Over the past five months, since I last blogged, I’ve opened the laptop on a number of occasions to try to write something else. But every time, circumstances got in the way.
Usually work related. It used to be the case that I could slip in throwing together a few paragraphs here and there during the course of a working day or week, because – in between the mentions or sentences when you got paid 50p and a toffee apple to schlep to court the other side of the town/country – if you had a case with a reasonably sized brief fee and page count, you could make up for that. You could afford to take the odd day out of court to prepare for trials, because you knew that your eventual brief fee could buy you that time.
But now that the latest criminal defence fee scheme has properly kicked in (no, not the one where the MOJ were supposedly injecting some extra cash, because none of us have actually seen any of that yet), barristers doing criminal legal aid work literally cannot afford to take any days out of court. Your trial brief fees will now not afford you any ‘working day’ time to prepare for forthcoming hearings (let alone blog). If you aren’t in court every day, you won’t be able to cover those hours of out-of-court prep with your brief fee and page count.
It’s a disastrous situation for everyone’s wellbeing, of course – since it simply means that all that case prep must now be done in the evenings or at weekends, any time when you’re not in court conducting some other case. So the need to keep running on the hamster wheel to earn money has meant that blogging had to go on the back burner.
However, a couple of developments over the past weeks have forced me to sweep the files off my desk and get to grips with it. The first is that a new union for legal professionals has appeared, and the second is that a wide-ranging survey of those criminal Bar members who prosecute suggests that 95% are willing to down tools over pay.
About bloody time.
“Now I’m a union man
Amazed at what I am
I say what I think, that the company stinks
Yes I’m a union man…”
I’m not the only barrister who has been banging on for years that the only effective way to make the powers that be – and that really means the Treasury – take notice of our grievances is to down tools from both sides of the Bar. Prosecution and defence. But we’ve previously been far too timid about it.
It’s understandable that barristers whose practices are wholly or partly prosecution based are nervous about telling their paymasters this (as the CPS has a monopoly on criminal prosecution work). When barristers first took action with defence ‘no returns’, there were apparently various thinly veiled threats circulated around Chambers about the effect that any suggestion of ‘unavailability’ would have on the practices of anyone on the CPS panel lists. The understanding was that such barristers would be removed from the lists altogether, to prevent them from taking on prosecution work again.
When you see the media reports, it’s obvious that the CPS aren’t taking our complaints about the unacceptable level of fees seriously. According to the BBC ‘strike’ report (see link here), the CPS response to the news about the CBA poll was simply to parrot that a review is taking place to “make sure we get a broad and deep understanding of the issues with the current schemes” and that this would take “at least four months”.
Why such a review would be necessary when the CBA has already done that work for them is anyone’s guess. Every recent Monday Message from the CBA leadership seems to have included a horror story about counsel getting paid (or not getting paid) by the CPS, and how much the already parsimonious fees have been eroded by inflation during the 20 years (yes, 20 YEARS) in which they’ve not been increased. Quite how anyone can actually afford to continue with a prosecution practice is a mystery.
“When we meet in the local hall
I’ll be voting with them all
With a hell of a shout, it’s ‘Out, brothers, out!’
And the rise of the factory’s fall…”
When mulling over what action we need to take and when – and that really is the point, not whether we need to take any – our leaders would do well to consider what the Justice Secretary David Gauke said in the Commons Justice session on 3rd April 2019 (see link to transcript here). It’s the same mealy-mouthed avoidance that the CPS are now coming out with.
This session was mainly considering the effects of LASPO, so not of direct impact to criminal practitioners. But when you see the Secretary of State suggesting that the MOJ “genuinely engaged with interested parties” (cough), then you get the general idea of where any “reforms” to the AGFS are going.
“As a union man I’m wise
To the lies of the company spies
And I don’t get fooled by the factory rules
‘Cause I always read between the lines…”
Apparently, the MOJ are “considering very carefully the sustainability of the criminal legal aid market” (hmmm). And then Gauke said this:
“It has been a year when there has been quite a lot of focus on the issues with AGFS and so on. In my view, we are not going to return to a previous era in criminal legal aid in terms of the rates and so on. To be candid with you, we are seeing the consequences of that. Far fewer cases are brought and that has caused some strain for defence barristers, for example; there is less work than there was.
