CBA Ballot: June 2022
Message from the Chair: Jo Sidhu QC
Outcome of Consultation
Over the course of this week, the CBA undertook an unprecedented consultation exercise with members and leaders of the Criminal Bar to gauge their views on whether we should escalate our current action in light of Government’s continuing refusal to engage in negotiations aimed at finding a fair settlement to our demands. May I thank the hundreds of barristers who joined the zoom meetings on Monday, Tuesday and Thursday for sharing their thoughts so candidly and with such passion. The overwhelming feedback was that simply continuing with no returns on its own was having an insufficient impact on our courts and that there should be a swift and substantial escalation in the action we are taking.
No Compromise by the MoJ
Throughout the past year, we have continued to engage regularly with the Ministry of Justice, including a further meeting with the Under-Secretary of State for Justice on 25th May. We have made repeated efforts to persuade Government to at least honour the basic recommendations of the CLAR to increase AGFS fees by a minimum of 15% without delay rather than force us to wait until October, and then only to attach any increase to new representation orders thereafter so that we see no benefit to our incomes until late 2023 and beyond.
Despite our reasonable requests, and notwithstanding the clear exhortation in the CLAR (submitted to Government on 30th November 2021), that there is “no scope for further delay” in implementing the minimum increase to our fees, Government continues to insist that they will not shorten their timetable.
Nor will Government give any assurance that they will accept any of the other urgent reforms to the AGFS recommended by the CLAR, such as payment for written work and greater flexibility in claiming for special and wasted preparation. On the contrary, we are told that any such reforms must be cost neutral and no additional funding will be made available to bring them into effect. And, in response to the CBA’s repeated requests for a timetable to resolve and enact these ongoing and much needed reforms, the Ministry steadfastly refuses to provide one.
As for the CLAR recommendation for an effective independent Advisory Board to ensure that the AGFS is regularly reviewed so that we may bring to an end the almost annual ritual of wrangling over the plummeting real value of our fees, Government has proposed a talking shop (“engagement forum”) with no power to advise on legal aid at all.
If even these basic recommendations from the Independent Review are being delayed, diluted or denied by Government, then any hope of persuading them to meet our legitimate demands for a second brief fee in section 28 cases, and an annual index linking of our payments to help insulate us from rampant inflation, will be similarly crushed; that is, if we are not prepared to take a stand.
So, when we consider whether to settle for a proposed increase to AGFS remuneration by an estimated £35m each year (15%), we should remind ourselves of the following facts as to why we voted almost unanimously for an increase of 25%:
- We have already suffered an average decrease in our real earnings of 28% since 2006.
- During a single year of the pandemic, our average earnings from legal aid collapsed by 23%.
- In that same year, the Ministry of Justice saved £240m in unspent AGFS monies which has never been reinvested to help us.
- 83% of us were forced into personal debt or to use up our savings with no Government support to mitigate that massive loss of income.
- Juniors in their first three years of practice earn a median income of only £12,200, which is below minimum wage.
- An inflation rate running at around 10% means that a 15% rise in fees will be more than extinguished by the time we receive it.
- We have lost a quarter of our specialist criminal barristers over the last 5 years with 300 walking away last year alone.
- Nearly 40% of our most junior criminal barristers departed in one year.
- The alarming attrition of criminal advocates resulted in 567 trials last year being postponed for want of an available prosecution or defence barrister.
These are just some of the reasons that lie behind the 94% vote in favour of action when we held our first ballot in March. From the consultations held across this week, it is clear that the Criminal Bar has no confidence that Government is willing to deliver a fair and lasting solution to the crisis within our profession and within the Criminal Justice System without firm action that forces them to the negotiating table.
Ballot
Along with this message, our members will be receiving a ballot paper that presents three clear options. It is for each member to decide which option will most likely bring about a negotiated settlement of our dispute with Government.
It will be noted that any proposed action is focussed on our demands in relation to fees under the AGFS and the reforms needed to the scheme. As before, this means that action will be therefore limited to defence advocates and does not include prosecution advocates. Following the consultation, the CBA Executive gave careful consideration to whether it would be appropriate to include those involved in prosecuting cases in the action. The clear consensus is that it would be wrong in principle to widen the dispute to include CPS fees and that, in any event, it is reasonable to expect that any increase to AGFS fees will be matched by a commensurate rise in prosecution fees so that parity is maintained. Further, that any disruption caused to our courts will not be obviated by the non-participation of prosecution barristers. As we have learned from the experience of the last two months, the absence of defence advocates in our courts has proved sufficient to prevent trials from proceeding.
You will also note that options 1-3 on the ballot reflect either a discontinuation of action (option 1) or an escalation of action (options 2 and 3).
Members who favour days of action (option 3) are required to further indicate whether they would wish to combine such action with no returns (option 3B) or alternatively with both no returns and with not accepting new instructions (option 3C).
Should option 3 attract the majority of the votes in the ballot, then action in accordance with either A, B or C will follow (contingent on which carries the majority vote within option 3).
The CBA will provide all members with the necessary letters and guidance to assist those who participate in days of action in communicating their decisions to the courts that will be affected by their action.
The ballot paper makes clear how any days of action would be escalated once it commences. It should, however, be remembered that, when the Criminal Bar last pursued days of action in 2014, it required only 1.5 days before Government indicated a willingness to negotiate, with the result that the days of action were suspended.
Risk
Along with the ballot, we are also providing our members with summary guidance on the regulatory and other associated risks of pursuing different forms of escalated action. We recognise that criminal barristers will feel concerned about the potential consequences of participating in days of action. Any decision whether to support and participate in days of action must necessarily be made on an individual basis.
In short, it should be understood that days of action carry an enhanced level of risk to those who choose to participate. Having said that, we are not aware that any member of the Criminal Bar faced either regulatory or judicial sanction when days of action were last carried out. Further, if option 3 carries majority support, the CBA will immediately set up a panel of silks and senior juniors who would be willing to provide support and, if necessary, representation to any member facing sanction, in the best traditions of our profession.
Finally, we take great pride in the fact that we are a truly democratic association. Our members have always respected the outcome of a free and fair voting process, whatever the result. We will therefore be faithful to the ballot.
Our unity is our strength.
The Ballot Link
Please contact the CBA office if you have not received your ballot directly by email.
This Ballot will close at Midnight on Sunday 19th June 2022
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