The Big Firms, The Bar and the Associations (LCCSA and CLSA). What now?

We have arrived at one of those critical moments in the epic series that is The Fight to Save Legal Aid, (or the Fight to Save Criminal Justice, or the Independent Bar, or the High Street firm, or the Junior Bar, or the duty solicitor..).  Our overlapping but not always shared objectives have recently converged as for many on both sides of the profession, it is now simply about survival of all the above. The new rate cuts herald the end of any pretence that publicly funded defence provides sufficient resources for quality representation. The sheer madness that is 2-tier will so devastate the high street solicitor as to reduce the independent Bar to a dwindling band of specialists at the top and daily advocacy will be the preserve of the employed in-house advocates and HCAs of the mega-firms. 

This moment is critical because the disparate solicitors’ army has finally awoken from the stupor of more than a decade of post-Carter lacerations and for nearly a month now we have been refusing new work, turning away our clients.  The Police have bailed unrepresented suspects without interview.  Duty solicitors grind their way through the ever lengthening Magistrates’ Court list.  Legal aid forms lie blank and the unrepresented in the Crown Court are starting to cause a problem. Their numbers will grow daily.

Local papers report the chaos but events in the police station and Magistrates Court are near invisible nationally it seems; even our new Lord Chancellor as he discussed the importance he placed on advocacy standards and lauded the Bar, managed to omit any clue as to the existence of Magistrates Courts, oblivious or unconcerned as to what is happening where the vast majority of justice is daily dispensed.  What wasn’t invisible to Gove was that next week, the Bar was coming to join the solicitor’s fight.  After “the Survey” and “the Vote”, the Bar had rejected the calls of its leaders and now stands there, clearly visible on the horizon, with all readying for the Bar cavalry sweeping in to join the great fight to save legal aid (or criminal justice…).  And last week, nearly one month in to the #lawyersrevolt, with solicitors creaking under financial pressure but continuing the fight and with the Bar action imminent, talks got underway with the new Lord Chancellor.

This weekend should feel like a seminal moment of strength and unity when solicitors and barristers have the potential to exercise the power we have always held to fight for and preserve a criminal justice system in chaos.  In its place on all sides, I see nervous lawyers seeking unity and fearing betrayal.  Others seem to seek and fear neither.  And some, interestingly, fear unity.

Be in no doubt. To all seeing in unity an opportunity to save the criminal justice system, the timing of the move to the 2nd protocol was disastrous.  It has been spun as an end to the solicitors’ action and a placing of the burden on the bar; this change of tactic and focus has been called a ‘game changer’ and voices at the Bar are calling for a revisiting of the decision to support solicitors’ action.  I did not seek a new protocol but I do not for a minute accept that it represents what those seeking to undermine our new found unity with the Bar profess. 

Financially the action continues to be devastating. Please check out Stephen Nelson’s explanation of the costs position of solicitor’s firms and why the new protocol still means real pain to solicitors:  https://t.co/VzNkSLJfqP. And to understand the scale of the latest cuts, way over 8.75%, see Steve Bird’s brutal analysis: https://www.lccsa.org.uk/the-new-contract-fees-considered-the-real-cost-of-the-cuts-steven-bird-birds-solicitors/

But the solicitors’ action is much more than a financial hit.  This is gut wrenchingly painful. It involves having multiple conversations with frightened family members explaining why this time you cannot act. On a daily basis solicitors have been turning away people who rely on us, and whose trust we have built up over decades, letting down families where we have acted for multiple generations and to whom we now say “no”.  This is incredibly difficult. And we are doing this while all the while knowing that another firm is trying to poach them and may do so. And we are still doing this, every day. Will these clients ever return? Will the relationship ever recover? Will the business survive the loss of goodwill? In the main, Barristers have had the support of their clients – the instructing solicitors - when taking action. But solicitors’ clients are the suspects and defendants. These relationships may never recover.

