Bar calls off action after legal aid cuts are postponed

Topics: Legal aid and access to justice

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Criminal barristers have called off further direct action over legal aid reforms after more changes to the plans were revealed today.

Justice secretary Chris Grayling (pictured) has postponed the planned 6% cut to fees paid to advocates in Crown court cases under the Advocates Graduated Fee Scheme, which was due to be implemented this year.

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Officially the cut has been suspended until at least summer 2015, after the next general election.

Grayling also announced changes affecting solicitors. He has agreed to make an additional £9m available to fund the introduction of interim payments this summer, a year earlier than planned.

Today’s changes follow further discussions between the Ministry of Justice, Law Society and Bar Council.

Law Society chief executive Desmond Hudson said: ‘The additional funding means solicitors will be allowed to make a claim for payment following an effective Plea and Case Management Hearing (PCMH).

‘The change will ease cashflow for all providers during 2014/15 and provide some assistance to our hard-pressed members who are facing dire circumstances and battling to deal with the 8.75% cut which came into effect last week.’

But he added: ‘We have not regarded these cuts as sustainable and we continue to press the Legal Aid Agency to support solicitors in the 30 areas where the analysis provided by KPMG indicated the cuts pose a very serious challenge.’

At present the second tranche of 8.75% cut in fees paid to solicitors for police station and magistrates’ court work remains scheduled to go ahead with the new contracts in summer 2015, also after the general election. However, the government said it would take into account the outcome of three separate reviews and a legal aid forecast before deciding on the final figures for both solicitors and barristers. 

The three reviews are being conducted in criminal advocacy and the working of the criminal justice system by Sir Bill Jeffrey, Sir Brian Leveson and Geoffrey Rivlin QC. Hudson said this is a ‘further potential source of help’ for solicitors.

In light of today’s changes, the CBA has agreed to suspend all protest action, ending its no returns policy and boycott of new-rate VHCC work. But a two-day protest by solicitors, due to take place on Monday and Tuesday over fee cuts of 17.5% - the first tranche of which was introduced this month - is expected to go ahead.

Bar Council chair Nicholas Lavender QC said: ‘The bar has consistently opposed the government’s deeply unpopular plans to cut once again the fees paid for Crown court advocacy. This has been reflected up and down the country on each of the circuits.

‘I believe that today’s announcement points to a better future from the one which many have feared, and is to be welcomed. This is a viable pathway not just for the bar, but more importantly, for the criminal justice system.’


He added: ‘On behalf of the Bar Council, I want to see us build on today’s announcement by the MoJ to ensure that the criminal bar has a sustainable future. There are, and will remain, challenging times ahead. We cannot alter that, but we must address them. 

‘By doing so I believe that we can maintain a strong and independent bar which is properly valued for its unique contribution to the administration of justice.

‘That is why, in the interests of building sustainable and high quality legal representation, we should take this opportunity to move forwards, by engaging with the reviews which have been announced today, resuming normal working relationships with our partners in the criminal justice system and calling off any further days of action.

‘We can do so in the confidence that our voice has been heard.’

CBA chair Nigel Lithman QC said the deal gives 89% of criminal barristers - those who do not do VHCC work - what they have demanded.

Lithman said: ‘The CBA has decided to suspend its current action including the no returns policy to allow constructive engagement with the government to continue and the restoration of normal working practices within the criminal justice system.

‘We hope that constructive engagement can produce further sensible conclusions, not only with the criminal bar but with also the criminal solicitors who keep the system running smoothly up and down the country.’

In relation to VHCC cases, Lithman said: ‘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.

‘The CBA welcomes the government’s agreement to work with the profession to consider better alternatives to the VHCC scheme, which will include examination of the bars’ proposal of “graduated fee scheme plus” as soon as normal working relationships are restored.’

He added: ‘The CBA remains supportive of the stance taken by solicitors and will continue to engage with all parties concerned about the future of the criminal justice system.’

Barristers joined solicitors in two walkouts – a half-day protest in January, and a full-day earlier this month. Since the beginning of March they have instigated a ‘no returns’ policy, meaning that Crown court work returned by barristers due to timetabling clashes would not be picked up by others, something which the CBA claims has caused considerable disruption.

President of the London Criminal Courts Solicitors’ Association, Nicola Hill, described today’s move as a ‘desperate’ attempt to ‘divide and rule the legal profession’ as action against the cuts ramps up.

She said: ‘He [Grayling] has struck this deal with the bar just days before two pillars of the justice system, solicitors and probation staff, are about to walk out over two days, causing major disruption to courts around the country.

‘He is clearly starting to understand the extent of the anger and frustration running through the core of the entire criminal justice system thanks to destructive cuts and overhauls.’

Hill described the ‘minor concessions’ made today as ‘something’, but ‘not enough’ for the thousands of solicitors struggling to keep their firms going.



Chairman of the Criminal Law Solicitors’ Association, Bill Waddington, said: ‘Far from diminishing the support for Monday and Tuesday’s days of action, we think this latest move is bound to boost support and strengthen the resolve of solicitors to continue the fight.’

Waddington suggested the deal could prove to be something of an own-goal for the bar, with junior advocates hit as solicitor higher court advocates seek to increase their amount of Crown court work.

