There has been an interesting debate on Twitter about whether the CBA is too confrontational in its tweets (and perhaps its tactics). That is obviously mainly an internal matter – for what it’s worth I think the argument is pretty irrelevant, because people who try to smear the opposition to QASA and the proposed cuts will use whatever is going. The proposition that they are actually trustworthy in terms of having an open and transparent debate has, to my mind, been conclusively answered by their actions to date. Moreover, the CBA itself asked the question which, to me, contrasts favourably with the passion for openness and justice which characterises the proponents of QASA and cuts and manifests itself in an absolute unwillingness to engage or debate. I have always preferred people who act out their commitment to those who babble about it instead.
Francis FitzGibbon QC (who I trust won’t mind being linked), said something with which I entirely agree:
Show the anger, but be smart. No personal abuse. Positive messages.
But it got me thinking about what sort of message is positive. Obviously, arguing the case against cuts and QASA is a positive message. And, in my view (and Francis’s apparent view as well) expressing anger is a positive message as well. First, it makes clear that the issues are serious and are deserving of more than the lectures/silence with which the BSB is currently facing the crisis in the profession. Secondly, it may make you feel better to get it off your chest. Thirdly, it can serve to reassure other people that they are not alone in feeling so angry. Fourthly, if used wisely it can be a galvanising emotion. Fifthly, there is a moral case for saying what you truly think about immorality.
I am not for one moment advocating public bad language, personal abuse or hate campaigns. But confrontation is sometimes necessary and, providing that the fact that the ultimate aim is to win an argument is kept in mind, it seems to me to be no problem that some fairly sharp words are exchanged. This is important – much better to be genuinely cross about this than – for example – Leeds United’s wholly lamentable performance this season.
So – I am furious about what is being done to my profession at the moment. This is why.
First, I see my own livelihood and the lives of those I know, respect and like being threatened for no particular reason. I am quite unapologetic about this. People in power go on and on about community and society. The Bar is a community, which substantially contributes to the wider society and to its own more vulnerable members. Consequently, when I see people in my community being put at risk simply because of the community to which they belong, I get cross about it.
Of course – and this is oh such much easier to say if you are not amongst those included in those affected – the Bar also has to make sacrifices for the sake of the wider society. I agree with that but I am also entitled to look at the evidence. 10 years ago the Bar was paid, for publicly funded work, about 50% more than what it is currently paid. That reduction has been achieved by years of fixed fees, allowing inflation to eat into earnings, coupled with 2 sets of reductions in the last 2 years, and amplified by the constantly changing fee structures. I know of no other profession, and no other sector of society, that has been treated in this way.
Why then were fees fixed? It seems either that we were all paid more than we were worth for all those years, or we have simply been picked on as people who can afford to be paid less even though the work we do does not merit the reduction. I have not heard anyone say the former, so I am entitled to ask whether we have already made our contribution.
But, even assuming we have not, I cannot think of any other sector of society that has suffered the last 2 pay cuts (say, 25% and I suspect I am underestimating) in 2 years. Isn’t a quarter of income enough? When you add to that what now seems to be a proposed 35% further cut (for the last day of a long fraud I will be paid a munificent £5.97 so, if I want to eat I will literally have to pay for the privilege of working) it seems to me that we have passed way beyond barristers bearing their share. The reality is that we have been picked on, for no better reason than that we can be said to be fat-cats by people whose regard for truth would disgrace my (proven guilty after a trial in which they gave evidence) criminal clients. Because we are small and cannot mobilise public support without huge expense, we can be mistreated.
That makes me angry. It is bullying. It’s cheap. It rests on half-truths, innuendo and smears. It also – and here’s an irony for you – rests on ensuring that the case for cutting our fees doesn’t not get anything like the scrutiny that legal cases get. If the facts behind the assertion that we were overpaid were subject to neutral scrutiny they would be seen for the nonsense they are.
Secondly, I am angry because the public are going to suffer. When I started in practice in 1986, it made very little difference whether I did publicly funded criminal work or private work. The remuneration was almost identical. I am perfectly happy to accept that this should not have been so and that state funding should be less than private funding, providing that no one then complains when people who want to maximise their earnings don’t want to do state funded work.
Nowadays, the differential is in the order of 3 to 1. And I still do criminal work, because I am actually committed to it. It is what I mean by human rights – that is to say the right not to be burgled, not to be punched in a club and not to have your hard earned property stolen when you put it up for sale in your shop. It also encompasses the right not to be wrongly charged or convicted – not necessarily in the sexy “this is a major issue of human rights principle” way, but in the gritty, often depressing and frequently tedious “let me look at the evidence against you, get your account however inarticulate you may be and then speak on your behalf” kind of a way that makes up the day-to-day life of a criminal practitioner.
That commitment is shared by thousands of barristers like me and – even though there is plenty of pontification about falling standards – I am convinced that every single one tries as hard as they can every single day. You might have thought that would be something to be celebrated. Instead, that sense of vocation is – inexcusably – being taken for granted and abused in the belief that such people will work in the same way for much, much less than they are being paid at the moment.
I don’t believe that will happen. This isn’t a question of money, but of message. The message being sent is that the work we do is not really valuable. We stop the dregs of society being rightfully convicted and leach the public for doing so. How on earth are people supposed to be proud of what they do, if that is how the government chooses to characterise them? And why does anyone think they will be able to carry on making the effort they currently make once that mindset is established?
You will note that this argument is not the argument that says good people will stop doing crime. I think that will happen as well, but my concern is that good people will carry on doing crime in a state which is demotivated, sad, uncaring and unconvinced that they are able to do their job properly. That is bad for them and bad for all of us.
