Here are my thoughts about the interim fee offer by the CPS and MoJ. It’s important to look at the context as well as the content of the offer. It’s not perfect but we’ve come a long way.
In the dark days when Grayling was Lord Chancellor, there was little engagement, but palpable hostility, between MoJ and the criminal Bar. Since then, both sides have realised that constructive engagement is indispensable. The relationship will always be adversarial to a degree, but as we know from our everyday work, being adversarial is perfectly compatible with civility and cooperation, because it enables progress to be made. We looked over the edge of our silos and saw where there is common ground, and where the real issues lie.
The Bar’s contribution to the redesign of AGFS was always predicated on the government needing to invest significantly more money, in order to make careers and quality in criminal advocacy a sustainable long-term proposition.
That has always been the ambition. An increased fees is not an end in itself: the point is to ensure that the advocates who serve the Courts and the public as prosecutors and defenders are the best advocates, and they get a fair reward whether they are starting out or more experienced.
The leadership never conceded that the ‘figures in the boxes’ were enough to ensure that, and the re-design was always considered to be work in progress. The MoJ with its squeezed budget has felt unable to match our justified demands and ambitions. Put simply – we think we should be paid more, and they are unable or unwilling to commit as much of their budget as we would like. But engagement and good will, have enabled the dialogue to continue.
The pinch-point was always going to be PPE. The explosion of digital evidence has made PPE an unworkable and inefficient proxy for the complexity and difficulty. It is hard to defend it as a one-size-fits all method for assessing fees. It also created disparities between the incomes of barristers who have been routinely briefed in high PPE cases and those who have not. Some never got them. Getting many such cases, or getting none, may not reflect the quality of the advocate.
Those who got the occasional such case may have looked to them as a windfall to make up for the cases that did not pay. But reliance on unpredictable windfalls is no way to earn a living when bills have to be paid on time. The concentration of high PPE cases in a small number of hands (this is what happens) is not a fair distribution of work or money either. The loss of income is, of course, painful for people who have been used to making much more money than they do under the existing scheme. It needs to be compensated.
As the Bar said all along, and as the MoJ now recognise, the present PPE arrangements are too crude. The principle of payment ‘for work done’ is not always being kept to. It is not that the size of a case is never a guide to its complexity or seriousness. The trick, not yet achieved, is to devise an agreed method that identifies those high PPE cases that really do call for payment according to their size. Work is continuing on finding one.
Pausing there: there are those in the profession who think both that the MoJ would like to destroy the criminal Bar, and that the Bar’s leaders are somehow complicit or too feeble-minded to resist. Conspiracies theories may seem to explain complex phenomena and so give comfort to their proponents. All I can say is that in my experience of dozens of hours in discussion with MoJ officials, what they want is sensible and mature engagement; some may be more sceptical or less well informed than others, but at no stage did I sense a desire to destroy us. As for the Bar leaders, they have been resolute in defending the Bar’s interests and supporting our case with evidence.
Some people call for the appointment of an external negotiator. They miss at least two things: (1) barristers just are professional negotiators and persuaders; (2) if the external negotiator fails to win all or enough of the Bar’s demands, who is to blame? The people who appointed them. I for one would not want my subs to go to anyone who was not a member of the profession when dealing with issues like this.
It takes time to change entrenched attitudes: the old hostility may have faded, but the churn of ministers in the MoJ since 2014, and the loss of many of the more senior officials, meant that progress faltered. The Gauke administration has been relatively stable, and under him the response to the Bar’s demands has been positive. We voted in favour of AGFS Scheme 10 last summer, but the narrowness of the result and the unresolved issues gave the CBA a mandate for continuing to press for improvements. This resulted in the settlement reached in December 2018.
Far from giving up at that point, the Bar has continued to work for a better settlement. The CBA decided the time had come to tackle the CPS over its shocking long-term failure to pay barristers properly for so much of their work. It was the Bar’s decision to link the demands over prosecution and defence fees together, so it should come as no surprise that the CPS and MoJ – each a custodian of taxpayers’ money – should link them too. It’s not fair to see this as ‘divide and rule’.
There’s no point repeating what you will have read in the messages from the CBA, the Chair of the Bar, the SE Circuit, and the DPP. You know what is on the table now, and what has been pledged.
The current Justice Secretary and Attorney General are both Bar-friendly but are unlikely to remain in post in whatever administration takes over in July. Their successors may revert to the older approach if the Bar rejects the offer. If background distrust of the government is well-founded, then why trust the new one any more than the present one?
This is an interim offer, not a final deal. The onus is on the CPS and MoJ to make good on what it has pledged in the next phase. If they fail, then action may be inevitable.
The point of what I’ve set out here – if you’ve got this far – is that real progress has been made – much more slowly than anyone would have wanted, but nonetheless. It looks set to continue.
This is a win.