Life at the Bar · The Future · Uncategorized

Sanity


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.

 

Uncategorized

Decision


Ultimately, this is where I think this debate has got to. I have taken the claims of those on each side at the proponents’ own estimation. An asterisk indicates where I think that is a higher estimation than must necessarily be taken. I have tried to set out what each side says will be achieved, or lost, first followed by what might be called more general reasons to support its position.

Strike

  • It would bring the courts to a halt.
  • It would thus demonstrate our ability to do so.
  • Which would teach the MoJ a lesson and thereby* increase our credibility.
  • And would achieve the aims of the strike more quickly.
  • It is certain* that this would help the solicitors succeed in reversing the rate cut.
  • It is more than likely* that without the rate cut, dual contracts would be abolished.
  • It demonstrates solidarity with the solicitors.
  • Lots of solicitors* would reward that solidarity by not doing any more advocacy work themselves in the short to medium term.
  • It involves very little* additional risk to the Bar, as there will be much less work coming through until this is sorted out.
  • The gains are thus worth* the loss of income to the Bar, especially its most junior members who are disproportionately hit by no returns.
  • In any event, striking is justified because if dual contracts is implemented the number of small and medium sized solicitors firms will shrink to the stage where the junior Bar cannot survive*. The Big Firms Group will, as now, continue to do as much of their own advocacy as possible.
  • Like it or not, the Bar is affected by this issue because the MoJ will* come after us next.

No Strike

  • It adversely affects clients.
  • It is a breach of our undertaking to the MoJ, which has honoured its side of the deal we reached with it.
  • It endangers our engagement with the MoJ, which is now significant and fruitful*.
  • As we now compete with solicitors for our work, but they do not compete with us for theirs, there is no true community of interest*.
  • If dual contracts were really the end of the road solicitors would not have bid for them and would be taking action about them*.
  • Dual contracts are probably here to stay because quite a lot of solicitors want them and (because of that) they are not taking action about them.
  • Unless the Bar can protect its ability to conduct advocacy, it will wither in any event. A strike would postpone the inevitable, not* prevent it.
  • Striking invokes the law of uncertain consequences. The MoJ can impose cuts on us or implement things like one case one fee, which would certainly kill the Bar.
  • Striking may not achieve the aims of the strike, either because the MoJ holds firm or because the solicitors do not.

As you can see, there are only 3 virtual certainties of note: that the Bar could halt the system; that without advocacy we cannot survive and that competition between solicitors will involve them doing more advocacy. The first 2 are obvious. The last seems obvious to me, but I have repeatedly asked whether solicitors will do less advocacy if they win and the answer is no – at least if payment for other work is not increased.

The rest of it is about where you personally put the emphasis and what your own take is about the asterisked issues. The asterisks essentially represent the areas of risk that you need to assess when making your decision.

I can see why those people whose primary motivation is  kicking the MoJ and solidarity want to strike. I’m not interested in the former (although I believe the MoJ is second rate at present), but the latter is important. I can see why you could honestly and passionately vote yes on an assessment of the issues. I would very much like to vote yes, because I believe the solicitors’ cause is just, and because I admire them, what they do and their commitment to it.

Yet, I still cannot accept that the Yes side has properly assessed its case, because almost every asterisked issue has been answered with a statement of faith, rather than a substantive argument. I think that to vote yes you have to be persuaded that the chance of saving the current level of work is worth the risk that the MoJ will not negotiate with us again and that the work will be available both to the solicitors who brief the Bar and to the Bar itself.

I also think that, perhaps because much of it is an issue of faith, the tone and shrillness of the Yes campaign has been a turn off. It certainly has been unpleasant to me personally (with some important exceptions), but it has also descended into personal attacks on honesty and ability. That’s demeaning and I cannot rid myself of the feeling that it indicates something about the merits. I wonder how broad the support for it really is, with the most vocal supporters coming from a handful of Chambers. That  isn’t a problem in itself, but it suggests that volume of advocacy isn’t equivalent to volume of support.

