The Top 7.
I have updated the Editorial. That and the following Posts should be regarded as 'must read' in that they deal with the topics most often raised.
I posted this on the CBA website as a comment first. No picture – it is too important. I love this profession and I believe in what we do with an intensity that occasionally surprises even me. A strike will cause our profession irreparable damage. Please, read, think and decide against it.
The difficulty with a forum like this is that everyone cheers on the most radical voice. Alas, in the quiet of your own home/room, with enough bills to decorate the wall with, it isn’t like that.
Let me make my position clear. I don’t believe that Silks or senior practitioners, with a practice to support themselves and some ability to raise capital, should be urging other people to strike. I don’t regard that as leading. What strikers face is the erosion of every penny they have and no ability to raise money. I remember the miners’ strike. I remember how keen everyone was, until the money ran out. Until you couldn’t put food on the table. Being a barrister isn’t going to protect us from that. So, the discussion about striking is not one to have first on this forum – have it quietly with your partner and your kids. If a strike is a good decision, it won’t need loud cheerleading. It won’t need attacks on those who disagree. It won’t need the invoking of grand ideas about the poor and the oppressed who you will represent just as soon as you’ve stopped representing your current clients because the end justifies the means.
And, when you have the discussion with those who you love, do not have it on the basis that Grayling is going to roll over. That is wishful thinking. I would never, ever, advise a client to act on the basis that the opposition is bound to give in. Nor would you. So, don’t do it to your partner and children. As the old saying has it, “someone who acts as their own lawyer has a fool for a client”. Grayling can’t afford to lose if we go on strike. He will simply soak up the disruption. And why shouldn’t he? Delay will not be his concern because we, like fools, will have made it our problem. He will talk about middle class whiners, disrupting the system. He will let the pressure grow. He will invite the opposition to condemn us for exposing ordinary people to danger and anxiety. There will be a parade of genuine victims, all frantic with anxiety that their attacker will not be facing trial for months. There will be a parade of wrongfully accused people unable to get justice. And there will be solicitor advocates from big firms – who make no secret of their position – saying sorrowfully that the Bar has abandoned its responsibilities.
And, within 2 weeks, we can confidently predict that 2 things will happen. First, some really nasty vicious person out on bail will commit a serious offence. And, had the system been running properly, he would have stood his trial. And what will we say? That we’re trying to save the justice system? Secondly, people will start going back to work. They will do so because they can’t stand the uncertainty, they can’t afford it any longer and they see it isn’t working. And then the Bar will be a busted flush, broken beyond repair.
Strikes will not work and will prevent any other strategy from working. What we should be doing is our professional job – and no more. You work the 8 hour day everyone else works and then you stop. Judges – put in the position of ordering you to work for free – will be most reluctant to do so. You get paid – not very much and less than now because even less money will take longer to earn. But enough to keep the wolf from the door in the time it takes to really bring the system to a halt and provide us with a wholly defensible position. Grayling is then exposed as someone lying about our earnings, because the assumption in everything he says is that a) we earn a fortune; b) we do it on easy hours and c) we are only in it for ourselves. Striking reinforces those arguments. Working proper hours does not. It focuses attention on what we do for free. It demonstrates that we make the system run for the benefit of everyone except us. It hammers home to the Government that the much vaunted statistics are not the product of brilliant leadership by Recorders, or superb administration by civil servants, but are ours. Then we can ask for a system that recognises what we actually do. We change the debate from “no you can’t and you must resign” (just say it out loud and see how convincing it sounds) to “this is an essential part of the society we inhabit and it must be remunerated fairly”.
That, in answer to the quest for a better idea than a strike, is a better idea than a strike. It is a better idea because it has far more chance of working. It is a better idea because it does not call on the poor bloody infantry to lay down their lives for their better-off officers. It is a better idea because more of us will be left standing at the end. It is a better idea because it is in accordance with our professional ethics, which I – for one – absolutely and truly believe in. It is a better idea because we can carry it on for longer. Because it will carry the public and the judiciary with us. Because it replaces absolute conflict with an alternative way of doing the same thing. Because it will make the public laugh at Grayling, instead of making him the Margaret Thatcher of the 21st century. Because we can unite around it. Because it will not lead – as those who call for a strike are already doing – to name calling and abuse. This debate should not be inflamed by grandstanding about “patrician” QC’s, Heads of Chambers and leaders of the Bar who don’t agree with what the radicals want. Each of those people serves as a volunteer and to suggest that they don’t care about what happens – or that they are bound to be wrong because they don’t agree with you – is both daft and insulting.
