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Monday Message 18.11.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 18 November 2013


Personal Email: [email protected]


This has been the most important week in our campaign so far. I propose to use the “MM” as the vehicle that brings the CBA rally of 350 barristers, a full hall at Lincoln’s Inn packed with delegates from chambers all over the country, onto your phones and into your homes.
But before we get there, there is the little matter of Tuesday, Thursday and Friday to get through.
TUESDAY was dispiriting. Lord Hunt had issued invitations to Maura and I to attend and be called on at the Committee of Justice and Constitutional Affairs, where the new Legal Aid Minister would address the gathering. Lord Carlile of Berriew, Mark Trafford and Valerie Charbit also represented the Bar.
The Minister did a sterling job. He twice confused the Lord Chief Justice with the Lord Chancellor (Maura managed to resist the first mistake before correcting him) and repeated the same incorrect figures as usual. You all know the ones they keep feeding to the public: The U.K.  has the largest legal aid spend in Europe; the Junior Bar has to share the burden of cuts; and a silk earning a 6 figure sum (i.e. £65000 after Vat and expenses deducted) is a handsome reward after 25 years at the top of the profession.
Maura told him his figures and bald assertions were wrong. Alex told him his calculations on VHCC were wrong. Mark Trafford asked why, if he thought people should not be earning more than the Prime Minister, were there two people in his own department who were doing just that? And if he believed he could “achieve long term sustainability of the legal profession?” I informed him there was “not a chance in hell” of doing so.
He assured us he was “listening”.
So here’s my take on whether the MOJ is “listening”. I have been in this post for nearly three months. I entered it with both my ears and my heart open. I’ve initiated meetings with the Lord Chancellor and have now met the Minister for Legal Aid. I have offered to engage with and work with them; I have offered “our brightest & best” to help them find different ways to make savings to the Legal Aid budget. None of these offers has been accepted.
Let us remember those 16,000 responses to the First Consultation. As far as fee cuts for the Bar are concerned, all the responses were ignored. We have seen no attempt to justify how the swingeing percentages of 30% or 17.5% have been reached other than “figures plucked from the air”. There has been no “impact study” undertaken of how these cuts are likely to affect the public justice system.
All we’ve had is the announcement, made one day before the submission of all the responses to the Second Consultation, that the cuts to VHCCs would go ahead as planned, swiftly followed by the introduction of the Statutory Instrument. Every time one reads a quote from a spokesperson at the MOJ, they repeat the same incorrect facts and figures. They must know that to do so is offensive. And so my conclusion? They are NOT listening to what we have to say. If they have their way, they will destroy the Criminal Bar & with it the criminal justice system. WE MUST NOT LET THEM.
On THURSDAY, JUDGE PETER BEAUMONT, C.B.E. QC., Former Recorder of London, received the tribute of his retirement dinner. All of those years of terror, being prosecuted by him in Chelmsford and then appearing before him, were washed away with the warmth of his reflections and his support for our cause. I was sitting next to John Matthew QC (aged 88) and opposite Michael Corkery QC (aged 89). I went home at 11pm, leaving the kids to it.
Have a long and happy retirement Peter from us all.
And so to FRIDAY: The dinner to mark Michael Turner QC’s year in office was held at the Bleeding Hart Restaurant in Greville St. The guest list leaned a little to the left, as indeed did Michael after a while.
There was one current and three past Chairmen present and it made one appreciate how much of a family the CBA really is. Tribute was also paid to our invaluable former secretary, GILLY JONES, to whom so much is owed for the submission of our responses to both Consultations, as well as for all of her organisational skills.
It was just a great evening.
It needed to be.
By Saturday morning the touch paper had been lit. A mention in a VHCC case, before H.H.J. Leonard QC at Southwark, was held to inform the Court of Counsel who would not be accepting this work and the solicitor’s inability to find willing replacements. This coincided with similar attempts to find counsel in other cases. My senior clerk, John Grimmer, was asked whether anyone in 2 Bedford Row might take a case in Wales listed for next autumn. The letter was a page long. The answer was “No”.
THE PRESS are taking and running with this story. They are all seeing that:
a.    We are being wronged
b.    The government is not answering as to why they have done this; or shown any foresight or concern about the consequences of their actions on the public justice system
c.     The public will not appreciate the profession being plundered, leading ultimately to a paucity of skilled practitioners and the increased likelihood of serious criminals walking the streets.
d.    David Cameron’s call for social mobility, both in opening up access to the profession and access to justice, will fail. Only the rich need apply.
e.    The majority of criminal barristers are living on desperately low incomes.

