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Strike?

October 5, 2013

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.

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28 Comments leave one →
  1. October 5, 2013 9:22 pm

    Simon,

    Unless he can be persuaded that it would not be a good idea, Mr Grayling proposes to lay a Statutory Instrument before Parliament at the beginning of November which will cut the rates of pay for both new VHCCs and for future work on existing VHCCs by 30%, from December. By your comment about ‘working to rule’ by doing your court day plus two hours, I take it that you do VHCC work. Maybe you have cases ongoing at the moment. Surely you must have considered whether, if your pay is cut by 30%, you are going to exercise your contractual right to terminate the contract, or you are going to carry on regardless, or you are going to…what?..do 30% less time in court and in the evenings? We all know that’s not really an option, so I don’t see what’s difficult about saying whether you will, or won’t, work for 30% less money.

    And of course, for those of us who do only AGFS cases, there’s no such thing as ‘working to rule’. You accept the brief, and you do as much or as little work as the case demands for an ‘all in’ price. It’s a straight choice: take the brief at the reduced pay, or don’t take it. That choice may come in the spring, depending on whether Grayling gets his VHCC cuts through quietly. You have said in the past that the silks, who can better afford it, ought to stand up for the juniors. Isn’t standing up to the VHCC cuts the ideal way of you doing just that? If a few high-profile cases go off the rails because barristers return their briefs, it might just make Grayling take a threat to refuse all work a bit more seriously than he seems inclined to at the moment.

    No-one wants to ‘go on strike’ – it’s not going on strike, really – it’s making a decision about what price you will or will not, sell your labour for. We all have mortgages to pay. I can’t afford to refuse work, but the experience of the past twenty years, and my knowledge of the sort of politician Grayling is, makes me conclude that I can’t afford not to. If I accept this pay cut, there will be another next year, and the year after that – every time Gideon comes round the spending departments with the begging bowl (“Sure, George. Never mind £142m; here, have £220m – the legal aid lawyers will pay.”) The rot has got to be stopped, and I can’t think of another way of stopping it. If you can, I’m all ears.

    You may soon become leader of the NE Circuit. Your electorate will be looking to you for a lead. This article seems to espouse a ‘wait and see’ policy. The issue isn’t going to go away. The fee cuts will happen in December if we don’t stop them. So what are you going to do – take the cut, or refuse to work? It really is as simple and straightforward as that.

    Ian West
    Fountain Chambers,
    Middlesbrough.

    • October 5, 2013 9:48 pm

      Ian, thank you for the comment. I have considered by position as regards VHCC cases. I have explained my position above. Unsurprisingly, I stand by it.

      I’m not sure I agree about AGFS. Why shouldn’t there be an hours per day limit? But, if the choice comes in the Spring then that is when I will make it.

      I understand your position about direct action and I am happy to hear it, debate it and consider it. I honestly haven’t made up my mind and – as you know – I am powerfully influenced by the need for senior people to support more junior ones. I have already advised other barristers about such cases.

      I’m not going to be Leader because Orthodox Jews from Leeds can’t go to London for meetings on Saturday and those meetings are hugely important at the moment. But there is no reason why a Leader who says “I have already decided what we should do: follow me” is intrinsically any better than one who says “The debate has not yet reached the stage where I can irrevocably make up my mind”. Those are matters of personal preference for the electorate. What I am concerned about is an undercurrent that suggests that if you aren’t certain now, you aren’t a ‘good’ barrister/member/leader. That is precisely not what is required at the moment and I hope we can. collectively, avoid that type of split.

  2. October 5, 2013 10:20 pm

    Thanks for this Simon.

    I think a ‘work to rule’ could work in AGFS cases, for example declining to agree admissions on warned list cases etc etc.

    In terms of the timing, I agree that there should be as much debate and discussion as possible (in conjunction with solicitors as well), and, in my view, a ballot before concerted action is taken. My concern with this is that the clock is ticking rapidly and there is a lot of planning required. It also seems to me that a ballot or open conversation show the MoJ that we are serious and is more likely to get them to back down in advance (albeit that it is still unlikely).

    I understand your position about not saying at this moment what we will or won’t do about working at new rates. It’s easy for me to say personally, because I’ve done the maths and if the consultation goes through as planned I can’t afford to stay at the bar. That’s down to my personal circumstances, and for most people it’s a lot more nuanced than that.

    It may be that one problem is that there has been lots and lots of talk all over between different people, but not an open and national conversation. I’m not sure how we do that, but do agree that it is needed.

  3. October 6, 2013 11:18 am

    Simon. You will know that I respect your views, but I cannot agree that this will be resolved by further consultation, and here’s why.
    The MoJ have just extended the consultation period to 1st November, a Friday. On Monday 4th November, they will lay before Parliament, the statutory instrument to reduce VHCC fees.
    If that does not demonstrate a total contempt for the Bar, and a determination NOT to negotiate, then I do not know what does.
    If we sit back on our heels, allow the cuts to go through, and then take work to rule action, do you seriously think there is the remotest chance that this Govt, and Grayling in particular, will withdraw the cuts?