In all of this the LCCSA and CLSA have I believe fought the good fight. We represent individuals not firms, and our members include owners of firms of all sizes as well as solicitors within those firms, and solicitors operating as freelancers. The associations have risked their financial security on the JRs and the committees have freely given up hours worthy of a VHCC. What do the associations want? Our members are clear in their opposition to the cuts as unsustainable and to 2-tier as an unrepairable disaster: a recipe for the closure of hundreds of high street firms now competing on quality and reputation and their replacement by factories for whom repeat business is not a requirement. The finest criminal justice system in the world, is being daily traduced and distorted into a conveyor belt system, processing defendants and increasingly serving up McJustice.

My understanding of last weeks’ events includes the following. A number of the Big Firms Group indicated that they could not sustain the action. Financially some of their group were in a perilous state and they had to move to the new Protocol. Huge effort was put into persuading them to wait until the Bar joined with no returns, to wait until after the Gove meeting, to give things a little more time. When those efforts were clearly failing the LCCSA/CLSA sought to maintain unity by working on the new protocol together with the BFG. The 2^nd protocol was provided to the CBA earlier in the week by email and in hard copy. The associations understood that the CBA viewed this as a matter for solicitors.  There was no reaction of any sort to suggest this was in any way a “game changer”. No warning was given.  Like the associations, the CBA may have felt that this was a fait a complit and that retaining unity of action between the various solicitors groups was clearly essential. A less generous view would be that the No Voters in the upper echelons on the Bar couldn’t believe the gift it had just been handed. Describe it as a cut-throat, sit back and watch the carnage.

And what of the BFG? Was their action a) carefully designed to keep the show on the road, to encourage more firms to participate, to allow the action to continue for longer, or was it b) a Machiavellian move designed to send a message to government that the BFG could call the shots – that dealing with their concerns is what really matters?  (These may not be mutually exclusive, and the agenda of one BF isn't necessarily the same as another).

And what of the Bar? Some voices seem to be endlessly engaged in the war on HCAs as if it offered a genuine panacea to all the problems faced. Siren songs from Gove will not solve these problems and the independent Bar likely to be in place post 2-tier will not be worth the name. The Bar is not a natural agitator and I understand those Bar leaders who maintain that working quietly with government has been a success and wish to continue in that way. The Bar is part of the establishment and politicians sees it as such; its leaders have always had the ear of the senior Judiciary, ensuring key messages were conveyed to government at times of need. But the storm of words on protection of the Bar from solicitors, instead of focussing on the destruction of those solicitors – the Bar’s clients – is telling. The endless steps to delay action or at least not offer it wholehearted support send a clear message. The leadership did not choose and does not want this fight.  It appears to remain entirely focussed on sweetening Gove re referral fees/HCAs and the battle to keep control of CC advocacy. In this light the Bar’s absence from the Gove meeting was bound to cause a similar storm, and inevitably did. (Note: I have read the explanations offered. With the leaders working round the clock, not checking that the MOJ had issued a formal invitation and who the Bar were sending is entirely forgiveable).

I speak to trusted and honourable counsel and have personally worked with many leaders of the CBA who I both like and respect but I can only speculate about the Bar leadership’s true current agenda. 

I hear things similarly re the BFG but again, I am not privy to their meetings and I do not know the extent of their divisions on 2-tier.

I do know the position of the LCCSA. In the more than a decade in which I have been involved I have seen committee members support policies that were not in their personal financial interests but for the good of the profession as a whole. I know what we are fighting for.   Most solicitors want to maintain a system that allows for firms of all shapes and sizes to flourish. Most want to be able to rely on and to brief a thriving independent Bar. We are fighting for that. We see standards plummeting, and we fear what will happen when the incentive that we currently have to do the job well, to gain a reputation for quality and therefore further work, is removed. Massive duty beasts will be safe from reliance on repeat work. McJustice will prevail. 

I know there are good large firms and bad, good small firms and bad, and my complaint is not a simplistic attack on BFG law firms but the proposed future of 2-tier will see the destruction of the fabric of our criminal defence system as hundreds of firms close. Anyone supporting such a system is fighting a different fight to me. 

If we lose this fight, I do not believe there will be another like it. The cuts now in are unsustainable. That is why solicitors have taken this unprecedented action.  Ultimately, the dismantling of criminal legal aid is not about money or austerity. Now is the time for like-minded lawyers to join together and demand a reversal of the latest cut (more are still planned), the end of 2-tier, and to start to work together to forge a joint agenda to preserve what is best in our criminal justice system.

