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Monday Message 23.09.13

CBA Chairman’s Update:
Nigel Lithman QC


Personal Email: [email protected]

“Not a penny more”
The sad but inevitable truth is that the proposed cuts overshadow absolutely everything that we do. Has anyone ever heard of any sector of the professional community, having its wages  (yes that is what they are) cut by 30% and the rest by figures trumpeted as 17.5%? On top of the existing 30% already imposed since 1997 (13.5% in the last 3 years)?
Absolutely no sector of the community would agree to this: whether teachers, doctors, railway drivers, members of parliament, anyone. Those non – barristers reading this, Judges, civil servants, which of you would simply agree to wage cuts like this? I said this to a civil servant this week. His reply was: “we have had cuts, we have less in our wage packets because of new pension arrangements.” How rich is that? What is a pension?
I’ve been reprimanded by my readers before for introducing personal matters, but I am going to again.  Many years ago I co-defended with Ken Macdonald, now Lord Macdonald and will not forget his speech to the jury. “The flying squad officer said this.  It was untrue. Why did he say it? Because he just did not care. Then he said another thing, that likewise was untrue. Why did he say it? Because he just did not care.”
What is being done to us is destroying morale, it is driving away our talent, and sadly, each of us already knows members of the Bar who have been declared bankrupt, unable to meet their chambers’ overheads, unable to make a living. And this is the current precarious position we are in – before the proposed new cuts are even introduced. Women on maternity leave will be unable to afford to return, one 51 year old has told me that on the proposed rates he will have to sell his house and move his family. And where will the future talent come from? Why would a student pay close to £100,000 (£27,000 university fees over 3 years, £16,000 for the Bar Professional Training Course plus their accommodation, travel, living expenses) for their training & come into the criminal bar? What about ensuring that access to the profession is open to all, no matter what their financial background? Will only the very wealthiest in society be able to enter or remain in whatever is left of the profession?
For the sake of about £24million this wonderful profession is being destroyed. Why? Because, like the flying squad officer, not enough people care.
But I care and we care, as do you. When will those of influence have talks behind closed doors saying that this cannot be in the public interest and must be addressed? And listen to the representations put forward by the criminal bar as to the practical ways of saving £24 million without destroying the profession?
So let’s get our message out there – let’s each of us do our part: write & email & speak up & lobby everyone we can from those we meet daily to those in higher positions such as your member of parliament, the judiciary. Let’s read or hear some good things about the Criminal Bar, a storming defence of who we are and fair recognition of the value of the service we provide. And support for not a penny more in fee cuts.
This week.  Every day has been Groundhog Day. I repeat the same message to all.
Tuesday afternoon I met with the Law Society and other solicitor groups. I made it quite clear that having stood shoulder to shoulder with them against PCT and jointly opposed the proposals, we won. It was a victory that more immediately affected them than us but we gave them our wholehearted support. We now expect in return the same unswerving determination to oppose the cuts and that does not mean subtle words.
Anything less than a wholehearted commitment by them not to work at these rates would be rather undignified. I trust we will hear and see them standing shoulder to shoulder with the Bar, in the way we did with them.
I understood that the agreement was No to PCT, No to QASA and No to Cuts. I am sure solicitors having achieved the first will now demand that the Law Society take steps to deliver the latter two.
Nothing less is honourable.
2.         CBA EXECUTIVE
The highlight of the week was my first CBA Executive meeting. Standing room only. None were short on resolve. The messages I received were clear. People will not work if there is one penny more in fee cuts.
The message that I gave in return was equally clear.  The CBA would not expect any member to work at rates where there has been one penny more in cuts.
There appears to be a credibility gap. Deep down the Ministry of Justice believes that as self employed people ultimately we have to accept the cuts, otherwise how else will our mortgages be paid? That begs the same question: with the cuts how will our mortgages be paid? They do not believe there will be effective protest against the cuts. Every day this week I have spent time emphasizing and ensuring that the message gets through that that is simply wrong.
The Ministry’s belief that we will work as many cannot afford not to, is a singularly unattractive way to try and win an argument. Also their view that cuts will lead to the necessary contracting of the profession is equally inappropriate.
All of you are anxious that we respond quickly and effectively. An action group has been formed and already met. Larger than the officers of the CBA and smaller than its’ executive, this is a group with experienced heads, wise counsel and strongly representative of different levels of call at the criminal bar. I will also be consulting valued individuals outside of its number.
The group is advanced in formulating a strong, reasoned and proportionate response to proposed cuts both to VHCC and Graduated Fees.  Rest assured, we will not back down. It will send the clearest of messages.
I will not compromise its’ effect by announcing those proposed steps too soon. But to say now that “Stan we have a plan”. It is one of direct action. Shortly I shall be saying: “Chris, it is this.”
Our Action Group meets again on Tuesday and speaks every day. Timing is crucial. We know what you want and will deliver.
What are the chances of direct action without a climb down on fee cuts? 100%.
We are working flat out. Please give us your support .
We approach the time for submission of our response to the consultation. We have an amazing team working flat out on our behalf and we have the approach.  Meanwhile of course we continue to make the case that the cuts are unnecessary and the savings can be made elsewhere.
Perhaps the strangest point to come out of all this is the Ministry’s resolve that even if we find savings elsewhere they still propose the cuts to our fees. Why?
5.     QASA
Judicial Review latest. The unseemly litigation goes ahead against our regulators. The current exchanges involve our trying to cap the costs of the proceedings. How will our confidence in our regulators ever be restored? Again, will riding roughshod through our perfectly reasonable arguments prove worth it?
6.     The BSB prosecutors resign.
The first signs of collateral damage in this mess appear. As you all know a substantial number of barristers prosecute for the BSB, to ensure proper standards are enforced. As happens again and again in what we do, the service and many hours of work entailed are provided Pro Bono. An appreciable number have found it inappropriate that they should provide this service to regulators prepared to take, but unprepared to give. Hence a significant number of highly principled individuals have resigned.
Who can have anything but respect and admiration for this decision? The CBA understand, approve of and support their stance. These are silks and juniors whose standing and integrity cannot be impugned.
What will be the next thing to collapse as legal aid crime dominoes towards oblivion?
Relations with the Circuit Leaders are excellent as are communications. They have given me access to their PR team. We know we have their support in all we are doing. They too are hard at work as to strategy and timetable. There too, there is no lack of resolve.
I have received a kind invitation to visit the Welsh Circuit and I am in the throes of sorting out a date in the near future.
We should keep our Judges informed as to what is happening and as the detail emerges I will update the Senior Judiciary and of course the Lord Chancellor.
All of this can be avoided.
8.     What’s in the ‘press?’
MoJ invites tenders for contracts to rehabilitate offenders
The Financial Times
Liberal Democrats vote to oppose more legal aid cuts
The Guardian
9.     Twitter Activity:
@sam_parham: @thebarcouncil @TheCriminalBar We must take direct action to defend access to justice for all. #Grayling’s not interested in talking!

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