    You will remember the Big Yellow Taxi? CJS, may not be paradise, but it’s worth more than a parking lot!

  4. October 6, 2013 12:49 pm

    James, I do know and I respect yours as well. I do not think the MoJ is for budging without more, whatever we do. I suspect their recent extension is as a result of advice received that they may otherwise be vulnerable to JR, but the reduction of VHCC fees isn’t a matter they are currently consulting on. So they are showing us they are going to reduce our fees.

    The issue is what we are going to do about it. I don’t think I have said that further consultation is the answer. We must be seen to reply to consultations. I have done the last 4 for my Circuit and I certainly don’t delude myself that the price of Lord knows how many hours of unpaid work (from me and my similarly dedicated team) is that someone reads what we say. I doubt very much that the MoJ know my name (apart from the files kept on my twitter account ;)). We need to reply so that we can honestly say we have tried to engage.

    That doesn’t mean all we do is respond. As I say, the issue is what we do. I retweeted today a tweet from a young barristers saying that sub 5 years-call barristers could not afford to strike. I don’t know if this is a view generally held – which is why I was interested in it. Before I tell my very junior colleagues (some of whom may listen to me simply because I am senior, and not because I am being sensible) to strike I would really like to know.

    As I said on Twitter yesterday: both a work to rule and a strike are (or should be) a calculated risk. I would like to see the calculations. That would help us all make up our minds.

    I am delighted that there is a debate and if anyone but us barristers is reading it they should at least pick up on the anger and the desperation. Of course, those with handsome government pensions and guaranteed pay-offs for losing their jobs are unlikely to be able to empathise. But normal people who aren’t civil servants or politicians may be able to do so.

  5. October 6, 2013 5:47 pm

    It surprises me that all barristers in all fields aren’t drawn into this debate; I for one don’t practice in criminal law but am very concerned as to how the profession is being mauled by the MoJ (if that isn’t an oxymoron in itself) in all corners of our work.

    My contribution is that the net needs to be cast wider amongst the bar and that we all need to stand shoulder-to-shoulder. If strike action were to proceed, how much more effective would it be if ALL courts were affected? I would also add that I think we, as a profession, ought to be seeking some decent PR advice – the Daily Fail are only too quick to tell all who will listen how many fat cats exist at the bar, that view needs to be corrected and quickly.

    Mark Monaghan
    Clerksroom

  6. Russell Fraser permalink
    October 6, 2013 5:52 pm

    Simon

    Thank you for your post.

    I am pupil who completed my 12 months last week and start a third six this week. I am beginning to feel concern at the senior members of the profession because since May there have been many fine words but we are fast reaching the point where fine actions are also required.

    I agree with you that the MoJ takes as its starting point an erroneous figure for the cost of legal aid and that the claims about where that cost places England and Wales in the world rankings of legal spend is also wrong. Both are lies deliberately peddled by the MoJ and Mr Grayling to gain public support for these cuts.

    But what has changed since the consultation was launched in April? Very little. Our arguments about why these proposals are utterly pernicious have not moved the MoJ to any significant degree. In May, at the meeting at Friends’ House in London, resolutions were passed for training days and direct action. Yet for some reason they did not materialise. At a similar meeting last Tuesday Greg Powell, Nigel Lithman and Bill Waddington all said direct action was coming but little further detail was provided. And by the end of the meeting those on stage failed to set a date, despite overwhelming support for a date to be agreed (all that was agreed was that it should not be 5 November).

    I can understand perfectly well the need to have a proper discussion about what we should do. But really it ought to have happened long before now. Mike Turner first raised the possibility in late 2012 and then appeared to put the idea to one side. There are those who say we should not discuss it while the consultation is still open but the fact is we have had the consultation, this second one is no less of a sham. I can not say it enough: we are running out of time. However, I would be interested to know how you would envisage any sort of national dialogue being done. Mass meetings have been held, in Wales next week (I think) they are holding a meeting by videolink at three crown courts, ballot papers could be sent out. All take time and require organisation which I believe could be better utilised in other ways.

    You raise work to rule as your preferred way of responding. Work to rule has a fine tradition but simply will not work. It is a form of industrial action which is best suited to a workplace where people are on similar contracts and work in close proximity – a university, office, or factory, for example – and where each can support the other in taking, for example, a full hour for lunch or leaving at 5pm rather than working late or ensuring health and safety rules are adhered to and refusing to work where they are not.

    It relies very much on workers taking confidence from one another. While the same is true of a strike, we are better placed to realise the latter than the former. Any form of work to rule in our profession will be atomised and those who attempt it may well be easily isolated or lose resolve in the face of a displeased judge.