Unity between most solicitors and most of the Bar is a powerful thing. I see brave but nervous lawyers seeking unity and fearing betrayal.  Others seem to seek and fear neither.  And some, interestingly, fear unity. Only unity will defeat two-tier. 

Open letter to Tony Cross re Global Law Summit

Dear Tony

I can see you are in a bind and you have some hard decisions to make.  Somehow, you ended up being invited to speak at Chris Grayling's Global Law Summit.  Somehow you said 'yes'.  Perhaps eventually we will hear more about how that happened.  I know many Criminal Bar Association  members have been asking for details and no doubt their questions will be answered in time, but for now, how it happened remains a mystery, not least, because the MOJ are an inscrutable bunch.   It was just a little under a year ago, in the days of strikes and solidarity and "no returns" when the Ministry clearly hated the Bar and wouldn't have been seen dead swapping canapes with the head of the CBA, let alone inviting you to speak at their £1500 a head exercise in Perverting the History of British Justice.  (For full details on this unabashed corporate hijacking of the Magna Carta click here and for more on the MOJ's ambitious future plans with the Saudi government, read JackOfKent, here/. 

A year ago the solicitors were the Ministry's best friends with the Law Society then seemingly on board with government plans.  Then came the vote of no confidence in the Law Society, a change of guard at Chancery Lane and now it's the Law Society joining forces with their member solicitors and fighting to save what is left of our ever degraded criminal justice system while the Bar seems to be back in favour.  No more strike threats. Not too much public criticism of the government.  No immediate threat of radical action to save the solicitors' firms that keep the junior Bar alive from the wipe out coming with imposition of the new  two tier duty /own client system.  After a puzzling year, the top table is again sorted and the place settings have a more familiar feel.

So what will you do Tony? Will you speak truth to your audience? Will you upset the Lord Chancellors party? (He is after all very powerful; he even has the power to change dates in history moving the Magna Carta birthday, just early enough to ensure this event is held before the general election, and under his watch).  Will you perhaps defend the Bar, a worthy fight, and one I support, but one that would on this occasion, miss the point?

As a quick reminder,  as this not-the-Magna Carta-event gets underway, criminal solicitors, barristers, probation offers, prison officers and more will be demonstrating outside. We will be there because you cannot celebrate the importance of Magna Carta to this country, and the world, by removing people's access to justice, by decimating legal aid. You definitely don't celebrate Magna Carta by restricting access to Judicial Review and planning a withdrawal from the European Convention on Human Rights.  As the system fails to cope under the pressure of relentless cuts throughout , our Judges are facing ever more pressure to keep the system going whatever the damage they see daily before them.  The family Judges are starting to speak out. In the criminal courts one way to provide short-term life-support to a failing system is to allow the CPS an increasingly free hand to ignore Orders and Rules. 

And no, Tony. I do not say any of this is your fault?  It's the Lord Chancellor's baby and it's his party.  It's not your fault.  It's just that you should be outside with the rest of us, not inside, with a shiny invitation that is a thank you for ending the 'no returns' policy when the government were in real trouble.   All of us criminal lawyers and others working in this system know the damage that is being done by those who profess to protect the rule of law.  We will watch as they celebrate a system they are destroying and market their prison services management systems to foreign tyrants who like the brand of British Justice but with no requirement to adopt the lessons of its history.  For a tiny fraction of the sums meted out to keep corrupt banks afloat, thousands of British citizens have been denied the ability to use the law to uphold their rights.  That reduction in access to justice undermines democracy itself.  What use are laws if you cannot enforce them?

So here is a thought Tony. When your moment comes, you could make history.  When you get up to speak Tony you could speak truth to the ever more Orwellian sounding Ministry of Justice.   You could join those of us celebrating the real Magna Carta, you could add your voice to those using their democratic right to protest.  And it won't cost you £1500 to join us. You are our only voice inside Tony. Do right, fear no one.  You could cause quite the media event by choosing to leave the event and join us when your name is called.  You might even get an honourable mention in the real history of the Magna Carta.

Yours in solidarity,

Raymond Shaw