An Open Letter to Mark George

Dear Mark

Let me start by saying that I admire you as a person and an advocate. Your career shines out with a burning sense of justice and the desire to right wrongs. You have 10 years more experience at the Bar than I do, and your work covers a greater range than mine. You have been steeped in politics in a way I have not. I only became a member of the CBA’s executive committee this year, having been involved as a commentator and occasional walk-on performer over the last few years during the profession’s campaigns against the legal aid cuts and restrictions on access to justice. So you have many advantages over me.

The main reason I wanted to be on the Exec Committee, and now to become vice-chair, is that I can contribute positively to the evolving changes in the way that the state administers criminal justice. I don’t want to criticise from the sidelines, but to be in the room. Like you, I want the best advice and representation by litigators and advocates to be available to as many people as possible. That needs to be paid for at sensible rates that make the work attractive to the best and brightest.  I want that because I believe the denial of access to justice is a gateway to anarchy and disorder, and the civilised rule of law means everyone should feel that the law can do something for them. If people think they cannot get a fair crack of the whip under the law, why should they obey the law?

Like you, I believe that the MOJ has made a series of poor policy decisions, behind which may well lie a thoroughly nasty ideology of devil take the hindmost.

However (sorry Mr Gove), the prescriptions in your election statement raise more questions than answers. I fear they are either unachievable, or will achieve the opposite of what we both want. Here are some of the questions:

  • No meetings with MOJ apart from LCCSA & CLSA: why? What assurance is there that once in the room everyone will agree? You assume all differences will be ironed out in advance, but that’s a big assumption. Communication with our solicitor colleagues should of course be open and frank, but our interests may not always converge. Your plan puts a lock on solicitors and barristers: for ever? And you leave out the BFG entirely. Are you content for them to meet MOJ on their own? (Joint action plan with LCCSA and CLSA: let’s see how the members vote in the ballot, and again, what about BFG?)
  • ‘Maximum transparency & full communication with the [CBA] membership’. What’s lacking? We have a weekly bulletin from the Chair, and regular updates. Anyone can ask the leadership for more. Social media is full of Exec Committee members giving their views and information. What more do you propose?
  • An immediate 5% rise in advocates’ fees and inflation-linked annual increases. How are you going to negotiate this? What about litigator fees, which you don’t mention? Where will the money come from? Why should lawyers get such favourable treatment over and above others who rely on public funds, like nurses or police officers? And having made this demand part of your platform, what will you say to the membership when it’s turned down flat?
  • Withdrawal of the 8.75% cut and the dual contract. I fear that MOJ are quite happy to sit the action out, and as and when things become really chaotic in police stations and courts, they will turn on the profession and cease to treat us as reasonable negotiating partners.

It would be nice to know how you answer these questions. It’s not matter of being ‘detached from the shop floor’: the nearest thing our business has to a shop floor is the police station, and we barristers are inevitably detached from that, but we know our solicitors and the wretched fees they get for their work there. Otherwise, unless we are particularly snooty, we all do the same job. No silk who spends time in chambers or the Crown Court can be unaware of the strength of feeling among juniors – and silks – about what is going on. The out-of-touch silk is a bit of a straw man.

I think that militancy at this time, and the hyped-up language of militancy, are out of place. You offer the membership a gamble: put everything on the red, now. What if you fail? I think a more measured strategy is called for.

Yours ever,

Francis

 

 

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Don’t You Know There Isn’t a War On?

Very few if any solicitors or barristers think the MOJ’s cuts in legal aid for litigator fees and the imposition of dual contracts are a good idea. Some solicitors’ firms are taking the risk of bidding for contracts in the hope that they will make a profit or just to stay in the game. The MOJ’s policy was a brutal and dangerously under-tested way of accelerating a process of market consolidation that was already underway, as firms merged or were bought up, in order to reduce costs and benefit from economies of scale. That trend was the consequence of previous fee reductions and a falling crime rate. On the badness of the MOJ’s policy, the Bar and the solicitors have little to argue about. Good advocacy relies on good litigation. If the low fees and a dud contract make good litigation impossible, advocates will be hard pressed to do the best for their clients and justice will suffer.

We are arguing between ourselves about the best response to the problem, not the nature of the problem. The CBA’s decision to hold a ballot to decide whether to support the solicitors’ action has caused dismay and rancour. The tone and language is out of all proportion to the disagreement: there’s talk of betrayals, war, appeasement, ‘better to die on your feet than live on your knees’: and that’s at the more reasonable end  of comments on social media. Militancy is called for. Mark George QC, my opponent in the CBA election (an outstanding barrister, it should be said), suggests that the leadership of the CBA (and I) are ‘fans of Michael Gove’, who should not be in charge. Among other things he calls for an immediate increase of all legal aid fees by 5%, and an annual increase in line with inflation. Mark hasn’t indicated how much this would cost, or where the money should come from. You have to ask how the nurses and teachers would feel about lawyers using their militancy to achieve pay rises that they could only dream of.

It seems to me that the use of bellicose language has intoxicated people and diverted them from the realities of what’s going on. We are not at war with anyone. Mr Gove is not Hitler. This is a contractual dispute between a group of professionals and the government. If, as some one said at a meeting of lawyers at Garden Court Chambers in June, this dispute is part of a campaign against the wider policy of economic austerity, they are deluding themselves.

