Message

A strong and independent criminal Bar is critical to

ensure the proper functioning of criminal justice and
upholding the Rule of Law. These are essential
elements of the fabric of our society - His
Honour Geoffrey Rivlin QC.
I believe that over the course of the next 8 days the
majority of Barristers in independent practice in
exercising their democratic right to vote will shape the
future of our profession.
At stake is our very independence for without
that we are as nothing.
The issues
Our independence has been under attack since the
passing of the Courts and Legal Services Act. It is too
easy to suggest that the cause of the year-by-year
reduction in the work coming to the bar is simply as a
result of those who put economic interests and profit
before justice and the interests of their clients; the
figures are there for all to see but it is not as
straightforward as that.
There has been a massive increase in recent years in
the proportion of Crown Court advocacy undertaken
by solicitors, from barely 5% in 2006-07 to about
24% of trials and about 40% of guilty pleas in 201213. The proportion of double-advocate cases in
which solicitors act as juniors has increased from 8%
in 2007-08 to 26% in 2012-13. These figures will
increase. Take a look into the crystal ball. This is
what one firm, Tuckers, has in store. (The Crime
Diary HERE)

The reality behind the growth is complex. Solicitors

have faced reductions in their fees like the Bar and
have accordingly attempted to make profits elsewhere
Now solicitors face a further challenge to their
viability. These challenges will yet again cause them
to consider how to remain afloat. Will it to be to
employ more HCAs so as to keep more fees in-house
or rather to engage more advocates on forms of
referral fees recognizing that properly paid employees
cost too much money in tax, holidays, and pension
provision.
You need not take that from me-this is what our
colleagues in our sister profession say will be the
result of dual contracts.
Our campaign is not intended to be an attack on
solicitors or HCAs but the system which permits these
irregularities, which creates this uneven playing field.
True it is that the 8.75% cut to fees is swinging,
damaging and unnecessary. It is particularly
pernicious because the last Government said that the
cut was only justified/sustainable if introduced in
parallel with the arrival of two tier on the basis that
extra volume of work would somehow offset the
reduction.
The Survey
The survey asked a simple question. Would you take
action over two tier? 1385 of you made your feelings
known about that issue and that issue alone. 96%
were in favour of action. On the 22ndJune, just two
weeks ago I wrote of the Solicitors ballot: We also
note that their current ballot is not in relation to action
to halt the introduction of two-tier contracts. Once

the outcome of the ballot is known, we will discuss the

appropriate steps we can take to support them. But
whilst the solicitor organisations continue to sign up to
two-tier and propose to take no action to halt their
introduction, the Executive does not believe that we
can propose action on behalf of our members in
relation to their introduction. This is still the view of
the Executive.
Two tier-the subject, which name must not be
spoken in present company
It was on this topic that last week I wrote to each
member of the Big Firms Group. In essence I asked
them if they would join us in fighting Two Tier. This
was the response from Franklin Sinclair on behalf of a
number of the Group. No other has responded.
I can also clearly say that if the 8.75% cut is
withdrawn with a commitment to undertake the
reviews as originally promised and not to bring in any
more cuts until the results of the review are known
then its likely we would withdraw support for action.
We were informed at the Executive last week that
there was talk at the meeting at Garden Court of
Solicitor firms withdrawing their bids for contracts.
Thus far thats all it has been, talk. Over a thousand
bids have been made for contracts. Many
firms/consortia have of course made multiple bids
across the country.
The challenge at Garden Court was laid by one firm.
Who has taken up the challenge? Currently there
have been no takers. Not one firm has withdrawn its
tender. It may be that momentum builds such that a
sufficient number of firms withdraw their tender bids.
If they do, no one would be happier than me. It

remains my view that the two-tier scheme would die

stillborn in the event that sufficient firms withdraw
their bids.
Now members of the bar who rely entirely on
solicitors for their work are taking action to support
solicitors who contemporaneously are eagerly awaiting
the return of their applications for dual contracts
which may mean the end of the junior Bar and what is
more those who have bid are happy to inform them of
that fact!
We should not forget that only 500 firms have
put in 1099 bids for 527 contracts. Is it too
much to ask of those 500 firms to withdraw their
bids? In that way these firms would show
solidarity with their weaker colleagues and with
the Bar. But more importantly this would not be
a fight about pounds, shillings and pence but a
fight about principle and access to justice.
What has the CBA done for us?
The CBA has been at the heart of efforts over the last
year to defend quality and preserve a future for the
Bar. I set out the list below to remind you of real
achievements. These are achievements that are won
by engagement and not by shouting from the outside,
throwing stones, or destroying effigies of the Lord
Chancellor:

Proposed fee cuts to the AGFS were defeated.

Cuts of 30% to VHCC fees were defeated.
Plans to redirect fees away from trials in favour of
guilty pleas were defeated.
The either way election crack fees where the
prosecution offers no evidence have been
restored as a result of CBA lobbying.

The definition of instructed advocate has been

changed so that the trial advocate receives the
fee, rather than the advocate who attends the
first Crown Court hearing, which had meant
young barristers waiting for the solicitor advocate

to pass on the bulk of the fee.

