We can’t trust the Ministry of Justice. The response of the Attorney-General to the current policy of no returns (with which I do not agree) at the Bar Council meeting on Saturday was to threaten the Bar with OCOF. That was, in fact, an eminently predictable position and I shall deal with the CBA’s failure to predict it (or if they did predict it to tell us about it) later. But the AG attends the Bar Council as an ex officio member. He is there as the senior member of the profession, not as the Secretary of State’s snout. It may be that he intended his threat to be a friendly warning, but as a politician his antennae are supposed to be better than that. He is perfectly entitled to be against the current policy and perfectly entitled to say so. But, in the end, he must assess where his loyalties lie. If his response to a policy supported by most of the Bar (even, however reluctantly, those of us who don’t agree with it) is to back the Ministry’s attempt to punish us for protesting – perfectly properly – then he ought to resign from the Bar Council. He is no longer behaving as a barrister debating the issue with his profession, but as an enforcer for a third-party.
It speaks volumes that the MoJ is talking in terms of threats. That the default position of Grayling and his second-rate staff is to threaten is not in itself a surprise. But history suggests that when the MoJ resorts to threats, it is losing. Making threats was how the MoJ responded the last time we refused to do VHCCs. We won that round.
The issue is critical because we have to decide what to do next. Before I address that, I want to address the CBA position. For the last 5 months the CBA have taken the stance that a meeting in November 2013 gives them a mandate. That proposition is nonsense of the highest order. There was no agenda at that meeting. There was no circulation of competing motions, or even positions. Those attending – if they had a mandate from their Chambers – could not have had a mandate to agree anything specific unless their Chambers had been daft enough to say “whatever you want to agree to, we will agree”. That is unlikely. Having no mandate themselves, they had no mandate to confer on the CBA.
Since then the CBA have produced a series of proposals – none of which have been discussed amongst the membership until after the proposals were put. Consequently, like the recent referendum in the Crimea, we have been able to say yes or no, but nothing else. Unsurprisingly, we have said yes. But that is not necessarily because the proposals were good ideas. It is because we wanted to do something, to hit back at the double-dealers and scoundrels at the MoJ, and what was proposed was the only game in town. And, as the Bar does, we have talked each other up in robing rooms and Chambers meetings. We are rightly furious and we are good at expressing it. No wonder the mood has hardened as it has.
The CBA needs to be aware that this way of proceeding is neither democratic nor professional. That is particularly important now, because there is talk of refusing all new work. However gratifying that may be on a personal level to those very senior members of the profession who loudly promote the idea, it is irresponsible to support that idea without identifying the following information clearly:
- What is the ultimate realistic aim?
- How do we achieve it?
- What are the staging points which will permit assessment of whether we are likely to succeed?
- What are the options for changing the strategy if assessment at those staging points suggests it is not succeeding?
- What is the risk if it doesn’t work?
- How long is it going to take?
None of this is remotely surprising to any competent barrister. It is how we deal with our cases. We should expect and require no less professionalism from ourselves.
I would add the following question: what is the personal position of anyone proposing a strike in terms of how long they could refuse work for, without taking their kids out of school (if applicable) or having to borrow money to keep afloat? That is important, because it allows everyone to assess their own position as against those urging them on and thus to decide if they might survive, or be cannon fodder.
That is why I raise this matter now. Too many barristers are disgracing this profession by promoting a culture of “if you aren’t with us you are against us”. That is McCarthyite bullying of the highest order and anyone doing it owes it to their colleagues to stop. Promoting the idea that if the CBA has announced it then we must support it, is the same proposition. The CBA ought not to announce anything. It ought to debate things and allow its membership to make a decision. It ought to consult with the Circuit Leaders and ensure that other voices are heard – not just by a blog post but on the discussion document that determines what we do next. Nothing else will do.
I have been at the Bar now for 28 years. This truly is a tipping point. Consequently, I am disinclined to permit public debate of the most important issue to face the Bar since I joined it to be characterised as disloyalty or troublemaking. I don’t know about you but I instinctively revolt against that type of ‘persuasion’. Professionally, I despise it. Personally, it makes me cross. As a barrister I worry that it will induce us to take the Darwin option – culling ourselves so that only a (lucky) few are left standing. Hence my belief that those urging anything should declare the consequences for themselves.
Let me answer my own questions:
- The ultimate aim is to persuade the MoJ that their savings can be found elsewhere. It is not realistic to expect them to reverse themselves otherwise, coming up to an election year, when the public don’t give a monkey’s about us.
