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Monday Message 11.11.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 11 November 2013


Personal Email: [email protected]


The end of a perfect week: Friday morning in the Court of Appeal. My submissions were made in long order; they were dismissed in short order. On the way out someone said “I hope your arguments fared better with the Lord Chancellor”. I replied that they had not. The difference was that in the Court of Appeal argument was engaged and attitudes changed. I was even referred to as an “enterprising advocate”. The Lord Chancellor listened but gave no indication of change.
He will understand why we feel that we are ignored at best and treated with contempt at worst.
A team of seven went to the meeting – young and not so young, male and female, all showing their goodwill to work with him in finding a way through this.  We dealt with the statistics, we laid out the future if the cuts were followed through. We showed that their figures were simply wrong. We explained that if he acted on the correct figures, the savings he aimed at were already saved. We offered to help.
He kept referring to “his financial envelope”, which I didn’t understand, but guessed it was nothing good. He offered to improve cash flow (shouldn’t this be our entitlement in any event?). It felt like I was telling him that he was making war on his own people and he was saying “Don’t worry here is a gas mask and a ration book”.
I felt his attitude had hardened from when I first met him in September. It is all very sad and frustrating. We know that if we were being truly consulted, the MOJ would show interest in what we have to say rather than continuing to use the wrong figures to justify what they have already pre-determined.
I told him our membership had expressed their resolve not to do the VHCCs and AGFs at cut rates.
There is now no alternative but to pursue our strategy.
This is your profession & your future. We are doing all we can to lead but the individual decisions must come from each and every one of you. You may recall the four “A”s?

“A” for “acceptance” – regard the cuts as a foregone conclusion and say nothing

“A” for “acquiescence” – shout a lot, protest and then do nothing

“A” for “apathy” – believe that others will do something about it but personally too busy to get involved

“A” for “action” – not accept the cuts. Stand up and be counted
Statutory Instruments were laid before both Houses of Parliament on Monday. Forgive any incorrect terminology, Lord Carlile of Berriew C.B.E. Q.C. tabled a prayer against the process. This is to give a proper opportunity to seek a debate in the Lords, afford time to hold the government publicly accountable for its actions and show us to be taking all appropriate steps to get the government to rethink this policy. Let us see what happens.
We anticipate that final advice on VHCCs  will be collectively issued by the Bar Council, CBA and Circuit Leaders. Meanwhile nobody doubts that we are within our rights to refuse to re-enter contracts deemed to be terminated by the MOJ.
You know that the cut-off date is 3 weeks away. We are used to working to deadlines. Don’t be fazed. The Government wants you to be rattled into doing this work. Where you are in doubt about the new proposals (e.g. a retrial or severed case) ask your Contract Manager as to which rate your case is to be paid.
The Criminal Bar Associations National Delegates Conference
Great Hall, Lincoln’s Inn, London
Saturday 16th November – 11.30am
Tickets available HERE
Our funds face exhaustion. We’ve needed help to meet the twin “siege” of QASA & the cuts. We’ve had to engage parliamentary procedure advice as well as a PR team, all of which we must pay for. Perhaps the BSB appreciated that when they refused to waive their fees to the JR proceedings?
We are grateful for the response we’ve had so far from Heads of Chambers to our request for contributions to our coffers; if you haven’t yet responded, can we ask you please to do so? What we had in the bank was for a rainy day. It’s now pouring.
There is a hearing on the 27th – 29th November. If we lose then we face the perfect storm and we will begin to wonder what great sin have we committed to deserve this. The answer is none.
We then have to follow what took a year to resolve: “No to Qasa”. We will demand the respect from the Lord Chancellor that his predecessors have given us for 400 years , whilst the BSB is the tail that will not wag this dog.
The week’s highlights have included two meetings with the Bar Council to understand their position on QASA and Cuts and to ensure that we are on the same page in the same book as them. They know you demand their support and this dialogue will continue.  Their current advice to you is as follows.  I would just add that of course they must recognise you need reasonable time to take reasonable decisions.   

VHCC Cases
In order to bring in the 30% cuts to the rates in these cases the Ministry of Justice has laid two statutory instruments which are intended to come into effect on December 2nd.  That means that anyone, holding such a case who decides they do not want to accept work on the proposed new terms, must give notice of that intention in writing December 1st.  We understand that email is not acceptable form of notice but fax will suffice.  We have invited the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory instruments to investigate the propriety of the Ministry’s action at their next meeting.  You do not need to do anything until we know what happens at the meeting.  We will let you know as soon as possible.  It is vital that everyone has all the necessary information before making any decisions.  