I would very much like to vote Yes. I hope the solicitors succeed. But I am going to vote No. I do not consider myself bound to support the solicitors. I do not believe that the prospect of their victory offers the Bar what we need. That being so, the fact that they may lose and that their defeat might affect the Bar is not a sufficient reason to support them. If there were nothing else for the Bar, then solidarity – for me – would suffice. But we have negotiated with the MoJ successfully and we are on the verge of a new relationship. That has been forged because we did a deal and both sides have honoured it. I have heard those words spat out too often. Negotiation is what we do. On what basis is it properly said to be an act of betrayal? Who makes an argument so much about emotion and not enough about hard fact? Normally, the party who knows the case needs a bit of oomph.

Of course, it may all go wrong. But at this time, and in this place, you have to make a hard headed assessment of where we are. The answer lies with those who can assist our futures and who are saying that they will. Hard as it is to stomach, that’s the MoJ.

Uncategorized

Kicking Up the Dust Before It Settles


We are good at outrage. Indeed, as a profession we reside in Tunbridge Wells and spend our time snorting through our moustaches. So, the cries of betrayal, infamy (infamy, they’ve all got it infamy) and doom are not unexpected. Nevertheless, there are some things to be said. 

First, we are actually entitled to assess the arguments advanced by the way they are advanced. I have repeatedly said that we need to be professional about this. I will deal later with matters that have prompted me to think I have got some things wrong, but this isn’t one and I am happy to see that the CBA is (now) adopting the same approach. The reality is that advocates who shout, threaten, insult and coerce are crap advocates. It is legitimate to say, not simply that personal vilification is unacceptable (a statement so obvious that it should be unnecessary), but that such an approach calls into question whether those adopting it have any right or claim to lead the Bar. Who wants leaders like that? What qualities do they bring that makes anyone want to follow them? 

Secondly, we did not do this for solicitors. Not because we don’t care but because we can’t. The solicitors have chosen to work at the new rates (only half the cut now being implemented, although no one seems to have acknowledged that the CBA did that too). The proposition that we should in some way take up the slack on their behalf is both bonkers and insulting. Bonkers because how on earth could we refuse to work in the light of the concessions made to us? Insulting because of the casual assumption that solicitors don’t want to work but have to. That may be true, but it may equally be true that solicitors have decided they can deal with this in another way. I don’t know, and suggesting that Twitter is a reliable source for the views of a profession of more than 100,000 people is not a serious stance. 

Thirdly, the reason it is being said we should do this for solicitors is that otherwise they will go bankrupt and we will not get the briefs, or that – slightly irrationally – if we don’t strike for them then when they don’t go bankrupt (leaving the inconsistency aside for now) they won’t brief us but will take the work themselves. Both these arguments strike me as demented. 

If solicitors’ firms go out of business the work will still be there. Whether it is done by us or HCAs it will have to be done. The proposition must therefore be that the surviving firms will be inclined – for economic reasons – to keep the work in house. That may be accurate but, if so, it simply reflects the realities of competition. The answer – as it has always been – is to be better than HCAs. The argument makes the assumption that being better is not enough, because these particular firms will brief HCAs despite the fact that they aren’t good enough, simply to keep the money. 

If that is correct – and it may be – then I would expect the solicitors for whom we are asked to strike to pledge not to use HCAs at all. Otherwise we are sacrificing ourselves to them and actually improving their chances of not giving us work, by keeping them going so that they can use HCAs. That isn’t happening. Instead the complaint is that we did a deal which does not assist a group of other people who are not acting on their own account, might not be as affected as some of them say they are, but will use our assistance to compete with us (unfairly in my view) come what may. Thanks, but not thanks – if I want to commit hari kiri I’ll do it in the traditional way by disembowelling myself in front of Chris Grayling. At least then I might spoil his supper.

