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Monday Message 19.05.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 19 May 2014

Personal Email: [email protected]

Friday night’s CBA dinner was not only great but enormously instructive. Hannah Kinch and a group of women that a man of my age would not ordinarily meet other than by standing on trial at Southwark Crown Court, gave me a lesson in “selfies” and “photo bombs”. Selfies of course I’d already seen being taken at other major world events, but I hadn’t heard of “photo bombs”, jumping in with a ridiculous face before the selfie takes itself too seriously.
The dinner had a full hall at Middle Temple and gave me the opportunity to meet and thank so many people who had previously only been names on e mails.
The Judiciary were very kind and supportive as were the previous Chairmen of the CBA, from Stephen Kramer, David Spens to Max & Mike all of whom expressed their personal thanks and support for the work undertaken by Tony & myself. It was heartening to see them all standing as one to applaud and toast the CBA.
Despite what I read elsewhere it is important to emphasise that Tony and I would not have dreamed of putting any matter as important as the deal with government before the Executive without fully consulting with and obtaining the unconditional approval of both Mike and Max, as they subsequently confirmed on the CBA blog.
The guests included the DPP, Fulford LJ and the Common Serjeant, Chair and Vice Chair of the Bar and Circuit Leaders. We broke with tradition to have the chief legal correspondent of the BBC and well known after dinner speaker Clive Coleman entertain us. Clive’s turn was brilliant.
But the travails with the government were never far away. Literally. The Attorney General was seated a few feet away and a very welcome guest. I described his attendance a little like when the British and German soldiers climbed out of their trenches a hundred years or so ago to play football on Christmas Day before climbing back down to resume the shelling in WW1.
For the rest of what I said, mostly to entertain, see HERE.
The question as to whether an expansion of the PDS was part of the accord is not a moot one. The meeting with the Lord Chancellor on 3rd April, before the Bar voted on “the deal”, expressly canvassed this question and the Bar accepted the LC’s assurances in good faith as reported in the note HERE circulated immediately afterwards. 
The CBA, Bar Council and Circuit Leaders made it crystal clear to the MOJ that although it was a matter of individual choice, they anticipated the Bar would not do the work cut by 30% and could not agree to deliver that as part of any deal. The MOJ were left in no doubt of the depth of anger and resistance from the individuals affected by the enormity of the cut. It was to address this impasse that the agreement provided for open discussions on a replacement of the VHCC model and this remains the way forward. To pretend now that the agreement not to expand the PDS was contingent on the Bar doing the VHCCs is re-writing the agreement and frankly delusional.
The Leonard Judgment and outcome of the Leveson appeal are irrelevant to that agreement.
We were given the assurance that the PDS would not be expanded beyond the recruitment interviews that had already taken place. Any attempt to do so now would be seen by the Bar as a “widening of the goal posts” and a breach of the good faith and reasonable position shown by the Bar leaders in recommending an acceptance of the deal.
My view is clear. The expansion of the PDS would pose the greatest threat to the Independent Criminal Bar seen in the last eight months and could not be tolerated.
Equally, to join the PDS has to be seen as an act that selfishly contributes to the eradication of the ICB (Independent Criminal Bar). It is the ultimate selfie. So strongly do I feel about it that I will be asking the Executive on Wednesday to consider a change to the constitution of the CBA to remove their right to membership.
Meanwhile of course such a step by the Government would be inflicted against all of the rational arguments. Trying to deflect by continuing to portray the Bar as greedy “fat cats” does not wash and the media have woken up to that ploy, described as “Cheap jibes and the real cost of cutting legal aid” in the Evening Standard article this week HERE.
Also published this week:

“Why the PDS is a false economy”: see Catherine Baksi in the Law Gazette HERE.
The South East Circuit “does the maths” & shows why the PDS is more expensive than the independent Bar HERE.
Lord Pannick in The Times highlighting that:
“The Lord Chancellor may well find that employing a sufficient number of counsel on a full time basis is more expensive than removing all or some of the cuts in the legal aid rates for VHCCs ; Employed barristers will require an annual salary, pension provision, holiday pay, sick pay and other benefits they do not receive on legal aid”.
A government selfie.
The government will no doubt say “what else can we do? We must ensure these VHCC cases are tried”.  They have a very easy answer open to them. If they can find the additional resources “from taxpayer’s money” to fund this at greater expense than the costs of paying the independent Bar, the same monies should be offered to those unwilling to work at a 30% fee cut and persuade them to take on these cases. That is a fair and reasonable choice – and one that makes the most commercial sense.
I am aware of the need for unity. Internal conflict and criticism achieves nothing and undermines the elected leadership to the point where it becomes more difficult to secure the outcome we want.
I would like to resume a healthy and constructive relationship with the solicitor’s representative bodies. What they have seen as a betrayal has led to a good deal of personal abuse that has made moving forward more difficult. But I agree with Paul Harris that it is time to “start dating again” and of the need to overcome our professions’ “trial separation”.
Beware selfies and rewriting history. We have been and will continue to be a reasonable and determined body. We may be 5000 selfies, but through Max, Mike and after me Tony, we are a strong and effective body able to negotiate, able to hang tough and able to deliver.

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