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Chair of the Criminal Bar: Action on two-tier contracts would serve no purpose

'We can fight the solicitors' battle for them,' says Tony Cross QC

22 June 2015

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The chairman of the Criminal Bar Association (CBA) has attempted to turn the tables on solicitors and members of the junior Bar who have criticised him following a decision not to join in unified industrial action against legal aid fee cuts.

In a statement released today, Cross refuted accusations that the CBA executive no longer represents the views of criminal barristers, and argued that the Bar needs to compete for work on a level playing field, before adding that the criminal Bar cannot fight solicitors' battles for them.

Referencing junior barrister support for direct action - reportedly 96 per cent in favour - Cross explained: 'In April the executive mandated me to speak with government. We also asked for your views via the survey. The survey was just that; it was not a ballot. However the survey has been and is of vital importance and forms part of the backdrop to our negotiations with government.'

Naive judgement

Cross explained how he had met with Michael Gove on June 9 over concerns identified by the Ministry of Justice (MoJ) in the Jeffrey report and believed that the Lord Chancellor wished to preserve an independent criminal Bar.

'Some will no doubt accuse me of naivety but those who know me trust my judgement,' said Cross. 'We have approached discussions with the Lord Chancellor and his officials with an open mind; we have been alert to the need to identify whether our discussions have the potential to be of real benefit to the independent bar, or whether they might be a tactical distraction to divide solicitors and barristers.'

Cross added that the CBA had been invited by civil servants to begin discussions to safeguard the quality of advocacy. However, the decision was taken to consult the CBA's executive first.

'We understand that there is nothing outside the scope of the discussions which will follow,' said Cross. 'Every aspect of how advocacy work is distributed and funded will be open for discussion. The majority of the executive firmly believes that to reject this opportunity would be foolish in the extreme. We do not believe that you would want us to do so. If we did so, we would lose all credibility with this government and its successors. Perpetual antagonism is not a strategy for long-term survival.'

Two-tier contracts

Cross said that the executive was 'not blind' to the argument that the introduction of two-tier contracts could lead to solicitors retaining advocacy work in-house, leading to the extinction of the junior bar.

'Solicitors are not currently prepared to take decisive action over two-tier contracts,' added Cross. 'Many firms want them; others feel they have no option but to sign up to them. We know that over 1,000 tenders have been submitted for the 527 contracts available. Save for three procurement areas, the number of tenders outweigh the number of contracts available.

'It is against this reality that the executive felt that action on two-tier contracts would serve no purpose. We have lobbied and argued publicly and privately against the introduction of two-tier contracts. We believe they will be bad for the criminal justice system and be bad for the Bar. But we do not believe, however, that we can fight the solicitors' battle for them.'

Cross continued that once the outcome of the CSLA ballot was known, the CBA would then discuss 'appropriate steps' to support solicitors.

'But whilst the solicitor organisations continue to sign up to two-tier and propose to take no action to halt their introduction, the executive does not believe that we can propose action on behalf of our members in relation to their introduction,' he concluded.

The CBA chair's statement comes just hours after SJ exclusively revealed that one of the UK's largest criminal legal aid firms will bypass barristers chambers by instructing independent advocates for magistrates' hearings, and crown court appearances.

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