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Monday Message 09.09.13

Monday Message 9th September 2013


Personal Email: [email protected]

Thank you for electing me to be Chairman, but that’s it. I’m exhausted.
The past 7 days have seen:
1.      QASA: The issue of JR proceedings to challenge the legality of the scheme
2.      PCT A welcome “climb down” from the original proposals although we wait to see what might replace them. The climb down was due to the campaign fully engaged in by the CBA
3.      FEE CUTS: The announcement of 17.5% to 30% fee cuts for the Crown Court advocate to be phased in by April 2015 – what we all know will be the “death knell” to the independent Criminal Bar.
QASA: The issue of JR proceedings
The well argued submissions by the Criminal Bar on the problems inherent in the proposed QASA scheme fell on “deaf ears” as our regulators determined to plough ahead & impose it in its entirety. During the early summer Mike Turner QC therefore consulted solicitors and counsel, specialist practitioners in Public Law, for advice on the legality of the scheme.  They advised that QASA was open to legal challenge for reasons far broader and fundamental than the legitimate objections already raised by the Criminal Bar.
Time here was of the essence as it became clear that if a legal challenge was to be issued, it had to be done by the first week of September. Between Monday and Wednesday I had repeated conversations with Dinah Rose QC and Tom De La Mare QC of Blackstone Chambers as well as (primarily) Joanna Ludlum of Baker McKenzie solicitors. They all come with stellar reputations and we could not be in better hands. Further, such is their goodness, kindness and belief in our cause they are all acting pro bono – we owe them our collective thanks.
I required sight of a final advice from Counsel on the proposed JR proceedings and, having considered this, to see whether this action could be backed by the CBA and hopefully the Circuits. I had already arranged to meet the Circuit Leaders this Thursday the 12th September and hope to secure their support in this. But I was advised that the decision to issue could not wait and, as they say “the buck stops here”;

I gave the green light to the issuing of the action on Wednesday. The respondents served are the LSB, with one of the other interested parties being the BSB.  As the Criminal Bar all wear the badge that says “No to QASA “ on their lapels or in their hearts, this is an inevitable step, albeit of course success is not guaranteed.
Wednesday: Meeting with MPs

On Wednesday I received an invitation to meet the Lord Chancellor and, as I have always told you I would, I accepted. The meeting was scheduled for Friday at 5 pm, after the Consultation Response due to emerge on Thursday.
Meanwhile on Wednesday afternoon I went to Portcullis House to meet with 3 MPs – David Davies, David Lammy and Sarah Teather to discuss an appropriate response to the predicted consultation announcement. They all appeared interested in the views of the Criminal Bar and I left them in no doubt as to the approach we must adopt to fee cuts.

Thursday: Radio 4

I am grateful to Mike Turner for his continued input in my absence on Thursday morning as he issued our first responses to the published Consultation Response on TV. In the evening I appeared on radio (for which my appearance is eminently more suitable) on The World Tonight on Radio 4 in debate with Robert Buckland MP (towing the party line). The essence of what I said is that the Lord Chancellor had given no quarter to the Bar other than the proposed swingeing cuts, and that any more cuts would kill our excellent profession dead. Unfortunately half of the argument was left on the cutting room floor but you can listen to the interview on iPlayer HERE and get the picture. I hope the public were left in no doubt that the Criminal Bar’s fees were a scandal: we would help the Lord Chancellor find the shortfall he feels he needs to make up, but it cannot come from our fees.

Friday: Meeting the Lord Chancellor

 (For Ascot Ladies Day officianados I wore blue, the Lord Chancellor wore grey.) He is much taller than I, but fortunately the meeting was seated. He also had the sun behind him and two assistants, but other than that it was an even playing field and after all we were not at the O.K. Corral.

We spoke for an hour largely without interrupting each other.

He set out what changes he had made by rolling back on PCT and said he had never envisaged a world where legal services were run by the likes of Stobarts. He said he had tried to give us something in changing the idea of tapered fees and was hoping to help on cash flow.
I explained that we were talking about entirely different things. I drew the picture of a fine profession laid low in morale after years of fee cuts. No other public profession such as doctors, teachers, nurses have been cut year on year and no profession could sustain this.
I talked through with him the impact of the proposed cuts on the future of the profession and gave the example of a typical VHCC case & where the proposed 30% cut would leave the junior i.e. unable to sustain any livelihood and taking any work other then legal aid crime. Whilst the models were I’m sure fascinating, it was the headline figures cuts of 17.5% or 30% that were the kiss of death. He told me that the real cut would be more likely to be 7% And 30%. I assured him the effect was the same, as would be our response. The figures he wanted to save were about £27 million. I asked if he thought it worth killing the profession for £27million. He made the mistake of thinking my question was rhetorical.
I made it clear that so far as cuts is concerned my platform is “not a penny more”.
He told me he was immovable. He understood that so was I. I asked why he would want cuts before his committee into criminal advocacy reported, surely it was more appropriate after?
I told him my members would not accept these cuts. I told him that I would provide the brightest and the best to help him save money. It was unfortunate so much had been wasted on the likes of Serco and quoted the example of the murder trial before HHJ. Griffiths Jones in the Midlands collapsing due to inadequate representation for the crown. But not one penny more.

We left saying we would speak again.

I haven’t given you all the detail.
He drank mint tea and I had black coffee. Now you have all the detail.
So what, you may well ask, did this meeting achieve?
It was at the Lord Chancellor’s behest. It opens a dialogue and an avenue that can be pursued. As was Macbeth, I can be bloody bold and resolute and not offensive. He knows we will not give way on fees.


I’m looking forward to meeting with the Circuit Leaders where the main topics of course will be those above. As the strategy emerges you will be kept updated.


I’m very grateful to the C.B.A. tweeter. He is keeping me abreast of what’s on stream. I have resisted tweeting so far and this week have not had a chance.
We will win these battles on merit and because they are right. But please let us be three things, unified, dignified and calm.

i.                   MOJ’s response to the consultation.
ii.                  Mr. Grayling rules out separate Welsh Jurisdiction
iii.                 – clamps down on police cautions
iv.                 – Serco excluded from government contracts
v.                  – How is G4 doing
Last week I was in danger of offending Buddhists by suggesting that the Tibetan monk I consulted could not provide the answers to our woes. This week at Synagogue  I entreated the L-rd to give me the answers to our problems. A sonorous, booming voice came down and spoke to me in Hebrew. I got home and looked it up. It translated as :
“You’re on your own mate. “
But we know otherwise. Don’t we.
The sad news of the death of Rachel Lawrence was announced at the end of last week. She was a much loved and admired member of the CBA. Our thoughts are with Sir Ivan and the rest of Rachel’s family.
Nigel Lithman QC

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