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.