These are very difficult times for that part of the legal profession that does criminal work paid for under the legal aid scheme.  Relentless cuts followed by existential threats such as two tier contracts has left many with frayed nerves.  On one level there has been unprecedented unity with recent meetings involved not just the CLSA and LCCSA but even the much maligned Big Firm Group (BFG) as well as the CBA.

During my campaign for the CBA Vice-Chair I argued that we badly needed unity around a common set of demands that barristers and solicitors could put to the MoJ together.  I accept this isn’t easy.  Different groups have different priorities and not everyone seems to share the same desired outcomes.  It was a major coup to get the BFG on board in the current dispute because it has long been assumed that in general terms at least they are in favour of the sort of consolidation that TT was intended to bring about.   It is a measure of how badly thought out the TT scheme is that even the BFG are apparently unhappy with it.

Taking any form of direct action involves a fair degree of trial and error.  Barristers and solicitors are not generally familiar with various forms of industrial action.  Its a fair bet that until last year most members of the criminal Bar had never been on a demo before much less engaged in a withdrawal of their labour.  Small wonder then if after a few weeks one side or the other other finds that a certain tactic isn’t working and wishes to change tack.  That doesn’t alter the fact the target remains the same and with it so does the need to maintain maximum unity.

When the criminal Bar voted for DA in late 2013 the general assumption seems to be that we would be taking days out of court.  Indeed that is what happened on two occasions early last year.   The idea of using “no returns” was a later development and one that frankly I had not really thought about before the idea was first mooted.   As we know it worked brilliantly as a tactic in forcing the MoJ to negotiate with us.

You don’t need a long memory to recall that there was no ballot on whether to implement the no returns policy.   Indeed there was no mandate sought or obtained after the meeting of the CBA at Lincoln’s Inn in November 2013.  That meeting gave the Executive an overwhelming mandate for direct action and we seemed perfectly content to leave it to the Exec to decide precisely what form of action to take and when to take it. I don’t recall a single person insisting that we needed to have further ballots before every twist and turn of the campaign we fought last year.

But then of course things were rather different.  At that time we had a leadership within the CBA at least who either supported the action or at least recognised the strength of feeling amongst the criminal Bar and had no apparent problem with leading the fight from the front.  Key amongst those leaders was of course the then Vice-Chair of the CBA Tony Cross QC who had come to well-deserved prominence when he led a brilliant and entirely unofficial walk-out by barristers on the Northern Circuit earlier in 2013 supported as it was by many local solicitors.

Today however, we face the anomaly that a majority of the membership has voted to take direct action and the key members of the Exec who make up the leadership have all voted against the same action.    That obviously presented the leadership with a problem.   One solution would have been to resign and leave it to those who had called for the action to lead it in practice. For their own reasons none of the leaders chose to resign.   As far as I can tell from my position on the outside the leaders of the CBA have so far implemented the wishes of the members in an entirely appropriate way.

But then came last week.   Fractures seemed to appear in the ranks of solicitors supporting the action.   A number of firms are not surprisingly starting to feel the financial squeeze the action has inevitably caused.   It seemed the BFG were on the verge of pulling out altogether.  Then there was the meeting with Gove that it seems the CBA were invited to attend and in the end did not. I say nothing about the various versions that have been circulating as to how this came about.  If it was all just misunderstanding then we have to accept these things happen, just as we have probably all missed an important train because the alarm clock failed to go off on that particular morning.

Sadly this all seems to have led to a fair amount of bad-mouthing, mainly from barristers directed at solicitors claiming that there had been a lack of frankness, never mind poor communication.   You would think that some barristers were just itching to find any old excuse to get into a fight with solicitors rather than direct their ire at the MoJ.  Interestingly much of this bad-mouthing seemed to come from barristers who never supported the action currently being taken in the first place.

Then yesterday the Chair of the CBA issued a statement informing the membership that the CBA Exec is due to meet on Monday evening to discuss the latest developments.  If you have read it you will have noticed that it says the new protocol announced by solicitors “appears to alter fundamentally the basis upon which our members voted to support solicitors’ action.”  Of course the new protocol does no such thing.  The solicitors are still fighting the 8.75% cut imposed on 1st July.  Solicitors are still refusing to take cases with a rep order on or after 1st July at least as far as the Crown Court is concerned.  The action by the Bar in support remains every bit as important and valid now as it did when many chambers began to implement the action in advance of the result of the ballot, following which the CBA announced that where action had not already begun, it would do so from this Monday.

Call me paranoid but I detect in Tony Cross’s musings the suggestion that he at least is thinking that this may provide some spurious basis for overturning the decision of the membership in the ballot for action.   It does not.     We have voted.  The leadership could have resigned rather than implement a policy they apparently disagreed with.  They did not. It is therefore their job to ensure this campaign is pressed with the maximum effort to ensure we get the government to accede to our demands.   When they meet tomorrow I trust the whole of the CBA Exec will accept this and reject any attempt to undermine the current action.

I will always be grateful to Tony Cross for the courage he showed in organising the first ever direct action taken by members of the criminal Bar.   It would be shocking if his year in office comes to a close with him trying to overturn the democratically expressed wishes of the majority of the membership simply because he didn’t agree with the outcome of the ballot.

If we continue to strive to ensure there is real unity between Bar and solicitors we can win this battle against further cuts and against two tier contracts.  It requires us to stand firm with our colleagues and not engage in back-biting. We must hold the line and see this thing through to a successful conclusion.