After weeks in which it appeared the legal profession might be able to launch genuinely effective strike action over cuts to legal aid, everything appears to be falling apart.
There were always two splits in the legal strike, the first obvious and the second in the background. Of most immediate concern was the split between barristers and solicitors. The Ministry of Justice (MoJ) always knew how to play these two groups against one another. They did it this time too, by making sure barristers wouldn't face the same cuts to legal fees as their solicitor colleagues. That was enough to get the leadership of the Criminal Bar Association (CBA) onside. But not their members. The rank and file pushed valiantly for solidarity action with solicitors and secured it last week.
The second split was between the normal solicitors firms and the Big Firms Groups, which represents, as the name suggests, the larger companies. Both groups face the same cuts in fees, but the big firms are more likely to benefit from other changes to legal aid the Ministry of Justice plans to implement.
Very briefly, this involves changes to the duty solicitor role, which acts as a mechanism for smaller firms to build up a list of clients. The changes significantly benefit large companies at the expense of small ones. So there was always an in-built division among solicitors. They were all going to suffer through a strike, but eventually the larger firms would benefit from other organisational changes, if they could just hang on long enough.
Yesterday a big meeting was planned between Michael Gove and the CBA, the Criminal Law Solicitors' Association (CLSA), the London Criminal Courts Solicitors' Association (LCCSA) and the Big Firms Group. Finally, here was a chance for lawyers to present a united front to a lord chancellor and show how government cuts were dismantling access to justice. But the CBA didn't turn up.
What happened? Some say it was pure mix-up, but that seems laughably unlikely. These are barristers. Generally speaking, being at a certain place at a certain time is not something they struggle with, especially when it is arguably the most important meeting for legal aid in a generation. Others say they were not invited. That also seems impossible. Without the barristers following the strike action, it was ultimately doomed to fail.
A well-placed source has a different explanation.
Just ahead of the meeting a new protocol was leaked. It was explosive. It would have put the legal action on a lower footing, sending everyone back to work except for in the crown courts. After three and a half weeks of going without any money, solicitors would have been ecstatic, of course. But then, they only do about 15% or 20% of their work in crown courts. Barristers do all of their work there. So the protocol would have left them taking all the hits in a solidarity strike, when the people they were expressing solidarity with had basically gone back to work. Of course, it was impossible. As the source said, a "half-wit" would have known what would happen.
In all likelihood, that's why the CBA didn't attend. Their leadership has been desperate for a way out of this thing since it started and the new protocol gave them exactly the opportunity they needed.
They released a statement saying:
"The CBA has had no input into the protocol. It provides for solicitors resuming applications for representation orders in a very large number of cases. This marks a major change of position by our solicitor colleagues, and appears to alter fundamentally the basis upon which our members voted to support solicitors’ action. Hence, the executive committee will reconvene for an emergency meeting on Monday 27 July, to consider the effect of the new situation."
You can almost hear them breath a sigh of relief.
Why was the protocol leaked? Was it an effort to reveal to Gove, ahead of the crucial meeting, that the solicitors were backing down? Certainly that sort of drawn-out legal strike – where solicitors could get some cash flow back but dig their heels in - benefits the big firms. We'll never know. But the effect seems all too obvious: it drove a wedge once again between solicitors and barristers.
Sources tell me that certain offers were made at that meeting with Gove and that the offers favour the Big Firm Group. We don't know what they are yet, so it can't be verified, but that again corresponds to the narrative. The result of the division between smaller and larger solicitor firms created a climate which drove apart solicitors and barristers.
You ask yourself that old legal question: who benefits? And then the picture becomes clear.
I've published key sections of the new protocol below. The language is interesting, to say the least.
PHASE II. CROWN COURT1. Solicitors have achieved extraordinary unity with great impact upon the criminal justice system over the last few weeks in refusing to work at the new rates. Between 1st July and 22nd July the majority of solicitors firms across England and Wales have operated under an agreed protocol (or variation thereof) whereby they ceased to undertake non-duty solicitor work under the rates that have been subject to a second 8.75% cut.
2. In the absence of the Bar that was entirely the right thing to do. We shouldered the burden alone. Now the Bar has voted in favour of adopting a 'no returns' protocol from 27 July 2015, it is time to re-focus the action to affect crown court work, where action adopted simultaneously by both the Bar and solicitors would be most effective.
5. Over the time that this dispute continues, the new protocol will enable us to return to lower crime work to maintain firms' cash flow, which covers staff wages and will ensure that their clients are not misappropriated by the few firms who dishonour the profession by intentionally flouting the protocol and poaching clients in breach of SRA rules. That does not mean that the reduced fees for lower crime are acceptable, but merely that the protest is more targeted on crown court work.
6. Although firms will still lose crown court litigator and advocacy fees (alongside counsel), please bear in mind that junior counsel will not in the main be able to earn a great deal from lower crime fees to keep them 'ticking over'. To sustain the commitment of the local bar to this fight and to promote mutual goodwill it is suggested that solicitors may wish to consider solely instructing counsel or freelancers to cover magistrates' mourt trials and full contested hearings such as 'Newtons' (unless part heard), so the junior Bar also have some relief from the drying up of income. It is a small price to pay for unity and bringing this dispute to as rapid a conclusion as possible.