And, if I’m wrong, it’s a better idea because, if it doesn’t work, we can go on strike then.
I regard the argument that we are doing this for future clients as wholly wrong. I act for my current client. Barristers don’t let this client down because it serves the interest of the next client. And, once we are seen to let clients and victims down, why on earth should the public ever trust us again? We say, regularly, that a professional reputation takes a lifetime to earn, and a second to lose. Why are we not applying what we know to ourselves? Abandon today’s client and no one will believe it’s all about tomorrow’s.
And they will be right not to trust us – who said that we were entitled to do this? Who gave us the right to determine that today’s client is less important? Plenty of barristers can survive on less. They may not want to. But, if there is even a chance that the profession thins out by 33% and the rest survive then we will have lied about why we are doing this. We will not have gone on strike to save however many future clients it is that justifies dropping today’s client in the mire. We will have gone on strike because of our own pockets. That’s fine if that is what we say. But it won’t be what we say. We will have committed the two ultimate professional sins: we will not have told the truth and we will have made the job about us, not about the people we represent.
If we take professional ethics seriously – by which I don’t mean simply obeying the rules, but being genuinely motivated by a desire to serve the people we represent – we won’t do this. We will not trade in what we can certainly do today for the uncertain prospect of being able to do more for someone else tomorrow. We will not ask our clients to be sacrifices, on the basis that we know best about what is to come (and who’s being patrician and patronising then, eh?). Striking is doing exactly that.
Calm it down. Try everything else first. Don’t let’s martyr ourselves, our colleagues or our clients. Because that is the obligation we owe. Let’s not be glamorous heroes – let’s be barristers. Because that – as we all agree – is what we are trying to save. If we can’t do it by being barristers, we certainly can’t do it by not being.
I was teaching at the Middle Temple students course in York this weekend. I was told that the BPTCs (all of them) were teaching the old, superseded, Code of Conduct as their “Ethics” course. Yep, that’s right – £17k to be taught something that does not apply. Apparently, because the exact format and content of the new Handbook wasn’t clear, it was decided that it was easiest to teach the old Code, which definitely wouldn’t apply when all of you qualified. Words just fail.
The BTPCs should be ashamed of themselves. Ethics should have been timetabled to start when the precise terms of the Handbook became clear. Space should have been made to do it. Defaulting to an easy, but irrelevant, position is unacceptable.
The BSB should have realised the difficulty and sorted it. Not much point regulating the profession unless you give a stuff about its students.
Meanwhile, BSB students please understand that the new Handbook changes a lot. Particularly, ethics questions about missing convictions for criminal clients are – under the old Code – answered by saying you can mitigate on the basis of the information presented by the Prosecution. That answer is now WRONG. For what it’s worth, I also think it’s wrong to say that you do have to tell the Judge there is a missing conviction – that is taking the duty to the Court as if it trumps the duty to the client. It doesn’t – both duties exist together. I think the right answer is to tell the Judge that they cannot rely on the Prosecution’s record, but to say no more than that. Other views welcome.
Barristers, please bear in mind that those interviewed who qualified in the year 2013-14 are not being taught the ethics that apply to the profession. Cut them some slack – and when you take them on, make sure that the first 6 months includes the ethics training for which they have already paid but have received no value whatever.
What have we come to? Perhaps the entities making money out of students could provide a percentage of it to offer more pupillages for the beleagured publicly funded Bar. Now, that would be robust regulation.
Alex Aldridge of Legal Cheek has got a quote from the BSB’s head of Education and Training, Simon Thornton-Wood, who says:
“In setting out the 2014 BPTC course, providers asked that the syllabus be agreed early in 2013. The development, review and approval process for course materials in a programme of this scale requires very careful advance planning. It was not until the Legal Services Board approved the new Handbook in July 2013 that there was any real certainty it would be coming into force this year.
“We’ve worked closely with both providers and students to make sure that, by the end of their BPTC, students know about the new Handbook – and the key changes it introduces – which will be fully reflected in next year’s syllabus and exams. That said, it is important to point out that the core principles of the professional ethics to which we expect barristers to adhere remain unchanged from previous years.”