Continued to challenge the lawfulness of QASA
through to the Supreme Court

Get Real!
Some would say so what? Some demand an
immediate pay increase and a restoration of all cuts to
Solicitors. To those I say this. We have reversed a
downward trend at a time when huge cuts were being
made to the public sector. For the first time in history
we stood tall. But to move from a position of
capitulation to aggression in 12 months is just pie in
the sky. Earlier this year I talked of an increase in
fees in one MM- such was always likely to be modest
to reflect the reality of the political landscape. That I
was able to do so was because I knew the
Government for once were listening to us. We were a
credible force for good. This week sees a new budget.
Do you really think, important though we are to the
public, that we are going to be a top priority? One
thing is certain though, that we went into our dispute
in 2014 in an organised and disciplined way. Each set
commencing action at the same time as each other:
each circuit likewise. In that way Government
respected us.
Can I give you one more example of getting real.
Many think that one of the problems with AGFS is that
it does not adequately regard the real hard work done
in trials. Paper proxies are arbitrary and can distort

fees. Some win, some lose; many cases are cherry

picked. Why not design a better system that reflects
the hard work done by conscientious quality advocates
(barrister and solicitor alike)? Why not dispense with
paper proxies and think about replacing them for
example with the factors that make a trial difficult
(the skeletons for disclosure applications, the ground
rules hearings, the bad character applications, the
vulnerable witnesses, late service of evidence that
needs to be checked through the night, the complexity
of schedule checking and building, proper assessment
of new kinds of electronic evidence and so on. The
CBA with other interested groups is involved in
negotiations to try and draw up a more equitable
scheme. Is it worth, at this stage, reducing such
negotiations to naught and removing ourselves from
the table by making ad hoc demands for some bolt on
increases to the current AGFS scheme?
The Government
We have established a good working relationship with
the MOJ. Negotiation and engagement remain
essential even when parties disagree. Regardless of
what the Membership may decide, direct action
without dialogue is irrational. Few relationships are
perfect and I am not saying it is. They persist with
two-tier but remember we have not rolled over in that
regard.
But we have committed to discussions on how high
quality advocacy might be protected drawing down on
the proposals in Jeffrey andRivlin. And consider this.
Is not the socially just and progressive ambition we
should all hold is to redesign our system so that the
poorest and weakest in our society get access to the
best advocates whether solicitor or barrister - rather
than allowing them to be sent to the less competent

and less able. Do we not need to ensure the best

advocates are available to prosecute and defend so
that the public can have the CJS that it ought to?
These are the real issues for the Bar.
The Lord Chancellor
He has demonstrated his commitment to the Bar.
Read his speechHERE. Look at his deeds. There has
been no cut in advocacy fees. What more do you
expect? Blood? What more could he say or do in the
time that has elapsed since the Election? I am
accused of naievity. I deny it. I am proud that I have
formed the view that I have of those whom I have
worked with at the MOJ these past few months. I
have not always held that view. I have long harbored
a deep suspicion about politicians and civil servants
but I am trained to assess the evidence and the
witness. I have made my assessment and I stand by
it. There was a time when 12 months went past
without the CBA having their feet under the MOJ
table-do you want to go back to those days?
Real Politik
I cannot ignore the reality of the situation. Up until
last week when some began unofficial action, all our
energy was devoted to negotiating with government.
I simply do not understand how anyone can form the
view that we should move to action beforenegotiations
had broken down. And even then (even if we had an
unsympathetic Lord Chancellor) we would still have to
assess the risk involved of action.
There are some in our sister profession who have
assessed these risks. They have realized that the
time is not right for action. They have carried out a
risk assessment. They have realised that their

precarious financial positions will not allow for a

protracted industrial dispute. They realize that there
is a danger here of the financially weak being
destroyed and that the stronger bigger firms-those
who can survive will inherit the fruit of their labour.
We should be careful to consider the legal landscape
post resolution of this dispute-who will survive and
what will their attitude be to the Bar.
Last April we reached an agreement with Government.
In case you have forgotten its terms. You can read
it HERE. We are honourable people are we not? This
government has honoured the terms of that
agreement. I would not ask you to dishonour that
agreement nor will I do so on your behalf.
The counter arguments
I know many people who are already taking action
(and no doubt voting yes) believe exactly what I do
about our cherished profession, but have a completely
different view of what tactics are appropriate. I
respect their passion and their commitment. But I
ask you to look in a clear-sighted and level headed
way about what is possible and what is improbable.
Each of you will of course form your own judgment.
Conclusion
During the course of the last dispute the threat of
withdrawing work from the bar was made on
countless occasions. This week the same threats have
been made. Some have been made on public
websites and then taken down in haste. Others though
have been sent by email. Some Chambers of course
have put notices up on their web sites for the best
possible reasons because they disagree with my view.
Others though will have done so because they have

felt under pressure to do so. Pressure has been

exerted by some and has not just been confined to
Barristers. Solicitors who have chosen to work on
have also been threatened.
You though have this one opportunity to stand up for
yourselves and for the future of the Bar.
Many of my closest friends outside the Bar will suffer
as a consequence of this cut. They though
understand the position. But that will not stop me
saying what I believe is right. Mike Turner may not
like me for doing so but for once I borrow his motto
Do Right fear No One.
I will be voting No to strike action.