We have gone through a long period of time when fees have been very constrained, indeed reduced. In my time in office, we have increased some of those fees, particularly for the junior Bar. We are trying to work very constructively with the criminal Bar and the Bar Council to make sure that we have a sustainable system. I agree with you. On a number of occasions, I have acknowledged the very important work that the criminal Bar does to ensure that we have a proper justice system.”
I’ll be blogging about the issue of “less work than there was” next time. But just in case anyone from the Bar Council, the CBA or any of the other representative bodies was in any doubt, there it is: we are not going to have any restoration of the fee rates which have been cut to ribbons over the past 10 years or so. This statement alone should have defence barristers instantly manning the barricades, but it seems to have been overlooked amid the current cacophony about prosecution fees.
Gauke’s pronouncements were full of general platitudes and short on detail. It seemed to be all about kicking the can of AGFS review as far down the road as he could, trying to suggest that the Bar could wait for another interminable ‘process’ to be concluded – as if anyone in this Government ever gets any review project completed.
“And I always get my way
If I strike for higher pay
When I show my card to the Scotland Yard
And this is what I say…”
There was a good deal of “it’s going to require a lot of work” and “I want to do something that is evidence-based and sustainable” (funnily enough, when barristers present evidence in MOJ consultations or reviews, the MOJ usually ignore it). But when it comes to questions about additional funding, which is the obvious solution when the MOJ’s funding has been cut by around 40% since 2010 (way more than any other Government department), Gauke notably doesn’t give any answers.
So why are we waiting? He’s set it out there. We’re not going back to a time when the AGFS was at least respectably remunerated. This is all that our rep bodies need to know.
I’ve previously blogged about striking (see We’re Not Alright, Jack! here and Everybody Out! here), so it’s probably getting boring now. But those blogs were back in November 2018 and October 2017 respectively, and – apart from the brief whimpering of not taking on new work for a couple of months a year ago, until people saw their tax bills on the horizon in July and so, with the equivalent of the Bar’s own Brexit vote, narrowly decided in a ballot to stop the action before it had had any discernible effect at all – absolutely naff all real action has been taken. And meantime, the MOJ and HMCTS continue to walk all over us.
The example in last week’s Law Gazette (see link here), about how prosecuting counsel were treated having conducted and billed an extremely serious kidnapping case, reveals precisely the contempt in which those who prosecute are held by the ‘business management’ end of the CPS. Those of us who defend know this feeling exactly, as the same treatment is meted out by the Legal Aid Agency, who are supposed to pay our invoices when we’ve billed defence work.
I don’t know about anyone else, but over the last 12 months I seem to have spent almost as much time applying for redeterminations of my bills by the LAA as I have dealing with actual court cases. It cannot be a coincidence that the stories of how many bills are rejected on the basis that the LAA supposedly can’t, for example, verify that a particular trial actually took place, or some other spurious excuse for not paying, seem to have increased exponentially.
We can all see the end game these Government departments are aiming for. In the case of AGFS, it’s starving out as many members of the criminal Bar as possible, to reduce numbers of defence lawyers and Chambers, no doubt so that ‘one case one fee’ can be foisted on all those who remain. Imagine all those admin savings! The bean counters must be gibbering with excitement up at Petty France.
Then eventually, no doubt, the idea will be to either expand the PDS – on the basis that anyone left standing doing criminal defence work will be only too grateful to take on a salaried post on no doubt far less favourable terms than those offered at the CPS – or to sell off all the criminal legal aid contracts to one or two large firms (Serco, G4S, Capita – you get the gist). Either way, the MOJ will have control of what goes on, and no doubt will be imposing performance targets for how many guilty pleas each employee squeezes out and putting people of two years’ call into murder trials on their own, on the basis that it’s cheaper that way and hey, it’s only people accused of crimes, after all.
