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Monday Message 29.06.15

CBA Chairman’s Message: 
Tony Cross QC 

E: [email protected]
T: 07860 692693 

The CBA Executive has been clear and consistent in its condemnation of cuts to solicitors’ fees and its opposition to the Duty Provider Scheme. On every occasion we have met with Ministers and Civil Servants we have expressed our opposition in the strongest possible terms on behalf of all barristers and solicitors who do legal aid work.  
There are two separate and distinct issues here. 

  1. Duty Provider Scheme.  The CBA has always been and remains opposed to this and has not ruled out any options.  But this scheme has been declared lawful and seems destined to proceed unless solicitors withdraw their bids. 

  2. Solicitor fee cuts.  This is the topic about which solicitors organisations are currently canvassing their membership. 

We are considering carefully and listening with an open mind to a wide range of opinions on what action, if any, we should take. We made it absolutely clear that we would review the position once the outcome of the solicitors’ ballot was known.  The deadline for voting was extended, then extended again and so we have had to wait a little longer than expected until that process has concluded.  However we will certainly not decide policy on the basis of relatively few, self-selecting meetings in two or three robing rooms. The opinions expressed no doubt reflect the strongly held views of those present, but they may or may not be representative of the full membership, which numbers around 4000.  We have a responsibility to ensure that those who do not feel comfortable expressing a contrary view in current circumstances are able to contribute and be heard, perhaps differently, but with equal value and respect.  These decisions are not easy, however tritely  some have been characterising the motives of any who disagree.

The CBA has been unwavering in its commitment to the future sustainability of the profession and has achieved a huge amount by carrying all of you with us. Proposed fee cuts of 17.5% were defeated. Cuts of 30% to VHCC fees were defeated.  Plans to redirect fees away from trials in favour of guilty pleas  were defeated. The either way election crack fees where the prosecution offers no evidence have been restored as a result of CBA lobbying.  The definition of ‘instructed advocate’ has been changed so that the trial advocate receives the fee, rather than the advocate who attends the first Crown Court hearing, which had meant young barristers waiting for the solicitor advocate to pass on the bulk of the fee.  All of this has made a very substantial difference to the viability of practice at the Criminal Bar for the next generation.    

When cuts to Barristers fees were proposed we acted decisively and with unity.  The action we took was several months in the planning; we consulted widely and set out the objectives of our action with complete clarity.  We would only resume normal working if the Government withdrew plans to cut our fees.  The action we took exacted a significant financial and professional price from many of our members.  Every single barrister instructed on a VHCC returned their instructions when the cuts were implemented. Many very junior barristers lost thousands of pounds as a result of the no returns policy. These same junior barristers, hugely talented and highly trained, are under unprecedented pressure as briefing decisions are increasingly made on the basis of financial self-interest rather than the best interest of the client.  There is nothing progressive, moral or left wing about those who prioritise financial return above the quality of the available advocate and the interests of the lay client, which should be paramount.
The opportunities, I took for granted, Michael Mansfield QC and others will have taken for granted, are increasingly unavailable to junior barristers.  Less experienced, less well trained and less able advocates are increasingly acting as the junior advocate in the most serious cases.  Every single one of us knows this.  And we all know why this is the case.  Of course the cuts to solicitors’ fees if implemented will increase the financial pressure on firms.  It makes it even harder for the best solicitors to do a professional job for their clients. It is bad for justice.  We condemn the proposed cuts. But it is surely no excuse for selling economically disadvantaged clients so very short.

The Crime Diary initiative HERE lays bare the future of advocacy.  The cry is going out to junior barristers that the Criminal Bar is dead, become a freelancer, compete on price not quality.  Where does this leave the future of advocacy? Who will provide the pupillages for the next generation of talented advocates from non-traditional backgrounds? Every one of us needs to think carefully on this.  The CBA will not shirk its commitment to quality in our clients’ interests, and the wider public interest. Crime Diary and ‘management fees’ are the enemies of high quality advocacy, justice and those fundamental values we must always safeguard; rich or poor, always represented by the best advocate appropriate to the case.  This must be the cornerstone of our system.

The Criminal Bar Association will not cease to make the case for solicitors to be properly remunerated and we will support them; how best to do this will be debated at the reconvened Executive meeting this week.  Of course we will listen to the views expressed by those who attend the various meetings.  But we will continue to engage with the MoJ to ensure that public money is used exclusively to secure the best available advocate rather than for poor quality advocates to buy their next brief. 
The CBA Executive has promised to keep the situation under review.  It shall.  It will meet on Tuesday evening when we will consider all developments including the outcome of the solicitors ballot on fee cuts and the strength of feeling manifested in the various meetings held this last week.

Today I shall be communicating with the CLSA and each of the 35 firms of the  Big Firm Group [link to copy of letter in Times with names of signatories set out HERE}  to ask them to set out very clearly their position and for their permission to state their views publicly so as to ensure that the membership of the CBA have a clear and accurate understanding of the matter.  In particular I am anxious to discover the answers to the questions set out below which it seems to me must have been considered by the CLSA and by the BFG:

    1. Does your firm intend to provide duty cover in the areas that you serve post 1st July?
    2. Will your firm provide duty cover for those firms who refuse to cover their own slots post 1st July?
    3. Does your firm intend to provide own client cover post 1st July?
    4. Will your firm provide cover for clients of other firms?
    5. Has any protocol been established to cover the eventualities foreseen in the circumstances that may arise in questions 2 and 3?
    4. What is the objective of the action? Is it:  
           a. To defeat dual contracts
           b. To defeat or to defer the cut
           c. To defeat both

    7. If the answer to the questions posed above is in the positive then have you considered how long you propose to continue the action?
    8. If you are taking action only in respect of 6.b. will you call off any action that you have agreed to take once such objective is achieved?

As soon as answers are received to these important questions then I shall inform the membership and the Executive.


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