CL&JW: Ditch the Deal

It has been a draining few weeks for the Criminal Bar. For many months before, both barristers and solicitors stood side by side, in a unity I have never known, to fight the savage cuts to legal aid which this Government seemed determined to push through. It is worth dwelling for a moment upon that determination. Expressed over this protracted and intense campaign in the most trenchant terms both in negotiation and in public, Chris Grayling and his spokes people, notably Bob Neill, a barrister at 2 Bedford Row and Vice Chair of the Conservative Party aggressively criticized the Bar and its attempts to axis the dispute around access to justice.

Nigel Lithman QC, Chair of the Criminal Bar Association repeated the rallying cry of “Not a penny less” and whatever the impact of the “days of action” the no returns policy, even in its infancy was beginning to bite. Alongside this, despite the understandable occasional tensions between the two sides of the profession, the rank and file were as united as they have ever been. The court of public opinion was also beginning to get the measure of the debate. Editorials and Comment in a diverse range of newspapers were expressing the growing concern that this dispute was not so much about pay, but about a fair criminal justice system. It did not stop there.


Days before the decision to stand down the action undertaken by the criminal bar to highlight these issues, an independent research body had declared that the Government were misleading the public with false statistics. With this as the context, it shocked the majority of criminal barristers and solicitors when Nigel Lithman, on behalf of the CBA suddenly announced a cessation of direct hostilities and an end to the fledgling no returns policy and the days of action.

The deal which seems to have been struck, with no vote or consultation of the criminal Bar is that the Government will suspend all fee cuts for all graduated fee cases until the Summer of 2015, just after the next General Election. In his communication to CBA members after what can only be described as a “Twitter Storm” of condemnation, Lithman described the development as “a great deal”, and what the Bar “demanded”. So who are the winners and who are the losers?

Naturally this is being hailed by Lithman and his supporters as, in his own words “a great deal” for the junior bar. This is the principle justification expressed by the CBA for the accord.

If it was such a brilliant deal for the junior bar, I would be the first to acclaim it. I have consistently and publically argued that the campaign, certainly on behalf of the Bar was to save the junior Bar in the interests of a diverse, fair and talented criminal justice system. To be fair, perhaps until the Summer of 2015, the junior bar will fight on within a status quo, despite the uncertainty of when the sword might fall again. Whether this uncertainty will do anything to encourage new and talented people into the criminal Bar is entirely another point, especially as we have in the same week as this deal is accepted, an Officer of the Bar Council telling students not to come to the criminal bar if they want to make any money.

Be in no doubt, despite what Nigel Lithman says, this deal is absolutely not what the rank and file of the criminal Bar, in his words “demanded”. When they committed themselves to fighting these Government cuts, “not a penny less” did not mean “not a penny less until the Summer of 2015”.

So how did this deal play for Chris Grayling?

Back to context. For all of the reasons I laid out at the start of this piece, Grayling was on the ropes, his statistics independently rubbished, newspapers turning against him, the no returns policy beginning to bite and an effective unity between both sides of the profession. He needed to halt a momentum which was clearly building up against him.

This is not brain surgery, my time in local politics taught me that when you have your foot on the neck of your opponent, you keep it there. It seems that Grayling requested the attendance of Lithman at a meeting in which he put the deal on the table. Back to Nigel Lithman’s statement to members and he discloses that the MoJ offered “no mediation … no negotiation”.

Of course they didn’t. They needed to bounce the deal through, break the momentum of the campaign and destroy the inter profession unity which was contributing to their regular humiliation in the media. The outrage caused by what many viewed as nothing short of bullied capitulation was unprecedented. Within hours, the CBA email box had been inundated with demands for an EGM and a motion expressed “Do you wish to continue no returns and days of action until all the cuts and reductions in contracts are abandoned?” The CBA bowed to this popular pressure and agreed to the vote. Interestingly, criminal barristers are being asked by the Bar Council to support the deal. This is hardly suprising because the Bar Council never expressed any support for the criminal Bar for either the days of action or the no returns policy.

This deal must be ditched.

It provides no help or reassurance that the future of the junior bar is anything other than treading water until Summer 2015. Anyone involved in Bar politics as I have been, since my early years on the Young Barristers Committee will tell you of the long list of political deceit stretching back decades.

The criminal Bar, alongside solicitors were on top of the issue. Come 2015, recreating that unity and the momentum achieved over many months will be unlikely, if not impossible after this perceived betrayal. I have no idea how this vote will go, but at least we have got it. For a decision to be taken about this without consultation with the very rank and file that threw themselves on the line for the fight is astounding. I am in no doubt that like all bullies, if stood up to, Grayling would have backed down. Was it really thought that he would have walked away from a deal which saves his skin for an extra week of consultation?

So lets see how this plays out.

It is probably the most important vote that any member of the criminal bar will exercise.

Professor John Cooper QC. 25 Bedford Row.
Consultant Editor CL&J. Twitter: @John_Cooper_QC
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