When one then considers that the people who allegedly need us have spent a considerable amount of time and inventiveness in coming up with way to abuse Lithman and threaten that they will never instruct counsel again, one is forced to ask ‘why bother’? If we don’t save them they won’t brief us. If we do save them they won’t brief us. If they go bankrupt they won’t brief us. When will they brief us? If we save them and it suits them and they can’t make money out of it. None of those 3 things are guaranteed, even if I never worked again. 

I don’t blame the solicitors for competing. They are allowed to. I complain that – as a number of them told me on Twitter – they have the clients first, because that suggests that they know that the only basis the client accepts an HCA is that they don’t get a chance at a barrister. But that’s the system and we have to deal with it. I do, however, suggest that those commercial realities suggest that striking for solicitors is like screwing for virginity. If this deal does mean less work for the Bar then the answer is not to carry on striking. The answer is to develop a strategy that helps us avoid that position – a proper, gold plated, top rated, quality assurance scheme that only the best attain. Depressingly, the rejectionist wing of the CBA are also the quality scheme refuseniks who need no authentication from anyone because they know how good they are. I keep being told we haven’t been so united since 1984 but that really isn’t a reason to behave as if we’re still there. 

Fourthly, when I wanted to debate work to rule – a method by which we could resist Grayling for months – or no returns of only some classes of work – which would protect the junior bar – I don’t recall anyone from the CBA’s then support group saying that this was a fair way to treat the membership. We were offered a straight choice of work or no work. We were offered a straight choice of no returns and days of action or not. There was not even an attempt to divide those two things up, even though it is a common view that no returns worked and days of action didn’t. That wasn’t fair or sensible then, because it wasn’t democratic. Democracy is debate, not a choice between 2 options – one of which is unacceptable. The CBA survey was designed to persuade people to say yes to no work because the only alternative offered was to do nothing. The proposition that we could suggest other things that no one else would know about and – therefore – round which debate and support could not coalesce – was insulting and, frankly, thick. Nor was the 28th March an important date. The matter was urgent because the CBA said it was and for no other reason. 

Nonetheless we did it. Now, when what has happened is not to the liking of those cheering for that rather totalitarian way of designing a plebiscite, we need an EGM and a ‘democratic’ ballot. I’m not saying that’s hypocrisy – I’m just struggling with what else to call it. And the ballot isn’t an open debate – it’s just question 1 of the questionnaire, with all its faults. 

In reality this is foot stamping. It doesn’t even engage with the debate – the calls started long before we were told why the decision was made and still don’t ask what the MoJ will do if we renege. This is a group of people for whom only one answer is acceptable and, if they don’t get it, it isn’t because of realities, or because others may legitimately hold different views – it’s because only they really know the answers and the rest of us are simpletons who shouldn’t be allowed to make decisions, or scabs and traitors who have sold us out. The language is redolent of the Labour Party of the 1980s at its most moronic. 

I have a view about people like that. I don’t want them making decisions for me, because they are likely to make the wrong decision. Here, when they don’t even seek to know the consequences of what they propose, that view is reinforced in spades. 

Fifthly, I’ve read what Lithman said. It sounds right. No one has sought to say otherwise. The only challenge to it consists of a message of doom which – for the reasons I’ve set out above – isn’t answered by refusing to work when we have been told the cuts have gone. For the people bashing this scenario out it is important to be as pessimistic as possible. Their own case is that the savings will be made by the existing cuts. Nothing will happen until after an election and a year. If it is right – as I and (until yesterday) they believe it to be – there will be no need for further cuts. Nonetheless, to get their way, our militant tendency now reverse themselves. Yesterday we wanted a delay. Today a delay is no good because it will happen anyway. Yesterday there was no need for cuts. Today – although the cuts aren’t happening – they will happen, in a year. Oh what a crystal ball is this. Yesterday the CBA were brave fighters going to win for us through their valour and wisdom. Today they are spineless cowards – whoops, no insults, let me correct myself – idiots who cannot see the foolishness of what they have done.