“Before the union did appear
My life was half as clear
Now I’ve got the power to the working hour
And every other day of the year…”
Now the Legal Sector Workers United has stepped forward and invited criminal barristers and solicitors to join a proper trade union (see link here). To me, the idea doesn’t sound half bad.
We all know that the problem with our previous pay negotiations has been twofold. The first is that the criminal Bar has played too nice, too polite, too much as if indulging in a game of Eton Fives where everyone plays by the rules, rather than negotiating with an opponent who is prepared to use every trick in the book, including bare faced fibs, to get what they want. And what the MOJ want is not to give us a penny more.
The second problem has always been that the MOJ will play off the Bar against criminal solicitors, causing the Bar’s negotiators to forget that we still need to be instructed by solicitors to actually get work in the first place – not to mention the support of our instructing solicitors if defence ‘no returns’ is to work. If everyone from both sides joined the LSWU or some similar officially unionised organisation which negotiated on our behalf, we might actually get somewhere.
“So though I’m a working man
I can ruin the government’s plan
And though I’m not hard, the sight of my card
Makes me some kind of superman…”
Bearing in mind that the landscape of unionisation has changed considerably over the past couple of decades – now even workers on zero hours contracts are able to join unions – I also can’t understand why our professional organisation(s) can’t be restructured into proper unions. Can anyone help me? If this can’t be done, then joining the LSWU could be a good start.
What we really need is professional negotiators going into bat for us when dealing with the MOJ or CPS. Really hard-nosed bolshie types who are accustomed to commercial negotiations with Government departments and the private sector, preferably like the ones who act for the train and Tube drivers: no matter how unpopular their strike tactics are, they always seem to achieve their objective of getting more money for their members. I can’t imagine the RMT or ASLEF simply allowing themselves to be told that any new pay scheme had to be ‘cost neutral’ and just rolling over with it.
While we’re all grateful for the time and effort the CBA, for example, have had to put into dealing with the MOJ and CPS on our behalf, it hasn’t worked. We’re worse off now than we have been for 20 years. People who are simply volunteers attempting to run a practice at the same time as having to devote weeks of their lives to dealing with these negotiations are no longer enough. I have nothing but admiration for the current CBA chair Chris Henley, who actually seems to be taking a real fight to both the MOJ and CPS. However, he can’t do this on his own, nor should he be expected to.
I’d be quite happy to pay more in subs to my ‘union’ if it meant being able to engage the services of professional negotiators, unconnected to the Bar save by being paid by them. Because then we might actually get somewhere, or achieve something other than being told there’s another ‘review’ to be conducted. And we would almost certainly be better off engaging them than being fobbed off by being told that the MOJ or CPS have no more money to give. They always seem to be able to find cash for their pet policies when they want it.
In the meantime, we have to forget about trying to gain sympathetic press coverage (it won’t happen) and simply start using tactics which cause as much trouble for the Government as they will do for us, because this is the only language they understand. Terrorism trial can’t be prosecuted next week because no one can be found to take the brief? Lines of complainants in sex cases turn up to court, only to find the trial they’re involved in can’t start as there are no barristers on either side willing to conduct the trial? Child witnesses can’t give evidence because there’s no one to act for the defence and the defendant isn’t allowed to cross-examine them?
Yes, our action needs to be that immediate and that hard-hitting. Which is why 2018’s slow ‘drip feed’ refusing of new scheme briefs failed, because its effects were too slow to be felt by the courts, who were simply able to case manage around the lack of defence representation at pre-trial hearings. We can’t afford to allow that to happen this time.
No returns, refusing particular types of work (or all types of work), or downing tools will all involve taking a financial hit, and it will hurt. But it seems right now that this is the only way forward, or the Government can go on ignoring us.
The time for playing nicely is over.
“You don’t get me, I’m part of the union
You don’t get me, I’m part of the union
You don’t get me, I’m part of the union
Until the day I die, until the day I die…”
Main pic by Wildy