Hmm. First, what’s the point in planning a course 9 months ahead knowing it would be wrong? The BSB regulates. Even if the BPTC providers asked for this, they don’t have to have it. We’ve been asking the BSB not to impose QASA but that hasn’t meant it’s rolled over to have its tummy tickled. Secondly, the core principles have altered in quite a large way in the eyes of a great many practitioners. Thirdly, we teach ethics not core principles. Fourthly, the prospect of the new handbook not coming into force this year have been remote and the BSB could have – *gasp* – made two plans: one if it did and one if it didn’t. Fifthly, plenty of the students on the course last week did not know of the new handbook or the changes and they aren’t being taught it. Otherwise, great quote.
Ahead of Monday’s action (reminder: which I reluctantly support), the MoJ has published an “Ad Hoc Statistical Release”. Its purpose is clearly to prejudice readers, which will include the media, against the Bar. As such it is a disgusting piece of work – a Ministry should not seek to argue a political case against a group of private citizens at all, still less by the use of data obtained in an effort to promote ‘efficiency’. The counter-argument is that everyone is entitled to “the truth”. Alas, that argument cannot properly be deployed in this case because:
- These figures have not previously been released. They have not been reviewed by any neutral body and have not previously been thought necessary.
- However, the MoJ says that “These data are released to address the public interest in the area and provides [sic] improvements to previous published figures that will add to the additional information in the upcoming consultation response“. The grammar suggests speed at which this has been done. How you add to additional information is unknown. The gobbledegook is strongly suggestive of an attempt to blather on.
- The MoJ says that 25% of barristers “earn” £100k. You have to look at the footnotes to see that the figures include VAT. The statement is therefore a lie: any barrister making more than £100k will be paying VAT. For the sake of accuracy, just under 20% of barristers make more than £100k in fact. The MoJ’s argument therefore appears to be with 1 in 5 barristers.
- The footnotes also make clear that this is not “earnings” referable to any particular period. It is not annual income. In those circumstances, the reference to “earnings”, if not a lie is, as Damon Runyon says, as close to a lie as will make no difference.
- It is unclear whether these figures are up to date as the prosecution reductions coming into force last year may not have filtered through.
- The VHCC payments figure includes 343 ‘barristers’ paid off-panel. However, these are referred to in the footnotes as ‘advocates’ suggesting at least the possibility that these 342 people are solicitors or employees of solicitors acting as junior.Otherwise more than 50% of VHCC work is being done by barristers not on the panel.
The mean income from prosecution work is £23,298. From defence work it is £39,202. From VHCCs (which as the footnotes make clear are done by 296 panel barristers and 342 ‘advocates’ paid via a firm) it is £45,455. The figures do not include the numbers of people in each earning band, save for the total figure. Given this elementary, schoolchild (NB: political right on-ness) error, it is hard to see how these figures can be ‘helpful’ unless the help is to trash the opposition. The willingness of MoJ senior staff to permit this is a breach of the civil service code.
Thus the mean figures for crime using the defence figure (as that earned by 85% of barristers) and the prosecution figure added together - which is giving the MoJ all the best of it – is £62,500. If you don’t do prosecution and defence then – on the basis of these figures – your income will be significantly reduced. The MoJ gets to its mean figure by including civil work. At the very least, this artificially inflates ‘earnings’ by 7.5%. Net of VAT the criminal earnings mean is £52,083.
As the footnotes also make clear, these figures do not include disbursements. Let us assume that expenses run at 33%. This is probably a large underestimate, as we are including travel, chambers expenses, and (hollow laugh) pension provision, as well as books, computers and online subscriptions. That produces a taxable income of £36,459. That is the true figure of mean earnings.
What the ad hoc release wholly omits to say is that the gross figure for defence earnings is to be reduced by 30% (17.5% for VHCCs). That means: gross mean income (applying the appropriate deductions) £49,563; net of VAT £42,170; taxable income £27,832.
That is the mean figure for all barristers not doing VHCC work. Which is to say, assuming the MoJ have counted barristers only in its VHCC ‘advocates’, 4293 barristers out of 4931.
The good news is that if a barrister is charged with a criminal offence they will be eligible for legal aid if their partner earns less than about £35,000 pa. That is because the people doing the job of defending those accused will earn less than the minimum figure, above which the government thinks it fair to take a contribution for legal representation. Irony.
It should not need a barrister to make these points. What I have done is to take the MoJ’s own statistics – lousy though they are – and simply apply some basic mathematics to ensure that they tell the truth. At present – assuming the definition of truth to be an account that would not attract a perjury charge if given from the witness box – they are a lie. It has taken me about an hour to do this. I don’t believe the MoJ is so overstretched that it could not afford the time.
