Civil war broke out among criminal defence lawyers yesterday in the wake of a deal struck between the government and the Criminal Bar Association (CBA).
The Criminal Law Solicitors Association (CLSA) accused the Bar’s leadership of using “the unity of the profession to pursue self-interest in a separate secret negotiation”.
The CBA is now to ballot its membership having had enough barristers requisitioning an extraordinary general meeting (EGM) to force a vote on the agreement.
The government has agreed to suspend the 6% cut to the Advocates Graduated Fee Scheme until after next year’s election and take 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: the ‘no returns’ policy which meant that barristers would not accept briefs where the original advocate has had to return it, and the refusal to handle very high-cost cases (VHCCs) since fees were cut 30% in December, which 41 barristers have already done.
CBA chairman Nigel Lithman QC said: “This gives 89% of the criminal Bar (those that do not do VHCCs) what they have demanded and has been achieved by their resolve.”
On VHCCs, he said that “whilst it is for each individual barrister to choose what work they undertake, there is no objection in principle to barristers who want to work on VHCCs undertaking such cases if they choose to do so”.
Mr Lithman welcomed the government’s agreement to work with the profession to consider better alternatives to the VHCC scheme, adding at the end of his statement that “the CBA remains supportive of the stance taken by solicitors”.
The only concession offered by the government to solicitors was that an interim payment scheme – aimed at helping firms’ cash flow – will be introduced this summer, a year earlier than planned, at a cost of £9m.
In the wake of the 8.75% fee cut imposed on solicitors last week, with a further 8.75% due next year, the CLSA and London Criminal Courts Solicitors Association have confirmed that ‘training days’ planned for next Monday and Tuesday will go ahead, meaning the solicitors taking part will not attend police stations or courts.
In a statement issued last night, the CLSA said it took heart from “the small concessions” made, showing “that with unity and direct action by the profession, the Ministry of Justice will be prepared to change its disastrous stance on legal aid”.
It added: “The concessions to the Bar have been more substantial and this may well reflect their unity and militancy. There is a lesson there. We hope that firms of all sizes will take note that unity and direct action do actually work.
“We are not going to hide the anger felt by our committee or our memberships dismay that despite repeated assurances that they would not make a ‘separate peace’ the Bar has done so.
“The Bar leadership has used the unity of the profession to pursue self-interest in a separate secret negotiation. Instant feedback from the junior bar to us suggests that the leadership of the Bar may be out of step with the views of many barristers who disprove of their leaderships conduct and fear the consequences of such lack of good faith.”
Several barristers made clear their unhappiness with the CBA’s actions on Twitter, especially over the fact that they were not consulted over the deal.
Ian West, a member of the CBA’s executive committee, resigned his position, saying in a letter to Mr Lithman: “In my view it was entirely the wrong decision, short-sighted and unnecessary, and one I cannot stand, or defend. We have allowed Mr Grayling, who was ‘on the ropes’, to divide and rule us.”
Mr West argued that the CBA held the ‘whip hand’ as the serious intent of the Bar in taking action became clear through the VHCC boycott, and so should have pushed for more concessions rather than take Lord Chancellor Chris Grayling’s “first offer”.
He added: “If Grayling is permitted, by his cynical divide and rule tactic, to fracture the unity with solicitors, and to push through his dual contracts scheme for solicitors, we will be throwing to the wolves our last remaining defence customers – the small high street firms for whom it is not economically viable to employ in-house advocates.”
Charter Chambers in London issued a statement calling for the CBA and the circuits to reconsider the agreement. “Whilst the concessions drawn from the ministry so far are welcome, the principle of the action – that of fair access to justice for all – cannot be safeguarded whilst solicitors are expected to litigate the most serious of criminal allegations in the face of unsustainable and dangerous cuts.”
Charter said it will participate in next week’s action by declining to accept instruction in the magistrates’ courts on those dates, and declining to accept returns of any hearing in the Crown Court that cannot be covered by a higher court advocate because they choose not to work on those two days.
Its members have also each decided that they will continue to refuse VHCC work at the reduced rates.
Speaking on behalf of the criminal practitioners at Garden Court, Henry Blaxland QC said: “We wish to express our dismay at the deal negotiated by the CBA over the cuts in criminal legal aid. We had urged the CBA to support the action called by solicitors and probation officers next week. Instead the CBA has, without consulting the membership, negotiated a deal with the Ministry of Justice, which leaves our colleagues to fight alone.
“This has provoked a great deal of anger at Garden Court and has caused some members to resign their membership of the CBA – see this letter  from Brenda Campbell, which cogently expresses the views of many in chambers.”
In a statement issued today , Mr Lithman confirmed that members would be balloted on this question: “Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned?”
He said it was clear from the discussions with government – and this week’s meeting at which the offer was made came out of the blue – that this was the best deal on offer; further, they had just two days in which to agree, which did not allow for a ballot.
Mr Lithman said: “The response from solicitors tweeting has been understandably angry (in my case personally abusive) with some now threatening not to instruct the Bar in future. This is unfortunate.
“I hope many will be honest enough to acknowledge that had they been offered a deferral of their fee cuts until at least summer 2015, they would have taken the offer even if the Bar’s fee cuts remained. We have not abandoned the solicitors, we recognise their plight and will continue to support their campaign in all the practical ways that we can, for example we will not undertake their work during their days of action – but how can we deliver the outcome they want while they are not all fighting for it themselves?”
Responding to the CLSA’s criticisms, he noted that it and the London Criminal Courts Solicitors Association “have not secured the same level of unity of purpose and resolve among their membership as has been shown by the Bar. Their members are already working at new cut rates and they admit they cannot guarantee full support from their own membership for next week’s two days of action. I asked what came after the two-day strike and was told they did not know”.
Mr Lithman said: “Had they agreed at their consultation meeting in Manchester not to work at the new rates, it may have been a different matter.”