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Chairman’s Message – 05.05.15

CBA Chairman’s Message:
Tony Cross QC 

Tuesday 5 May 2015


E: [email protected]
T: 07860 692693 

We stand together- the Bar united
We are a powerful organisation when speaking with one voice, born of consensus and authority.  Over the last 18 months whatever issues have confronted us we have sought to act responsibly.  Principal amongst these concerns has been our policy on The Duty Provider Scheme.  We have followed a careful strategy.   We have acted with integrity and courage, attempting to debate; to negotiate with government and to use our influence in the media whenever possible.  Our tactics have not always been popular.  But through our professionalism we have demonstrated an unrelenting commitment to justice.  We have repeatedly stated that we believe that the rule of law depends upon access to justice which demands a sustainable future for both sides of our profession. The Duty Provider Scheme puts this at risk.

For you to decide
The CBA Executive and Officers would like to know where each of you stands on the issue of ‘two tier’ contracts.  We believe that the proposals will damage deeply access to justice and deal a colossal blow to the self-employed Bar.  For any of you who may not have considered this in detail we set out our rationale below.

After much debate we have decided to propose a single question.  The sharp eyed reader (as you read on) will note that this message does not refer to concerted action with the solicitors’ profession.  We will of course do everything we can to continue work with solicitors wherever we can and we expect that the vast majority of solicitors will support us should you decide to take action.  But at some point each barrister is going to have to decide what s/he is prepared to do irrespective of the position taken by individual solicitors or solicitors’ organisations.

We already know that the Membership will want to take direct action if a new Government seeks to cut fees further.  What we need to know is how far you will go in the event that a new Government cannot be persuaded to drop this expensive, unnecessary and damaging set of proposals.  We ask you to consider the material below and answer the question simply “yes” or “no”.

Why the CBA believes Two Tier Contracts will destroy quality and destroy the independent criminal bar – Assessing the risk
The leadership of the CBA believes that there is a real risk that the The Duty Provider Scheme (“DPS”), also known as the Two Tier Scheme, will destroy the quality of legal representation within the Criminal Justice System.  The most able and committed young lawyers will have no future, and the independent bar will collapse.

A career within the publicly funded legal profession, whether as a barrister or solicitor, has always been a vocation.  A commitment to the highest ethical and professional standards, and to nurturing the next generation of lawyers, in the public interest, have always been the hallmarks of publicly funded legal professionals.  Two Tier contracts will end this at a stroke.  Why do we say this?  The DPS will reduce the number of contracted solicitors from more than 1600 to no more than 527.  Many large legal contractors are bidding for multiple contracts, and it is likely that a scheme predicated on the ‘big is best’ principle will favour the larger suppliers.  In the original Transforming Legal Aid consultation in April 2013 the reduction in the number of suppliers was justified on the basis that simply cutting fees was not sustainable.  The argument went that proposed cuts to legal aid fees could only be absorbed if much larger volumes of legal aid work could be guaranteed.  Therefore, if fees were to be cut so would the number of suppliers have to be drastically reduced.  So in place of an organic market developing over time, responding to public demand in a variety of ways, producing a rich variety of solicitor firms, some large, some small, specialists here, generalists there, new firms emerging to serve different client bases, the market would be ‘fixed’. All firms will have to be the same size and do the same range of work.  Larger providers will operate contracts in many contract areas, and in order to make the numbers add up and to ensure a profit, the new objective will be how to obtain the fee for a case whilst expending the least amount of money.  This is transparently what the new arrangements envisage.

Of course many dedicated solicitors will lose their jobs; many already have.  In their place will be unqualified paralegals, with no prospect of a training contract, or solicitors who, struggling to find alternative employment, are re-engaged on much reduced salaries, or better still freelancers on zero-hours contracts.  Training contracts will disappear, standards will inevitably plummet because the dedicated professionals who have sustained our system will have gone or be overwhelmed.

So why does this matter for the bar.  The answer is depressingly simple.  The business modelling which bidding firms have now undertaken anticipates that new income streams from advocacy must be part of what comes next.  This is inevitable.  It is rational.  It will happen.  The briefing patterns over the last few years, which have seen work haemorrhage away from the junior bar, will accelerate, and become entrenched.  The imperative of securing a slice of the advocacy fee will become a necessary part of the new business model.  At present firms still need to protect their reputations by instructing barristers for a significant proportion of their advocacy in the Crown Court.  We are the specialist advocates and under current arrangements there remains a significant market for our services.  However once the market is ‘fixed’ these considerations will no longer apply in the same way and once a much larger share of the work is guaranteed, much more of the advocacy can be taken in-house, and much of the remainder will go to freelance advocates who pay a 30% management fee (sometimes more) back to the firm.  This is the rational commercial reality that DPS will enshrine.  Justice for all will suffer.