The contact point for these statistics is Victoria Buxton. I don’t make a habit of naming individuals but Victoria Buxton is the Chief Press Officer and describes her role in breathless terms. Consequently, and in line with the MoJ’s own transparency policy (more irony) I intend to email her (address provided by MoJ, not me) at firstname.lastname@example.org and tell her that the Ministry’s Ad Hoc Statistical Release is mendacious bullshit, utilising government resources to lie about the position of individual citizens in an attempt to sully the action being taken by the Bar. I shall suggest that she passes this post on to those responsible for its content and invites them to issue an Ad Hoc Correction and Apology. Perhaps you might like to do the same?
I don’t like strike action but this type of behaviour does seem to me to offer conclusive proof that the Ministry of Justice, its Ministers and Civil Servants, are simply untrustworthy. You cannot negotiate with people like that.
P.S. Happy New Year (irony).
The quote is from the Black Uhuru song, Solidarity (watch above and forgive me for showing my age). But really…
Yesterday I posted about how the BSB Guidelines should be viewed. A section of readers decided that the proper response was to start abusing the BSB – the Vice-Chair of which commented on the post and stood up to be counted.
I am bewildered by that response. A great deal of the reaction seemed to object to the fact that the BSB had issued guidance at all. That’s daft. Not only is it our regulator so that’s its job, but would we really have preferred silence followed by action of which no one was warned? I doubt it. Moreover, what the BSB said was that those who did not attend Court on the 6th January would be in breach of their professional obligations. That is exactly what the CBA has said. Yet a number of people have behaved as if this is a terrible thing for the regulator to have done.
That response diminishes the Bar as a whole. We have professional rules. Is it seriously being suggested that these be set aside for our convenience? If so, then the rules aren’t worth anything and we ought not to call ourselves professionals. Moreover, we would not dream of asserting that position in relation to an alleged criminal we prosecute or defend. We understand professionally that rules are there to be obeyed and that they have a value. I simply do not understand how any barrister worthy of the name could seriously propose that our professional obligations should be shelved so that we could do something that would otherwise be impermissible.
The point about the action on the 6th – which I, reluctantly, support – is that it is a breach of the rules. We are supposed to feel so strongly that we are prepared to breach those rules to make our feelings known and to bring the matter to wider public attention. That entails risk and to complain that the risk has now eventuated because the BSB has told you what you already know – i.e. that you are breaching the rules – is to behave like a spoiled child. If you did not appreciate the risk before then you should have done: however vulnerable members of the Bar may be, we are all adults and we are all obliged to inform ourselves of the consequences of our decisions before we make them.
I suspect that most moderately intelligent people know this. Which makes the sneering and complaints about the BSB even less impressive. I joined a profession that gave a voice to despised causes and nasty people. I did not become a barrister to join a chorus of contempt at supposed easy targets. We should not be making ourselves feel better by criticising a group of people doing their job, whose only “crime” is to disagree with us (if they do). Leave that to the Daily Mail – whose behaviour we say we scorn.
There is more than a whiff of “if you’re not with me then you’re against me” about this. That is a disgusting stance at any time and, in terms of a profession where each person makes their own choice and is then to be respected for it, it is inexcusable. And if this sounds angry then it is because I am. I am desperate to ensure that this great profession is able to continue. Not only is infighting antithetical to that outcome: if the values I am trying to preserve are undermined by a group of people who can’t accept dissent with grace and who apparently feel entitled to have everyone else do exactly as they wish, then what’s the point? Making snarky remarks about what seems to be an easy target and failing to correct impressions that you know to be inaccurate isn’t how members of the Bar behave. So, if it applies to you, don’t behave like that.
If people don’t want to strike then that is fine – those propounding a strike have failed to persuade their audience. We should all be used to that, and anyone with any professional self-respect asks themselves whether it is what they did wrong that meant the outcome was not the one they argued for. They don’t blame the Judge or the Jury unless they need to make excuses. And, even worse, tonight I was asked how particular individuals – not me – are going to behave. As if there were two teams. What an act of genius that is: to behave as if those who may actually agree with you are an enemy because they haven’t stood up on a soapbox and loudly announced that they are pure.
So let’s stop it shall we? I have not named any names – if this applies to you then you need not out yourself. And if you are thinking that this type of behaviour is what the Bar needs – please think again. The game needs to be worth the candle: it isn’t going to be if the profession can’t find a way to accept that not everyone will do what the majority wants and that individuals have a free choice. Nor, might I say, do any of us know what precisely will inform those choices. So it is best to judge kindly, rather than to assume betrayal - unless you think that dissidents ought to be forced to explain themselves, in which case you might find a better niche in one of the world’s nastier dictatorships.