The conclusion I draw when someone will say anything that suits, is that they are wrong. 

Two more things. First, I don’t want to do VHCCs and as far as I can see, I don’t have to. So I won’t. 

Secondly, although I opposed the tactics and criticised the handling, I have learned that unity can be more important than the detailed measures. That doesn’t mean I am happy with what we nearly did, because I think it would haver destroyed us and I reserve the right to say so. But it means that I acknowledge that there are times when those arguments ought to give way. I think I got it wrong. I hope I judge it better if we have to do it again – and we may. But that only applies when the leadership is good, not when it’s bad.

Finally, the Circuit Leaders and the Bar Council helped the profession to confront the LC and the MoJ and they blinked and backed down. What a great thing to know. Even if you are pessimistic that is important. They played a blinder and we should be grateful – if we aren’t snorting into our moustache in Tunbridge Wells. 

 

 

Life at the Bar · Routes to the Bar · The Future · Uncategorized

Opportunity Knocks. Opportunity Lost?


690PH7I7NN7C6_11PLHU9_PH_P_LSThe CBA has now published its survey. I regard it, sadly, as an opportunity lost and I want to suggest a way of answering it that may avoid meltdown. 

Before that, I do want it to be clear that my disagreement with the CBA is only about strategy. We all agree that doing nothing is not an alternative. There are, I think, 3 categories of criminal practitioner insofar as these proposals are concerned. There are those who truly cannot afford these cuts and will have to leave the profession. The profession will be infinitely worse off for their loss. Then there are those who can successfully move into other types of work and are doing so. Finally there are those who can actually absorb these cuts. Many very junior practitioners in the provinces are in that category. They will never make a better living than a head teacher (or even a senior teacher), but they have not yet committed themselves to mortgages, school fees, or a standard of living from which they cannot extricate themselves. However, it is clear that the MoJ simply cannot be trusted when they say that this is it. I don’t believe that this is it. If these cuts are not resisted, the MoJ will be back for more. They will persist in their salami tactics until we resist. And whilst I do not think that ramping up the temperature by hyperbole about not another penny is sensible – and nor is pretending that we will all have to quit if these cuts are implemented – it is nonetheless the case that this is a genuine tipping point for a very large number of people. 

So, we must resist now. The question is not whether, but how. 

That involves identifying what we think we can achieve. The CBA questionnaire gives no indication of the answer to that question. I have no idea why not. It ought to have done. It still ought to. Nor do I do know why the survey is so rushed. The Chairman’s message says time is of the essence, but doesn’t say why. That’s not good enough. Time isn’t of the essence. Our cuts do not come in until June at the earliest. Cuts for the solicitors have already come in. The solicitors are going to accept new work, but resist the cuts. There is nothing here that could not wait another month. That being so, the CBA ought to extend the time to reply and it ought to enter into proper debate about different options. 

It seems to me that what we can achieve is the disruption of the criminal justice system for long enough for it to become a political embarrassment. Nothing else will work because we actually have answers to the MoJ’s question about saving money, but the MoJ will not listen to Nigel Lithman, any more than they would listen to Michael Turner. That is not the fault of the CBA. That is – wholly and entirely – the fault of the MoJ. Face saving, if required, would have meant getting the answers from the Bar Council – which has also tried to give them. The MoJ is not interested in those answers. 

If we want to disrupt the system for long enough for political pressure to tell then we have to do it for a long time. Months, not weeks. The timing actually isn’t bad. An election is 14 months off. How many disrupted trials and custody time limit failures will be acceptable?

But 2 things are required for that pressure to build. First, we must be able to do it. A strike/refusal of work won’t work. No one believes it would last more than a couple of weeks. No one is advocating more than a couple of weeks. Once a strike breaks we can never be viewed credibly. We just don’t have the resources to do it for long enough. Secondly, a strike permits the government to bring in OCOF, on the basis that it has a duty to keep access to the courts available. That is politically acceptable and the public are not well enough informed to object. And, once OCOF is in, all the rhetoric about “I’ll never work for the reduced rates” will be correct, because none of us will have the opportunity. 

