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Monday Message 04.11.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 4th November 2013


Personal Email: [email protected]


CONSULTATION is defined as “the action or process of formally consulting or discussing”. It presupposes a genuine willingness to listen to the views and advice of those consulted and take them into consideration in the decision making process. Consultation is not a process of ticking a box to say “look, we consulted on this” and then imposing a pre-determined course of action. To do that would simply be paying “lip service” to the process and make it unworthy of those seeking to consult and disrespectful to the views of the professionals who respond to it.
This week has seen lengthy, exceptionally well-argued, submissions from the CBA, Bar Council, many Chambers and individual barristers to the Second Consultation on Fees. If the MOJ chooses to “swat these away”, then the heavy-weight response from Treasury Counsel, bringing 408 years of combined experience to bear in responding to the Consultation, cannot be so easily dismissed as being about protecting self-interests. Read the response HERE.
Together with the views expressed publicly by Lord Neuberger, Baroness Hale, Lord Pannick QC and the Lord Chief Justice they all highlight major concerns for the future:
1.      Restricting “access” to the profession to only those who can afford it with a disproportionate effect on some groups such as women and BME candidates
2.     A consequential lowering of supply, training & expertise
3.     The loss of quality of representation
4.     The long term impact on the criminal justice system in the UK.
I am due to meet later today with the Lord Chancellor, taking a delegation of six members of the Criminal Bar who represent a range of call. We have two clear messages: the Criminal Bar is resolved to fight the proposed cuts. Equally, we will repeat our willingness to work with the MOJ in finding the £24m cuts they say are needed from the Bar in other ways. We are doing this in good faith, in the belief that the views we express will not only be listened to but be heard and not simply “dismissed” as another box ticking exercise.
It is of course difficult to maintain this belief in the face of the VHCC “transitional” announcements made on Friday, the same day as the submission of the responses to the Second Consultation. These showed that all the previous responses to consultation on fees were simply ignored.

a.    THE GOVERNMENT announces that VHCC trials starting after 1st April, whenever the work on them began, will be paid at new rates.
b.    THE CRIMINAL BAR announces that those holding these briefs will not do them.
c.     THE GOVERNMENT’s transitional plans are set out HERE
d.    THE CRIMINAL BAR ASSOCIATION’S transitional plans are set out HERE
The advice thus far is found at paragraphs 82-102 of the CBA response to the Consultation, set out HERE and in the response by The Bar Council, set out HERE. Both continue to evolve. The statutory instruments and the transitional steps can now be looked at by our advisers.
However, the advice thus far is clear. The new rates effectively terminate the existing contract.  An intention not to enter a new contract can be given before 1st December.
The Attorney General, speaking to the CBA at the Bar Conference yesterday, acknowledged our right not to re-enter contracts working at cut rates. On his way out of the hall, speaking to Frances Gibb of the Times, he was asked “You have heard that the criminal bar will not do these high cost cases, who will do them?” His answer: “We will find others to do them.”
Will they?
I have received 40 emails in a 24 hour period. They range from the sad to the militant. They all carry the same message. Those involved in these 40 cases will not do them. Of course the overwhelming majority of VHCCs are multi handed. It follows that at the least, these 40 trials (with probably twice as many counsel involved) will not be done by them. They are in Nottingham, Bristol, Manchester, Wales and London. They will not be picked up by others. I also have a VHCC case, a re-trial due to start in July 2014. Neither myself of my junior will be re-entering the contract to work at the cut rates.
Of course we don’t want to give up work. We are professionals, we enjoy the work we do, we feel strongly about the need to provide quality representation to the public, we already give many hours “pro bono”; we also need to earn a living. But there really is such a thing as the greater good. This will lead to soul searching and heartache, but the government understands that our hand has been forced and our campaign is do or die.
The government clearly relies on us breaking ranks. A number of us are working day and night on your behalf to oppose these cuts. We have the support of over 95% of chambers as expressed through their Heads of Chambers responses. You may remember the almighty fuss made last time about chambers that broke the line that the Bar was holding?
If there is anyone considering accepting a VHCC brief, knowing that his or her predecessor has refused it to support the Bar’s resolve not to accept work at cut rates, we ask you to stop and think again. Such action would only help the government to steam roller ahead and would be regarded as thoroughly selfish and a betrayal of the Junior Bar whom we are trying to protect by fighting our platform on VHCCs first. I cannot imagine Heads of Chambers and Senior Clerks being content for this to happen in their chambers. It would be shameful.

