Qualities Required · The Future

A Better Idea Than A Strike

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.

2 thoughts on “A Better Idea Than A Strike

  1. Simon

    To an extent I agree with you. To strike is the action of last resort. It should only be contemplated when nothing else has worked. It should be only undertaken when everything else has failed. It is against this background that it is worth examining your proposal, to “work the 8 hour day everyone else works and then you stop”.

    Two questions beg to be asked. Can such a proposal be implemented? Will such a proposal have any impact?

    As to the first, I would have to say maybe. With strong leadership and unity in the profession behind such leadership, it may well be that people would toe the line and down tools after their 8 hour day. Yes, there are professional misconduct issues. When one accepts instructions, one is implicitly accepting that it pays a “proper fee”, indeed, one is entitled to refuse instructions if it does not. However, therein lies the rub. When one accepts instructions you are not accepting to simply appear in court and do a trial. You are accepting the responsibility to prepare a case properly, to draft skeleton arguments if required, to do the required research, prepare cross-examinations and to attend upon pre-trial hearings, conferences and sentences. One might properly argue that we do not get paid for any of the pre-trial hearings, for drafting, for working in the evenings or weekends but to do so would be disingenuous. We do. It’s just that the rate is bundled up in the brief fee and is appallingly low. So low, that to describe the same as a “proper fee” is a lie in and of itself. The difficulty with your proposal is that it seeks to apply a ‘work to rule’ action in a system where we are not contracted by the hour, but rather, by the job. Work to rule works because it is logically consistent – how can someone complain when you are only doing what you are paid for? The problem as pointed out, is we are paid to do the whole task of preparing and defending a person, from preliminary hearing through to sentence and not just an 8 hour day.

    This brings me onto the second question. Can it have any impact? It certainly would have an impact, but not in the way one might hope. Cases would be badly prepared. Cross-examinations would be less successful. Legal points which might be won, would be lost. People who might be acquitted would be convicted. I believe in our criminal justice system, where two advocates properly prepared are able to explore the issues in front of a jury. Should one side not prepare properly, the case can only go one way. To allow your client to be imprisoned because you do not prepare properly would have an impact, but certainly wouldn’t advance our goals in defeating these proposals. Would Grayling care if more people got imprisoned as a result of improper preparation? I doubt it. If he cared an iota as to the CJS he is in charge of he wouldn’t be pursuing these reforms. To believe that a Judge would stop a case because one side is not prepared is fanciful. Were I to go on strike, then the professional consequences would befall upon me. I do not believe a court would proceed with a case in my absence and if they chose to do so, then I am confident that the Court of Appeal would intervene. If a client were to be convicted because I didn’t do the research properly, or bother to draft a closing speech would the Court of Appeal interfere? I doubt it. It would not be me who bears the consequences, but my client. That would be an abrogation of responsibility I could not countenance.

    And so I conclude as I started off. A strike is the option of last resort. It should not be undertaken lightly. If there were to be a credible alternative put forward, I would jump at it. But to work for 8 hours a day then stop, respectfully, doesn’t seem to be it.

    1. I don’t understand the argument.

      Where are the professional conduct issues? The issue is how long a case takes. The work will be done to an appropriate professional standard. It will simply not be done as quickly. By taking the case – as I said above – you area accepting the fee is proper. What you are not accepting is that the fee is proper for a series of 10 hour days. There is nothing in the fee that compels you to work longer hours than the Government accepts makes up a working day.

      You contrast the “whole job” with “an 8 hour day”. Those 2 things are not a contradiction. That is why I said we would be paid less whilst this went on. Less because the fees will be reduced and less because the same fee will be spread over a longer period. But it will still be money you can use to put food on the table. And the system will grind to a halt very quickly.

      Nor would cases be badly prepared. I am advocating precisely the opposite. We do the work required. We simply don’t do it for longer than 8 hours a day. If the case needs a skeleton argument the Judge can’t sit until it is ready. If the Judge says he doesn’t need a skeleton (unlikely) then we say that the research will be done from 9am and we need 4 hours.

      The proposition that the Court will not proceed with the case in your absence has got to be wrong. The VHCC trial going ahead at Southwark shows that Judges will carry on with cases without counsel. They are obliged to do so. It is precisely because Judges are likely to deem a brief returned that they will carry on – with consequent headlines about unrepresented victims and defendants (I know we don’t represent victims but that isn’t how it will come across). Otherwise, the strike means that the Court system doesn’t run at all and the Judges are going to be complicit in that. I don’t believe it and nothing coming from any Judge – however sympathetic – has suggested that if we don’t work they don’t work.

      Finally, if striking is the last resort, why are we talking about it now, before we’ve tried anything else?

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