If this is a victory for the bar it certainly doesn’t feel like one

As solicitors stop working for two days today in protest at the Government’s legal aid cuts the future for criminal lawyers looks very bleak indeed.

Barristers and solicitors have faced a “prisoners’ dilemma”. Thanks to the formidably intelligent Dan Bunting I can spot one even if I can’t solve it.

As I understand the dilemma in its basic form it works something like this. A number of prisoners are held by the police. They are unable to communicate with each other. If none of them confesses they will all be gaoled for 2 years. If all of them confess they will each be gaoled for 1 year. But if just one of them confesses and turns Queen’s Evidence he goes free, whilst the others are sent to a special private prison where they are banged up for 23 hours a day for the next 5 years, with 50 Shades of Grey their only permitted reading matter.

I may have misunderstood something there, and don’t begin to understand the various algorithms that can be brought to bear to solve it. But the negotiations over the future of criminal legal aid rather resemble a prisoners’ dilemma in which barristers and solicitors have been trying to get the best deal they can, while nervously worrying, and never quite knowing, what the others were up to.

However, in a macabre variation on the standard dilemma the participants in these negotiations resemble nothing as much as terminally ill prisoners on death row arguing with their jailers over the contents of their last meals.

Only time will tell whether the deal struck by the Criminal Bar Association and the Circuits with the Ministry of Justice will hold. It is just possible that if they had toughed it out and demanded no cuts of any sort to either solicitors or barristers funding the MoJ might have capitulated completely; or it could have introduced “one case one fee” – probably in some stitch-up with the Law Society – which at one fell swoop would have made instructing independent barristers financially suicidal for all solicitors.

On the face of it the criminal bar’s representatives have achieved much of what they were fighting for. The essential point is that in exchange for the CBA calling off future “days of action,” abandoning the “no returns” policy and agreeing that there was no objection to barristers resuming work on “Very High Cost Criminal Cases” (“VHCCs”) the proposed cuts in graduated fees for Crown Court advocates (AGFS) have been shelved until June 2015 when they will be reviewed in the light of the Leveson and Jeffreys inquiries.

In political terms it is known as “kicking the ball into the long grass.”

Nevertheless, according to the always incisive View from the North blog:

The cuts, these cuts, are still on the table. All we have is a promise of an open mind.

Ian West, the Teeside Cassandra whose moderately expressed prognostications of doom were instrumental in galvanising the bar into action, has resigned from the CBA executive in disgust. Those who reject the deal could not hope for a more powerful and articulate spokesperson, and he is far from alone. He is supported by the bar’s very own expert in game theory.

Yet according to Nigel Lithman QC, the leader of the CBA:

We will not see the AGFs cuts again and the VHCC system will change and the lawyers will be respected and heard ever after.

The case for accepting the deal is put even more persuasively by Simon Myerson QC on his excellent blog Pupillage and How to Get It (though might I suggest that he renames it Pupillage, Why On Earth Would You Want To Get It?).

Who is right?

I have no idea, though I have a suspicion that Lithman may – if we ignore his slight hyperbole – have a point. Kicking awkward balls into the long grass is the traditional way of abandoning them without losing too much political face. I think that Mr Grayling backed away from a fight with barristers because it would have made no political sense to have the criminal courts in chaos, especially just months before an election. There is a chance that whoever is in his job in July 2015 – and it will almost certainly not be Mr Grayling – will not wish to open up the issue all over again.

Given that Mr Grayling was never going to roll over and concede that his proposals were all a ghastly mistake (and even if he had that would not have bound a malevolent successor) this seems about as much as the bar was ever likely to obtain. Ground has been given on VHCCs, not the central issue for most barristers, and a gamble has been taken that a future government will be more favourable to criminal advocates.

But is it enough to save the independent criminal bar?

The truth is that nobody can say, but I am not optimistic.

It is a deal that has divided criminal lawyers: barrister from barrister, and barrister from solicitor. For all the talk of “unity” between the professions what has emerged looks to some like the criminal bar going behind the back of equally hard-pressed criminal solicitors in order to cut a deal which protects their interests while letting the solicitors go hang. I think that is in many ways an unfair criticism.. It is the job of the CBA and the Circuits to represent their membership, not – however much we may sympathise with them – the interests of solicitors.

But whilst it may have been the best deal available I fear it will not save the bar, although it might lead to a slightly slower death.

Mr Grayling has not backed down on the proposal to slash the number of solicitors’ criminal legal aid contracts. He has not backed down, except for a very small concession for this year only, on plans to cut solicitors’ fees by 17.5%. These cuts have already been partly implemented. Only this week in my home town of Bath the good medium-sized firm of Stone King announced it was closing its criminal department. It has seen the writing on the wall.

Inevitably now, unless somehow the solicitors manage to show a unity that has eluded them so far, most criminal solicitors’ firms will be forced to shut their criminal departments, close or merge. Small firms will simply disappear. The few survivors when the dust has cleared will be large ones surviving by the most ruthless methods and by cutting their costs to the bone. They will employ in house counsel and Higher Court Advocates to ensure that as little work as possible leaks out to the independent bar. The work for barristers will dry up to a dribble.

That bleak future has little to do with the deal done by the Criminal Bar Association. It will come about because of cuts to solicitors’ funding. Even if the Ministry of Justice decided to increase advocates’ fees that would not save the bar. Paradoxically it might even hasten its demise by making crown court advocacy more attractive to Higher Court Advocates.

A rump of the bar will doubtless survive. Some silks will be able to make a living as independent barristers, until they become extinct rather as the Serjeants did in the mid-nineteenth century. Perhaps some barristers will survive on private fees augmented by the occasional “hospital pass” of a particularly difficult or tiresome case from the solicitors. Hobby barristers with private incomes may be prepared to work for virtually nothing. But I have the deepest pessimism for the vast majority of independent criminal barristers. We will have a fused profession in all but name, and perhaps before long in name too.

As far as the public is concerned your choice of Crown Court advocate will be limited to whoever the firm happens to employ.

How should barristers vote on the proposals?

The question on the ballot paper is this:

“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned?”

The framing of the question is far from ideal, so loaded is it in favour of the answer “No,” but apparently it was suggested by those who oppose the CBA’s decision.  To vote “Yes” would be to commit the bar to continue with industrial action until the Ministry of Justice announces unconditional surrender. That will not happen. There will have to be a deal at some point. For this reason alone I can see little sense in voting “Yes”.

And yet …. At a time when both barristers and solicitors are desperately fighting for their survival I find it impossible to work up any enthusiasm for the proposed settlement.

It may be a victory but it certainly does not feel like one.