That is the second thing wrong with the CBA survey. Question 1 asks for agreement without identifying the risks in the policy. That is simply inadequate. Policies need to be justified and that doesn’t happen unless the question “what might happen if this doesn’t work?” is asked and answered. The third thing wrong with question 1 is that it provides no alternatives. Alternatives allow risk to be measured. There are obvious downsides with a work to rule – it needs us to be strong in front of difficult judges (although so does a day of action – which we all managed to handle perfectly well). It needs a proper identification of why we are picking a set number of hours for our working day. But, it also lessens the risk of OCOF because access to justice will be being delivered – simply more slowly to the detriment of the system overall.

At the moment we are given one choice and we are simply asked to tick it, or not. The problem, fairly obviously, is that unless the survey gives alternatives to the policy, disagreeing with it is essentially saying ‘let’s do nothing’ – the one thing that everyone agrees we should not say. That’s not ok – if the CBA is really only presenting one policy then it shouldn’t consult its membership. It should simply tell us this is how it’s going to be. For consultation to mean anything, there must be alternatives. I asked the CBA to put alternatives on the survey. I do not know why they haven’t. 

The final problem with question 1 is that it is unfair. We are asked 2 questions not 1. The first is do I agree with “not a penny more in cuts”? That is a policy. The second question, included in question 1, is whether I agree not to accept work at new rates. That is a strategy or a tactic. The 2 issues should properly be isolated. I do not know why they are not but the effect is to persuade people to agree with the strategy whilst answering a different question about policy. If my pupil had drafted that I would hand it back and ask them to do it again, better. 

I intend to answer question 1 in this way: I agree with the policy of not a penny more in cuts. However, it is currently impossible to answer question 1, because I have not been told where the CBA Executive expect it to get us to, how long it is going to last, or what its risks are. There is ample time for all of that to be made clear and then is the time to ask for support. I would like to have an input into CBA policy along with the rest of the membership. In order to do that the CBA ought to invite suggestions as to how to respond to the cuts. Each suggestion should identify where it leads in terms of succeeding in resisting the cuts and should identify the risks of adopting it. That will clarify thinking, mean that an expression of support actually means something and provide a policy behind which the entire Bar can, hopefully, unite. 

Meanwhile, if anyone is thinking of not accepting work at the new rates they ought to be saving money, because they will need it to live on. In those circumstances I wonder why the CBA is contemplating extending the no returns policy. That policy disproportionately hits very junior barristers who have less income from other sources and are more reliant on returns. In creating difficulty for those junior tenants – the very people least able to resist perceived pressure on them to conform – the CBA is sewing the seeds of the earliest possible collapse of any strike. The policy is bone-headed. 

What’s more, it has already worked. Unless the policy is to bring the Criminal Justice System to a halt (and it may be, but if so the CBA has not disclosed that to its membership or asked them about it – and it certainly doesn’t identify that policy in the questionnaire), we have already shown that we can bring the CJS to a halt and thus demonstrated our strength. 

Instead of pursuing a policy which has already worked, and now only acts to deplete our already scarce resources I propose to answer questions 2 and 3 like this: No. I wish to build on the success of the no returns policy by ensuring that the public understands that the CJS only works because the Bar picks up an enormous amount of work at no notice and does not get properly thanked or remunerated for it. In order to do so I suggest that the CBA works with the Circuit Leaders to obtain some political PR advice and then hits the media with the reality of how we work and why we do it. In order for that to be effective – and subject to the advice we receive – I suggest that this is done by the largely young barristers who are most affected and who are seeing their idealism and work ethic crushed by this government. The money for this might come from the appeal regarding QASA in respect of which I would like to see Counsel’s advice on the prospects of success, which I believe I am entitled to because I am amongst those paying for it. However, if the CBA is not going to urge us all to refuse all new work, my answer might be different and I would like to know that now. 