We owe it to ourselves to restrain ourselves and to behave in a way that makes what we are trying to preserve worthwhile. No member of the Bar and no entity which has members of the Bar at its core should be accused of being the enemy or of betrayal. Please don’t let’s do it.
On 6th January the Criminal Bar is going on strike. Or, more accurately, they aren’t going to turn up for work in the morning. On 6th January I start a civil trial. I will be working on that day because the Court has listed the matter and my client is paying me to be there. I make this declaration because I want to talk about what is going to happen. I should also be spending this evening doing the Opening for that trial and I very much fear that I will pay for this post with a 3am finish some time soon. Still, it’s important.
As you would expect the Bar Standards Board has published guidance about the 6th January. It says that not attending Court is a disciplinary offence. It says,
In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.
Let’s get some things clear:
- It is unsurprising that the BSB has issued guidance. It is obliged to regulate us. Not to issue guidance would be to fail to do so. We might not like it, but to suggest that it should not have happened is irrational.
- It is not the case that the BSB must support us. It is an independent regulator. There is no obligation upon it to view breaches of the Code of Conduct as if they did not matter. It would be a dereliction of duty if it did. The notion that the Code of Conduct can in some way be put to one side or waived if it suits us is wrong. If it means anything, it means that we have a standard to which to keep. The CBA has itself acknowledged that striking is a breach of the Code.
- The Bar Council has issued its own guidance. I have heard people saying that the Bar Council is like the Law Society and has lost the confidence of its membership. I hope that the latter proposition is untrue – it certainly is insofar as I am concerned. The former proposition is nonsense: the Law Society sold its members down the river by secretly negotiating with the Government and reached an agreement without consulting them. That was a betrayal of an elected position, which is why Fluck ought to resign. Moreover, the ‘prize’ produced by the negotiation was the abandonment of Price Competitive Tendering – the one proposal to which just about everyone was opposed. Having caught the red herring the Law Society went around saying “look at my whopper”. That is either deliberately deceitful or idiotic, which is why Hudson ought to resign. Not that it’s anything to do with me. But to pretend that the Bar Council is even close to that type of behaviour is bordering on the hysterical.
However, everyone who does not attend Court on the 6th is taking a personal risk. I am one of those who has said they will represent people to whom that risk comes home to roost, either in front of Judges or the Disciplinary Committee and, in either case, for free. I say that to make it clear where I stand. I do not believe this Lord Chancellor can be reasoned with. I do not believe that the Ministry of Justice is trustworthy. I do not believe they will make any concession that is not forced out of them. I do not believe they are interested in being fair. I do not believe they understand the damage they are doing but nor do I believe they are remotely interested in achieving such an understanding. These proposals are rotten to the core and we need to stop them. The only way to stop them is by taking direct action. Nothing else will work.
- The strike proposal is ill-thought out and has not been the subject of proper consultation. There was no proposal for my chambers to consider when our volunteers to attend the meeting stepped up. The proposal was put at the meeting and not before. It took advantage of the type of atmosphere which is produced when a lot of angry people get together and sound off to a mutually appreciative audience.
- That should not have happened. What should have happened is that a list of options were sent to Chambers, so that a serious and sober debate could take place before those attending the meeting knew they were going. The meeting should have debated those options, with the results of Chambers’ deliberations being made clear. The outcome may have been the same, but it may not.
- The options should have included a work to rule (my preferred route) including lobbying the judiciary, a mass holiday and doing nothing (I am not pretending to have thought of every option). Doing nothing is important because it would empower those people who really do not want to take any action.
- The strike option ought to have been debated in the light of the fact that professional careers may be ended or severely impaired, and not that ‘they can’t discipline all of us’. The protocols should have been published in advance so that those agreeing to strike could see what they were agreeing to.
We are now in the position that so many people are, in fact, going to strike on the 6th that we all need to. Otherwise the thing will be a damp squib and, once that happens, we can never be taken seriously again. Accordingly, I support what is happening and I will support those who are doing it as best I can. That does not stop me feeling that I have been bounced.
This is not a post in which I intend to rehearse the arguments about what sort of direct action we should take. That is for another time. We (not me) are striking. If we don’t the MoJ will be laughing. If I was doing a criminal trial I would strike. Angrily, but I would. What I want to do now is to consider what the BSB has said. I do not agree with all of it. I do not think that it is issued because ‘they’ hate ‘us’, but that doesn’t mean it’s correct. There are some points, which I believe need more thought than they seem to have had.