    Whereas if we pick a date and say on that date we won’t go to court, then we must build and organise the momentum for it properly. That means having one person in each chambers and solicitors in the country working hard to ensure colleagues support the day. Not through vilification or marginalisation as you have alluded to but by fostering encouragement and togetherness. It’s a small part but it’s essential.

    Then there is the way in which we campaign. Any strike should not be simply in the name of preventing the criminal fee cuts but should emphasise the threat to all sections of legal aid work, – civil as well as criminal – the rule of law and access to justice. It is more viable for criminal practitioners to strike than it is for our civil colleagues but I have no doubt they will support us.

    I understand why the person whose tweet you retweeted is concerned at not being able to afford to strike. But that is the nature of any industrial action. I imagine he or she could survive one day, however. We are not even talking about an entire week of direct action as things stand. And in any case, I understand the CBA and the circuits have already set up hardship funds for that very contingency, as it is surely right that they do. They will not yield huge sums I am sure, but it is at least an expression of solidarity within the profession, another way in which we maintain unity.

    So I ask you and other senior colleagues to take steps now rather than wait until it is too late. I love this job and of course I am worried about the future but I am presently more concerned about what is rapidly beginning to look like inertia. We cannot afford to fiddle while Rome is carpet bombed.

    Best

    Russell Fraser

    • October 6, 2013 6:05 pm

      Thank you for replying and for saying what you think. Honestly, I think that if action is decided upon you will not find the senior members of our profession wanting. Forgive us our caution – it is based on professional instinct as well as not wanting to get things wrong.

      I certainly agree we should discuss this now. I’m not impressed by the thought that the MoJ might be cross, because I don’t think it matters whether they are or not. My personal view is that discussions should be held at Chambers then at Circuit level. A National meeting would be immensely difficult to arrange and – if everyone were permitted to speak as they wished – would last until 2015.

      I want to think about what you said about the prospects of success for a strike vis-a-vis work to rule. I’m not immediately convinced that – even if correct – that answers the question of which is better. Hardship funds are a good idea, but bring risks with them. However, I would very much like to see some civil chambers speaking up here. I am enormously impressed with those giving their time to JR QASA for free, but would like to see the big civil sets recognising that this is their fight too.

      You want us to take steps and I do understand that. But the steps must be right. And they must also be lots of other peoples’ steps. The point is to get that resolved – to which this discussion is a contribution. We could, collectively, set an end date for discussion and ensure that everyone knows what it is. That might inject some urgency into the situation – or, rather, help to persuade us all that it truly is urgent.

      Best.

  7. Christopher Amis permalink
    October 6, 2013 5:53 pm

    1. The suggestion that we could work to rule in AGF cases is, with respect, a non-starter. If you take on a case you agree to do whatever is required to get through the case and no Judge is going to sit by while an advocate blatantly disregards his duty to the court. He will threaten the advocate with wasted costs or worse and few advocates will have the sheer bloody mindedness to stand up to Judges in this way. The idea that very junior barristers would do so is laughable. I agree with Hysterical West that we either accept the cases or we do not. There is no middle ground of the ‘work to rule’ sort.

    2. We expect our leaders to lead. Leading means taking decisions. Not waiting and mulling things over and endlessly talking, ‘measuring our lives out with coffee-spoons’. Debate among the electorate is one thing but a failure by our leaders now to take clear and communicated decisions will be perceived by the MOJ as the same old thing – barristers never able to agree about anything. Good at talking, useless at agreeing let alone doing anything. I expect the leaders of my profession, which faces imminent disaster, to take decisions now – to lead – not to wait and see what happens. That is a luxury we can ill afford. A leader who takes decisions in the moment of crisis is intrinsically better than one who gives the impression to those he is supposed to be leading that he hasn’t even made up his own mind yet. That is not leadership of a sort anyone in the Forces would recognise.

    3. Now is the time to act with our heads, not our hearts. We are lawyers and on a daily basis act on evidence. The evidence of the past 15 years is that the Government is intent on reducing what we are paid to as little as they think they can possibly get away with. The evidence is that no amount of reasoned response will be listened to and all offers to help make savings in other ways are ignored. Even now the CPS, who said in the last round of cuts that there would likely be more to come, must be planning the next assault on prosecution fees. And if they are not yet doing so, all the evidence of the past 10 years is that once AGF cases are cut, the CPS will follow with cuts of their own very soon thereafter. The evidence suggests that cuts in fees will not stop here. If the MOJ get away with this further savaging of our profession they will conclude only one thing – that they can do as they like. And you can bet your bottom dollar that more cuts will come next year and the year after. Austerity, and the excuse to cut, is here for years to come. If we don’t make a decisive stand now then when do we do so?

