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Monday Message 22.06.15

CBA Chairman’s Message: 
Tony Cross QC 

E: [email protected]
T: 07860 692693 

The Executive of the CBA
The Executive of the CBA represents the views of criminal barristers the length and breadth of the land.  The members of the Executive come together in person or by phone every month of the year.  Their views are informed by listening to you and taking guidance from you.  They are your representatives.  It was this Executive committee that you trusted in April last year when difficult decisions were being made about the threatened cuts to our fees.
The last Government withdrew their proposed fee cut for Advocates. They told us that this would be reviewed in summer of 2015 after they had considered Jeffrey and Leveson.
In April the Executive mandated me to speak with Government.  We also asked for your views via the survey.  The survey was just that; it was not a ballot.  However the survey has been and is of vital importance and forms part of the backdrop to our negotiations with Government.
On 26th of May Mark Fenhalls and I, together with the Chairman of the Bar and Leaders of the Circuits met with senior MOJ officials.
During the course of the meeting we once more forcefully set out our concerns generally and objections to the Duty Contract Provider scheme in particular.
During the course of that meeting the officials made plain their view that there was real force in the submissions that we have been making throughout the year that the Bar was not operating on a level playing field.  We have repeatedly stressed that even without Dual Contracts there was a need to address issues of education, competition, regulation and choice of advocate. This of course was the very substance of the Jeffrey report.

  • Remember the Jeffrey Report had praised the Bar for its “intellect, expertise, independence, ability to represent both prosecution and defence”…
  • The Report described us as “a substantial national asset” which could not easily (or perhaps at all) be replicated and one which contributes significantly to the high international reputation of our legal system.
  • The Report considered that there was “a distinct national interest in having available sufficient top-end advocates to undertake the most complex and serious criminal trials.”
  • Importantly the Report recognized that effective advocacy lies at the heart of our adversarial system of justice… And he concluded that “as it exists now, the market [for advocacy services] could scarcely be argued to be operating competitively or in such a way as to optimise quality…. “The group of providers [i.e. barristers] who are manifestly better trained (if not always more experienced) as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price (in a system where fee rates are fixed) nor on quality.”
  • Of course, these conclusions were arrived at against the backdrop of “a massive increase in recent years in the proportion of Crown Court advocacy undertaken by solicitors, from barely 5% in 2006-07 to about 24% of trials and about 40% of guilty pleas in 2012-13. The proportion of “double-advocate” cases in which solicitors act as juniors has increased from 8% in 2007-08 to 26% in 2012-13.
  • The Report’s analysis of the shift of such work to solicitors advocates was “not that they are cheaper or better. The reason for the increase is the commercial interest of solicitors’ firms in increasing their income, an interest which is distinct from (and can conflict with) the interest of the client (and the public) in securing the best quality advocacy. It is leading to lower quality advocates being instructed and the public interest in obtaining value for money from publicly funded advocacy services is being put at risk… the commercial pressures to keep advocacy in-house and thereby retain the value of the Litigators Graduated Fee Scheme (LGFS) and the Advocates Graduated Fee Scheme (AGFS) was a major factor in the assignment of advocates in the Crown Court”.