How can the bar compete once the market is fixed?  Big commercial operators will dominate the new market?  The hundreds and hundreds of firms motivated to provide the best possible service, and to instruct the best possible advocate will have gone.  What will the bar have to offer young advocates?  Chambers turnovers will plummet.  Pupillages in publicly funded chambers will disappear.  The independent bar is in jeopardy.

There is no need for any of this.  Margins for solicitors are tighter and tighter.  Barrister incomes have fallen dramatically.  But we are all still here.  There is no financial benefit to the MOJ of creating this new structure.  It is ideological nihilism which will destroy everything that dedicated lawyers on both sides of the profession believe in; that every citizen charged with a criminal offence should be guaranteed access to high quality legal advice and representation.  Fixing the market will end competition for the work, which is the best safeguard of the highest standards.

Why Now?
The leadership of the CBA has reached the settled view that we have reached a watershed moment.  We have been under relentless pressure over the last decade or so.  Much more is expected of us for less and less. But this is of a different order.  This is not about fees.  This is about access to justice.  The professional bodies have been making the case against the Two Tier contract proposals over and over again to the politicians and to civil servants.  They say that they recognise the importance of the independent bar and of maintaining the highest standards of quality.  Nothing irrevocable has happened yet, but that moment is fast approaching. There will be a unique opportunity immediately after the formation of a new government following the general election on 7th May to lobby against the DPS proposal. Overwhelmingly solicitors detest the scheme but they are bidding for contracts, knowing that the alternative would see them forced to shut down.  

Bill Waddington has reassured us that “The two associations [CLSA and LCCSA] would fully support the Bar in a no returns policy by calling on its members and the profession to throw their weight behind the action in the same way as was done in March ‘14.  They will call on their members to follow the no returns policy with their own HCAs and also not to take returns from the Bar in those cases where the bar is instructed.”  

The Labour Party has promised not to introduce Two Tier contracts, so it is possible that any action prepared for will not be necessary.  But we must prepare to be ready to act if the election produces a different outcome or if Labour once in office is not true to its word.

Perhaps the most ridiculous aspect of the latest proposal is that when it was originally proposed it was justified on the explicit basis that this was the only viable model to create sustainable solicitor firms, albeit at vastly reduced numbers, whilst at the same time reducing overall legal aid spend to £1.5 billion per annum by 2018/19 (see para 12 of Transforming Legal Aid, Next Steps published in Feb 2014). The most recent statistics released by the LAA reveal that, as a result of the savage cuts that were already working their way through the system, the target total spend figure will be achieved in the current financial year, four years ahead of schedule.  The original justification for the scheme has gone.  The savings have been achieved.  In fact the latest figures also reveal that there has been a 15% decline in the number of Crown Court representation orders in the last 12 months so the total spend figures will fall further still without any intervention.   

Nevertheless we need to prepare for the possibility that a new government will press on with these destructive plans.  We are posing the question of CBA members whether you would support action, meaning ‘No Returns’ and potentially ‘Days of Action’ closing our criminal courts across the country if any new government refuses to abandon the The Duty Provider Scheme.  We have not called for action during the election campaign.  Nor do we want to take action.  We have held back for as long as possible.  We believe that the responsible approach is to obtain the strongest possible mandate from our members to demonstrate the seriousness of our purpose, and then to give the new Secretary of State the opportunity to reconsider this disastrous scheme.  We will argue our case with conviction but if necessary, if the membership provides a mandate for action, we will not shrink from taking decisive action to save our Criminal Justice System.  We need every single one of you to participate in this consultation.  We must have a high turnout.  This matters.

The Question
Would you support action, ‘No returns’ and ‘Days of Action’ if the new government decides to proceed with the Duty Provider Scheme, reducing the number of solicitor providers by at least two thirds?       

Of course we hope you vote immediately, but for those who wish to think these things over, the closing deadline is 5.00pm Tuesday 19 May 2015.
We know that a number of those who regularly receive the MM are not in fact members of the CBA.  This is an issue of fundamental importance to all criminal barristers and we would encourage every single criminal practitioner to participate in this vote.   However you will need to be a member of the CBA to cast a vote.  So if you want to make sure your voice is heard in this consultation please contact Aaron Dolan [[email protected]] immediately to join or re-join the CBA.  Aaron will then provide you with the link to an online survey. 


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