The last day of action received significantly less press than the first. That is unsurprising. The first DoA was a first for the Bar. It was a declaration of intent. It was interesting. It did little damage to the Court system and that was not its aim. Damage to the system was the aim of the no returns policy. The second day of action was a sequel and – as sequels usually do – it did less well than the first. And so it goes on. Days of action serve a purpose in terms of rallying the troops but we do not need rallying. We all know that we have to act and we are all committed to it. I don’t need to stand on the steps of Leeds Combined Court Centre again. I already know I will resist this. 

So I propose to answer questions 4 and 5 like this: No, unless we have already decided that we can keep up what is, essentially, an on-off strike for long enough to achieve the objective of pressuring the government into a change. I know that I believe this will take months, but I do not know how long the CBA say I need to do this for, because the CBA has not told me. Nor do I know the risks of a long on-off strike. It will certainly delay existing cases but I have no sense of how the judiciary would react to constant disruption and whether it would feel that, for example, juries needed to be protected. If so then that would inevitably lead to disciplinary referrals and a confrontation with the judiciary, which is otherwise sympathetic. These risks need thinking through and assessing and, at present, I am being asked for my views without any sign that such an assessment has been made and without any discussion about the results. Given that alienating the judiciary would, in my view, be a monumental error, I believe that this risk needs proper discussion. There is no real urgency in this questionnaire and I do not want members to think that the questionnaire is said to be urgent in order to prevent discussion.  No organisation can survive once that idea takes hold and I am sure that the answers to my questions can be provided very quickly. I suggest we send a further questionnaire out 2 weeks after those answers are provided and allows a further 2 weeks for discussion. We will then have an answer by the end of April. 

Combinations of action are, equally, subject to identifying what they will achieve, by when and at what risk. I intend to answer question 6 by saying that until I have the information I have already asked for, it is simply impossible to answer. 

Question 7 is, frankly, insulting. There are other options out there and the CBA know there are. If this were a genuine information gathering exercise it would be fine, but it isn’t. A genuine exercise would not ask questions 1 – 6 first and it wouldn’t demand a response by 28th March. I do not know why the CBA does not want genuine debate – it may feel that its Executive know best and that may actually be right, but that is no reason not to genuinely test the waters. 

My answer to question 7 is this: the strategy of no work at new rates is already declared. That being so I am unsure whether the CBA is really committed to considering alternatives. I did not vote for the strategy which the CBA has, apparently, already adopted. I did not give a mandate to anyone to vote for that strategy. The strategy has never been on an agenda of a meeting to which I, or any delegate from my Chambers, was invited. The strategy invites the government to introduce OCOF as soon as it wishes. Even now the CBA is not including a question asking me whether I agree with that strategy.

In my view a work to rule is far less likely to permit OCOF to be introduced, because it is difficult to see how that could be justified politically when we are working. Furthermore, a work to rule would focus the public’s attention where it should be, which is on the fact that we make the system work by doing crazy hours for nothing because our commitment is to justice and not to our own comfort or our own pockets. It answers fat cat questions by replacing talk of earnings with hourly rates – paid for unsocial and exhausting hours. The MoJ already understands that what it pays us is not simply to do a case but to do so in a way that ensures that all other cases get done as well. The public does not understand that. A work to rule, which will make short cases into medium cases and medium cases into long ones will demonstrate that the actual payment – when assessed against an 8 hour day – is not enormous but small. 

A work to rule will act as the no returns policy has acted and stop the system. But, when it does so, it will not be because we are not working but because we are. The only difference between the work to rule and the current position is how many hours the Bar puts in. On that basis, although I have every confidence in the Bar’s ability to stand up to Judges, I do not anticipate it will be necessary. 