    4. We should refuse to do the work at the prices that are to be set. That is how the market works isn’t it? We put a value on what we do. We are not ashamed to say that we think we are worth more than what the Government is now saying it is prepared to pay. I agree with the comment above that it is disingenuous to pretend that this is solely about ensuring that justice does not suffer. It clearly isn’t. It is about what value is put on what we do. Let’s be honest about that. Honesty is usually a good starting point in any argument.

    5. We will never win the argument in the Press on money, I suspect, although people are beginning to wake up to the fact that not all legal aid lawyers are millionaires. But let us not be deflected by a lack of sympathy in the Press. If we refuse to do the work it doesn’t matter what others think. The Government will have a problem on its hands. When lawyers refused to do VHCC cases about 10 years ago and the cases started backing up in the courts the Governemnt backed down in weeks. The evidence is that if we show even half-hearted determination to take action the Government will back down. No Government can afford to have headlines of the sort that would be generated.

    6. The argument has been articulated in some quarters that we should be slow to take direct action because we must not lose the respect in which we as a profession are currently held. I am afraid we are already losing that respect we used to enjoy. No one respects a group of people who put so little value on what they do that they are prepared to work for derisory rates of pay.

    7. It has been said in other quarters that its easy to get carried away with a sense of injustice and that there are many things more unjust than the cuts we face. That I am afraid is a non-starter of an argument. We know that what we do is important work. We know that our goodwill is taken entirely for granted. We have a right to feel a sense of injustice. No other profession has been treated with the same contempt.

    8. It has been said in other quarters that we should not strike, but work with others, like politicians and those who are sympathetic, who are trying to protect us. Fat lot of good it has done us so far is my response.

    9. It has been said in other quarters that we should pause before taking direct action because the practicalities militate against it. Barristers will be unable financially to strike for very llong and staff in chambers may suffer. So – we should sit back and do nothing it seems and count on further reasoned argument to win the day. We know where reasoned argument will get us. It is said that some will exploit the situation and do the work, prop up the system, so we may fail. But since when was the fear that we may fail ever something that prevented us from taking action. Let us step forward, or rather refuse to step forward, bravely together. The evidence is that when we act as a unified body we win. As we did on PCT and client choice. As we did on our refusal to do confiscation proceedings at the suggested rates. As we did on VHCC cases 10 or so years ago.

    10. We all want to protect the most junior at the Bar. But the most junior recognise more than anyone else that if we do not take direct action there will be no Bar for them or us to be part of. And what the most junior at the Bar want, I suspect, is clear, determined action from their leaders, not the answer that our leaders don’t yet know what to do.

    11. It has been said that if we fail in our direct lawful action we shall suffer, as a profession, a loss of credibility for the future. That also is a non-starter. What future? There is no future with these cuts. The CBA leader has himself pointed out only last week, rightly, that there is already a credibility gap. We don’t seem to have much credibility as things stand. The Government think we won’t do anything. Or anything effective. Let us show them they are wrong.

    12. It has been said that another challenge we face is how to justify continuing to prosecute if we would refuse to defend the same case. I see no difficulty at all. If continuing to prosecute cases will hasten the destruction of the CJS by undermining the effectiveness of direct action taken now that is justification enough in some people’s eyes. As to the professional position anyone is at liberty to refuse to accept the work.

    13. It has been said by the new Leader of the Western Circuit that we need to wake up to the fact that a critical time is upon us. I agree. If we do not take decisive action now we are finished. That is the bottom line. Of what should such action consist? A refusal to do the work and a dignified assertion that we think we are worth more than this.

    Only my thoughts of course – and expressed I hope, firmly, but without rancour.

  8. October 6, 2013 6:27 pm

    Christopher,

    Thank you – expressed firmly and without rancour.

    1. Don’t agree. The fee doesn’t bind us to do the work in a set number of days. No Judge can legitimately insist you work a 10 hour day.

    2. This isn’t a war so the comparison with the armed forces is inapt. The big difference is that in a war, although deaths are avoided, they are acknowledged as inevitable. I’m not sure that leadership in this context involves losing barristers. Moreover, there are no ranks in terms of telling barristers what to do. You are complaining about taking time to work out the best case to present. That’s what I do. I caution against running after the first person to say they have a brilliant idea, but you can if you want to.

    3. I agree. The issue is WHAT we do.

    4. I understand your view and I agree with your comment about presenting it honestly.

    5. I think I agree with this as well. But it still raises the question of what action to take. Refusing to sign up to VHCC work won’t answer the whole problem on this occasion.

    6. Not sure I agree with this, but ultimately the issue for me is a) is it necessary; b) will it work.

    7. Injustice is objectively apparent. Our money keeps getting cut even when they say they won’t. That is unjust. However, injustice should not persuade us to do things that aren’t necessary or don’t work (see above).

    8. I would trust a politician as far as I could spit them. There are some good ones but even the best have a distressing tendency to abandon one cause in exchange for another.

