Michael Gove’s announcement yesterday was a huge step in the right direction. It is what the solicitors deserved because their case against it was just. It is a clear indicator of what worked – legal action based on the MoJ’s own incompetence and unfairness. That is not to say that direct action could not work, given wide support from the solicitors’ profession.
It is also a clear indicator that this Lord Chancellor – unlike his sorry predecessor – can be trusted and does actually care about the concept of justice and the system that operates. That is a worthwhile point to note for those who doubted it or committed themselves to the proposition that he definitely could not be trusted. It is a vindication of the judgement of the Bar Council and the CBA, who should be congratulated for getting it right and keeping their head when so many about them, etc. They, of course, had the advantage of seeing the issue from the inside. Not every opinion is equal, because not every opinion is equally informed.
That brings me on to what comes next. For the Bar this is hopefully the reworking of the Grad Fee Scheme to ensure that those who are really good get better work and that the better work pays better than the not so good work. In other words, to restore the position which pertained 30 odd years ago. We have been too tolerant of mediocre performance for too long. There was no incentive for anyone not to be, because the truly brilliant, the really good, the mediocre and the frankly rubbish all earned much the same and could all contribute the required amount to Chambers.
But, oh best beloved, I remember a time when that was not the position and by doing more difficult work you could earn more money. That encouraged quality and it meant that, the better you were, the more you wanted to take Silk and you could afford to do so. And – if we’re honest – advocacy standards were higher and so – if we’re even more honest – were judicial standards. And judges cared about how the Bar did their work and weren’t shy of trying to ensure good standards.
If you think that an undesirable state of affairs please stop reading now.
Sadly, some do feel this is undesirable. I cannot think why. Actually I can, but it is all unworthy of me and I may be entirely wrong about it.
However, when I hear an argument that the junior bar are being abandoned, made by a member of another profession, who may have only a dubious claim to willingly brief the Bar at any stage, I get all suspicious. The junior bar are not being abandoned. They are being placed back into a position where their earnings and the quality of the work they do will be tied together. Accordingly, they may not do such good work as other barristers – or earn as much as other barristers – until they are demonstrably capable of doing so.
That is not a betrayal. That is professional; economically sensible; and good for clients, who will be able to be confident that the person to whom they entrust their liberty is up to the job.
Who is it not good for? Well, those who are incapable and who get by on simple pleas. Those who are unwilling to do the work and simply pick up the brief the night before, knowing that they will not be ready. Those who take bad points and risk buggering up the cases of their co-accused. Those who don’t recognise their own capabilities.
The aim of the Bar and of every decent set of Chambers – and I am not interested in addressing this to anyone else – is to ensure that they have no members who qualify for the descriptions above. The aim of the Grad Fee scheme must be to squeeze those people out of the system by making it difficult for them to make a living.
That must be the aim, because that is what the public deserve. If we benefit from a system that serves the public, that will open access and ensure that we are a strong profession. If we fight for a system that does not benefit the public (although it serves our own ends), we betray any claim to professionalism that we have.
That remains true, whether we call what we are doing ‘protecting the junior bar’ or ‘client choice’. The penultimate paragraph of Michael Gove’s statement suggest he understands and supports that view. That is Good. That is Sane. Both those statements, made about the Lord Chancellor, would have been absurd if made in the last 7 years + (I include Labour in that). This may not be the end. It may not even be the beginning of the end. But it may be the end of the beginning.