Guest blogpost: Why we should accept the deal

I am pleased to host this guest post from a junior member of the criminal Bar, who argues why we should vote to accept the deal arising out of the Criminal Bar Association’s negotiations with the government.

I’m a junior criminal barrister. I’m not a member of the CBA Executive, nor associated with them. This post was drafted to help me decide how to vote; perhaps it will be useful to you too.

I am deeply concerned that we are not looking at the whole picture. There are so many other concerns intimately wrapped up in how and how much we are paid for a case; ultimately a sense that justice, despite our best and most valiant efforts, is not being done.

We must look more broadly when we consider this deal, and so I publish this anonymous piece in the hope that my colleagues will also consider all the issues.

I am deeply concerned by what we already agree upon:

1. Money for legal aid is not a vote winner. The public, parliament, and papers laud us as fat cats, leaving politicians to cut deeply the budgets of the MoJ and CPS. No department has lost so much, with so little uproar, that affects so many people. Just today, we see stories of the families of the London Bridge terror denied legal aid, and Sir Brian Leveson warning that the Justice system is on the brink of collapse. Yet there are no protests, no angry marches – no public backing at all. Compare this to the doctors strikes of 2015. If there is a PR battle over legal aid, we are in full retreat; our villages burning, and our castles broken.
2. Cuts have consequences. Courts are closed, Recorders are told there is “not enough work”, and cases are now being listed well into 2020 – at the same time, fewer criminal are caught and prosecuted, and police numbers are at record lows. We know that the impact is that there are both miscarriages of justice, and that prosecutions are not brought while crime rises. Without cases being brought to court, there is no work for barristers to do. Without cases being brought to court, the guilty walk free.
3. The CPS has ignored our complaints for too long. We are not paid for key parts of our jobs – the hours of preparation required, the endless chasing for disclosure, and reviewing unused. These are vital – not just to prosecute and defend effectively, but to uphold our ethical duties to ourselves, our profession, and the administration of justice.
4. The only promise we have is a review of AGFS. No new money has been promised. No new principles have been published. The only promise we have is a review.
5. Fees are not being paid when honestly earned. The CBA’s Monday message has regularly highlighted appalling conduct from the CPS, with civil servants deliberately setting out to deny fees and ongoing work.
6. Fees have not increased for 20 years. While we are not mathematicians, even a cursory knowledge of numbers will tell you that 20 years of static fees is a massive real term pay cut. Far from being wealthy, most juniors 0 – 2 years’ Call would be better off on benefits or working at McDonalds. Many leave the profession with back-breaking debt, their loans, credit cards, and parental patience finally exhausted. Those outside London fare better, it is true. But it is the future of the Bar who are leaving. Already we hear of the decrease in quality of advocacy – how will we sustain ourselves for the next 20 years? The next 50?

Here, our paths diverge. I believe there are 6 compelling reasons to vote for this deal, right now, as a tiny, incremental, step to safeguarding the future of the Criminal Bar.

• Voting for this deal gives juniors an immediate financial boost from September 2019.Fees are not what they once were, nor does accepting this allow us to forget what rates used to be, but a 25-40% improvement will sustain junior juniors for a little longer. For senior juniors, this ameliorates the cash flow problems that many CC trials run into, with payment now made when a case ends but is adjourned for sentence. Day 2 of trial will be paid, and the start of trial will now be defined correctly, as the day the trial actually starts. It’s important to note that this is new money from the Treasury, not from the CPS budget. That money can, and will, be reallocated if we do not take it.
• Voting for this deal results in a promise to review AGFS by November 2019. This review will focus on three areas: PPE, cracks, and unused material. Banking this deal now does not take away from the need to advocate, persuade, and push forward with the AGFS changes we need. Further, the AGFS review separates the money for AGFS from the overarching Criminal Legal Aid Fees review – rather than fighting over one giant pot, we can have a separate, focussed review of AGFS alone.
• Voting for this deal acknowledges its interim nature and retains our power to strike. This is not the final chapter, the last word, or the end of the conversation. We were given 50% of what we asked for. The remaining 50% is constrained by the Parliamentary timetable, something that not even the most fearless of us would contend with. Banking this offer does not prevent us from taking future strike action, if the government’s promises are not kept.
• Voting for this deal gives us time to get the public onside.This deal is portrayed as a doubling of fees– if we reject it, we will lose credibility and what little public support our most high-profile advocates have gained for us. As a profession, we have done a shockingly awful job of explaining why justice is the vital thread that holds the fabric of society together. While the UK’s highest circulation paper blasts legal aid, and another perpetuates the myth that all lawyers earn vast sums, we are losing the PR battle. We have been losing the PR battle for so long that we have to clamber out of the ravine, schlep across vast fields, and slog through the forests before we finally reach the behemothian mountain we have to climb.
• Voting for this deal demonstrates political acumen. Changes to AGFS require parliamentary time. Where are those parliamentarians? On holiday. Until September. We cannot ignore the fact that who we are negotiating with matters; if, as is likely, there is a change of government and a change of leadership at the CPS and MoJ. We cannot guarantee that a future justice secretary (perhaps Mr Raab?) will be particularly endeared to the Criminal Bar. Taking this deal results in progress, and still leaves us our most powerful option – a full-throated strike – when or if future promises are not kept. Further, it allows us to plan strikes more carefully. We need a proper PR strategy. We need a hardship fund for juniors. We need a detailed protocol for the unavoidable ethical dilemmas. We need the backing of the regional chambers to not break the strike. We need the backing of senior juniors, of Silks, and of the entire Bar. This takes time to build.
• Voting for this deal allow us to be united for the first time. We all have competing interests, we all are fiercely independent, and we all cannot own up to that – until we do, we will not succeed, either for ourselves or society. Those competing interests broadly split into 5 categories: pupils, junior juniors, juniors, senior juniors, and Silks. Many of those now calling for action are those who stood by last time, and the time before that, and the time before that. We have long been content to pull the ladder up after ourselves, caring little for the most junior. You cannot claim unity while ignoring the issues of the most junior. You cannot claim unity when the future of the Bar are leaving.

