The Criminal Bar Association has hit back at criticism of its decision not to pursue direct action over legal aid contracts, asserting that the bar cannot fight solicitors’ battles for them.

Tony Cross (pictured), chairman of the CBA, said that while solicitor firms sign up to two-tier contracts and propose no action to halt their introduction, the CBA executive does not feel it can propose action on behalf of its members.

Last Thursday the CBA said in a statement that it would not call for barristers to stop work in opposition to the duty provider scheme. The statement prompted a furious response from solicitor practitioner groups, who are currently balloting members on direct action.  

However, Cross said today: ‘The fact is that the solicitors are not currently prepared to take decisive action over two-tier contracts. 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.

‘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.  

‘We do not believe, however, that we can fight the solicitors’ battle for them. Fighting alongside is one thing, but our considered opinion is that taking direct action on behalf of solicitors over two-tier, when the solicitors organisations will not or cannot take decisive action themselves, is doomed to fail.’

Cross also explained that the decision to postpone action followed an invitation from the Ministry of Justice to begin discussion on steps needed to safeguard the quality of advocacy.

‘The majority of the [CBA] 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,’ Cross said.

He said that the government has said it is committed to the issues raised in Sir Bill Jeffrey’s review of criminal advocacy.

‘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 said. 

‘Political prejudice against the government has no place in an assessment of its intentions – it is blinkered prejudice, rather than wisdom, to assume that everything said to us must be a trick designed to undermine us.’ 

Acknowledging that there may be calls for an emergency meeting of the CBA Cross said: ‘So be it. We are democrats and we shall meet the challenge.’