Thirdly, I am angry because what is happening is morally wrong. It is wrong in two distinct ways. First, proposals to alter the system should put quality and justice front and centre. The issue is not whether we can afford justice: it is that we absolutely can’t afford not to have it. The current proposals have nothing at all to do with the quality of legal representation. David Wolfe QC must be enormously embarrassed by the fact that the issue of quality – which he and the BSB have been parading as the reason for QASA – isn’t even touched on in the current consultation. There are 36 questions: not one is about quality. The argument that the government cares one whit about quality (save as a possible legal impediment to its plans) is conclusively shown to be wrong. This is about making legal representation cheap. That isn’t because we are overpaid. It isn’t because we must bear our share. It is because – in the mind of the government and the civil service – criminal work does not matter. The process is important because it enables it to be said that we have a fair system. Underneath the facade, what actually happens is irrelevant.
That stinks to my way of thinking.
Secondly, it is wrong because the whole debate is based on misinformation and misrepresentation. Any argument which rests on those two pillars can be pretty conclusively assumed to be wrong. And the method of advancing it does nothing but discredit to those who do so. Such methodology obscures debate. It makes it less, not more, likely that the ultimate answer will be wrong. It runs absolutely contrary to everything I regard as decent and honest. It is inimical to the standards of my profession as I understand them.
The use of such methodology undermines public confidence in the profession, in the justice system and – in due course – in the machinery of government. And politicians wonder why they are not trusted.
Fourthly, I am angry because the current proposals endanger us all. I am a Jew. And Jews are very good at knowing what happens when societies loose respect for law and order and resort to sorting out their own disputes with the type of alternative dispute resolution that doesn’t involve a mediator. I do not mean to sound alarmist, but when you exclude millions of people from legal aid you are delivering an appalling message. That message is that the government does not conceive of it as its duty to enable you to access neutral dispute resolution via a fair and transparent legal process. When you back that message up by saying that – for the sake of saving a tiny amount of money in terms of the overall context – one of the areas to be targeted is judicial review, which is how individual citizens can seek to resist government power, what are people acclimatised to this type of restriction going to think about their relationship with those who rule?
Eventually, people will internalise these messages. Most of them will simply simmer with resentment and live with the consequences. One of those consequences will be that they lose faith in the state’s ability to assist them with the mundane and tedious disputes that most of us encounter from time to time. For most people, that will merely mean that they teach their children that those who rule us do not care about us. For some the temptation to sort it out for themselves will be too great to resist – a prospect increased by the simultaneous message that law and order isn’t actually that important any more so you probably won’t get caught. For a few, that prospect will be welcomed and – as in any society that encourages people to resolve disputes privately – violence will be the preferred method of resolution.
This is the inevitable consequence of the lead given from the top. When Theresa May (and Blunkett before her) say that the Courts are wrong, the message they send is that the appeal system doesn’t work, and hence the legal system doesn’t work. That is irresponsible and I am genuinely revolted by it. The civil servants who serve these people are equally responsible. The current proposals come from out of the same hymnbook. The papers which have a political agenda, gleefully join in the pursuit. All those people are playing ducks and drakes with the future, for the sake of political power and money today. I am angry that those people – and they are bright enough to know what they are doing – are the same people saying that the job I do isn’t worth the value that society has always previously accorded it. Before now, if lawyers were derided (and they were) it was because they did not assist justice. That is not the argument currently being advanced – that argument cannot be advanced. The current argument is that the justice we promote is too expensive – except for people who can afford it.
It is worth pointing out that the job I do – unlike other jobs – involves a lot of work for free. When it pays me a daily rate, the state pays me for a 7 hour day. 5 hours court time, 1 hour for lunch, and 2 hours work. What it gets is at least an 8 hour day, frequently a 10 hour day and, regularly, a 16 hour day. I do that, so that the Court can always finish at 430pm and start at 1030pm the next morning, regardless of what I have to do to be ready for that. I get no money for that at all. The proponents of the fat-cat argument, of course, know this. That they never say it is one more instance of their thoroughgoing untruthfulness.
What is happening, in short, is a betrayal of my country’s values, my society, my profession and my own efforts – in that order. Of course, such high-falutin’ statements are easy to sneer at. And of course, my own self-interest aligns with my argument. All I can say about that is that it does not make the argument wrong. If people would rather play the man than the ball, it rather tends to suggest that they have taken the easiest path. I do criminal work despite having a civil practice as well. I review for the pro bono unit. I work for free on a regular basis (please don’t tell anyone). If anyone would like to tell me that my argument is dishonest, or unduly influenced by my own interests, they know where to find me.
The bottom line is that some people will not be able to earn a living that supports themselves and their families in the style to which they have committed themselves in good faith. Will the BSB prevail on the banks to lend the money for a practising certificate, or will they tell barristers to default on the mortgage or sell their house, if they can? That will be a real dilemma for lots of my colleagues, who will wrestle with it whilst simultaneously being attacked for doing the job they do and having the temerity to want to be paid properly for it. For younger barristers, the choice will be between a job as an official parasite and the same job at private rates as a valued contributor to the resolution of disputes between rich people or organisations.
In the long term we will not achieve justice as well as we do at the moment. Given that achieving justice is the prime reason I do this job, that makes me angry. That a country doesn’t achieve justice through its legal system is one thing. The aim is always to improve. That a country should deliberately go backwards is quite another. I honestly never thought I would see a Lord Chancellor write about legal aid without talking about justice or quality and it makes me angry that I have.