CBA Wellbeing News

Proposal to adopt CBA Wellbeing Protocol with effect 27th April 2024

The CBA Spring RASSO Conference is being held on 27th April 2024, and CBA Chair Tana Adkin KC will use it to make a major wellbeing announcement.

Background 

From about 2017, the Bar Council had, through its various committees, been seeking to create and promote a protocol designed to allow a proper balance between professional commitment and private life. It had already become apparent that the unregulated working patterns which had developed across many areas of practice – particularly publicly funded work at the Family Bar and Criminal Bar – had become a real problem, not necessarily for all, but for many, particularly those with other commitments such as children. We were  losing too many good practitioners, who had invested hugely in their training but were then finding life at the Bar unsustainable. We also realised that it was stopping many of those who might have wanted to come back after a break were not now willing to do so. Remuneration was of course also a problem, but by no means the only one.

The Bar Council soon found that there were such differences between the working lives of the various Specialist Bar Associations that it would not possible to create a single document that would be suitable for all, and a decision was therefore taken that such a protocol would be more appropriately considered/introduced by individual SBAs, of which by far the largest is the Criminal Bar Association.

By 2020, the CBA established a committee – named the Judicial Liaison and Well-Being Committee – with the very specific purposes of creating a Wellbeing Protocol, in consultation with numerous “stakeholders” and then introducing it. By happy coincidence, at that very time Sir Andrew McFarlane, the President of the Family Division, published a seminal analysis of what was needed for a reasonable work life balance at the Family Bar following the return from Covid, entitled  The Road Ahead. He directed the two Resident Judges at the largest family courts – the Central Family Court in Holborn and the Birmingham Family Court – to draft and issue their own Wellbeing Protocols, which they duly did in January 2021.

The CBA Wellbeing Protocol

Sadly, there is no Criminal Division, still less do we have a President. However, we decided to use the Family Court protocols to draft our own. The CBA Wellbeing Protocol is – quite deliberately – largely a cut-and-paste creation from those judicially-issued protocols, no more but no less.

It is also short –  only 15 paragraphs, each of which is a sentence or two long – and as you will have seen is entirely reasonable. No one is suggesting, for instance, that we should not sit later than 4:30 if there is some particular good reason for doing so, nor again  that we should not read emails overnight and at the weekend if there is a good reason for doing so. Neither of those should be the norm, nor should we ever be required to do so. Sometimes, we simply cannot do so. We do ask, not unreasonably, that before a considers sitting at unusual hours, it consults not only jurors and others but also the advocates concerned. Most judges and magistrates do, but inexplicably some still do not.

When the protocol is looked at carefully, we hope all reasonable practitioners and others will agree wholeheartedly with the balance that it strikes between a professional public service and maintaining a private life that is essential to remaining a strong profession.

Consultations

Our first public announcement of the Wellbeing Protocol was in the Monday Message on the 1st February 2021. As we made clear in that message, the Protocol is designed to promote and protect our wellbeing; it has nothing to do with remuneration.

There followed a long period of consultation and discussion with a  wide range of stakeholders, which was highly productive, particularly with the BSB and the CPS.

Bar Standards Board: As we predicted in that first Monday Message, our Code of Conduct has always allowed us to define our own working time and to decline work if it would require us to work outside ordinary working time. The Code at rC30 expressly states:

rC30

The cab rank Rule rC29 does not apply if:

.2 accepting the instructions would require you or the named authorised individual to do something other than in the course of their ordinary working time or to cancel a commitment already in their diary

Following lengthy and constructive consultation with the BSB, for which we are particularly grateful to Sam Stein KC, they issued a statement in support (see Consultations). In particular, at paragraph 5, they made clear that we “are entitled to take reasonable steps to regulate [our] working hours”, and not to accept instructions that “would require [barristers] to do something other than in the course of their ordinary working time”. They ended by reminding all barristers that “ Making unreasonable demands on others that require them to work outside their normal working hours may be seen as … potential professional misconduct.”

Crown Prosecution Service: The CPS has always been concerned to ensure that it follows best practice, and wishes to maintain a good relationship with the Criminal Bar. They have led on a number of different initiatives designed, at some cost to themselves, to assist in our wellbeing. They have of course been fully consulted on the detail of the Wellbeing Protocol, for which we are particularly grateful to Mary Prior KC and Diana Ellis – and they too have issued a statement recognizing the importance of wellbeing, and making clear that they have no issue with those who seek to regulate their ordinary working hours in a reasonable fashion. In their words:

“The CPS therefore acknowledges the overriding objective of the CBA Wellbeing Protocol in seeking to ensure that the Criminal Bar continues to offer a flexible and professional public service, whilst also creating and sustaining safe and healthy working environments.”

Judiciary: We have also been promoting it throughout the judiciary including with the Senior Presiding Judges, initially Haddon-Cave LJ and then Edis LJ, and have held various meetings with them. Whilst the SPJ’s have not felt they could direct endorsement of the Wellbeing Protocol, their explanation for not doing so was that it would not be appropriate for the senior judiciary to do so, as it would be for individual judges to consider, notwithstanding the rather different approach of the President of the Family Division. Edis LJ did, however, undertake to circulate the Protocol to all Resident Judges. They have not at any stage indicated that they take issue with the protocol, either in whole or in part.

Solicitors Organisations

We have of course also consulted with our colleagues at the Law Society. We are grateful for their support, and in particular the support expressed by LCCSA. The LCCSA President Edward Jones agreed to the following statement on their behalf:

“The LCCSA fully supports measures to protect the wellbeing of all court users. In particular, we fully support barristers adopting and following the CBA Wellbeing Protocol”

The Overriding Objective

As all Criminal Practitioners will know, the Criminal Procedure Rules 2020 introduced “the overriding objective” that all criminal cases be dealt with justly. Whilst that has always included acquitting the innocent and convicting the guilty, following consultations with the Bar Council and CBA an amendment was introduced – the Criminal Procedure (Amendment) Rules 2021-  that is also to include treating all participants with politeness and respect, as set out in paragraph 15 of our own protocol. The relevant passage of the CPR now states:

The overriding objective

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(a)acquitting the innocent and convicting the guilty;

(b)treating all participants with politeness and respect;

CBA: Finally (though in fact it was the first consultation)  we conducted a survey of the most important stakeholders, the CBA membership. The full results of that survey are available on the CBA website but the headline was that there was virtually unanimous support for every aspect of the protocol, and in response to the final question:

Q8. Overall, do you support the adoption of the CBA well-being protocol?

98.18% agreed

1.82% disagreed

A flavour of the 1.82% who disagreed was the response: “I think the bit about verbal aggression is a bit pathetic, given who we are and what we do”.  That is not a response the CBA would wish to be associated with., and indeed it conflicts with the overriding objective.

Conclusion and the Future

We have therefore spent three years consulting those who may have important input into such a protocol. We felt that the time has now come to conclude the consultations, and for us to move forward to the second stage: formally adopting the Wellbeing Protocol. It will of course always remain for individuals to decide whether or not they wish to adopt it; we do not wish to impose it on any one.

It was decided that it would be most appropriate to start by inviting sets of Chambers practising in Criminal Law in the South East to be invited to adopt the protocol en bloc by the time of the CBA Spring RASSO Conference, held on 27th April 2024, and then to invite all others sets around the country to do the same, once the response had been seen. That response has been nothing less than exceptional. Several sets who practice on other circuits have “jumped the gun” and we are particularly grateful for the support of No. 5.

CBA Chair Tana Adkin KC will proudly announce that all of the following sets had decided to adopt the CBA wellbeing Protocol in its entirety and with immediate effect: