Thank you for inviting me to speak here today on unity with the Bar. I am pleased to confirm as I have confirmed previously that I believe a quality criminal justice system needs an independent, strong and robust criminal Bar. However, I also believe that a quality criminal justice system needs a large and diverse number of firms of solicitors providing quality advice to clients and serving their communities.
These types of firms should compete on quality and reputation and not on how many cases they can get through in the quickest possible time. A proper and effective criminal justice system relies on quality solicitors taking the time to work on their particular clients’ cases to build up trust and to properly assess and question if necessary the credibility and the strength of the case brought by the State and properly prepare the client’s defence.
An effective criminal justice system needs quality solicitors and quality barristers, and solicitor advocates working closely together and providing the best quality representation.
This is the criminal justice system we have been proud of. This is the criminal justice system that is the envy of the world, and this is the criminal justice system that Mr Grayling seeks to destroy.
Make no bones about it, this is not about cuts, it is about increasing the State’s power, reducing its accountability, and reducing our ability to properly represent those who most need it. It is about removing access to justice, and creating a two-tier justice system – those who can pay and those who cannot.
Today I have been asked to speak about unity between the solicitors and the Bar. I was asked to speak today a couple of months ago about this subject and had I been making this speech then I suspect that much of what I would say would be different, but in the end ultimately my message is the same.
The relationship between solicitors and barristers is a long one. Like many marriages and/or long partnerships, that last the test of time there are always bad and good times and partners have to work at those relationships at time if they want to make them work. For many years solicitors and barristers worked closely together in preparing cases. We were never very well paid, but both sides of the profession were fairly remunerated for doing the difficult job that they did. There came a time though when the relationship started to become estranged, solicitors felt they were being taken for granted by barristers. It appeared that solicitors were being subject to cuts that barristers weren’t. The Carter Reforms were kinder to the Bar than solicitors. Perhaps, as sometimes happens in any relationship, solicitors felt taken for granted, let down, not appreciated, they didn’t feel part of a partnership anymore, they felt slightly abused, they felt vulnerable and were tempted to look elsewhere and then suddenly they started seeing someone else … solicitor advocates. Suddenly their long-standing partner the Bar were up in arms, “How can you do this to us?” “I bet they’re not as good in Court as we are!” “Is this a one appearance stand?” “What is your court life like?” Tensions increased, and there was bad feeling. As often happens in these situations the relationship trundled along but it wasn’t exactly the same as it was before.
Then in April 2013, Mr Grayling issued his consultation for legal aid for both the Bar and solicitors, which contained some very savage proposals about removal of client choice, removal of access to justice, substantial reduction in fees, which should not be measured against the income of the solicitors and the barristers but in the resources they were being provided with to properly do the job on behalf of their clients. A man named Michael Turner was head of the Criminal Bar Association at the time; he recognised that there was so much more that united solicitors and the Bar than that which divided us. He recognised this was an attack on both arms of the profession that must be united and he sought to build bridges between the leadership of the representative of organisation of solicitors and the CBA. He positively engaged with Bill Waddington the chairman of the CLSA and the then president of the LCCSA Akhtar Ahmed. Now I don’t agree with everything that Michael has written or said along the way and I am sure there are many things that I have said and written and am about to say that he will not agree with, but what I do recognise that it is through his leadership that the CBA, the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Association were able to forge unity between the bar and solicitors which the criminal justice system had not seen for a great deal of time. Michael was able to cleverly and deftly put aside the issues that divided us which were so much smaller than the common enemy that we faced. There were still problems but through very regular meetings and constant dialogue – often in Cooper’s Wine Bar, we were able to forge a united front. He changed the agenda.
This leads me on to something else. The leadership of the London Criminal Courts Solicitors’ Association recognised that this was not just about solicitors and barristers it was about the many groups of people who we act for who will be affected by this change. Consequently Matt Foot set up the Justice Alliance which is an umbrella organisation of the many groups of people who are affected by these changes if access to justice is removed and some groups of solicitors and barristers. There are many groups who have joined including Liberty, Reprieve, Haldane society. Justice Alliance aren’t campaigning to save the fees of solicitors and barristers, they are campaigning to protect the rights of the individuals who fall under the many organisations that their umbrella represents. Matt Foot and many others have done fantastic work campaigning on behalf of perhaps the real victims of these reforms and cuts. So perhaps when we talk about unity the broader alliance is more important.
So consequently although there were tensions we were all moving in the same direction.
It is also important to recognise as I believe that Michael did that the make up of the Bar and solicitors were very different. To a certain extent it is much easier for the Bar to organise, coordinate, consolidate and have some consensus. The solicitors are a more diverse and disconnected group, and the bigger firms also had a group and their aims are different to many of the others. Additionally the solicitors have some very punitive contractual obligations which makes action that much more difficult. Fortunately the London Criminal Courts Solicitors’ Association and Criminal Law Solicitors’ Association worked very closely together and the relationship between the Bar and the solicitors progressed. Grayling tried to divide and rule but he failed!