 

We are not united

As a profession, we do not care that the most junior are struggling. For the last 10 years, low junior fees were seen as the “price to be paid” to ensure that work was brought into chambers for the most senior. Junior juniors were expected to be grateful to be thrown scraps of work, and told never to complain if you want to rise up the ranks.

Cash flow is a raging, pulsating anxiety in the minds of all juniors. Many have aged debts of £20,000, or more, on top of student loans. Rent does not wait. Bills do not wait. Travel must be paid. Those with 20 years’ experience forget that fees are the very same amount right now, while housing costs have increased by 400%. In 1998, the average UK monthly rent was £199.75– now, it stands at £934(and £1,602 for London). Those figures are typed correctly; we, the most junior, are expected to survive on the junior wages of 20 years ago, with today’s costs. Those who continue to expect the “price to be paid” will likely find that the price is the collapse of the Criminal Bar.

Making it to 10 years’ Call does not smooth the road ahead. With fee cuts taking hold in complex trials, many juniors have diversified their practice or taken secondments to stay afloat. Did those Silks and senior juniors need to diversify to pay the mortgage? Opportunities to be a junior on a serious trial are few and far between – some who manage it must do so for free, while still paying huge rents and bills. Being a junior on a trial is essential to grow and learn; without those juniors, who will prosecute or defend the alleged criminals of the future?

What of life at the Bar? The world outside has changed; look at Google’s luxurious officesor the 32-weeks maternity pay at Accentureto recognise how seriously the rest of the world takes wellbeing. At the criminal Bar, we expect women to choose between family and career. At the criminal Bar, we expect you to be in court or in hospital.At the criminal Bar, we expect you to witness the full uncensored horror of humanity, with no counselling, therapy, or support. Would anyone in the commercial world accept this? The grinding hours? The unpredictable commutes?

Finally, we arrive at the peak of the issue. We so often work for free. So much of our time and effort is unpaid. The juniors work for free to benefit the seniors. The juniors work evenings and weekends – unpaid – to prepare cases. We cannot build a career, a justice system, or a life on thin air. Until everyone, everyone, agrees that this is unacceptable, we cannot fight this properly.

What we, the most junior, are asking for is simple:

1. To be properly, and quickly, remunerated in line with our skills and the complexity of the case.
2. To talk honestly and openly about unpaid work, work paid months late, work not paid at all, and the demands it places on us and our families.
3. To agree on how the system should reflect the frankly skewed nature of London living. Does the Bar even have a future in London?

 

The path lies ahead, yet untrodden

Those who path calls differently, for action – what are your goals? Your objectives? What will action result in? How much money is enough? What plans do you have to protect juniors who will inevitably struggle? How many of your solicitors have you persuaded to buy in to action?

Those who yearn for action have no business going on strike without being clear, and realistic, about what you want for your livelihood and profession. Otherwise, you will repeat the vicious circle of the past – brief action followed by swift and total capitulation. Again, the most junior will lose.

The brutal, broken reality is that we do not, right now, have the strength to fight. Our junior juniors will crack under the financial pressure and break the strike or leave entirely. Our reputation and public image will sink lower. Our chambers and colleagues are not prepared for sustained action.  To make a mistake now will compel even more to leave.

Those that leave are the Bar’s future. They are the Judges that will never judge, the Silks that will never take it. They are the advocates who are not being fiercely advocated for, by those who have already made it.