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.
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.”