    9. A powerful point. This is the question of whether it will work. i want to think about that some more (sorry) and to consider the different sorts of direct action.

    10. The key words are “I suspect”. I would like to know. It’s a hell of a guess and I am unhappy about making it.

    11. This is really the question is it necessary? I take your point. But I want people to think about what happens if this doesn’t work. It’s very easy to say “it’ll all be the same because I can’t carry on,” when you are really thinking “this will work so I will never have to confront that option”. It is also daft.

    12. I agree. If the issue is whether defence fees are good enough, we should prosecute.

    13. If you are right about the bottom line (if) you are half way there. The next question is whether what you propose has the best chance of success. I am expressing no view about the first issue, and still think work to rule is better than strike. But I want to take time (sorry) to reflect on your points, because I find this bloody difficult.

    Thank you. S

  9. October 6, 2013 7:30 pm

    Simon

    your words are wise and command respect. My view – which I’ve expressed to the leadership – is that the ‘not a penny less’ approach is dangerous, because it leaves no room for manoeuvre. What if the MOJ offer a cut of 7%, or 10%, instead of (at least) 17.5% on grad fees? Many will prefer that to the prospect of a strike, with no money coming in at all, but how do the leaders back down from the position they have taken on our behalf?

    The thing to keep in mind is that MOJ won’t care much if we go on strike or not. Their stated aim is to reduce the numbers of providers of legal services – which a strike will do without any help from them. They can afford to play it longer than most of us can.

    I don’t think that action in any form will ever achieve the aim of stopping all cuts and it’s a delusion to hope it will. It may be a useful bargaining chip if it is accompanied by the right messages about what the cuts mean, which to the right people.

    My view is that the assault on publicly funded lawyers in general is the product of an ideological position, that the state owes those who can’t pay for lawyers a duty to help them. That in turn masks a simple desire to reduce the scrutiny of government actions and decisions which legal aid, JR and open justice makes available to citizens (and others). I wrote about this in the London Review of Books earlier in the year: (http://www.lrb.co.uk/v35/n11/francis-fitzgibbon/short-cuts). Putting publicly funded lawyers out of business is a handy way of doing this, without apparently altering cherished legal principles – not that they are being spared, either. So the issue of fees has to be seen in the broader context of policy, and the case to be made is not ‘poor us’, but ‘do you want to have some one competent to be there for you when the State threatens you?’

    We may reach a slightly better deal than what is on offer now. The partial climbdown over the summer must have had something to do with the effective publicity campaign run by the Circuits and the BC – all politicians fear bad publicity. But the Arthur Scargill approach, which some advocate, is a gift to the MOJ. We can’t threaten to turn the lights out. Our skills are not valued by the government and it won’t pay as much as it should for them. Brute facts, but facts all the same. I think we have to continue to press them for a better settlement, and take action if necessary, but with no illusions about the outcome.

    • Russell Fraser permalink
      October 6, 2013 7:56 pm

      Francis, there is much there I disagree with but I’m genuinely stunned you think the partial climbdown could be attributed to the circuits and the BC (particularly the latter).

      It may have been, Stephen Sedley wrote in the LRB, that Grayling flew a kite where PCT was concerned and always intended to withdraw it. More likely, the abandonment of PCT was won through the Save UK Justice Petition, the demonstrations outside parliament, the MOJ and finally at the Old Bailey.

      • October 6, 2013 8:31 pm

        ….. Or just possibly the CBA and Mike Turner QC might have had a hand in it ;-)

      • October 6, 2013 9:15 pm

        I agree with Russell and the CBA on this one. From the off the record conversations I’ve had with people ‘in the know’ at the MoJ, the Bar Council is seen as a bit of a joke. At best, they have been ineffective (sometimes, as with Carter, downright damaging). In fairness, I think that this is because they still feel hampered by the (nominal) dual role of representative body and regulator. Having said all of that, I’ve not got any insight as to the thoughts of the MoJ this summer.

        The backdown, if it wasn’t a tactical manoeuvre by Grayling (which was always my bet), came about because of the sustained pressure from the CBA, Petition, Save UK Justice campaign, etc.

        The problem is that the clock is already ticking – not just because every week there are talented juniors leaving the bar because of their financial position, but because, as the CBA said, the changes are coming quickly.

        The current rates are already too low (to be honest, we should have done something about this years ago). I think that we do have to stand firm on the ‘not a penny more’ not because 17.5% is ruinous in a way that 10 or 12% isn’t, but nobody can seriously believe that if we reach a compromise, the MoJ won’t come back for more in the near future.

        The current mood among the bar (certainly in London) is extremely militant. People are at the end of their tether and the general mood is that this is the last throw of the dice. I agree that it’s unlikely we will stop the Government (although the MoJ have plenty of wiggle room if they want to save face), but I think that most juniors feel that they have no alternative.

