The chairman of the Bar Council said yesterday that he would support the £15m deal being offered by the Ministry of Justice (MoJ) to end the action over criminal legal aid fees, as barristers began voting on whether to accept it.
It came amid sharply divergent views from former chairs of the Criminal Bar Association (CBA) about whether barristers should be standing shoulder to shoulder with solicitors.
Andrew Walker QC, who does not practise in crime, said that based on everything he had seen and heard, both in private and in public, “my own judgement is in favour of acceptance: to ‘bank’ what is on the table at this point”.
But in a message to the criminal Bar, he stressed: “I cannot emphasise enough that this is not my decision: it is yours. You must be guided by the facts we have put before you and your own judgement.”
Barristers working in crime have until noon on Monday to vote in the ballot organised by the CBA over the offer of more money for the advocates’ graduated fee scheme.
Mr Walker said the extra cost was the result of “a massive amount of work on your behalf, and many difficult decisions”.
“My judgement is based on balancing risk and reward, and assessing how I think we put ourselves in the strongest position to secure real and lasting changes for criminal justice – and indeed for justice as a whole – this year, next year and beyond.
“I also bear in mind that acceptance now would be far from the end of the road. The MoJ know that more will be needed for the future, both for the AGFS and for the rest of the criminal justice system.”
Mr Walker said that, in reaching his conclusion, he had to ask himself hard, “and in some cases uncomfortable”, questions, such as: “If this is not ‘enough’, then how much higher is our bottom line in this action? How likely are we to achieve that? Will we be able to sustain our action, and our position, for long? What are the risks the other way – of getting less, or nothing? Even if we get more, when will that be, and what will we have lost in the meantime?”
The CBA has also created a facility for members to blog their views to share with others. In the first, Stephen Knight – a member of the CBA committee and secretary of the Haldane Society of Socialist Lawyers – urged barristers to vote against.
He said the dispute was not just about our fees. “It is about the whole of the justice system. Our responsibility is not just to ourselves, but to the whole of the system. The MoJ wants to buy us off, hoping that we will ignore the crumbling court estate, the continuing cuts to solicitors, and the failures of the CPS. We have a responsibility to stop this happening.
“Some may say that we should vote ‘yes’, bank the scraps we have begged from the MoJ, and consider action again at a later date. Even if that is realistic, it means taking action again in two or three years’ time, in the hope that we will be more fortunate then.
“We know that the MoJ doesn’t listen to reason, only to a show of unity and strength: we will have to go through all of this disruption again. It is surely far better to retain the advantage we have now, and press it home.
“When the government finally made some concessions in the CBA’s negotiations, it was 24 hours before the start of ‘no returns’. This is no coincidence. They are scared.
“Even without 100% unity, a critical mass of barristers can bring the courts to a complete halt. If we continue this action, we will succeed.”
But Kath Goddard, joint head of Bank House Chambers in Sheffield, wrote of her support for the deal.
“The fact that the MoJ have started to listen should not be underestimated. Neither should the fact that they have been persuaded to find extra money.
“I know that we are far short of achieving all we wished but the prospect of overturning 20 years of chronic underfunding was only ever a pipe dream. The amount of extra money is relatively small, but the fact that it is there at all is hugely significant.
“If the criminal Bar is to have any future, we must have credibility. And our leaders, negotiating on our behalf, must have credibility in the eyes of the MoJ.
“If we have any hope of being able to negotiate about matters such as [flexible operating hours], working conditions etc, or any hope of successfully lobbying at the next public sector spending review, we need to maintain the dialogue that has taken so much to establish.
“In the simplest of terms – if you think this action was only about the money, you will vote to reject it. If, however, you believe this action was about the recruitment and retention of able criminal advocates, the sustainability of the future of the criminal Bar, working conditions, a fairer and better life for those starting out in their careers than most of us have had, you will vote to accept it.”
A statement from the criminal team at Garden Court Chambers urged a ‘no’ vote: “Whilst engagement by the MoJ with the CBA leadership and the offer of new investment is welcomed, this offer will fail to preserve the criminal Bar in the medium to long term.
“Criminal barristers cannot continue to offer excellent representation to the vulnerable in an environment where the existence of the criminal Bar is under threat. We believe that the continued underfunding of successive legal aid schemes will destroy the criminal Bar.”
Meanwhile, a letter from eight pupils in seven different chambers circulated on social media has asked barristers to stop telling them to find another practice area and “fight for this one” by rejecting the offer.
They wrote: “We know that money is available when it suits the government… The threat of ‘no returns’ from a profession acting in unprecedented unity is powerful. If we give in now, what chance will we have in future to fight for our working conditions? What will those working conditions be in 10 or 20 years’ time?”
Another letter from 11 pupil barristers, third six pupils, squatters and tenants came to a similar conclusion.
Earlier this month, criminal defence solicitors questioned the unity in the profession to reform the justice system after highlighting how the Bar has asked for solicitors’ support in its fee dispute without reciprocating or involving them in the discussions.
In a blog on the poll hosted by The Secret Barrister, former CBA chairman Michael Turner QC said he would vote no, adding: “When we started on our current journey, there were brave words that we would sit down at the negotiation table with our sister profession, as unity would mean strength.
“This has not happened, leading to the inevitable cry for our sister profession that we have once again played the cards behind their back.
“If we accept this offer how can we ever hope the solicitor profession to trust us again ? We have had no explanation as to why this has not happened, but this is the story from the solicitors’ point of view, I see no reason to disbelieve it.”
But another former CBA chair, Francis FitzGibbon QC – who supports the deal – wrote in another blog: “Having your supplier as your competitor can complicate the relationship between the professions.
“Solicitors have their own battle to fight, over their litigator fees. And it’s worth remembering that when a solicitor’s firm instructs one of its own lawyers to conduct advocacy, it collects a litigator fee as well as an advocacy fee for the same case.
“I bear solicitors no ill will, individually or collectively. But their numbers are large, their own interests diverge among themselves and often diverge from ours, and they have no single representative body that commands their respect in the same way as the CBA does for its membership.
“So talk of a united front is great, and I wish it could come about. If it hasn’t, it’s not for want of good will.”