“The Empty Chair”

24th July 2015

Yesterday there was an important meeting at the Ministry of Justice.

Michael Gove, the new Lord Chancellor and Secretary of State for Justice, and his senior officials, met representatives of criminal legal aid lawyers.   I understand Mr Gove was very much on top of his brief and led the meeting; the issue of criminal legal aid and the current severe problems in the criminal justice system had his full and keen attention.

It was the sort of meeting where big decisions can be made; it is rare to get relevant people in one place to discuss one thing when that one thing can properly be dealt with.  It was – potentially – a historic meeting.

But not everyone was at that meeting.

Criminal legal aid lawyers were represented by the three relevant solicitor groups.  The Criminal Bar Association (CBA), however, chose not to appear.

Why was this?  Does it matter?  And what consequences – if any – will this no-show have?

The one explanation for the no-show which can be discounted is the one the CBA gave at the time.  Thirty minutes before the 11.30 am meeting yesterday I spoke with an official of the CBA.  He told me that the CBA had “not been invited”.  The CBA also had told others by then of this “not invited” excuse.

The excuse was false.

The CBA had been invited and had been asked to provide a name; for whatever reason, a name was not provided.  That is why, later in the day, the CBA switched to saying no CBA person had been put on the attendance list.  And this was strictly true; for no name was on the attendance list because the CBA had not provided a name.

It is curious that an organisation whose members every day in courts throughout the land expose such false excuses in cross-examination would offer something so easy to show as untrue.  Why give such an excuse?  Who knows.

What was more important was the non-attendance.

The meeting yesterday was plainly one which the CBA should have been attending.  Even taking their “not on the attendance list” explanation at face value, such things are easily rectified with a quick phone call.

So the CBA could have been there, and should have been there, but they were not there.  And given that any sincere problem with “not being on the attendance list” could have been addressed, the inescapable conclusion must be that the CBA – or, more specifically, its leaders – did not want to be there.

Just the completeness: the CBA were certainly expected to be there.  A member of the CBA executive had confirmed this to a journalist from the Law Society Gazette:

And when the CBA’s expected attendance at the meeting was expressly mentioned in the Law Society Gazette, this was RTd by the CBA’s own Twitter account.

As a matter of fact, senior people at the CBA were freely discussing their attendance at the meeting until the very evening before.  There was no issue about it.

From all this, you can draw your own conclusion of the sincerity of the “not on the attendance list” excuse.  The CBA’s “not invited” excuse is certainly false; you may conclude that the CBA’s “not on the attendance list” excuse is false too; but that is entirely a matter for you.

So why did the CBA leadership not want to be there?  What possible reason would they have for not attending the one meeting, with the Lord Chancellor’s full and informed attention, to address with all interested parties the resolution of the serious but complex problems with criminal legal aid?

Now that is an interesting question.

Some would be cynical.  Here the argument goes that the CBA are quite happy to play the MoJ’s game of divide-and-rule.  In support of this are the two times in recent years where the MoJ has agreed to not cut barristers’ fees when they have cut solicitors’ fees.  These have been seen as “wins” by many criminal barristers, though to any sensible onlooker they look like mere short-term advantages.

Also in support of this cynical approach is the immense flattery the new Lord Chancellor is giving the Bar.  In every relevant public statement so far he singles out the Bar for praise whilst if he mentions solicitors at all, it is about naughty solicitors who entice barristers into doing no good with inappropriate “referral” arrangements.  Gove seems unaware that there are far more solicitors than barristers, and that in the magistrates’ courts – and the police stations – it is solicitors who do the bulk of criminal legal aid work.  Not the glamorous stuff in wigs and gowns and in oak-panelled court rooms, to be sure; but just as important, if not more so, as trial advocacy at the crown court.

But this cynical argument, even if true, is not sufficient  to explain the no-show at yesterday’s meeting.