On May 22nd 2013 the London Criminal Courts solicitors assoc organised a demo which generated national coverage for the campaign. The bar supported the demo and were rightly given a platform. On the afternoon of the same day the Criminal Law solicitors assoc organised a national meeting chaired by Robin Murray Vice chairman attended by 1000 solicitors and barristers. Nigel Lithman spoke on behalf of the CBA and various resolutions were passed about the future conduct of the campaign. On 4th June the closing date of the first consultation the bar supported another demo organised by solicitors outside the MOJ and were given a platform. Again there was considerable national publicity. Many examples of the 2 professions working together with others to fight the threat to access to justice.
Nigel Lithman took over as Chairman of the Criminal Bar Association in August 2013and Tony Cross became Vice Chairman. Although the relationship between the Bar, CBA and the Law Society was poor, the relationship between the representative organisations remained good. There were communication problems, but we worked very hard to address those issues. There was a further national meeting on 1st October 2013 organised by the LCCSA where many solicitors and barristers attended and again Nigel Lithman spoke on behalf of the bar. On 7th November Bill Waddington and Robin Murray chair and vice chair of the CLSA had a meeting with Nigel Lithman. He confirmed that he would not separately negotiate any deal for the bar which does not include solicitors. He stated he would not do anything that would harm the unity between the 2 professions. Both Bill and Robin confirmed exactly the same, solicitors would not accept a deal that placed them at an advantage over the bar. On 16th November the CBA organised a meeting where I spoke. Shortly afterwards January 6th 2014 was hoisted upon solicitors as the first half day of action and we were given a very short period of time to firstly confirm that we could support the protest and secondly announce it as a protest for ourselves. It was a successful day for the profession.
On January 16th a meeting was convened of the leaders of the bar and solicitors representative organisations. Nigel Lithman and Tony Cross attended from the CBA, all the circuit leaders were present , Nicola Hill, president of the LCCSA, Bill Waddington chairman of the CLSA. Nigel addressed the meeting at length and stressed the importance of unity between the professions. It was agreed to set up a committee, a National Justice Committee containing the leaders of all the groups I have mentioned and additionally the newly formed Justice Alliance and Legal Aid Practitioner’s group. The Law Society had observer status and Nick Lavender, Chairman of the Bar Council was also invited and he was copied in on all emails. The committee met nearly every Tuesday for 2 months. On 27th January 2014 Nicola Hill on behalf of the Justice committee wrote to the Lord Chancellor, introducing the committee, attaching a press release requesting the suspension of any cuts and seeking engagement to find alternative savings and greater efficiencies. The committee had discussed other areas for savings. The circuit leaders, CBA leadership and leaders of the solicitor rep organisations endorsed the contents of the letter. In early February Nicola Hill had a letter published in the Times on behalf of the National Justice Committee requesting service and publication of the economic reports upon which the MOJ figures were based
At the end of February Mr Grayling issued his proposals with the following responses to consultation. He announced that the first 8.75% cut would be introduced for solicitors on March 20th, three weeks later. The proposed cuts for advocates would be introduced on a date in July 2014, a few months after the solicitors’ cuts. On March 7th there was a national day of action organised by the solicitors and the Bar. Initially this date was announced by solicitors and eventually the bar fully supported the protest. Even agreeing the date took many hours of the National Justice Committee meetings, as the leadership of the CBA and the circuits resolved their differences. However, March 7th was an outstanding achievement on behalf of all involved. Jon Black vice president of the LCCSA led the organising committee working closely with Tom Wainwight, Sam Parham, Russell Frazer and other barristers who gave up a huge amount of time to make sure that this event was a huge success. Many barristers and solicitors who attended the rally on the 7 March reported to me that they finally got what this was about, it was not just about fees and cuts it was about a wholesale attack on access to justice. There were several thousands of people opposite the Houses of Commons, there was the march to the Ministry of Justice, there was extensive press coverage; the legal profession standing together with the people that they protect.
Following this high, things started to move apace. The no returns police started and was supported by solicitors firms. It had a devastating effect on warned list trials. The Probation Service were calling for further action on the 31st March and 1st April and the solicitors decided to join them. There was pressure from some members of the National Justice Committee on solicitors to say that if they started working at the 8.75% rate cuts then half the battle would be lost.
A meeting was held in Manchester for solicitors firms on 19th March 2014. Tony Cross vice chairman of the CBA reported in his blog on 8th April 2014 that only 500 firms attended, however many firms have more than one contract , many had proxies and approximately half the contracts in the country were represented. The meeting considered a motion not to work at the reduced rates. The meeting did not agree to work at the new rates but in view of such short notice of the introduction of such cuts it was not possible to have an effective vote. Other motions to support other types of protest were discussed and agreed. This was disappointing to solicitors but not fatal to our campaign. Perhaps had we all agreed to do this we would have been in a better position but bearing in mind there was only 3 weeks between the announcement of the policy and implementation it was no surprise.
