’s time, are you going to be able to survive on that?

If Dual Contracts are implemented, you may have to.

You have heard and read the arguments. The scheme is deliberately designed so that solicitors with contracts will HAVE to take their Crown Court Advocacy work in house.

It is not scaremongering, it is what the MoJ have intended all along. In the JR proceedings, the MoJ’s counsel specifically argued that the scheme could only work if the second LGFS cut was implemented so that firms would have to consolidate and take the advocacy work in house.

The idea that “my solicitors will always be loyal to me” is nothing more than “an emotional spasm.” (see below). Partners in larger firms are only too well aware of the financial realities. Those who are subsumed or “consolidated” from high street firms into said larger firms, will be told in no uncertain terms that their duty and own client work is now the province of the managing partner who will make all decisions on allocation.

Do not think that the detailed costings calculated for the purpose of tendering for these contracts included any element of briefing out routine Crown Court work to counsel. They won’t have.

Firms who have either not tendered for the duty scheme or were unsuccessful, will have to rely on own client work. They are hardly going to be in a position to brief much if any of this out to counsel when they themselves already have an even smaller share of the pie.

The only ones who are likely to survive are those senior juniors, (or silks of course) who do work that the vast majority of solicitors would consider to be beyond their competence.

Even then we cannot rule out the possibility that certain firms will recruit senior juniors in house, to do this work as well. Some have already done so.

It is the Junior Bar, and the more junior end of it, saddled as it is with a mountain of student debt, that will be extinguished, with all the consequences that will have for the profession and the judiciary in the future.

There is a superficially attractive argument that the Bar should not take or threaten action without first engaging the new Lord Chancellor in negotiations. It presupposes one very important factor; that the Lord Chancellor is remotely interested in talking to us.

Why should he be? What has he got to gain as things stand, by doing so?

The “Deal,” by which the Bar agreed to end action in the form of “No Returns,” which all are agreed was hugely effective and brought Grayling to the table, RUNS OUT IN A FEW WEEKS! You may remember that in return for halting No Returns, the MoJ agreed to delay the imposition of AGFS cuts (cuts to the Bar’s fees) until July 2015, together with ad hoc arrangements for VHCC fees, and er… that’s it.

Mr. Gove now has an electoral mandate to continue the “work” that his predecessor had started, and in particular by

  1. the imposition of Dual Contracts on Solicitors,
  2. the second tranche of cuts to solicitors fees,
  3. AND the cut to the Bars fees.

There is nothing to stop him, and absolutely NO incentive for him to negotiate. From his point of view what is at issue? Nothing.

Think about that. Why on earth SHOULD he talk to us? What is there for him to discuss, as opposed to simply imposing these things on us?

Nothing. Nada, Rien.

Indeed it might actually be worse if he agreed a further delay to the AGFS cuts whilst proceeding with the implementation of Dual Contracts. If he did, who could blame solicitors for believing that the Bar had done yet another Deal. We haven’t as far as I know, but it would be yet another political manouevre by the MoJ to foster division between the two halves of what is still one profession.

I was castigated by some during the general election campaign for repeating a quote of Aneurin Bevan about the Conservative party, so this time I shall adapt another quote, about his own party, by adding one word.

“But if you (don’t) carry this resolution and follow out all its implications — and do not run away from it — you will send a British Foreign Secretary, whoever he may be, naked into the conference chamber. … And you call that statesmanship? I call it an emotional spasm.”

If Tony Cross is to be able to negotiate with the MoJ so as to preserve even the tiniest fragment of our Criminal Justice System, then he cannot do so without a credible deterrent in his armoury.

Just like Trident, it doesn’t mean he has to use it. The threat does not need to be specific.

I have read and listened to the views of those who promote the line that the Bar should not be taking action to support solicitors, if the solicitors themselves will not take action.

I have news for them. Many solicitors WILL take action. I know. I have been speaking to them, and the leaders of their Representative bodies for the last two years, even when such a thing was “unfashionable.”

They themselves recognize that not all of their own will do so. There will be some backsliders with nothing more than their own selfish motives to pursue. The same could be said of certain members of the Bar.

But that is not a reason for shying away from what we, and they must do now.

Solicitors have the added difficulty that they have several representative bodies. A united front in such circumstances is as impossible to achieve as say, a united Bar.

Do not forget the work of those who first promoted the petition which brought us a debate in Parliament. They were solicitors. Despite what some at the Bar have said about No Returns, anyone who has read the accounts of support given by solicitors to this action, will realize just how much work and sacrifice some of them put into that too. To suggest otherwise demonstrates an ignorance of the reality of what really did happen.

Then there were the JR proceedings, challenging Dual Contracts. Certain individuals from our sister profession worked themselves into the ground to pursue that.

The demonstrations outside Parliament and the Global Law Summit. Again organised and/or supported by our solicitor colleagues

The complaint that solicitors have done nothing to fight for OUR profession is baseless, and offensive to many. Now, some are even talking positively about taking action similar to the Bar, in the magistrates court, in the teeth of threats they may face in relation to Contract Notices. They have realized that there really is nothing left to lose. So should the Bar.

If we don’t draw a line in the sand now, which we cannot do without a mandate to take action if it is needed, then we will have consigned our profession, and our justice system to history.

A “YES” VOTE DOES NOT MEAN AN IMMINENT STRIKE, or any kind of immediate action. What it means is that Tony Cross and Mark Fenhalls can sit at a negotiating table safe in the knowledge that they have a hand to play.

Without such a vote, what is going to happen in six weeks or less, when the Mephistophelian MoJ say, “Right, time’s up. The Deal has expired. Your fees are cut by another 8.5%. It’s what YOU agreed to remember.”

How are the naysayers and foot draggers going to respond? “Oh but we must DO something!” Well yes, but what then?

Don’t think it wont happen. It will. We must be ready with a mandate to act.

If you vote yes now, you are effectively voting to maintain the status quo, whilst giving your leadership the ultimate weapon, which hopefully they will never need to use.

If you don’t, you will be out of a job.

James Vine

p.s. Although I am, and have been a member of the CBA Executive Committee for the last two and a half years, this blog is entirely my own work. It does NOT represent the views of the CBA, and should not be taken or quoted as such.

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4 thoughts on “It is Time to Vote For The Future of The Criminal Justice System

  1. An inspired call to action, James. This may be the very last chance we have… History will rightly judge us if we allow our revered legal system to be swallowed up through apathy, greed or fear. Never has there been a more important time to remember the advocate’s motto ‘Be Fearless’.

  2. I wholly support action and will follow through – I am furious as the way barristers are being treated – we are the spine if the criminal justice system and we work to a very high standard indeed.

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