- Action is required because the MoJ listens to neither facts, nor persuasion. It has a loose relationship with facts at the best of times. Persuasion is not something that those armed with a baseball bat are terribly interested in. The question is what that action should be. I do not believe refusing all work will achieve our aim. Too many people will crack too soon (and the current debate actually produces a false result because people feel disloyal for telling the truth about that). I do not believe days of action achieve our ends because, in the end, they are a strike/refusing work. I do not believe no returns will achieve our aim because it disproportionately penalises the youngest members of the profession who cannot afford to carry on doing it for long. I do believe a work to rule achieves our aims because it permits some income, in full accordance with our professional obligations, whilst strangling the system. And, whilst agreeing that we are paid by the case, we still aren’t paid for more than an 8 hour day – which is what we ought to work. But you can test your own preferred option out anyway, and see where it leads.
- The staging point of refusing work is when people start to go back. At that stage we are finished and we can never negotiate credibly again. Ditto refusing to do returns. On a work to rule the first staging point is whether those doing it can survive on what they earn – that will reduce because the rates will be lower and the number of cases less. Those who cannot survive ought to stop doing it – there will be swings and roundabouts because only 1 person in a 2 person case (and a minority in a multi-perosn case) needs to work to rule to effectively enforce it on others. Consequently, we will be able to see if we really need anyone to make a sacrifice they cannot afford.
- As I have set out, a work to rule permits changing options. No other course of action does so. If we refuse work and then take it we are a busted flush. Finished.
- What is the risk? Not sure. On a work to rule I think it limited because it is difficult to attempt to punish the Bar for working normal hours (as the CPS do). Introducing OCOF in those circumstances would look mean and spiteful. I don’t suppose the MoJ has much objection to that, but it would also look weak and it would be difficult to justify politically. On a refusal to work/strike the MoJ would be entitled to say that its primary obligation was to keep the court system running and that OCOF – allowing the big firms to do our work – was the only way. I don’t know whether they would do it. If it didn’t work then it would be the MoJ’s equivalent of a failed strike. If it did work the criminal bar would be destroyed overnight and briefs would be available only through fee-sharing with solicitors – a prospect that would have us looking back nostalgically at these proposals. I think refusal to accept work is a bad idea for other reasons, but because of this, it is an additional and enormous risk to the entire profession.
- It is going to take 6 months I think, and maybe more. Grayling is a man who equates toughing it out with morality. I have had clients like that and, although they are invariably idiots, they are tough to shift. We can’t keep up a refusal for that long. Or days of action. Or no returns.
The other option is to refuse to take certain classes of work – mainly those involving serious cases and CTLs. The advantages are that it would hit the senior people the hardest – which is as it should be – and that less people have to stick together. The disadvantages are that it means lots of ‘fat cat’ stories (offset by the palpable truth that we would be doing it for everyone) and potential public outrage as murderers walked out of jail. However, I believe the proposal worth discussing.
As I have said, the discussion cannot omit the factors raised above – and probably some others I haven’t thought of. Each of us must stop taking refuge in the stance so cogently critiqued by Sir Humphrey Appleby – “We must do something. This is something. Let’s do this”. And our leaders must lead by allowing us to discuss the options openly and fairly: not by presenting limited choices which stifle what we trust them to promote.
Meanwhile here are some other ideas to achieve our aim, which we should explore and think about as additions to – not replacements for – our own action.
- A national day of action supported by all members of the Bar. Those with private clients should try and sell them on the idea of a 1 day stoppage to demonstrate that the British system of justice is indivisible.
- Immediate cessation of all cooperation with events in which the MoJ are involved which promote the justice system at home and abroad. Those involved could make it clear that the MoJ is not trusted with the justice system and that the event can go ahead as soon as the MoJ is not involved at all.
- A campaign to persuade the big city firms to devote some of their (considerable) pro bono budget to paying junior barristers to do cases at the current rates. The pro bono work is vital but it is also advertising. No reason why that budget shouldn’t be spent to permit criminal clients representation. If the LSC would permit a top up payment that would be fine. It won’t, but refusal will be a political embarrassment, focusing attention on the spite that informs this debate.
- A campaign to persuade the ‘top’ commercial chambers to devote some of their (considerable) pupillage funding to the Barristers Benevolent Fund. They could agree a 20% reduction, thereby allowing them to preserve the current rates amongst themselves. They would suffer as against the solicitors, but how good is a candidate likely to be if they only come to the Bar because of the money they get whilst training?
All of these things would demonstrate support amongst the whole profession and would provide the financial support that we are going to need if we really want to tough this out. They would make the MoJ’s position difficult. They would offset the bad press we get by showing that real sacrifices are being made. They would provide a narrative from a group of people who are not the allegedly ‘fat cat’ criminal bar. They would make us all feel much better – and morale is important.
If you are going to post about the way we are treating each other, I expect you to give your real name.
Otherwise, see you on whatever barricades we erect.