The BSB says this:
The BSB considers that the risks of an Instructed Barrister failing or refusing to attend a court hearing are, depending on the particular circumstances, likely to include:
- harm to the interests of the individual client of the Instructed Barrister (which may be aggravated if that client is vulnerable);
- harm to the interests of other persons involved in or who have a direct interest in the case that is the subject of the hearing (for example, co-defendants, witnesses, victims and jurors); and
- harm to the administration of justice and the public confidence in the administration of justice.
Depending upon the circumstances that apply in any particular case, the harm caused by an Instructed Barrister deliberately failing to attend a hearing at which he is due to represent a client may be very severe. Adjournment or abandonment of a trial, for example, will usually represent the most serious harm to all three categories identified above.Instructed Barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action. In deciding whether to take action, the BSB will consider all the circumstances, but will have particular regard to the harm caused by the Instructed Barrister’s actions.
That is fine insofar as it goes but it begs the question of what is meant by harm. Let us take the case of a Judge who agrees not to sit until 2pm. The risk has not eventuated. If the BSB is going to have regard “to the harm caused” then, presumably it will conclude that no harm has been caused to the client. The witnesses and jurors may have to wait. That is the position in every case. Whilst the delay on 6th January may be deliberately caused by the barrister(s), it is more difficult to say that such delay has caused harm. I am unaware of the BSB or any body responsible the performance of those engaged in the administration of justice ever investigating that issue before. It is difficult to see why that should be done now. If the BSB wishes to “make an example” of people that would be improper, because there is no need to do so – any further action will have to be better planned and better considered.
As for harm to the administration of justice and public confidence, it seems to me that the recent polls suggest that the public sees perfectly clearly that the harm comes from the MoJ. It is the MoJ that has gutted legal aid for people who cannot afford representation. It is the MoJ that has ensured that those with limitations on their own capabilities will have to represent themselves in prison discipline cases. It is the MoJ that has sought to prevent ordinary citizens accessing the Courts to prevent overweening Government action. A protest against that – direct action to prevent that happening – is hardly harming public confidence. What’s more, if the Judge has agreed not to sit, that would seem to suggest that they have considered the point and determined it. Of course, that is not biding on the BSB but they ought to consider carefully why they would wish to differ.
Of course, the BSB Guidance says that the risks “are likely” to include such harm. That seems to me to be prejudging the case – a concern where the BSB is the prosecuting authority. On what basis has that conclusion been reached? What alternatives have been considered? Where and what is the evidence relied upon in coming to that conclusion? Or is this simply a declaration based on nothing more than a ‘gut’ feel? I am deeply uncomfortable that, before any actual case has been examined, a particular result has been said to be likely. If the Judge in one of the cases on the 6th January 2014 behaved in that way, it would be likely to lead to an invitation for recusal. It may be defensible (it’s not for me to say) but it isn’t sensible. The guidance could have perfectly well invited barristers to consider these risks, and it would have been better if it had done so.
If the Judge refuses to allow an adjournment then the Judge is deliberately imperilling the client. On what proper basis could a client thus be prejudiced? Would it be proper to say “you consented to the absence of your representative so you can cross-examine for yourself”? Would that lead to a safe result? Surely, the proper remedy is not to visit the sin of the barrister on the client, but to make a direction to show cause why the barrister should not pay the costs wasted.
If so, then where is the harm? The client has not been harmed. The jurors and witnesses are no more prejudiced than if the Judge does agree – because that is what the Judge has, ultimately, done. Public confidence will, in some ways, have been increased because the fairness of the Judiciary will have been demonstrated (again). Paradoxically, it would be easier under the old Code of Conduct to simply say that striking was discreditable conduct. However, we are now under the new Code, which has moved to ‘outcome based regulation” (just as the research casts doubt on its effectiveness) and so the maintenance of an absolute standard is more difficult.
I believe that what the BSB ought to have said is that not attending Court obviously gives rise to a risk of harm and that barristers would have to demonstrate that such risk had been eliminated (so as not to be guilty of a regulatory breach) or had been mitigated (so as to be arguably not guilty and in any event not deserving of severe punishment). I am afraid that the BSB Board and its staff fail, by and large, to understand the exigencies of criminal practice and its particular stresses and strains. I would like to see both members and staff undertaking 2 week placements in Chambers in order to get a grasp of what criminal practice entails. I have a (nowadays almost unique) practice which entails criminal and civil litigation in equal measure. I do the sort of work the barrister members of the BSB do (not as well as them). That sort of civil work is not like criminal work. The pressures are not the same. The people are not the same. The rules are not the same, and the money sure as hell is not the same. For that reason QASA is a huge error of judgment and this guidance would have benefitted from more knowledge. That is not to say the BSB is evil or badly-intentioned: it is not.
The last paragraph, which I have already quoted, is worth another look. It says,
In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.
Why is this relevant? I know of no barrister who is striking to further their own interests. The reason for the strike is to prevent the public losing a pool of talent and expertise, regularly praised by the Judiciary for its commitment to justice, convenience and the elimination of unnecessary time and cost. If these proposals – and yes the cuts – go ahead, that talent will be lost. The nation will be immeasurably worse off. Injustice is a worm – once it gets inside the apple it eats through it. And no sensible person wants to eat the apple with the worm in. Is that how we wish the populace to think of our system? So, the implicit suggestion that this is a strike to “leverage your own interests” is unfair, rude and crass. Had the members of the BSB spent some time with criminal practitioners, it is inconceivable that this sentence would have been written.
I will not see you on the barricades on the 6th. But I will happily run these arguments (and any others that brighter people than I can think of) for you until someone tells me to shut up and sit down. I hope it won’t be necessary. I hope we can agree not to strike again, or at least debate the next one properly. And I cannot believe that I am talking about barristers striking – for which only one party is to blame and that is this Government and its “civil” servants.
The Legal Aid consultation has been extended. Grayling is again shifting his ground. The MoJ – incompetent and untrustworthy as it is – is casting around in what may be an attempt to row back but is probably an attempt to find a way to make the cuts it need not make (because the spending on which it has based the cuts is well above the actual money being spent), because it does not like barristers and solicitors.
At the Young Barristers’ Conference today, Alistair MacDonald QC spoke. He asked if there were too many people applying to the Bar. That was, I presume, a direct response to the AG saying (at the Tory party conference) that there were too many barristers. As Alistair MacDonald (who I know, like and trust) is the new VC of the Bar Council, that is a pretty sensible and relevant question to ask. The answer is important to us all. Perhaps the Bar (which has almost doubled in size since I was called) is too big. Perhaps it cannot support all those who have now joined it. Perhaps we need to look for new types of work, especially as so much advocacy is now being done by solicitors. It would be a foolish VC of the Bar Council who dodged those questions. It would, for example, be opportunistic and reckless to use the occasion to deliver a tub-thumping speech which promised young members of the profession things that could not be delivered. That was not the place, and this is not the time.
Yet strike talk is everywhere. I think that is because some people need to feel better about what they cannot control and imagine that threatening a strike permits them a degree of control they do not have. They are wrong.
I have not yet made up my mind about a strike. Nor am I going to until I have to. I always tell my clients that we don’t make decisions until we have to: that way we have the maximum amount of time to think and the maximum amount of information to factor into our decision. I have seen barristers make a huge song and dance about what they will do in weeks or months time. Almost invariably I have then seen them lose.
I also believe that for senior figures to urge strike action is wrong. To support it may not be – that will be a judgment in due course. But senior members of the profession are often personally insulated from the effects of a strike. They have resources, financial and personal, that more junior members may not have. And , if they do not, they may be so anxious about their own position that they are not thinking as clearly as they would wish. Lawyers who act for themselves have a fool for a client. That applies as much to advice as it does to court representation.
That is why I believe that any call for direct action should emerge after discussion and should represent a consensus. Without consensus there are only 2 alternatives. First, people do not support the direct action. The result will be the end of any credibility for organisations and individuals perceived as pushing the direct option route. Those who took part will be demoralised and defeated. They will be resentful of those who did not support them. Those who did not support direct action will curse the idiots who decided that glory lay in a failed last stand. Any prospect of united action will be almost ended. The MoJ will laugh itself silly.
The alternative is that people are supportive but feel coerced. As direct action grinds on they will suffer. Some will go bankrupt. Some will become ill and depressed. There will be an inevitable lessening of support and the desperate will creep back to work (assuming the big solicitors’ firms represented by Des Hudson have left any for them to do). The implicit assumption I am making – of course – is that direct action will not immediately work. That assumption is the one I apply to every strategic decision I make in a case. I am (fortunately) often wrong about it, but only a fool has an idea and then assumes it will be ok if he does it.
