Life at the Bar · The Future

What Are We Gonna Do Now?

What Are We Gonna Do Now
What Are We Gonna Do Now?

As readers will know, I have been distinctly uncertain about calls for industrial action, particularly the no returns option, which I regard as seriously disadvantaging the junior bar. Whilst it was on I offered my help to barristers needing it, because I went with the flow, but I was not terribly convinced by the arguments, the procedures or the options we were offered. I was also a supporter of the agreement that was reached with the Ministry of Justice, and I still am. That agreement was heavily supported by the Bar. It has, thus far, been honoured. It would be wrong to make any decision based on either of the following:

  1. A confident prediction that the MoJ will dishonour the agreement. There is no basis to adopt that position. At best it is a wild guess. At worst it is scare-mongering.
  2. That the original vote was in some way wrong (trans: its opponents do not like the result). That is navel-gazing of the highest order. It is also dishonourable. How on earth could we be trusted if our yea only meant yea for a random period and was transformed to nay without anything happening?

However, that isn’t the end of the story.

This government has determined to bring in 2 tier contracts. In truth, there is no concrete way of knowing that they will spell death for solicitors up and down the country. But, if they don’t it will be the only scheme devised by the Ministry under its current ownership that has ever worked. It will be the only scheme devised by the Ministry under its last ownership that ever worked.

The ‘reforms’ to the Criminal Justice System have not worked. They have not brought crime down. They have not made justice better or more secure. They may – just may – have succeeded politically: that is to say that in transferring the cost from the legal aid budget to the Courts budget (as waiting times for cases lengthen and the cases themselves do the same), the social care budget (as cases take longer to get resolved and stress the litigants in person who must now argue them), the education budget (as children suffer from the uncertainty surrounding their parents), and so on. In so doing the politicians may have persuaded enough people that money has been “saved” from one budget, whilst obscuring the fact that it was merely been transferred into another. But such “success” lies in fooling people with a sleight of hand. It is not designed to achieve anything save political advantage.

So, I believe we should work on the basis that what is coming, if the Tories win this election, is the catastrophe of which the solicitors warn. We can disregard the Lib Dems as they are utterly unable to resist the Tory agenda and, in the person of Simon Hughes, don’t even appear to have tried.

The solicitors cannot help themselves to the extent that would enable them to prevent what is coming. The reality is that despite the good sense and commitment of many, the big firms are less than supportive and, presumably, perceive they have much to gain. As the only way of gaining is to pile it high and sell it cheap – whether that is advocacy or advice – that seems to support the proposition that a catastrophe is truly looming.

It should not need saying, but it’s probably best to spell out that proper representation of horrible people, stupid people and desperate people is the only thing that stands between us and the horrible, stupid and desperate things that they would otherwise do. And, whilst I would welcome a bit more judicial intervention I can understand why serving Judges are silent. What I can’t understand is the silence from the Magic Circle. So, if you’re one of those – solicitor or barrister – I’d like to hear your voice.

The question therefore, is whether the publicly funded Bar – small, compact, brave and relatively united – should step into the breach.

There are some good arguments against. I did not come into the profession to strike – in any form. I want to represent clients. That’s why I am a barrister. I am not persuaded that I am justified in unilaterally abandoning today’s client on the basis that by doing so, I help tomorrow’s. Not only may that not be true – if the action doesn’t work I will simply have hurt more people – but even if it were true I am utterly unpersuaded that I can chose to abandon Mr Smith so that Mr Jones can have justice in 2 years time. No one asked Mr Smith to sacrifice himself in that way. All I would be doing is to arrogate that choice to myself, and that is the absolute antithesis of what we are about. Once you decide who to represent on the basis of your own choices, you can decline to represent anybody and everybody. The extent to which that argument is readily dismissed is a real concern. It suggests that people don’t understand what our profession stands for.

I’ve heard a lot of solicitors (and some barristers) suggest that the Bar ought to do this because otherwise we will lose out. That is also a dreadful argument. It is based on an implicit threat – and I really don’t care that the terms in which it is couched are that “we’d love to help you but we won’t be able to afford to”. It posits that the best advocate (in this case – but not necessarily always – the barrister) will not get a brief because the solicitor will decide that the client’s interests come second to the solicitor’s own.

I do understand that in desperate times people say and do desperate things, but what on earth is the point of being proud of representing people if you don’t do what is best for them? And, if you’re not proud of representing people and you are simply in it to make money, then what is the difference between the small solicitors firm adopting that approach and the huge conglomerate solicitors firms, which we are warned will take over if we don’t act?

As usual, when I see lousy arguments being advanced I am instinctively suspicious of the case they are being used to support.

But. And yet.

