An open letter to the Chair of the Criminal Bar Association in relation to legal aid rates under the Advocates’ Graduated Fee Scheme (AGFS), signed by 193 criminal barristers.
We write to you and the CBA executive as junior Criminal barristers of 0-12 years’ call, in the wake of the government’s consultation response to Amending the Advocates’ Graduated Fee Scheme (AGFS 11), published on 10 December 2018.
We recognise the unenviable task the CBA executive faces in negotiating with the MoJ, and do not write in an effort to sow discord. However, what follows is an earnest and unapologetic attempt to convey to you and the CBA leadership the strength and depth of our feeling against AGFS 11, even as amended.
The Monday Message sent on 10 December 2018 described the proposed amendments as “tangible progress”, and sounded a note of optimism that “[w]e are beginning to turn things around”.
Regrettably, we do not share this optimism. We are alsounderwhelmed by the degree of progress. The fact that it is unprecedented does not of itself render it acceptable or worthy of celebration; following, as it does, over two decades of savage and dangerous cuts to the justice and Legal Aid budgets.
The 1% uplift and implementation of the newest statutory instrument with investment of the “additional” £8 million was simply the fulfilment of a promise; a promise on which the government had sought to renege. On any view, the government’s reliance on out-of-date figures on which to base its offer of a £15 million “increase” was at best a mistake and at worst a conscious and cynicalmisrepresentation.
We are angry. We believe that:
It would be wrong to think that we at the (junior) junior Bar are not equally concerned with the destruction of PPE as those more senior. Its loss in paper-heavy cases represents the dismantling of our future. Moreover, when senior members inevitably begin to choose their cases more shrewdly, those of us lower down will face the unenviable choice of taking on cases we fear are too complex for our call or having gaps in our diaries. We are seeing many examples of this happening already.
The current structure of payment, whereby guilty plea fees and cracked trial fees do not reflect the work involved in preparing for guilty pleas and ineffective trials (especially in cases that run to several thousandpages and beyond), is also creating a real risk to the quality of representation. The lack of adequate remuneration for work done out of court is greatly exacerbated (especially in the case of junior juniors) by the ubiquitous use of warned lists, with their in-built likelihood that counsel who prepares the case will not in fact do the trial (notwithstanding advices on evidence, conferences, legal arguments, defence statements, etc.). This has already begun to erode that quality of representation, with individuals understandably finding it impossible to justify the preparation time previously allocated to such cases, and to “go the extra mile”, as was previously routine.
The fees report due in 2020 will be redundant by the time it is published. There will either have been the dramatic change in funding that is needed by then or many of us will already have left the profession. We are haemorrhaging talent. The idea that we don’t yet have a clear enough picture of the effect that AGFS 11 is having, and will continue to have, is laughable. Whether the government likes it or not, the experiences of individual barristers are telling, and taken together they start to add up to irrefutable evidence.
Junior juniors are voting with their feet. They are either ceasing to conduct Legal Aid work (whether by moving into other areas of practice or going on long-term secondment) or they are leaving the self-employed Bar altogether.
We expect the MoJ to continue to listen and engage with the profession now, not in 2020. What we want is a coherent and sustainable system of remuneration for work done. This can and must be achieved without delay, through further negotiation. Plainly, we can only speak on behalf of those who have signed this letter, but for our part, we are in favour of direct action in the New Year, if needed to bring the MoJ back to the table. We acknowledge this will require careful planning and some creativity, with every effort made to protect those who would be financially unable to participate in, for example, a return to ‘no returns’. We envisage discussions to that end early in the New Year and are cognisant of the need to prompt a meaningful response from government before March (n.b. Brexit).
At the juniors’ meeting on 24th November 2018 the mood was plainly, and strongly, in favour of further industrial action. It may be that the “additional” funding for AGFS11 has placated all of those individuals, and those whose views they conveyed to the meeting. All we ask is that the CBA does not simply assume that this is the case. Certainly, in respect of those who have signed this letter, it is not.
21 December 2018
Sent on behalf of:
This should be a national scandal but lawyers, much like civil servants, tend not to garner much public sympathy. You need Ken Loach or someone similar to make a film or TV drama about the reality of life at the criminal bar. I wish you luck – it’s hard to see how we can have a functional society without a functional legal system.
I am one of the ones who gave up and left. I would not claim that that amounts to a haemorrhaging of talent but it is an indication of reduction of numbers. The Judiciary’s recent complaint about the unacceptable state of many Court buildings is part of the same sorry picture of underfunding and underlying decay.
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