I repeated our approach has been to campaign on a step by step basis. Each step has been planned to give the MOJ the opportunity to respond and show it is listening. So far, no response has been received other than the savage imposition of 30% fee cuts. This week at the CBA Executive meeting we will discuss the resolutions passed unanimously at the Rally by you and your chambers representatives and consider the detail of Step 4.
I have always believed that you would want Step 4 to be a day of action if the government had not engaged with us meaningfully. They have not.
Resolution 1
Proposed by Hannah Kinch
This Conference recognizes that Young Barristers who go into publicly funded areas of law do so because they want to be a part of a justice system that is internationally recognized as being open, fair and committed to the rule of law. They turn their backs on more lucrative areas of practice, or other professions and undertake work that really matters, in the public interest.
Government’s proposals will make coming to the publicly funded bar a financially unviable option for anyone who does not have private means to pay for the years of training undertaken and to support them in the early years of practice. ‘Top-up’ fees for university degrees and ever increasing costs of studying for the Bar Professional Training Course mean that those students who do not have the financial support of their families are incurring debts of many tens of thousands of pounds simply to qualify. 
This conference deplores the Government’s spin that the fee proposals will benefit the junior Bar and barristers on low incomes. If introduced, these proposals will eliminate the junior Bar before their effects are even felt by more senior members of the profession.
This conference resolves to support the Young Bar.
Resolution 2 
Proposed by Jaime Hamilton and Peter Joyce QC
The CBA expresses its concern about the government’s stated intention to bring in without further consultation its proposals in relation to prison law, judicial review, imposing a financial eligibility threshold in the Crown Court, introducing a residence test, reducing expert fees and removing borderline cases from the civil merits test.
This conference deplores the contemptuous way in which the publicly funded bar is treated.
Resolution 3 
Proposed by Paul Harries on behalf of the CLSA and the LCSA
The Delegates Conference of the CBA supports the work of Criminal Lawyers United and all Chambers are asked to sign 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 fulfil 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.”
Resolution 4 
Proposed by Michael Turner QC
This CBA delegate conference calls upon the Lord Chancellor and Secretary of State to pause before implementing any of the current proposals to allow time for proper consideration of the recently MOJ-commissioned systemic review and the Jeffrey review of the future of independent criminal advocacy. The CBA will assist with both of these reviews and will cooperate with the MOJ and other stakeholders to ensure that cost effective solutions are identified and delivered. This would at the same time reassure the public and ensure that the Criminal Justice System in the UK continues to set the international standard for the delivery of Justice for all.
Resolution 5 
Proposed by Max Hill QC
This conference challenges the inaccurate and misleading figures used by the MOJ to justify the level of cuts proposed; and challenges the paucity of evidence used by the MOJ to justify the proposals. The actual figures demonstrate a significant drop in legal aid spend over the last 4 years.
This conference warns of the impact of further cuts in advocacy fees (already significantly below those paid in 1997 when the Graduated Fee Scheme was introduced) on the independent criminal Bar and the effect on retention and recruitment, the impact on BME and women practitioners and the future recruitment of the judiciary.

Resolution 6 
Proposed by the Chairman of the CBA
This conference resolves that we will not accept VHCC work paid at the proposed new rates and that we will return any work to which these rates apply.
This conference resolves that, should the government replace the Advocates Graduated Fee Scheme with either of the schemes proposed in the Next Steps Consultation, the Bar will decline to accept briefs to which such a fee scheme applies.

Following the suggestion outlined at the meeting on Saturday, please email (and tweet) your examples of waste to [email protected].
Include #mojwaste in all tweets! and time lost in minutes multiplied by £110
Available HERE
Max Hill QC
Jaime Hamilton
Paul Harris
CBA Rally Coverage:
Re: the cuts
Good article in the Times exploding the ‘fat cat’ myth: “Real earnings: the average barrister’s lot”
A ‘polite’ meeting between Grayling and the Law Society:
Attorney General urges barristers not to return instructions
Barristers threaten action over criminal case fee cuts:
Legal aid minister insists cuts will not affect quality (haha):
Treasury Counsel and Bar Council criticise cuts:
Legal aid statistics, March 2011 to April 2013:
Re: G4S and Serco
Fantastic article in the FT about how enmeshed Serco is with the government, focusing on the amount paid out to Serco in defence contracts (£4 BILLION). The argument here being that, whatever the result of the SFO’s investigation into the allegations of fraud, Whitehall simply won’t be able to bar Serco from public contracts:
There is lots of coverage in the press about the fall in Serco’s share price following the announcement that they are to be investigated by the SFO:
“UK Government slammed for G4S deal despite freeze”
and not forgetting, ‘London police to outsource £500million of services’…. I wonder who will get those contracts…
@TheCriminalBar: Do spare a thought for hardworking junior staff at @MoJGovUK For them, today will not be a good one. Not just #Downfall but #Götterdämmerung
@TheCriminalBar: HT @joshuarozenberg Grayling instructs Treasury Devil to argue “there was no need to “hear the other side”
@MaxHillQC: National CBA Conference gives a voice to those who speak best in our defence and in the public interest. Congratulations Jamie Hamilton.
@farrow_adrian: @Mark_George_QC @TheCriminalBar Inspirational speech yesterday, Mark: standing ovation truly deserved – perfect capture of Conference mood
@Mark_George_QC: Govt consultation doc accepted 65% of Bar earn under £40k so why is S Vara MP peddling Grayling’s false figures about earnings?
@MaxHillQC: Paul Harris of CLSA and LCCSA brings home truth of cuts for solicitors. These are our colleagues and supporters in legal aid crime. Welcome.
@LesleylilBates: @NigelLithman What is the point in being tough on knife crime if there is no one to prosecute?
@TheCriminalBar: .@MoJGovUK Like it or not, we WILL engage. We will show you just how much money is wasted in CJS system. Cut that! We will show you how.
@Crim_sol_PH: Excellent CBA conference @TheCriminalBar  Bar united v cuts. Sols must stand together with bar 2 save justice. Thx 4 invite. #fight4legalaid
@TheCriminalBar: Quote of the day from @ianswest “I have a mortgage & 5yo son. For me, NOT going on strike is NOT an option “
@rupertajones: Call for barristers to tweet daily about wasted court time – and reason for it using #mojwaste – good idea #fight4legalaid



Nigel Lithman QC

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