(It does, however, show one significant issue about the no-show; for the CBA – representing the barristers, whom Gove “gets” – to be in that one room sat alongside the solicitors – about whom Gove, so far, has expressed little interest – would have provided a powerful message about the unity of the legal profession. The CBA’s no-show, on the other hand, sent a different signal.)

The real reason for the absence of the CBA is more likely to be a substantial one.

Criminal legal aid solicitors have been boycotting new legal aid work since 1 July 2015.  Three weeks later, the financial impact of this stance was causing immense internal problems: for example, the staff of the small firms involved need to be paid.

In other words, the complete post-1 July boycott was unsustainable and was about to collapse.  And so, sensibly, the solicitors adopted a new “protocol” (to use the jargon) where the boycott would be focused on the crown courts, allowing legal aid solicitors to return to magistrates’ court work and police work.

The solicitors agreed this ne protocol and told the CBA in advance of the meeting with Gove.

The CBA leadership had a decision.

The CBA leadership could have understood the solicitors’ predicament, and worked with solicitors on how to combine the new protocol with the “no returns” policy which is about commence among criminal barristers.

(The no returns policy is disliked by the CBA leadership, but it was voted for by its members.  The CBA leadership prefer “constructive engagement” with the MoJ where they can continue to do side-deals which benefit barristers but leave solicitors in the lurch. Many junior criminal barristers and some QCs see this as selfish and short-sighted – hence why the CBA membership voted for no returns, whilst CBA leaders campaigned in alarmist tones against it.)

Instead, it appears that the CBA leadership saw the new protocol as their opportunity to get rid of the no returns policy, and they seized it.

This is not conjecture; read the CBA chairman’s statement of this morning yourself.

“On Wednesday evening, before the meeting, every member of the CBA Executive, received a document entitled “protocol v9” HERE and a joint statement from the Solicitors’ organisations.  The document and its appendices have been widely circulated.
“The CBA has had no input into the protocol.  It provides for solicitors resuming applications for representation orders in a very large number of cases.  This marks a major change of position by our solicitor colleagues, and appears to alter fundamentally the basis upon which our members voted to support solicitors’ action.   
“Hence, the Executive Committee will reconvene for an emergency meeting on Monday 27 July, to consider the effect of the new situation.  Meanwhile, everyone is reminded that the decision whether to take or continue action in support of the solicitors remains a matter of individual choice.  I shall of course keep each of you informed of developments.”

The CBA leadership now had what they want; a plausible explanation to get rid of the no returns policy imposed on them by their members.  What they could now get is more delay – another leisurely vote over 14 days (like the last one). And, in the meantime, the solicitors will be struggling to maintain their action in the face of brute financial reality.

And having a “emergency meeting” to discuss a “fundamental” shift by the solicitors would not be consistent with also turning up alongside the solicitors at the Gove meeting.

And so there was an empty chair.

What will now happen?

Criminal legal aid solicitors were wise to shift their action onto a more sustainable basis.  They were alert to the probability that the CBA leadership would do what they can to get out of the no returns policy inflicted upon by the CBA membership.

The new protocol simply means the criminal legal aid solicitors’ boycott can continue when otherwise it could not continue.  They do not depend on the CBA putting in place no returns.

The meeting with Gove was, it is reported, positive.  It is likely that there will be further meetings.  Given the direct involvement of Gove it is possible (though not inevitable) that an overarching solution can be put together.  No longer are lawyers having to deal only with MoJ officials.  The no-show by the CBA is not brilliant; but it is not a disaster.

Nonetheless, it would have been so much better if the CBA adopted a constructive approach and worked with criminal legal aid solicitors.

It would be so much better if there was not an empty chair in that MoJ meeting  room.

Better for barristers, for solicitors, and for all the people caught up in the criminal justice system.

The leadership of the CBA have a real opportunity to help shape the overall reform and recovery of a criminal legal aid system now in crisis.

And you cannot do that with an empty chair.







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