Some barristers on Twitter have interpreted the suspension of action announced by the CLSA and LCCSA on 21st August as tantamount to the death warrant for the independent criminal Bar.  They may be right.  I think however that we may still have one more shot at trying to save out futures.

I confess to being surprised that the action has been called-off without anything concrete being offered to solicitors so I can only assume that the leaders of the solicitors’ organisations know what they are doing. They must have something pretty good up their sleeves or the wrath they will face from their colleagues if they simply back down will be like fire from hell.

Of course the 8.75% cut needs to be defeated but the real issue of concern to the criminal Bar remains dual contracts.  For all the arguments between us I think everyone at the criminal Bar is agreed that dual contracts represent a direct existential threat to the independent criminal Bar.  Put as simply as possible dual contracts will signal the end for the independent criminal Bar because dual contracts carry with them an imperative for solicitors’ firms to keep as much work as possible in house rather than being briefed out to the Bar.   The most junior barristers will be out of work first and even those chambers still recruiting at the most junior end will cease to do so. For a while more experienced barristers will continue to be briefed but as in-house counsel and solicitor advocates become more experienced less and less work will be briefed out and eventually the independent Bar will simply die out. Tony Cross QC’s last Monday Message dated 13th August was characteristically graceless and ill-tempered to boot but he was right about one thing; dual contracts are “the real issue for the Bar”.

We have almost certainly missed the last “best chance” to save the independent criminal Bar. That disappeared at the time of the infamous “Grayling deal” in March 2014 when we surrendered a position of considerable strength to the MoJ and betrayed our solicitor allies into the bargain.  After that any hope of salvation was always going to be a slim one.   But I think we do still have one last chance to save the criminal Bar.  If we are to achieve it we will require a considerable amount of unity within the Bar, not to mention the support and help of our solicitor colleagues.

The current leaders of the criminal Bar all favour negotiating with the MoJ rather than taking direct action.  In the run-up to the recent ballot for vice-Chair, The Chair elect, the newly elected Vice Chair, the secretary of the CBA all stated their preference for negotiation as did all the Circuit Leaders.   To a man (and they are currently all men) they stated their intention to vote against the direct action that was nonetheless subsequently approved by a majority of the membership of the CBA and which has just been called-off.   A number of them listed a series of what they considered to be achievements made through discussion and negotiation with the MoJ and they decried the call to arms that some of us said was necessary in order to get the MoJ to rescind the cuts and scrap dual contracts.

Well now their moment has come.  If memory serves me correctly and barring any postponement the announcement of the 525 duty contracts is due in around mid-September, so about three weeks away.   If I am right in my view that we have not yet reached Armageddon for the Bar, that announcement will be it.  Once the successful bidders have been announced it would seem that dual contracts will have become a reality and with it will disappear any lingering hope that the independent criminal Bar has any future.  And remember that reports from recent meetings with the solicitors at which the CBA has had observer status have made completely clear that the MoJ are not interested in any reconsideration of dual contracts.

So how will the leadership of the CBA deal with this matter?   Expect more condemnations of dual contracts full of righteous anger and full of sound and fury about what a jolly rotten idea they are and how damaging they will be to access to justice and decent advocacy, and for all that fury, signifying nothing.   Then expect invitations to tea and cup cakes with the man who glories in the name of Lord Chancellor, a man we are told by our leaders has indicated his deep admiration for the criminal Bar, so deep indeed that he is about to sign off the final order for the dismantling of the same independent Bar.

And when those negotiations fail, what then?  A white flag hoisted above CBA headquarters?  If the leadership accept that dual contracts represent a death sentence for the independent criminal Bar and if, as they have previously indicated, they are not entirely against direct action if is essential they will have reached the point of no return.  The leadership will have to back direct action.  There will simply be no further card to be played.

That being the case it is essential that the CBA leadership takes immediate action in the next few days to organise a further ballot.  It is unfortunate that yet another ballot would appear to be called for but that is one consequence of the way in which the last Chair of the CBA organised the last ballot.  By restricting the ballot to the single issue of the 8.75% cut and by posing no returns as the weapon of choice there would currently appear to be no mandate for any direct action.  It is ridiculous that this has been allowed to happen.  As I have said before, when we voted for direct action back in November 2013 we gave the Executive of the CBA  a blank cheque to decide what issues to fight on and what weapons to use.  It is absurd that we were forced by a Chair intent on undermining the effectiveness of direct action into the straightjacket of single ballots on single issues.  As the leadership of the CBA changes hands I hope we will see no more of such nonsense.

But we are where we are, as they say, and the urgency of the new ballot is that the leadership needs to know before they begin negotiations that as and when those negotiations break down they already have a mandate and can call the necessary direct action without any further delay.

And this time we must play our strongest hand.  in the last 20 months or so we have tried half days of action and full days. We have tried “no returns” with varying degrees of success.  But so far we have not deployed our ultimate weapon, an all out strike.  It has been the elephant in the room.  Some will say the decision not to call an all out strike was justified at the time.  I disagree. If we had simply withdrawn our services from all criminal courts from a date in early 2014 until we got a deal we were all happy with, solicitors as well as barristers, we would not be in the situation we find ourselves in now.   For the umpteenth time in the last ten years or so we find ourselves in a desperate situation made worse by our own sense of caution.    And for all the backslapping amongst CBA leaders after the deal last year, we have finally reached the point where we have to stand and fight.

So I believe the CBA leaders must immediately organise a fresh ballot to authorise action in the event that negotiations with the MoJ do not bear fruit.  Our purpose is simple. The government must withdraw dual contracts altogether and retain the current system pending an entirely new review.  The CBA should not allow negotiations to continue beyond a very limited period because to so so will defeat the object of this exercise.  It would be very easy for the MoJ to allow talks to drift on whilst they quietly implement dual contracts.   There is very little to discuss here. Either the government agrees to scrap dual contracts or we take action.  I cannot see how such talks could possibly take more than two weeks.  The ballot should ask one question and it is this: “In the event that the government declines to withdraw the dual contract scheme by [date to be fixed] will you agree to immediately withdraw your services as criminal barristers in all Magistrates and Crown Court cases until the government agrees to our demands?”

I am sure there will be some who will be alarmed and maybe even a little frightened at the thought of not fulfilling their duty to their clients and not going to court on a set day.  What will the judges say?  What about the Bar Standards Board?  That is understandable.  None of us wants to have to do this.  But for the reasons I have already stated I think we have no choice.  And if we take action together and stand together we will be strong together.   People won’t be left at home wondering what everyone else is doing.  As we did last year we will organise meetings at court and if we feel very bold maybe even in robing rooms!   Those who took part in the days of action last year will recall the thrill there is in going to court to find all your colleagues doing the same thing.  So let’s be bold, let’s be a little brave and do what needs to be done together.  I have no doubt that our solicitor colleagues, few of whom support dual contracts will give us their overwhelming support.  Like us they have everything to gain and increasingly little to lose.  And anyway, who cares what the judges can do or even the dreaded BSB?   There are some of you out there who will get the equivalent of a P45 if we don’t stop dual contracts and that has to be a whole lot worse than anything any judge or the BSB could do to you! And in the final event I am happy for you to point at me and say “he’s Spartacus!”

I have no doubt my suggestion will provoke a deal of outrage from those at the criminal Bar who support government policy but to all the others I pose this simply question; if negotiations fail, what alternative do you suggest?   As members of the independent criminal Bar we are duty bound to try to preserve our profession.   We are rapidly running out of ammunition but I think we have one last shot left.  We had better make it count.