Finally a work to rule is easy to explain and operate. We will work an 8 hour day which will include court time. Within that 8 hours we will deal with the cases properly and professionally. We will have necessary cons. We will prepare all necessary documents. When 8 hours have elapsed – which we will log if required – we will stop and go home. That may mean that the court cannot sit at 1030 the next day because we may still have work to do in order to be ready. If so, the Judge will be told as soon as that is apparent and will be asked not to sit until we are ready to begin. If the Judge orders us to begin before we are ready we will, consistent with our professional obligations to our client, make it clear that we do not regard ourselves as having had proper time to prepare and request an adjournment. The time thus taken will be part of our 8 hour day.

If we are nevertheless ordered to carry on then it is our professional obligation to make it clear to the Judge that we are not in a position to proceed. We may then have to withdraw from the case. However, before doing so we ought to submit to the Judge that Art 6 is breached by the Judge’s failure to permit proper representation and that the Judge ought to be prepared to accept our word that we simply cannot be ready. 

A Judge who responds that we have refused to do the work ought to be told that we have decided not to work longer than a normal 8 hour working day because our willingness to do so is being exploited by the MoJ, and asked politely whether they believe there is a power to compel a barrister to work to order and, if so, what it is. 

Judges will have a choice. They may sometimes decide that the work – for example a skeleton argument – is unnecessary and that oral argument will suffice. If so the Bar will be as loyal to that as to any other judicial decision. They may decide to adjourn. They may – unlikely though it is – become difficult and order barristers to work. If so then core principles 2 and 4 of the Handbook come into play. We will have informed our clients of the terms on which work will be carried out – as we must. It is unlikely that clients will object to an 8 hour day. We must not permit any person to limit our discretion about how the interests of our client may best be served. That must include doing the work on the terms agreed. A Judge who attempts to interfere with that agreement should back off or recuse themselves. If they will not then we may return the case and, I suggest, our clients would permit it. 

The reality is that nothing in the Code prevents a work to rule, providing we do the job properly – and we will. Whilst we do so we are able to earn – enough, I hope, to allow us to carry the action on for the months that will be required. The policy is understandable and consistent with our concerns for the CJS (which a refusal to take work is not). And meanwhile lists will lengthen, CTLs will pass, pressure will mount. And the judiciary may be able to tell the government (should they wish to do so) that this is an unhappy result of the policy of cutting fees. Rather than confrontation with the judiciary, cooperation is likely. As opposed to the result of continuing days of action. 

I love my profession and I desperately want it to survive and thrive. For that reason I am begging the CBA Executive to have a genuine debate within the membership that enables realistic action, that we can sustain, that we can explain, and that will do as much as we can do to close off the risk of OCOF, which would obliterate us. More haste less speed. Please. 

That’s how I’m going to ask my Chambers to fill in its questionnaire.

Life at the Bar · The Future · Uncategorized

What Next?


Environergy - Solar PV and Thermal ENERGY - What NextWe 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:

  1. What is the ultimate realistic aim?
  2. How do we achieve it?
  3. What are the staging points which will permit assessment of whether we are likely to succeed?
  4. What are the options for changing the strategy if assessment at those staging points suggests it is not succeeding?
  5. What is the risk if it doesn’t work?
  6. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Life at the Bar · Routes to the Bar · The Future · Uncategorized

QASA or We’re All Doomed


ImageOkay, so this isn’t really about pupillage in the narrow sense. However, if any of you aspire to do publicly funded work, this is why there won’t be many pupillages in years to come.

The government wants barristers to be quality assessed. Actually, this is a good idea if it is done properly. At the moment it isn’t being done properly. However assessment is being introduced nonetheless, and it seems tolerably clear that the purpose of its introduction is to enable the government to say that all advocates have passed such an assessment. The government needs to be able to say this because the ultimate plan appears to be (in fairness to the government, they aren’t admitting it – yet) to introduce something called Best Value Tendering. That means that legal aid contracts will be given to the organisation which does the most for the least money. A moment’s thought will tell you that when the mumbo jumbo about ‘economies of scale’ and ‘vertical integration’ is dissected, BVT means paying people less.