A conference call early in the week demonstrated the continued support and unity between the Bar Council, Circuit Leaders and CBA in our response to the proposed VHCC cuts. Another letter published this week from the Circuit Leaders showed their determination to correct the misleading figures that continue to be “spun” by the MOJHERE.
My working week in Bradford and Leeds (what a great bunch of lawyers) culminated in a meeting attended by local barristers, solicitors and senior clerks. There was as much resolve there as over the rest of the country. I am very grateful to the head of Broadway House, Michelle and Nigel Hamilton for making it happen. I hope to visit two more circuits before Christmas.

The Bar Conference
Wonderful speeches from Maura, David Pannick and the Lord Chief made clear their solid support for our cause.  They all saw the bigger picture: the value of what we continue to do (Maura’s speech HERE) and the irreparable damage to the criminal justice system that will be caused by the cuts. But, ladies and gentlemen, it falls to US to take the fight to the government: “if the CBA is the iron fist within Maura’s velvet glove, so be it.”
The Lord Chief agreed that the gulf between the private and the publicly funded bar should not be so great and we must attend to the question of where we want to be if all of this settles down. I think at the moment the answer to that has to be on firm soil and not quick sand.

The CBA Workshop 
All were agreed that plaudits go to the A.G. for entering “the lion’s den”, although perhaps as head of the Criminal Bar it is a shame that things should have come to such an impasse. Grateful thanks also to Mukul Chawla QC and Paul Mendelle QC who spoke so eloquently and to rousing applause.
The floor included Sir Ivan Lawrence Q.C. M.P. He “invited members of his own party to look forward to a strike that will inevitably follow their intransigence”.
We delivered these messages and asked the AG to take them back to the government:
(1)  The size of the Bar is irrelevant to the argument: it does not impact on the total legal aid spend
(2)  The true figures for legal aid earnings are those set out in the responses to the Consultation Paper and not those continually “spun” in the press by the MOJ. Even the AG accepts that the public do not know the true earnings figures of the Criminal Bar
(3)  The sustained cuts to fees are driving away talented practitioners from the Bar (I read out emails from a silk and 2 juniors all leaving the Criminal Bar). The final acknowledgement of this comes from the AG himself. In response to some able cross examination from my Vice Chair. Tony asked the A.G: “Do you think people of excellence will come to the criminal bar in the future?” His answer? “No”
These are the concerns and messages we ask the government to take on board. If theirs is a genuine Consultation, they will listen. No lawyers capable of doing this work will do it at the proposed cut rates. If it falls into the hands of the incapable, the “knock on effect” of the lowering of quality will have the predictable impact on the criminal justice system. We will all lose something very precious.
I am not prepared to let that happen. Not on my watch.

G4S prison run in South Africa: inmate abuse claims
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Serco’s CEO quits following a series of scandals
Serco’s UK and Europe Chief also not working since the start of the month
Employees sacked following surprise inspection at Serco-operated detention centre Yarl Wood for engaging in sexual activity with detainees
Chris Grayling
Grayling warned again of risks of privatisation of probation services
Grayling has irritated pretty much everyone, his chances of receiving good news are slim
On a different note, there’s a police appeal over missing young barrister Gianni Sonvico
Gianni Sonvico, 23, of Islington, was last seen at 23:00 BST on 25 October in Tower Hill, London, said the Metropolitan Police.
@NigelLithman: Defining moment. A.G. says people of excellence will no longer come to the criminal bar. This is a fight to the end.
@TheCriminalBar: Oh dear #ShaileshVara. Since when was a VHCC case “routine?” Hourly rate same as a plumber. @MoJGovUK #Fail
@TheCriminalBar: We started this fight with about 500 followers. We have just topped 5,000. Thank you all so much for your support. @MoJGovUK #fight4legalaid
@TheCriminalBar: “A denial of justice” Lady Hale speaks out on legal aid cuts. Will @MoJGovUK ignore her like Lord Neuberger
@TheCriminalBar: CBA rejects suggestions the Bar has ‘failed to offer alternatives’ to cuts. @NigelLithman sets the record straight
@TheCriminalBar: Harsh words from the Supreme Court on Govt wasting public money in defending this JR. #FIGHT4LegalAid @MoJGovUK

Nigel Lithman QC

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