        My view is still that before any action is to be taken there needs to be a ballot of the CBA membership to give more legitimacy to it (save for the VHCC cuts where different issues apply and it is more of an individual decision). Not only does this provide cover for the backlash from the tabloids, it will be a useful way to trigger a debate. Also, whilst there are those discussions going on, it may pique the interest of the news media as to why barristers are even contemplating this action.

      • October 7, 2013 9:27 am

        Russell – I meant no disrespect to all those who have campaigned effectively against the Consultation. We probably agree that the MOJ’s response is wholly disproportionate to the strength of the arguments against it. At the moment, I can’t see how a strike or whatever we call the action will make them less intransigent, although I recognise that action of some kind is necessary – just not as the be-all and end-all. Pessimistic. Sorry.

    • October 6, 2013 9:02 pm

      Francis, I agree about the overall policy and independently came to the same conclusion in the blog I wrote for the Independent. This is about ensuring that Government works unchallenged. It is easier for the Civil Service to promote it when the Tories are running the MoJ but my personal view is that it is a Civil Service policy as much as an ideological one. Effective defence advocacy, like effective JR, exposes state misconduct and inefficiency. I find it absolutely astonishing – and not a little depressing that neither this DPP nor his predecessor have found themselves able to make any public comment about the effect of the cuts on the delivery of justice.

      Although I cherish the hope that we may be spared, as I have said above, action without a plan B if it fails is daft. Andrew Stubbs QC said on Twitter that “ready, fire, aim” isn’t a helpful position and I couldn’t agree more. And yes, we are being salamied up. But unless direct action is going to work, we still need to have the discussion about what is best. I remember being here for the Miner’s strike and helping to collect and hand out stuff to desperate families. It was vile, the strike didn’t work and was unnecessary, and ordinary people who didn’t have the options spelled out to them were the ones who suffered.

      Russell – I don’t understand the disinclination to attribute credit to the BC or Circuit Leaders. The reality is that everyone worked together and held together. We need to keep doing that. I think the threat of MT (who Grayling clearly did not want to meet!) was an effective reason to deal with the BC. I think that we were let down by Hudson – not even because he was necessarily wrong (although I believe he was) but because he manoeuvred secretly for his own constituency – which wasn’t even all his members. But the ear of those who told Grayling to back off (whether he intended to or not) was held by the BC and the Circuit Leaders. Not everyone who can’t produce exactly the result we all want has failed.

      Please keep the comments coming.

  10. Christopher Amis permalink
    October 6, 2013 7:36 pm

    Thank you Simon for your response. I would counter but I have to put my two children to bed and then get down to 3-4 hours’ work for my part-heard trial tomorrow.

    Chrisopher

    • October 6, 2013 8:46 pm

      Christopher – please do comment again when you have some time. I know exactly how you feel, believe me.

  11. Frankly permalink
    October 6, 2013 9:56 pm

    I’ve noticed myself getting a little crabby lately. All this prosecution work to keep myself afloat is doing my head in. My Jr Jr friends have a trial a day and I have at least four. At luchtime, if I’m not trying to sort out a shambles of a case, I’m hiding from the in-house lead-swingers who are looking for an early bath.

    Defence work is the one glimmer of sanity I look forward to, even if it means a first app in Dover. The point is, I can’t live on this. None of it, including CPS work, is sustainable.

    It’s not just me losing the plot. Maybe it’s just my little corner of London, but I’ve witnessed some shocking rudeness to Magistrates, Legal Advisers and Court Staff lately.

    Everybody’s tired.

    You think somebody’s finally going to listen and we won’t be hung out to dry? We are being hung out to dry now.

    Who are you going to try to convince? The Public? The only way the Public will understand our worth is when enough of them get burned in a DIY job gone bad.

    Do you think someone in Government cares? Ken Clarke said we were a phalanx of lawyers hiding behind women and children. That attitude has not changed.

    Doing more of what isn’t working isn’t going to change anything.

    What might just get their attention is a series of one day shut-downs.

    If my true value is only £50, I doubt anyone will miss me at all.

    • October 6, 2013 11:35 pm

      What can I say? I find this sort of comment heartbreaking and I can understand that people feel it may be best to go out with a bang if they are going out. I suppose that before that Butch Cassidy moment I want to be sure it works and, if it doesn’t that nothing does.

  12. October 6, 2013 10:11 pm

    Just thought I’d add a comment, as I feel one of the most bizarrely overlooked aspect of debate on legal aid, has been how fatally flawed the MoJ impact assessment has been. I know this does not help with the trickier choice faced, as illustrated by the above comments, between a strike and ‘work to rule’, but I feel both Barristers and Solicitors have been too focused on the nuances of the constitutional and professional implications of cuts.

