Don’t mention the ‘s’ word

Why the bar should be cautious about the justice secretary’s intentions and unite with solicitors

When newbie Lord Chancellor, Michael Gove, gave evidence to the Justice Committee last week criminal solicitors were almost two weeks into protest action over further cuts to their fees, which were introduced on 1 July.

But you wouldn’t have known that from his performance. In an appearance that lasted just short of 90 minutes, Gove mentioned solicitors once, having referred to the bar numerous times, and in glowing terms.

It is true that the session started 15 minutes after the Criminal Bar Association (CBA) announced the outcome of its second ballot on whether to join the solicitors’ protest. With a turn out of fewer than 50% of the membership, the vote went in favour of action by 55% to 45%.

Gove’s tone demonstrated a marked shift in narrative from that of his predecessor, Chris Grayling. Instead of painting barristers who oppose the cuts as fat cats, he accepted that it was not self-interest that motivated their ‘legitimate concerns’.

He expressed concern that talented young people see the criminal bar as ‘an increasingly unattractive route to go down’ and stressed the need to ensure a ‘healthy pipeline of future recruits to the bar’.

Ensuring a ‘healthy independent criminal bar’, he said, is one of his ‘top priorities’.

The former Times newspaper journalist expressed disappointment with the outcome of the bar’s vote, but put it down to ‘bruised feelings from the past as much as anything else’.

Though the vote indicated a ‘preparedness to take action’ Gove stressed his desire to continue to talk to the bar.

The previous week at his Mansion House, Gove spoke in equally fulsome terms about his determination to ‘take all the steps’ to ensure a ‘healthy and vibrant bar – and in particular a healthy criminal bar.’

Solicitors, who I am reliably informed, undertake 95% of all criminal work from the police station upwards, are understandably miffed by the brush off.

Their action in refusing to take new cases after the 1 July is starting to bite across the country with reports that hearings — including those involving murder cases — have been disrupted and police stations are in chaos.

Gove was not asked about their action and did not volunteer any thoughts before the justice committee. And the line from the Ministry of Justice remains that courts are ‘sitting as usual’.

Since the action began, duty solicitors have been covering police station work. But, following Gove’s failure to note their existence, the leaders of the solicitor groups have indicated they will consider ‘upping the ante’, which could see them stopping duty work.

But as things stand, it could take a while before the strike action causes major disruption. Though duty solicitors are feeling the pressure, there will be defendants who chose to deal with their case themselves rather than wait for the duty solicitor, and the police will doubtless not encourage them to do otherwise.

Unrepresented defendants appearing before the magistrates’ courts on minor matters may take the path of least resistance and plead guilty, leaving only the problem of cases that go up to the Crown Court.

But it will take a few weeks for matters that started after 1 July to reach the higher level. Judges may allow one or two adjournments for unrepresented defendants to get representation, before throwing their toys out of their prams and cases out of court.

Solicitors — as the first port of call for those arrested — should be in the stronger position to the call the shots than the bar. But as it is the bar that still does the majority of Crown Court work, it is they who can cause real trouble for the government.

And Gove will be aware that solicitors need the support of the bar to bring the courts to a standstill. It may be for that reason that he has been courting them so solicitously.

Following the vote, the CBA’s executive threw its backing behind the outcome, despite the fact that most of the association’s top brass oppose action.

However, CBA leaders agreed that the bar’s action should not start until 27 July (though some chambers are already refusing new cases), ostensibly to allow a protocol for how to strike in accordance with professional conduct rules to be put in place.

This leaves a fortnight for the continued talks that Gove wants to take place.

During this time, the bar must be careful not to get lulled into a false sense of security by the Justice Secretary’s flattery and apparent understanding.

It is vital that its leadership does not settle for short-term gain for its members at the expense of solicitors, in the belief that Gove will safeguard their interest in the long term. Don’t be too sure that he will.

Grayling was accused of divide and rule when he ditched cuts to barrister’s fees and pressed on with cuts for solicitors. A cynic might suggest that Gove is playing the game more subtly.

He has shown a common sense and compassion over prison policy that many did not expect. But those policy changes – over prisoners’ books and building a hideous super prison for young offenders – did not cost money.

A U-turn over legal aid cuts will. At the committee, Gove was clear that he has to act within the ‘budget envelope’ and that as the Ministry of Justice is an unprotected department he has to do his part to reduce the deficit.

The bar should be clear about something too – the contracting reforms coupled with fee cuts for solicitors will result in its own demise as firms are compelled to keep work in-house.

Regardless of that, barristers seeking to protect their own position should consider the driving force behind the government’s strategy for legal services – laid clear by the Courts and Legal Services Act 1990.

The agenda of the Whitehall mandarins — who many feel in reality steer government policy — is fusion of the two professions. That is the goal driving the reforms. The urgency to carry them through has merely been hastened by the financial crisis and need to reduce the deficit.

Gove is simply the instrument of the civil service behind him and he may yet need to take his iron fist out of the velvet glove he has worn thus far.

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