More chambers criticise legal aid deal as BSB consults on returning instructions

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31 March 2014

Chambers: at loggerheads over legal aid deal

More chambers have come out in open criticism of the Criminal Bar Association (CBA) and Bar Council’s deal with the government over legal aid last week.

Meanwhile, the Bar Standards Board has issued a consultation that would mean a “fundamental change in the basis of remuneration” – such as a fee cut by the Legal Aid Agency – will no longer automatically entitle a barrister to return instructions.

The CBA is to hold a ballot of members over whether to back the agreement, which involves the 6% cut to the Advocates Graduated Fee Scheme (AGFS) being suspended until after next year’s election and the government taking account of the recommendations of the various ongoing reviews of the criminal justice system and criminal advocacy. In return the CBA has suspended its direct action.

As we reported on Friday, barristers at Charter Chambers and Garden Court have expressed their opposition to the deal, and there have now been similar statements from 4 King’s Bench Walk, Six Pump Court, Sussex Chambers and Exchange Chambers.

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Gavin Holme, head of the crime team at 4KBW, wrote on the chambers’ website that the action barristers and solicitors were taking together had been working.

“It is for that reason that I am so bitterly disappointed that the actions of senior members of my profession have resulted in the suspension of [the no returns] policy. Whilst I of course support constructive engagement with the government, in my view our respective professions, working together as we had been, were far more likely to generate positive results for all of us and thus for our clients.

“It is likely that some of you may view this capitulation by the CBA as being the Bar purely looking after its own interests. I have great sympathy for that view… Had I, or almost all of my colleagues, been consulted or asked to vote prior to this action by the CBA being taken, I would have sought to reject it.”

However, Andrew Langdon QC, leader of the Western Circuit, has issued a strong statement in support of the agreement, saying that it was not a ‘compromise’ or a ‘deal’. He said: “We have accepted no cuts. It is a political decision to allow the government to back down and reconsider in the face of our effective protest. To those that say we should at this stage increase the minimum we had demanded, I do not agree.

“The Bar wants to support solicitors. It is nonsense to suggest we have somehow let them down. We are not party to their negotiations, nor can we organise them. I am determined that we continue to support solicitors.”

He argued that preventing further cuts to the AGFS fees was “essential not just for the Bar but also for solicitors” – nationally 30% of all AGFS cases are conducted by solicitor higher court advocates.

The BSB consultation said it was concerned that current guidance does not reflect the risk caused to the public interest by decisions made by third-party funders, which can leave the client high and dry if the barrister returns the instructions.

While not preventing barristers from returning instructions, under the proposed changes they would have to consider who is actually responsible for any breach of agreed terms including remuneration, and what the client knows about it.

They would then be obliged “fully to consider the wider impact of withdrawal including to the lay client, the administration of justice and other parties affected by the case. Specific consideration must be given to any person impacted by the withdrawal who is vulnerable”.

The consultation has already been criticised, both for its timing – given the ongoing angst over legal aid cuts – and for suggesting that a repudiatory breach of contract should not automatically enable a barrister to end the retainer.

In his response to the consultation, published online, Simon Myerson QC – who describes himself as one of the few silks to maintain a near 50/50 split civil/criminal caseload – said: “The proposal in the consultation is that the Bar takes responsibility for the bad-faith acts of a monopoly funder about which it can do nothing. I do not accept that using the Handbook to impose that responsibility is necessarily lawful. But, on the assumption that it is (again, I leave that issue to others), it is a bad idea.

“It is not the function of professional rules to make individually employed citizens responsible for the acts of government. The Bar cannot make the government act in good faith. Consequently, it will always be at risk of having to bear the financial burden of others simply at the whim of government. That cannot be right. In my view, if that result is what the BSB wants (and I profoundly hope it is not), then it ought to seek legislation to enact it.”

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5 Responses to “More chambers criticise legal aid deal as BSB consults on returning instructions”

  1. I resigned from CBA Exec because I could not support ‘the deal’, which abandons both the solicitors’ profession and the 41 barristers who courageously returned their briefs in VHCC cases, to their respective fates.

    I urge those entitled to vote in the ballot, to reject the deal and to return to the barricades to fight ALL of these unnecessary and damaging cuts. Here’s why you should vote ‘YES’:

    Ian West.

  2. Ian West on March 31st, 2014 at 8:25 am
  3. It’s regrettable that there has been personal criticism against some officers of the CBA as the deal may well have been the best there was.

    Despite what some of those who have stated otherwise hold to be a truth there was no evidence that the ‘strikes’ were having any effect on the MoJ. They just ‘felt’ they were being effective. The MoJ were far from ‘being on the ropes’. Otherwise they might have offered more than the very smallest bone they have.

    However, the actions of the CBA have been spectacularly successful in;

    1) Alienating criminal defence solicitors.
    2) Turning most of the criminal bar against their representative body.
    3) Giving the MoJ plenty of excuses for not negotiating with the CBA again as, clearly, they aren’t representative of their members. I imagine that the MoJ thought they were actually engaging with a body that was mandated to do so.

    On the basis of the above it can only get worse for the criminal bar.

  4. Ian Dodd on April 1st, 2014 at 11:33 am
  5. Now all together – roll over and have your tummies tickled for being good obedient boys and girls who do what the Government wants !

    Just how weak can you be and still expect clients to choose you to fight their corner?

    The time to negotiate is shortly before not after an election !

  6. Stephen Fox on April 1st, 2014 at 2:26 pm
  7. Time to listen to each other’s views, engage and respond rather than react.

    Certainly support the LCCSA/CLSA JR Fund.

    Plus need a joint strategy solicitors and bar to agree objectives and strategy. Think before you click and no personal attacks, respect different views and have real debates.

  8. Tim Collins on April 1st, 2014 at 4:28 pm
  9. As a temporarily retired solicitor advocate I am in the fortunate position to sit on the fence and hopefully look at the position with some objectivity.
    I can well understand the position of the CBA believing that the deal was the best available.
    In spite of the seniority of those involved in the decision making process ( one of whom I had the pleasure to instruct in a lengthy drugs trial) I cannot understand why a short delay to test the view of the Bar en masse was not taken .
    I envy the ability of the Bar to stand united, on that score solicitors have a lot to learn , I for one sided with the Bar in previous ( in ) actions and believe we stand or fall together in the fight against the proposed cuts which will decimate the geese that provide the bar with some gilded eggs at the very least.
    For what it is worth with 30 years experience of
    Courts ,Legal Aid Services , politicians and colleagues to draw from , the only way forward is withdrawal of labour , in whatever way is possible for a week at a time.
    As soon as the Courts start to deal with defendants in person ,they will come to realise how much we are all missed.
    There will be much heartache and gnashing of teeth with this approach but the work will still be there when normal service is resumed. ( possibly with one or two contempt of court matters to resolve for unrepresented defendants)
    Good Luck,
    The view from this fence is quite interesting.
    Ged Hale. ( S.Yorks )

  10. GED HALE on April 3rd, 2014 at 9:57 pm

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