    I think more professionals need to lend their voices to the argument that there is a serious probability that the provision of legal aid advice saves, rather than costs, money. Dr Nick Armstrong of Matrix Chambers has conducted a rudimentary analysis of his own and Lords Neuberger, Carlisle, Hope and Bach have been clear that lawyers save money.

    With the 1st November 2013 deadline looming (yes, probably a formality to avoid JR), the message needs to be sent out that the MoJ haven’t done their maths in an even remotely competent manner.

    I have been in touch with a specialist from Sussex University in the concept of social returns on investments (SROI – please Google it). SROI analyses focus on the financial and other benefits, which can be derived from services, like the provision of legal advice. It is unlikely that a full report will be available in time for the deadline, but the concept of benefits derived from legal aid advice, which includes financial benefits, is something that both sides of the legal profession can stand shoulder to shoulder on, thus obviating the need for future cuts, and increasing the likelihood that any imminent cuts will be undone sooner rather than later.

    Apologies, didn’t mean to de-rail the more substantive points raised in this comments chain, but it’s not likely that an SROI analysis will carry much weight (or indeed be funded) without support from the likes of Senior Members of the legal professions, and their representative Associations.

    • October 6, 2013 11:36 pm

      Speak to your Circuit Leader and Professional Bar Association, whichever they are. And get them to raise it. Tweet me with it and I will retweet it.

  13. October 6, 2013 10:11 pm

    I started to respond to your measured comments and realized that the response was too lengthy to leave as a reply. The full comments can be read here http://wp.me/p3zdfq-M

    • October 6, 2013 11:48 pm

      I understand that you want to strike, that you feel it is hopeless, that you don’t trust the MoJ (couldn’t fit a razor blade between us there) and that you don’t understand why we aren’t all there with you.

      The only answer I can give you is the tedious one that if it doesn’t work we have shot our bolt and we are finished. Not ‘finished but I’m finished anyway’ but really truly finished, within 6 months.

      Before I advocate that risk I want to know:
      1. Will it work?
      2. Will anything else work?
      3. What happens if it doesn’t work?
      4. What are the chances of it not working?

      As I have gone through today – and unusually for me I have tried to respond to every comment – I have come to the view that unless a strike is the ONLY thing that works I am not sure we should be striking. I didn’t come to the Bar to tell me client I’d not be there for them today. I am aware of the argument that says if we don’t say it today then we won’t be there tomorrow but – along with Francis – I have yet to be convinced about that.

      My concern – and I might as well share it – is that the ultimate choice will boil down to whether it is worth fighting for everyone, or whether we have to accept that fewer people will be able to practice at the criminal Bar. I just don’t know the answer to that. I am trying not to get involved in how many people will have to go, because it seems to me to be unlikely to be less than 33% and, once you are in that territory, I think that any moral case based on refusing to leave people behind is made. Part of my personal difficulty with this is that I could go off and do civil, and that I could probably make a living from crime as well. I am not sure, therefore, whether my voice is the one that should be heard.

      Grapple, grapple. This really is a shit debate to have to have. What I would give to make Grayling read it and speak to each of you personally, without his cheering audience of civil servants and sycophantic journalists notionally knitting under the guillotine.

      • October 7, 2013 7:57 am

        You keep talking about Arthur Scargill and I keep thinking of Bob Crowe.

        We are getting our collective asses kicked and you want “peace in our time”.

        Your approach only gives them incentive to kick us harder.

  14. October 7, 2013 10:31 am

    Too many barristers?

    In March 2009 Jack Straw, then Lord Chancellor in the last Labour government, gave a speech at the LSE entitled ‘Constitutional Continuity’. In it he traced the history of the position and the future challenges the Lord Chancellor faced. Most of his speech, however, concentrated on the legal aid budget and the changes required to modernise and control it. The whole speech is worth reading as it might well have been written by either of his two, Conservative, successors.

    One of the points he made was that there were too many barristers engaged in legal aid work.

    Ken Clarke repeated the message and Peter Lodder QC, then Chairman of the Bar Council, reported, after a meeting at the MoJ in October 2011, that “Although Ken Clarke praised the efforts which the Bar has made to improve access to the profession, he expressed the view that too many are trying to practise at the self-employed Bar.”
    Now, as reported in The Law Society Gazette (30 September), Dominic Grieve returns to the subject; ‘legal aid cuts hurt but the Bar is just too big’.

    It is likely that all three were referring to those barristers engaged only in legal aid work and not the more specialist and, probably, less competitive, areas of advocacy. Indeed, the current Chairman of the Bar Council, Maura McGowan QC, has talked about a ‘two-tier’ profession.

    It might be worth considering, then, the size of the self-employed Bar and the number of barristers in it.