In order to assist with this, the likelihood is that the government will introduce One Case One Fee. A moment’s further thought will tell you that this is the end of proper fees for the Bar. The work will be hocked to the lowest bidder. If the contractor is a solicitors’ firm, that will likely be the solicitor. It may, of course, be someone unfit to do it. But wait! They are quality assessed. Everything is all right (except for the poor defendant, the overworked court system and justice).

Enter QASA. But QASA, as originally conceived, had a flaw. That was that a lot of solicitors did not want to be assessed alongside barristers. They would not pass an assessment based on how they did trials. The ‘compromise’ which has been reached (not by the Bar) is that there will be a category of people known as Plea Only Advocates.

The difficulty here is not just conflict: “Hello Mr Blogs. Will you plead guilty? Did I forget to mention that my firm gets paid a lot more money if you do?” It is that pleas can frequently be difficult and require representation every bit as effective as that required for a trial – not to mention that people may wish to change their minds. It is also that enabling one class of lawyer to cream off a particular type of work, without risk is obviously unfair. The type of BVT contracts the government wants means that barristers will not be able to get them – even the largest set of Chambers will not be able to administer a scheme for a number of towns and cities.

Unsurprisingly, the Bar is saying no to QASA in large numbers, having identified that, without QASA, it will be hard for the Government to paint its plans as anything other than reality. Reality is forget the quality – just look at whether a defendant has someone to ‘represent’ them.

There are ways to cut the cost of legal representation. The Bar has suggested them. For example, allow defendants in fraud cases to use the money they have to pay for their own defence. That money does not go back to victims at the end of a case. If confiscated it goes to … go on, have a guess. Equally, as the Bar’s calculations (prepared by independent experts) have shown, many of the current proposals will not save money at all. Removing legal aid in most civil and family cases will force people to represent themselves, double the length of trials (that is my documented experience when sitting), double the number of trials because cases won’t settle, bring the Courts to a halt, set back justice, upset millions of people and save not a penny. But no one listens. Until it happens – by which time Chris Grayling will doubtless be lecturing and collecting his MP’s pension and David Cameron will be in the Lords – the warnings about the destruction of a truly good system of justice will be painted as fat cats protecting themselves.

Although the Bar is likely to say not to QASA the BSB has decided to make it a professional offence to accept a publicly funded brief without being okayed under QASA. I am quite intrigued about this: I have been awarded silk, and practised in silk for 10 years; I sit on the BSB’s Pupillage Committee; I have done 6 years on its Conduct Committee; I have volunteered for the Bar’s ethics helpline, advising other barristers with ethical difficulties; I review cases for the Bar Pro Bono Unit. All of the latter (unpaid) tasks involve exercising my professional judgement in relation to quite serious issues. However, if I won’t be QASAd I can’t do even the simplest criminal case – although I can try serious sex cases.

The foolishness of that decision is emphasised by the fact that the BSB – as a Regulator – should not really be threatening large numbers of those it regulates. If quality control is a good thing then that is only if the scheme is a good scheme. The BSB isn’t pretending it’s a good scheme – merely that it’s better than the one the government will eventually force us to accept. What it is to have a crystal ball. Anyway, why just one scheme? As our Lord Chancellor believes in letting the market decide (such a refreshing change in believing in, say, letting the legal system be the best we can attain), then let’s have lots of schemes.

Anyway, that’s where we are. I have expressed myself about QASA itself here (bottom of the page but it’s worth reading the whole shebang), and about the BSB Chair’s view here. This is a serious issue – the standard for the current proposed quality assessments are published here at pp81-85. I will post about them separately, but have a read and ask if they really help show that advocates are competent.

And yes, it’s nice to be back and – even though I said I never would – I have twitter.