It is no coincidence that the “evidence” for the purported justification for QASA rested, in the main, from objection made by the judiciary, and then reflected to some degree in “evidence” to the Consultations, that the poorer quality advocacy did not, in the main, come from the Bar.  Thus, whatever form of QASA emerges from the current litigation, the impetus for the scheme (which is onerous to competent barristers and hugely time-consuming to the already-stretched judiciary) does not primarily come from the Bar, but will affect the way they practice for years to come.
We continue to strive to ensure that the independent bar can compete fairly for work – to level the playing field.  This is not an attack on solicitors or Higher Court Advocates.  It is simply a reflection that advocacy should be performed by the best advocates available, whoever they are, be they barristers or Higher Court Advocates.  It should never be given to an advocate for reasons of financial self-interest.  That proposition is, surely, beyond argument? How can the advancement of such a principle be construed as an attack? Surely barristers and solicitors are united in this?
We did not then, nor have we as yet, submitted formal proposals.  We felt that to do so then might convey an acceptance that the fight over Dual Contracts was over.  It is critically important that the membership understands we have made no such concession.
On the 9th of June Mark Fenhalls and I met with the new Lord Chancellor.
It was clear from our discussions with the new Lord Chancellor and with MoJ officials that the concerns identified by the Jeffrey Report are ones they want to address and that they are committed to take seriously from us any proposals we present.
Some will no doubt accuse me of naivety but those who know me trust my judgment.  We have approached discussions with the Lord Chancellor and his officials with an open mind; we have been alert to the need to identify whether our discussions have the potential to be of real benefit to the independent bar, or whether they might be a tactical distraction to divide solicitors and barristers.  Political prejudice against the government has no place in an assessment of its intentions – it is blinkered prejudice, rather than wisdom, to assume that everything said to us must be a trick designed to undermine us.
Beyond my own assessment, there is evidence to support my view that the Lord Chancellor wishes to preserve the independent criminal bar.  The current Government has considered Jeffrey and Leveson and has said that it will not impose a cut to advocacy fees.  The last Government changed the definition of ‘instructed advocate’ to cure injustice.  This new Government has voiced publicly the belief that the public interest requires high quality advocacy in the criminal justice system. It has been clear that it wants to retain a “vibrant independent Bar”.
We told the Lord Chancellor that we would report back to the Executive of the CBA.
We were invited by civil servants to begin discussions on the steps that could be taken to safeguard the quality of advocacy (referred to in the Written Ministerial Statement of 10 June) so that they might be in place as soon as possible.  We decided that we would not begin such discussions until your Executive had been consulted.
We understand that there is nothing outside the scope of the discussions which will follow.  Every aspect of how advocacy work is distributed and funded will be open for discussion.  The majority of the Executive firmly believes that to reject this opportunity would be foolish in the extreme.  We do not believe that you would want us to do so.  If we did so, we would lose all credibility with this government and its successors.  Perpetual antagonism is not a strategy for long-term survival.  If a real opportunity to engage and secure lasting benefits arises (and we firmly believe that is has) it must be grasped for the benefit of our youngest and newest members – they must be permitted to compete in a market where quality is the determinative factor, not merely be permitted to survive until their work is retained by those who had previously briefed them. Is there any doubt that this is the inexorable development of the marketplace in which we presently operate? And yet all criminal lawyers agree (don’t they?) that instructions should never be given to an advocate for reasons of financial self-interest.  
Securing a future in which these concerns are addressed is surely worth talking about?  We have made it plain that should these discussions falter and fail to provide the safeguards necessary in the public interest then we shall return to the Executive and consult them as to what course we should follow as a matter of urgency.
At the meeting of the Executive representatives were free to express their views.  A wide range of strong views was expressed. 
Those views included the argument that the introduction of two-tier contracts, or indeed any further cut to solicitors fees, would lead to the inevitable consequence that solicitors keep advocacy work in house, so as to boost ailing profit margins.  The same people would argue that such a course would lead to the extinction of the junior bar and with it, the publicly funded criminal bar as a whole.  The executive is not blind to these arguments or these concerns.
The fact is that the solicitors are not currently prepared to take decisive action over two tier contracts. Many firms want them; others feel they have no option but to sign up to them.  We know that over 1000 tenders have been submitted for the 527 contracts available. Save for three procurement areas, the number of tenders outweigh the number of contracts available.
It is against this reality that the Executive felt that action on two-tier contracts would serve no purpose.  We have lobbied and argued publicly and privately against the introduction of two tier contracts.  We believe they will be bad for the Criminal Justice System and be bad for the Bar.  But we do not believe, however, that we can fight the solicitors’ battle for them. Fighting alongside is one thing, but our considered opinion is that taking direct action on behalf of solicitors over two-tier, when the solicitors organisations will not or cannot take decisive action themselves is doomed to fail.
We note that the solicitors are currently balloting over the latest round of proposed cuts to the Litigator fee.  We also note that their current ballot is not in relation to action to halt the introduction of two-tier contracts. Once the outcome of the ballot is known, we will discuss the appropriate steps we can take to support them.  But whilst the solicitor organisations continue to sign up to two-tier and propose to take no action to halt their introduction, the Executive does not believe that we can propose action on behalf of our members in relation to their introduction.
The substantial majority position on the Executive is represented in the contents of this Note to you.  There was a minority against it.  That is precisely what should be expected; discussion, objection and decision.
I anticipate that there may be calls for an EGM of the CBA.  So be it.  We are democrats and we shall meet the challenge. Meanwhile we shall carry out the wishes of the Executive acting in your best interests.

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