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.

 

 

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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