Michael Gove has inherited several poorly thought-out policies from the hapless and sinister Chris Grayling, who barely concealed his dislike of the rule of law on the occasions when he found himself being ruled by law. We are told to judge Gove by his deeds, not his (very) warm words about law and advocacy. Quite right. On the credit side, he has scrapped Grayling’s plan for supersized jails for children: at least 2 cheers for that. The top civil servants responsible for the muddles about legal aid, Brennan and Gibby, have moved on: maybe one more cheer. On the debit, he has pushed on with the cut and the dual contract.

Now maybe the present action will rock him enough to cancel or suspend them: we’ll see. What then? Pay increases all round, free beer and sunshine every day? Dream on. At some point,  whatever the outcome of the action, all the interested parties will have to talk to the government. Mark will if he is elected.   It will be difficult and tedious work and it will call for determination and maturity. Those doing it will need common sense and freedom from dogma. They will also need to shake off any sense of entitlement to old ways of doing things. It’s possible that more discussion of legal aid will just be off the government’s agenda, whatever the professions say or do. The dreaded OCOF waits in the wings.

And what if the present action achieves nothing except blockage in police stations and courts? No newly appointed minister with ambitions like Gove’s will want to be seen to give in to the demands of an interest group under pressure of such action: the political cost would be too high. I can only guess, but my guess is he will sit it out, and eventually turn on the profession. It is noticeable that the MOJ’s large and normally aggressive press operation has been quiet for the last two weeks. They seem to be playing a long game.

I supported the CBA holding a second vote on action: to have endorsed or repudiated it without that vote, after the general election and the partial change of direction by the solicitors, would have been risky. Remember what not holding a second vote did for the reputation of Arthur Scargill, and the livelihoods of thousands of people, when he might have won it and carried all before him. If the CBA votes to endorse the action, so be it. The leadership (as far as I know: I’m not part of it unless and until the members elect me as vice-chair) will respond to either outcome with equanimity, and will formulate appropriate policies.

I don’t support the action, for the reasons in my CBA election statement, but I respect and  sympathise with those who are taking part it, who include many friends and colleagues.

The rancour between and within the two branches of the profession must stop. People should start calling things by their right names, and stop (for example) dishonouring the dead of the First World War by likening the present business to the slaughter in the trenches. It’s demeaning and absurd.

We have interests in common, but our interests are not identical. Let’s recognise that, show each other more respect, and show the world that we deserve its respect. The Criminal Bar needs to vote and be decisive. You have till 4 pm on 14 July.

 

 

CRIMINAL BAR ASSOCIATION VICE-CHAIR ELECTION: MANIFESTO

This is a manifesto for engagement and creative thinking, not for the status quo.

For the first time in decades, government and the senior judiciary are aligned about the need for comprehensive reform of criminal justice: we can improve and develop their plans. To do so, we must retain our credibility, or they won’t listen. Militancy need not be the CBA’s default setting: it’s a currency that devalues fast. I supported the direct actions in 2013-4: all else had failed, and they were brilliantly planned and executed, with a clear strategic vision. Now, circumstances have changed, and as good advocates, we should adapt our strategy to them. An advocate who loses the ear of the Court is no use to anyone.

If I’ve learnt anything during nearly 30 years at the Bar, it’s that calmness, determination, astute tactics, and logic work better than belligerence and noise. There are times to be adversarial and to make no compromises: and there are times to settle differences. We have the opportunity to hold Michael Gove to his word about ending the ‘two-tier’ justice system. If we continue to engage purposefully and imaginatively, in an organised fashion, we can help to shape a better future for criminal justice for everyone. That’s what I’ll do if you elect me as vice-chair.

In my heart I understand the anger and frustration that have led to the present call for action, and I share the membership’s fears for the future. If things carry on as they are, the whole profession will wither away from bottom to top, and with it the great tradition of excellent legal representation for all. But in my head I have serious doubts whether this action will strengthen the profession’s hand or advance the cause of access to justice: I think it is premature and full of danger. If you want militancy, slogans, and what Tony Cross QC calls ‘perpetual antagonism’, please don’t vote for me.

I’m not interested in advancing my career, only in doing what I think best for the profession and the people we serve. I have no interest in appeasing the MOJ, but in persuading them that the criminal justice system needs high quality advocates working with equally competent litigators – because together they make it work properly, which is a good thing in itself; and when it works properly, it saves money. To make it work properly, it must be funded properly, and proper funding includes sensible rates of legal aid to make the work attractive to the best and brightest. You know all this. They appear to be beginning to recognise it – belatedly, but nonetheless. At least Gove is asking the right questions, which is more than any of his predecessors has done. The CBA can give him the right answers, and as you would with a difficult tribunal, show him the way to the right result. If engagement fails, then other options remain. But why assume it will fail? We are advocates, after all, and no case is too hard.

We should support solicitor colleagues when we can, be honest and respectful when we cannot, and expect the same from them in return. Negativity, the pursuit of narrow sectional agendas, and fighting yesterday’s battles will get us nowhere. Nothing is off the table: we must reach a sensible settlement on legal aid, and that may call for further action. The 8.75% cut to the litigator fee is bad enough, but the greater danger lies in the two-tier contract, which has been forecast to put the whole system at risk. But a revolt now, based on a howl of pain, with no long-term objective and no exit strategy, while discussions are pending, will leave the MOJ cold and us out in the cold.

I support the present leadership, which has made difficult but correct decisions and is not into crowd-pleasing. I will help continue their work, with the best interests of the public and the profession at the forefront.