    The Bar Council reckons that there are about 12500 self-employed barristers. Of these about 400 are sole practitioners, who normally have very specialist skills, and the rest, about 12100, are in chambers. Experience shows that, at any one time, about 10% of the members of any chambers aren’t fully engaged. Maternity leave, sickness, ‘life-style’ members, etc reduce the complement in chambers to about 10900.

    The CBA claims that it has membership of about 5000 criminal barristers which means that almost 50% of the self-employed Bar are engaged in crime work.
    If the Bar is over-manned by only 10% and, given the previous remarks, that is concentrated in the legal aid Bar then the ‘market’ can’t support about 500 criminal barristers. 20% over-manning is about 1000 and so on.

    Of course, it’s hard to establish how much over-manning there might be in a ‘market’ which is as artificial as the legal aid market. In a free market, where the price and volume of supply are governed by demand, there would be balance and, more or less, as many barristers as the work would require. In a finely tuned market there would be just enough barristers who would benefit from sufficient work to secure a good income. If that didn’t happen the market would shed numbers until equilibrium was reached. Unfortunately, self-employment and the universal democracy of chambers resist those market forces. Given the above, it’s a buyers’ market and will continue to be so.

    As the legal aid market works on prices fixed by the ‘client’ so the supply end of the chain is governed only by the number of barristers who want, and individually choose, to do the work at the fees available. As all the criminal cases that need a barrister have one, at the moment, then it might be assumed that the market has some sort of balance. However, not all criminal barristers have full diaries and some, it would seem, struggle to get by.
    Whilst the impending fee cuts the MoJ will be imposing might have been calculated to make the savings the Treasury require they will also have the effect, we’re told, of reducing the number of barristers willing to do the work at the new rates. Irrespective of calls for ‘direct action’ in opposition to the new fees there will always be barristers who will do the work; even at the new rates. What else can they do?

    Strikes won’t (and never have) solved anything. Ask Arthur Scargill.

    Perhaps it’s time for the criminal Bar to look at the problem through the other end of the telescope? If there are too many barristers working for insufficient income to support the current, traditional, chambers set up there might need to be a reduction in the number of criminal barristers and a new way to do business; much as Tooks have found out.

  15. October 8, 2013 10:54 pm

    This article has (as was no doubt the intention) provoked a vigorous and informed debate, to which I have already contributed. I will therefore keep this second contribution short(ish).

    1. Will anything other than a refusal to accept briefs (it’s not a ‘strike’) work?. No. Grayling is a hard-nosed politician. He has (for as long as we remain parties to the ECHR, anyway) an obligation to provide legal representation for those accused of serious crime (i.e. offences for which they might be imprisoned) and what that amounts to is this: 674,000 police station attendances, 499,000 legally-aided magistrates’ court cases, and 120,000 Crown Court cases a year. That’s the ‘basket’ of work he needs to get covered. The only issue for him is how cheaply (subject to a minimum quality threshold, such as…QASA, for example) he can get that workload covered. He doesn’t care how happy or otherwise the lawyers are who do it, just whether or not they’ll do it. If they will, no matter how many meetings they have, or resolutions they pass, if, when push comes to shove, they’ll do the work, that’s all that matters. That is why the only leverage legal aid lawyers have with a man like Grayling is the threat of refusing to do the work. He thinks we will grumble, but we will do the work. Unless and until he is disabused of that notion, the cuts will keep coming. The CPS will be the next, but the defence fees will be cut again as soon as the Treasury needs to fund a tax cut to win an election.

    2. The fundamental difference between the miners and legal aid lawyers, is that Grayling NEEDS us. Mrs Thatcher didn’t need home-produced coal. Mr Grayling can’t build nuclear-powered barristers, or import legal aid lawyers from Poland. We need to have confidence in the necessity of what we do, and the industrial muscle we have. Remember those numbers. That’s a lot of work – all over the country – that needs doing. A few big firms and a few rogue barristers can’t do it all, or even more than a fraction of it.

    3. What about the hard-pressed junior Bar? Well, two things. One. The silks and senior juniors can give Grayling a nasty shock by returning VHCCs if he is unwise enough to cut the money by 30% in December. That might just make him think twice before cutting the AGFS for the sake of £18m in the spring. Secondly, one of the ironies of the fact that we don’t get paid until the case is over means that if I start refusing work tomorrow, it won’t hit me in the pocket for several months. I have time to plan for that hardship – and it will be hard – and Grayling doesn’t have the same luxury of time. I can afford to see who blinks first. A Tory Justice minister needs to have trials taking place, and within custody time limits, so he needs me to be working.

    So, but me no buts. I don’t want to withdraw my labour. It goes against the grain. But ten years in Bar politics (added to another eighteen years at the Bar before that) have taught me that reasoned argument butters no parsnips at the Lord Chancellor’s table. Grayling is testing our resolve: “I’m going to cut your pay. What are you going to do about it? Nothing, as usual.” Well, not this time, Mr Grayling.

    Ian West.

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