If catastrophe is just around the corner then representing Mr Smith is akin to putting a brick in a wall, whilst the wrecking ball is whistling over your shoulder. On a personal level, the brick may be grateful. Draw the picture even a millimetre wider and the question is “what the hell is the point’? Then factor in the possibility (only the possibility) that dropping that brick on the floor could enable you to stop the wrecking ball entirely.

That, it seems to me, is where we are. The point at which professional ethics focussing on one client, conflicts with a possibility so grotesque that professional ethics have never addressed it, because no one has ever contemplated the necessity to do so.

Reluctantly, I have concluded that if these stupid, expensive, unnecessary, ideologically driven, prideful, changes are implemented the proper course to take is to ask clients whether they would consent to me not doing their case or doing it differently. I will try to persuade them to agree to that – either for the foreseeable future (if we agree to strike), or for particular days (if we decide on days of action), or until the original barrister is available (if it is an existing return – new returns do not pose the same issue as far as I can see), or for much longer than the original estimate (if we adopt work to rule).

I want my client’s permission for two reasons. First, that satisfies my professional obligation to seek their consent to something that is out of the ordinary and departs from the way I would normally represent them. I am far from sure there will be a conflict with the Judiciary – the trend for the recently retired to express themselves about the cuts in extraordinarily strong terms  suggests not (although there will always be some martinets and some fools who perceive their prospects to be improved by cracking the whip). But if there is a conflict I will have done as much as I can to protect my own position.

On this topic, I am unimpressed by being told how difficult it is to have a row with the judiciary. That is, sometimes, our job. Moreover, it is a little inconsistent to be prepared to chuck clients overboard, but shy away from conflict with the Judge. That is a mistaken view of what our obligations are, and to whom they are owed. So, it may be difficult – well welcome to the world. Grow some. And yes the Silks should help, and I am happy to do it. But you shouldn’t need a leader to fight your corner.

Secondly, we keep saying that this is a public debate. We then bemoan the fact – true as it undoubtedly is – that, although the public love the idea of legal aid and fairness, they aren’t going to cast their vote on the basis of that issue in any large numbers (that is no reason not to campaign in marginals on the issue, because 100 people may matter). Well, we can have public debates all the time and we can start with our own clients. And we ought to be able to persuade them. They, at least, have a stake. And, judging from my last 28 years of practice, a large number of them will be repeat business….

I would try to apply the same test to prosecuting. The CPS is creaking at the seams. The new DPP – unjustly reviled by many – is the first DPP to say publicly that it cannot deliver service to the proper standard if it does not get more money. That message should have been delivered years ago, not least by the last incumbent, now offering himself as a politician. I don’t know why it was not. Maybe it was felt that advocacy worked better in private – as opposed to the usual way. Maybe it was thought better to absorb the blows than draw attention to them. If so I do not know if the question “better for whom” was asked and, if it was, how it was answered.

When prosecuting, I would seek to persuade the police or my instructing solicitor to ask the witnesses, before the witnesses provide their availability. And if they will not, then we could advertise the position – a step that would have a considerable impact. Of course, the witnesses do not have to consent in the same way that a client ought to, but this is a moral argument as much as anything else and we need to win the debate as well as satisfy professional obligations. We simply have to make the public feel part of the debate.

Exceptions may have to be made – the equation between the brick and the wall may alter if the brick is a small child or a vulnerable person. And people must always be able to say no. If we represent people, then we follow instructions. If we don’t represent them then we have abandoned our values.

Until we know the composition of the next government, there is no basis for acting in this way. Calls for action now miss both points – first that we have no justification for taking advantage of the situation now, and secondly that it won’t work. But, if the next government follows the path of the last one, that – for now at least – is where I am. I continue to favour work to rule over anything else, but action will be necessary, and if the client permits it I shall take it.

I haven’t tried to offend anyone in this critique, but the issue is too urgent to be anything other than blunt. If you have views I am happy to hear them.

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2 thoughts on “What Are We Gonna Do Now?

  1. >”…proper representation of horrible people, stupid people and desperate people is the only thing that stands between us and the horrible, stupid and desperate things that they would otherwise do…”

    How so? The public would agree that, “…proper [prosecution] of horrible people, stupid people and desperate people is the only thing that stands between us and the horrible, stupid and desperate things that they would otherwise do…”

    …and therefore I can see the electoral appeal of protesting CPS cuts, but the average member of the public loathes criminals. They would happily fund quality legal aid for people’s first two or three offences, but thereafter, there is little/no sympathy for recidivist offenders. Forgive me if I’m missing something, but while the NHS and legal aid were created at broadly the same time, the reason for lack of support for the latter is the understandable, and reasonable, position that most people aren’t criminals and do not need the latter. “Proper defence for people of good character, Tesco paralegals for repeat offenders” might work, but I just don’t think we can sell the traditional full representation package to a skeptical public. What have I missed?

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