The following Tuesday 25th March only solicitors turned up to the National Justice Committee. The circuit leaders sent their apologies and nothing was heard from Nigel Lithman and Tony Cross chair and vice chair of the CBA.
Two days later Nigel announced the deal on the same day that Grayling announced the same to the House of Commons. There was then a backlash as he realised not everyone was in favour and he called a ballot. The tension within the bar was palpable. Tony Cross released his scathing attack on solicitors the night before the vote in his blog dated 8th April. It was an unhelpful inaccurate blog that does not deserve much attention in this address, but as he had made the vote on the deal a resigning issue it was probably a desperate attempt to get the vote passed. and then of course when the day of the vote came two thirds of the membership of the CBA did not vote, two ninths voted in favour one ninth against. This was ironic bearing in mind Tony Cross’s complaint about attendance in Manchester, particularly as voting just involved pressing a button on the computer.
What of the deal and how it came about? We are reliably informed that the deal was brokered by Nick Lavender and the Bar Council and then Lithman and Cross were brought in with the circuit leaders. Bearing in mind the whole basis and principle of the national justice committee was that we all stand together and negotiate together why were the solicitors abandoned so quickly. Was it so that the bar could say to Grayling “look the solicitors are working at the 8.75% reduced rate, you have your immediate bankable saving”? Was it so that the bar could try and factor into the deal an increase in regulating higher court advocates in the crown court.
Was the deal a success for the bar or Grayling. Many barristers who relied on returns for work were clearly feeling the pinch and could then see that solicitors were not prepared to make the same sacrifice in working at the 8.75%. Although many warned list trials (adjourned because of no returns) will not now be listed for many months and delaying payments to firms affecting cash flow. But is this a short term fix which has divided the professions and consequently will make us much weaker when we next need to fight particularly as 75% of firms may have been wiped out by the introduction of the limited number of duty solicitor contracts. Will the potential reduction of firms not affect the bar more as their supplier base is wiped out? Did the bar leadership take the first deal on the table particularly as Grayling is under siege from a number of angles?
Nigel recognised that the vote reflected many of the members concerns about solicitors and in his statement after the ballot on April 10th stated that a third of those voting had misgivings about the effects on solicitors of cuts and dual contracts and these views would not be ignored and that he hoped to reengage with solicitors shortly. In the next Monday message on April 14th he stated that he and Tony hoped to speak to Nicola Hill and Bill Waddington in the very near future. They are both still waiting for the call. That was over a month ago.
There has been some vitriolic exchanges by email between members of the national justice committee………. I know that……. Because I wrote some of them, but at no point has any member of the bar leadership suggested a further meeting after 25th march, a meeting to build bridges. Many of the solicitors on that committee feel that the bar leadership treated them very shabbily, undoubtedly any further meeting would have been difficult but many of the meetings we had contained frank and vigorous exchanges. The leaders of the bar were not interested. Perhaps they saw the committee as a vehicle simply to keep any eye on what solicitors were up to
The national justice committee was set up to build a joint platform to prevent grayling dividing and rule and to build a base for the future, to protect access to justice etc.
Since the bar deal the legal aid agency has started issuing contract notices against firms who did not attend court on 31st March and 1st April 2014.
So where now. Well I believe that there are many solicitors and barristers interested in the bigger picture, interested in shifting the agenda back to what is far more important which is the wholesale threat on access to justice and state accountability.
Whilst we may not now be able to deal with the current leadership we do believe that to properly campaign and defend those who need legal aid we can and must work together. We know from who we have spoken to that there are a critical mass of barristers who share our views who want to move forward not as part of a body of just solicitors and barristers but as wider movement representing the very many groups of vulnerable people whose rights Mr Grayling seeks to remove.
I do not apologise for spending a lot of this address going through what has gone on in the past neither the CLSA or LCCSA who I speak on behalf of have responded at length and I believe that we do need to set this out, but as I said at the beginning I believe in a justice system which promotes quality advocacy including a strong and robust bar. The bigger picture is what is important and the bigger issues.
We need to keep campaigning, keep lobbying and keep fighting together. Mr Grayling is on the ropes.
As far as the Jeffreys Review on advocacy is concerned the Leaders of the CLSA and LCCSA embrace the proposals and are keen to see a common, fair and equal training standard for all advocates. The bar council’s response to the report as endorsed by the CBA is that all solicitors should now be contractually required that where an in-house advocate is used to retain a written record available for inspection by a judge of the written reasons for recommending that advocate confirming the alternatives, and the client’s rights to instruct advocates independent of the firm and where appropriate the limitations on the rights and experience of plea only advocates. There are other similar recommendations; we find this response disappointing and a slur on our professional integrity
But this is a smaller issue, this is not what it is all about , there is a far bigger mass of lawyers, advocates and litigants who need to move together to define the agenda for the future which must be focussed on the individual’s rights who we seek to protect.
The marriage between solicitors and barristers need not be over, perhaps we might need to start again, and perhaps we need to date or dare I say court.