He added: ‘We were promised by the CBA that there would be no deal with the MoJ. That is something they felt they could not honour and we will note that for the future.’

Justice secretary Chris Grayling said: ‘I have always said that given the current economic climate, I have no choice but to make savings, but that I also wanted to do what I could to ease their effects on lawyers. Hopefully today’s agreement proves that I am true to my word. Following constructive discussion with leaders of the bar and Law Society, we have agreed further measures to help lawyers as they prepare for legal aid savings.’

Grayling added: ‘In return the leaders of the bar have dropped their objection to working at reduced rates on very high cost cases, and have agreed to call off their action to disrupt courts.

‘An efficient and fair criminal justice system - both for the public and people that work within it - is my top priority, and I believe this agreement is a positive step forward.’

Shadow justice secretary Sadiq Khan said:
 
‘I welcome any progress on improving the relationship between the justice secretary and those who work in the justice system. But Chris Grayling appears to have done a deal with senior barristers only. This won’t do anything to address the serious concerns that those who today have access to justice through legal aid won’t in the future.

‘Protecting the fees of some barristers until after the next general election doesn’t solve the problems of advice deserts around the country. There is no protection for high street solicitor firms or junior barristers and I fear the British legal profession will return to the days where only those with means could afford to train and practice law.’

* This story was amended on Friday 28 March to make it clear that the second 8.75% tranche of cuts to solicitors fees is not scheduled to be implemented until after the general election in May 2015.

Readers' comments (21)

  • The CBA have made a grave mistake. It gives Mr Grayling a good news angle days before Probation and Solicitors protest, it divides the profession and these changes will lead to the creation of large providers doing all work in house to make up for loss leading cases and will ruin the junior bar.

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  • This is a significant blunder by the CBA and will leave a really bad taste in the mouths of solicitors who had supposedly been in this fight together with their "brother in arms"

    Having said the above I feel many barristers will also feel let down by this statement and I just wonder if they are feeling a little dismayed by the undemocratic actions of their leaders?

    Grayling has played a classic "divide and rule"

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  • Hudson has lost his mind if he thinks that this amounts to either a good news story or a capitulation by grayling. It is pointless getting interim payments when the payments themselves are not enough to sustain a business. It strikes of being outmanoeuvred and out thought by both the moj and the bar.

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  • The Bar Council and CBA have made a mistake. This is not about the fees. It is about access to Justice. It is about the fact that a person who is ineligible for legal aid will pay to have a trial and will only be partially remunerated if acquitted. It is about equality of arms.
    By calling off action because of no cut to fees the Bar has fallen right into Grayling's trap and justified the public's oft-cited criticism that "you're only in it for the money!".
    It would have been lovely if the Bar had maintained its protest in syupport of Solicitors and Probation and the clients.

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  • Yet again the Law Society simply do not seem to understand the position of its members.

    The CBA get cuts off the table for now, we get chicken feed and still the cuts go ahead, to say nothing of the two tier contract agreed to by the Law Society (or not opposed by them!) Wow what a result that is. Worth letting the bank manager now all is now safe, or not.

    Please please leave the negotiations to those who act on behalf of its members (CLSA & LCCSA) and not the Law Society, you have shown you are not fit for purpose in anyway shape or form and do not in my opinion act for your members in this area. Nor should you continue to pretend you do.

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  • I would love to know how many CBA members were actually consulted over this capitulation. I doubt if they would have put it to the vote fearing rightly that they would be shouted down instantly. They haven't stopped the axe, they have merely postponed when it falls and are for some reason doing a lap of honour! Their decision makes them look weak and confirms to the government that all they have to do is be patient and watch the opposition crumble

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  • I'm a Solicitor and an HCA, I am also called, but don't practice as a Barrister.

    I attended both 'training days' as did many other Solicitors, standing with the Criminal Bar. I took the view that although I am a primarily civil practitioner, action needed to be taken.

    I seriously hope the criminal bar stand with their solicitor colleagues next week, I am sure that they will.

    Grayling really is playing dirty here, seeking to cause division in the ranks. This isn't a time for crying foul against deals struck 'just' for the Bar, but it is a time to continue action jointly by as many lawyers as possible against the disgraceful cuts that are decimating our legal system, with it being systematically dismantled at an alarming rate.

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  • I wonder what Mr Lithman QC and his colleagues would say if solicitors pulled every brief out of his Chambers and gave them to other Chambers or HCA's?

    Also TLS are just not representing our interests, I wish they would stop talking to the MOJ as they seem to make the situation worse.

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  • Why do we acquiesce in this fiddling while Rome burns?

    It is yet a face saving exercise, a hollow victory, necessitated by a need to preserve the notion of the Bar of England and Wales as having sufficient powers of pursuasion not to be rendered totally impotent in its argument with the Government.

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  • Does no one see the fact this is a success? Of course this is divide and rule by Grayling and his small minded cronies but at least the Bar have succeeded in making their point! Solicitors protest and the Law Society huff and puff but it has got them no where. What is the point of a strike if 'duty solicitors' are still at court to represent those who appear in custody, and own client solicitors there to represent the vulnerable? Solicitors are always going to lose because they are not prepared to upset the apple cart like the Bar.

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