Maura McGowan QC
Chairman of the Bar


A pleasure to meet Bill Waddington and Robin Murray, Chair and Vice Chair of the CLSA, mid week and to be assured that the message that is coming from their members is that they respect our stance and will do all they can to support it. They are confident VHCCs will not be taken over by HCAs who frankly admit that by and large they would be unable to service this work. At these insulting rates why would solicitors do otherwise?
Following the meeting Bill put out the following Press Release:
CLSA statement on the Bar action on Very High Cost Cases.
Bill Waddington the CLSA chairman today issued this statement:
‘The CLSA strongly supports the Criminal Bar’s bold and principled decision not to renew contracts on VHCCs at new rates. Whereas we accept this is a matter for individual firms it is our strong view that Solicitors should not accept returns and act as HCA’s in such cases refused by the Bar. 
We also congratulate the Solicitors firms who have already given this indication.
Whereas we very much regret the inevitable disruption caused to the courts, defendants and witnesses in these high profile cases the CLSA believes that it is vital to demonstrate unity with the Bar in the face of unsustainable cuts to legal aid which will so damage all parts of the profession and access to Justice. 

Bill Waddington 
May I congratulate Nicola Hill who is taking over as President of the LCCSA. Under the guidance of Paul Harris a pledge has been drafted to demonstrate the unity between solicitors and Bar on the refusal to work at cut rates.
This is a big week for them with an AGM tomorrow night and a meeting with the Minister of Justice on Wednesday.
The CBA fully supports this pledge and whilst I know I have a mandate for the course that we are steering, signatures from Chambers serve to reinforce that point.
Paul , please accept the endorsement of the CBA for the Pledge.
We are criminal lawyers.  We have an ethical duty to represent each of our clients in a robust, diligent and professional manner. No lawyer can fulfill this duty at the criminal legal aid rates currently proposed by the Ministry of Justice. The Law Society, the professional body for solicitors, also recognised this fact on 1st October 2013 and is unequivocally opposed to these cuts. 

It follows that to attempt to operate subject to the fee cuts as currently proposed will inevitably lead to inadequate representation of many clients. As professionals, our position is that we cannot and must not accede to this. We have demonstrated to the MOJ and will continue to do so that such cuts are unworkable and will lead to a collapse of our justice system. We are willing to continue to engage with the government to find savings and greater efficiencies.
The website is All you have to do is go onto the website and click on SUBMIT PLEDGE

.  So far many firms and heads of chambers have signed, we want all chambers and all firms signed up together. They are listed on the website. 

If this Lord Chancellor decides to engage with us here we are. Otherwise those on our deputation who have to return work to go and see him merely adds pecuniary insult to financial injury.
We do not expect to be invited back soon as we know the MOJ will be reading all of the responses that took so long to compose and contain so much wisdom.  They are based on the concept the MOJ places most store by: Brilliant barristers working for nothing and providing free advice.

Firstly, ‘QCs protest at pay cut for complex trials’ in The Times AND barristers protest legal aid cuts
Secondly, Richard Bentwood in the Huff Post, ‘We do so much for free already, how can you cut the legal industry further?’
Law Society holding meeting with Grayling this Wednesday:
Re: G4S and Serco…
Confirmation that SFO is to investigate Serco and G4S over tagging contracts:
Serco not meeting profit forecasts:
G4S set to expand contracts despite freeze on Government work:
Prisoner escapes from G4S custody:
Probabtion staff go on 24 hour strike:
Also, probation workers say public are ‘at risk’:

@TheCriminalBar: Will @MoJGovUK continue to waste money on G4s even after this?! #MoJWaste
@TheCriminalBar: Plans for improving Judicial Diversity? Not if @MoJGovUK get their way.
@TheCriminalBar: PCC’s a waste of money claims … a PCC! I’m shocked. Who knew?! @MoJGovUK Damian Green angry. #Rumbled #MoJWaste
@TheCriminalBar: .@mojubrennan claims 90% fulfilment with interp contract here, Q9 22 Oct
But reality is here
@TheCriminalBar: Even local Tory MP @simonreevell thinks this is yet more #mojwaste @MoJGovUK @mojubrennan #fight4legalaid
@TheCriminalBar: Doesn’t MoJGovUK realise how insulting it is to rehash same old  discredited canards? How do we engage with obduracy?
@TheCriminalBar: £138m in fines written off in one year! Total cuts by @MoJGovUK£220m. They’d rather destroy CJS than collect fines!
@TheCriminalBar: Help @MoJGovUK to help themselves. Use #MoJWaste to tell them about which drain their money is REALLY pouring down.
@TheCriminalBar: Here is someone anxious to give @mojubrennan the truth on just how stretched court resources are. @MoJGovUK


Nigel Lithman QC

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