Monday Message 08.11.21

The Long March to CLAR

In my last Monday Message, I conveyed to you the latest information provided to the CBA by the Ministry of Justice as to when the CLAR recommendations would finally be revealed. The indication given to us was that the report was expected by the end of October, shortly after the announcement of the Spending Review. We subsequently received updates directly from the Chair of the Independent Review indicating that it will be submitted to the Secretary of State for Justice during November. It will then be for the Secretary of State to decide when the report is to be published so that we can all see for ourselves what specific proposals have been made in relation to legal aid fees. There can be no justifiable reason for holding back publication. The CBA and many other representative bodies have cooperated in good faith throughout the process and provided extensive and powerful evidence to the Independent Review. You are entitled to know whether those efforts have borne fruit or whether they have been in vain.

Indeed, the further delay in the publication of the CLAR will do nothing to assuage the smouldering anger and impatience of thousands of criminal barristers who were promised two and half years ago that the Review would be completed by summer 2020. In that time, many hundreds have already taken an elective decision to opt out of criminal work because their hopes of sustaining viable practices have been decimated by repeated failures to address the crisis in underfunding, and with the level of urgency required. Hundreds more are teetering on the edge of decisions to leave criminal practice if the CLAR falls short of recommending the drastic action necessary to reverse the decline in real incomes by significant uplifts to fees in the AGFS.

Let us not forget the pain we have endured to even get this far. The substantive changes in our payment scheme brought about through the revised AGFS10 in 2018 resulted in huge overall cuts to the rates of payment by resorting to ‘flat’ brief fees for all cases in a category and the removal of any consideration of the volume of pages of evidence. That led to immediate action being taken by the criminal bar. And it was only consequent to the threat of further action the following year that we saw some small increases to daily trial rates and brief fees through AGFS11. In that 2019 ballot, 94% of us supported a mandate for action to secure fair fees. That action has been suspended ever since only to await the outcome of the CLAR. The criminal bar is in no mood to face disappointment again and in early December we intend to confirm the strength of your appetite for action should it become clear that there is no likelihood of a decent settlement on fees for our members. Nothing will be ruled out.

A Budget to Forget

When the Chancellor promised to invest in the criminal justice system, he seemed conveniently to forget that the system does not run itself. Not a word about the extraordinary efforts made by criminal lawyers who have saved our courts from imploding under the crippling weight of the backlog. Not a single commitment to reinvest the £440 million that the Treasury will have retained in unspent AGFS fees between 2020-22 back into the legal aid scheme so as to ensure the long-term sustainability of our profession. We ask again: where has that money gone?

Perhaps the Chancellor should have had a word with the Lord Chief Justice before finalising his Spending Review. Had he done so, he might have better understood the value of our CJS to society as a whole. In his annual report to parliament published only last week, the LCJ observed that “Future funding should take into account the vital part that the courts play in sustaining the rule of law. The courts are not a service like any other. They do not exist simply to provide a service to those who use them. They are one of the foundations of the rule of law and one of the building blocks on which civil society and economic activity rests.” He went on to note that “Full capacity means (inter alia) … ensuring that there are sufficient … legal professionals available to prosecute and defend cases …”

By that definition, and given the chronic shortages of criminal advocates right across our jurisdiction, the government’s ambition of returning the CJS to full capacity remains no more than a pipe dream.

Race at the Bar

Last Friday, the Bar Council’s Race Working Group launched its new report ‘Race at the Bar: A Snapshot Report’ The work had been commissioned to make recommendations to tackle race inequality at the Bar. The findings make for grim, but sadly unsurprising, reading for many of us who have worked to eliminate unfair discrimination from our profession in all its various manifestations. On any view, the report makes plain that we still have a long way to go. The research revealed evidence of racial disadvantage that is not merely unacceptable, but shameful, in a vocation that purports to stand for justice and equality of treatment for all. Some of the most egregious findings included the following:

  • A Black woman publicly funded criminal junior barrister with the same level of experience as a White male junior would bill on average £18,700 a year less, and an Asian woman £16,400 less.
  • Only 1% of judges are Black.
  • Black and Asian women at the Bar are four times more likely to experience bullying and harassment at work than White men.

It is clear that the Bar has relied upon good intentions for far too long and that there has been a collective failure to ensure that every one of our colleagues, irrespective of background, is afforded the same opportunity to develop his or her career. The criminal division has led the way in encouraging diversity within our profession, but numbers alone are not enough. Until we acknowledge that our prospects for building a successful practice, taking silk and securing a judicial appointment are all too often conditioned by the colour of our skin, we will remain blind to the injustices that are the lived experiences of too many of our colleagues.

Condolences

In recognising the contributions made to the criminal Bar by advocates from an ethnic minority background, we note the sad loss of Sibghatullah Kadri QC last week. He was called to the Bar in 1969 and twenty years later was the first ever Pakistani Muslim Queen’s Counsel to be appointed in the UK. In 1973, he was a joint founder and the first Chairman of the Society of Afro-Asian and Caribbean Lawyers, now known as the Society of Black Lawyers. Throughout his career, he remained at the forefront of the struggle against racial discrimination at the Bar and he was elected a Bencher of Inner Temple in 1997. Our profession is poorer for losing him, but may he be an inspiration to the many who follow in his wake.

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