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The postman delivers more than you know

All it takes is an ‘inapt’ analogy to burn the bridge between the professions, writes John van der Luit-Drummond

29 June 2017

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If there is one thing politicians and lawyers have in common it is the eternal struggle to find the perfect analogy; one that can explain a complicated issue and win you an argument, whether that be at the despatch box, the ballot box, or in court. The danger with analogies, however, is that they can come back to bite you, as Simon Spence QC found out for himself this week.

Spence, who was in the running to become the Criminal Bar Association’s next vice-chair, unfavourably compared solicitors to postmen in his election manifesto. After calling for the removal of the page-count element of the advocates’ graduated fee scheme, the tenant at Red Lion Chambers suggested funds be ‘reallocated’ from solicitors to counsel.

‘This need not involve an increase in the budget, simply a re-allocation of funding away from the litigator’s fee, when they are often paid more than the advocate for little more than instructing counsel and inviting them onto the CCDCS. It is quite wrong that the postman gets paid more than the person to whom he delivers the post and who has to read and digest it.’

Biting the hand that feeds you is a bold move. Unsurprisingly, there were calls to boycott Spence, after his comments were described as ‘scathing’, ‘short sighted’, and ‘disrespectful’ of solicitors. Several barristers also took issue with the silk’s manifesto, and Spence’s own chambers distanced itself from his statement, suggesting he even failed to hit the right note with his own profession.

The depth of outrage was best summarised by Zoe Gascoyne, chair of the Criminal Law Solicitors’ Association, who in an open letter to Spence said she was ‘incensed’ by the idea that solicitors should be paid even a penny less for all the work they undertake.

Appearing at magistrates’ courts for bail hearings; submitting legal aid applications; reviewing and compiling thousands of pages of written and electronic evidence; attending the client; interviewing witnesses; instructing experts; attending at court – the list goes on, she explained. And that is before considering the significant overheads and regulation solicitors must bear the cost of.

‘Your carefully thought out analogy Mr Spence clearly shows how little you know about your sister profession,’ wrote Gascoyne. ‘One would have thought that someone seeking to speak on behalf of their profession might have taken a little more care before offending as many of us as you have.’ 

Spence attempted to clarify his position and rebuild burnt bridges. Replying to Gascoyne, he said he wasn’t ‘suggesting a reduction in fee levels for solicitors’ who have ‘for years been working all hours and often in difficult circumstances to cover police station duty rotas for derisory rates of pay’.

‘If my “postman” analogy was inapt then I unreservedly apologise. It has clearly led to misunderstanding as to what my position is,’ he said, before stressing the need for solicitors and barristers to present a united front before a ‘weaker’ government that can no longer ‘claim there is no more money for the legal aid pot’ following the £1bn deal struck with the Democratic Unionist Party to keep the Conservatives in power.

‘We therefore are in a strong position to negotiate a proper scheme that is fit for purpose for all and ensure that all of us are paid properly for the work we undertake,’ he added. ‘What we have in common and unites us far exceeds the areas of difference that may exist between us.’

On this, Spence is correct. As Postmans Journal has stated on more than one occasion, only standing together can criminal lawyers hope to survive future cuts to legal aid. It has worked before, although just how long such a unified front holds has always been a stumbling block for the professions. Nigel Lithman's 2014 ‘backroom deal’ on very high cost cases still leaves a bad taste in the mouth of many a criminal practitioner and the future CBA leadership will have its work cut out to prove history will not repeat itself.

That leadership will not include Spence, however. Following the ‘personal abuse’ he received from some quarters, Spence has withdrawn from the CBA election, leaving Chris Henley QC to succeed Angela Rafferty QC uncontested as vice-chair. This, he said, was ‘a necessary step so the professions can be as unified as possible in their future dealings with the government’.

I am reminded of a helpful explainer from Yes, Minister’s Sir Humphrey on how to guide ministers to making the right decisions: ‘Controversial’ means ‘this will lose you votes’. ‘Courageous’ means ‘this will lose you the election’. Controversial or courageous, Spence may well be wishing his manifesto got lost in the post.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Criminal Bar Association Criminal Law Solicitors Association