At the moment, I favour a work to rule. This would take the form of actually doing the work I am paid to do – a court day and 2 hours. Thereafter, any work that had to be done would have to be done during the next day. The result, of course, would be that Courts ground to a halt. I would also get paid less for any case that tapered or had a fixed fee. But I would carry on earning. There are, however, significant other advantages. First, it would be interesting to see how the MoJ and its newspaper supporters (and how proud Grayling musty be to have the odious Quentin Letts and the equally odious Daily Mail in his corner) dealt with barristers actually doing what they were paid for. Secondly, it would permit the public to understand how much work I have done for nothing over the years. Thirdly, it would wake up the less empathetic members of the Judiciary to the fact that our goodwill is necessary for them to be able to hold their noses about this debate and pretend it does not involve the system they are supposed to ensure works smoothly. Fourthly, I might still have a practice at the end of it. Fifthly, it may (only may) preserve the ability to work with the MoJ at then end of it all, when we are still doing advocacy and they are still running the Courts. And finally, it may preserve a profession for those who come after me.
The difficulty is that those who say not a penny more are not talking about justice. Justice is not a commodity that has a minimum price. If a cohort of dedicated people were prepared to live on what Grayling had to offer, justice would not suffer. The unfairness comes because what is now on offer is not what was on offer when we decided on this career, bought our houses, had our children, made the decisions to which we would be committed for 20 years and got on with being barristers. That is why what Grayling is doing is so bizarre from a Tory perspective. We are the perfect Tory definition (I am not a Tory and never have been) of a small business – wholly self-reliant and self-supporting, living on our wits. That is why this appears to most of us to be personal: it just doesn’t make sense from any other perspective. But when we say not a penny more, we are talking about ourselves. That doesn’t make it any less awful, or any less unfair, or any less wrong. But it does mean that the argument about pay based on justice is risky – as all badly founded arguments are. And it also means that they question of what we are prepared to do about it may have a different answer.
I do not want to decide this now. I want to have a debate within the profession and to hear the views of people I respect. I want to actually be able to talk through every option, with people who will listen and think. What I absolutely do not want is for the Bar to fall prey to the instinct to characterise views with which individuals disagree as treachery. Or to demand ‘straight’ or ‘simple’ answers to ‘straight’ or ‘simple’ questions. Such questions are neither straight nor simple. When I am asked will I accept work at new rates that is not simple – see what I have said above. Nor is it straight, because the sub-text is whether I am one of ‘us’ or of ‘them’ – and the answer is that I abhor such cheap divisions. Why it is in anyone’s interests to begin a confrontation within a profession that has thus far stood admirably together is just beyond me. Demanding ersatz loyalty will only achieve dissent.
I am saying this because a gentle reminder along those lines produced just such a question today, and because I have heard a barrister say that people will listen to him not to Alistair MacDonald. That seems to me to be a step too far and such behaviour needs to be countered immediately. I am not going to name the people involved at this stage, because I do not want to contribute to the stupidity and because I want us to win this fight. If I am convinced that a strike is necessary I will strike, and part of my own thinking will be the need for the Bar to be perceived as united. But that is a decision for everyone to make freely and after a debate. I invite other members of my profession to set lines for themselves and to rigidly adhere to those lines.
I also saw that the decision appears to be one by the DPP. I had always regarded the DPP as an apolitical servant of government. Now he is comfortable saying that benefit fraud needs a tough stance. Shades of American TV programmes perhaps.
Of course benefit fraud needs to be prosecuted. But the vast majority of these cases involve small sums and the proposition that sentences will greatly differ is dubious. In any event, that is a matter for the Court of Appeal who will issue guidance on specific facts, and for the Sentencing Guidelines Council, who could change the Guidelines if they judged it necessary.
However, if the DPP is able to recommend prosecutions under the Fraud Act, I wonder if he should consider S2. This provides that a person commits an offence if he dishonestly makes a false representation – including one he knows might be misleading regarding his own state of mind - to another intending to make a gain for himself.
The Liberal Democrats were elected on a platform of saying no to tuition fees. They asked people to vote for them on that basis. They trumpeted their triumph when they were elected in sufficient numbers to join the Government. They are each drawing an MP’s salary and claiming expenses.
Equally the Tories said they could solve the economic crisis, and that they were committed to education, mentoring and drug rehabilitation programmes to help young offenders “go straight”. They said nothing about getting rid of legal aid for a vast swathe of issues and a vast swathe of the population.
I merely point out that there are matters which are arguably more publicly concerning than benefit fraud and upon which – if the DPP feels it appropriate to decide and announce that “a tough stance” should be taken – he might care to reflect.