CBA Chairman’s Message – 13.08.15
This will be my last message. The first draft of it, had in paragraph one, some reflections of my time as VC and then Chair. This draft though is less vainglorious; and so to business. Those of you who wish to have my limited views on my time in office will read to the end.
On 21 July leaders of the London Criminal Courts Solicitors Association (LCCSA), the Criminal Law Solicitors Association (CLSA) and the Big Firms Group (BFG) met senior officials at the MOJ
On 23 July, the solicitors group issued a second protocol, which sanctioned a return to work by them in the Magistrates Courts and police stations, while focussing the action on the Crown Court.
Following the CBA’s vote to support the solicitors’ opposition to the July fee cut, the Bar’s No Returns action officially began on 27 July. On that day, Francis FitzGibbon QC spoke on the Today programme, emphasising that the cuts were causing serious damage to the criminal justice system. This was the first of a number of media engagements carried out by officers, highlighting that which we all knew that the media would only become interested in the action when the Bar became involved. This is a fact acknowledged by Solicitors Leadership (SL).
On 28 July, following an intervention by the Solicitors’ Regulatory Authority, the solicitor groups modified their second protocol, which now appears to sanction the returning of Crown Court cases between solicitor advocates, which the previous protocol had excluded.
On 3 August the solicitors’ group held a second meeting with the MOJ, with Richard Bentwood in attendance as an observer on behalf of the CBA. They issued a press release. MOJ invited the solicitors to find savings to offset the fee cut, and they asked them to supply further details of their proposals.
The CBA Executive Committee was due to meet on 5 August, to review the situation, but due to the strike on the London Underground the meeting was postponed, initially to Monday 10 August. On Friday 7 August, however, the solicitors informed the CBA that they were to hold another meeting with MOJ officials on Tuesday 11 August, with the CBA invited to attend. Hence, the Executive Committee meeting was put back till 12 August.
This delay understandably caused considerable consternation in the minds of members, which I acknowledge but as you will appreciate I have always had to have a weather eye on political and logistical reality.
On 10 August myself, Francis FitzGibbon and Richard Bentwood met the leaders of the LCCSA and the CLSA, ahead of the MOJ meeting.
On the same day the LCCSA announced a new action, intending to defeat the two-tier contract by an organised mass withdrawal of bids. At the time of writing we understand that the CLSA are still considering their position. Robin Murray for the CLSA has explained in an email to me their position he informs me that “The issue is being urgently discussed at the CLSA, who in principle support the move to withdraw but who need to…resolve technical issues of detail”; more of that later.
On 11 August the same groups as before attended the meeting with the MOJ, with Francis FitzGibbon QC as an observer for the CBA. This was the final meeting in this round of discussions. Further proposals for long and short-term savings were discussed. The tone and mood of the meeting were friendly and constructive on both sides. The officials are to put the proposals to the Lord Chancellor for a decision early next week. They were clear that the MOJ will not give ground on the two-tier contracts, but if the proposals find favour, the result may be a suspension of the fee cut for three months, to coincide with the start of the new contracts in January 2016. That outcome, however, is far from certain.
The solicitor groups have not set up a formal monitoring procedure to assess the impact of their action. On the 28th July we wrote to the SL asking what metric they had put in place so as to measure success and what monitoring system they would employ. We have been told that there is no formal system in place. Unfortunately they and we have to rely on anecdotal evidence.
On the other hand the CBA’s monitoring scheme has shown that in relation to no legal aid orders, the vast majority of such cases currently reaching the Crown Courts are in relation to preliminary hearings. Almost invariably in these cases, the courts are setting timetables for service of case papers etc., in the absence of representation. The action is having an effect but not necessarily an impact. It is expected that these cases will be listed for PCMHs in late September where, if the action continues, the impact of unrepresented defendants will be the greater.
That in relation to ‘no returns’, the almost invariable practice of the courts has been to proceed with cases where possible and matters are contentious, or to adjourn cases where not. There have been no reported instances of disciplinary action being taken against counsel. There are some instances of HCAs or in-house counsel covering returns and in certain geographical areas, where solicitors are not following their protocol, no returns is not being practiced. There have been well over 100 reported cases of adjournments due to ‘no returns’ and the unavailability of the instructed advocate.
Decision day approaches for the ‘action.’
The MOJ may make a limited concession to the solicitors by suspending the 8.75% fee cut for three months as per the CLSA announcement of the 3rd August, although the outcome is by no means certain. We anticipate that they will then consult their respective members and inform us of any recommendations that they will make in the same way that we have done on previous occasions.
Accordingly the Executive Committee recommends maintaining the status quo pending the decision, and the recommendations of the SL. Immediately thereafter the Executive will determine whether the Bar’s action should continue. Quite obviously it is necessary for matters to be resolved as soon as possible.
I wholeheartedly welcome the LCCSA move to withdraw bids. You know that I have for repeatedly called for the SL to commence such an action. I though note the delay in the scheme being rolled out nationally. TT is the real issue for the Bar. There is one certain way of killing this scheme-this is it. I expect that this scheme will be pursued on social media and in the press with the same vigour which solicitors pursued in ensuring that Barristers and Chambers signed up to the current action.
Time is tight. There were 1099 bids. The deadline set by the LCCSA is the 28th August-just 15 days away. I have listened very carefully to talk of solidarity now the Bar waits.
My time is done. Thank you to all those who have shown me kindness and encouragement. There are too many to name. The officers in 2014 and this year have provided me with invaluable support in these difficult times. And then there are those who wrote to me personally, in the best traditions of the Bar to thank me for my endeavour. For those though on both sides of the profession who generally have hidden behind cowardly attacks on social media you have nothing but my contempt.
Mark Fenhalls and Francis FitzGibbon have stepped up to the plate when others were not prepared so to do. They deserve the support of the sensible majority of our profession. They will continue to have mine.