It would seem the criminal blog du jour is all about the single question…. To strike or not to strike?
So I thought I would briefly set out my thoughts. It seems to me that the debate centres around four critical areas Ethics, Method, Efficacy and Unity.
It is entirely understandable that we, as a profession who uphold the highest ethical standards on a daily basis, are concerned about any action being consistent with our professional duties. It is exactly such standards which we should trumpet as one of the reasons the public would have to lament our demise.
However we are now in a position whereby our professional standards are being demeaned by the Government whilst they also take them for granted. The taper on fees is a slur on every advocate who has ever conducted a trial in the Crown Court. The taper says that the advocate will work more quickly and efficiently if s/he has a financial interest to so do. The taper says that trials are currently spun out in order to maximise the mammoth refreshers currently on offer. Do you feel that the Government treats you as a professional?
In the same breath the Government felt that there was nothing wrong paying the same fee for a trial as a guilty plea because the advocate would never allow finance to influence the advice given. Furthermore the Government currently rely upon the fact that the Bar will be reluctant to take action which impacts upon the running of the court. This allows them to force through any proposal regarding fees.
I detest the fact that the Government has acted in a way which has led me to contemplate taking action that would impact upon the administration of justice. However the Government does not treat me like a professional. It smears me in the press. It wants to pay me at a rate that undervalues my contribution. Why should the Government be spared the consequences of its actions because I feel bound to behave better than they ever do?
I also believe that taking action represents the right thing to do. This Government is systematically destroying the Criminal Justice System and the legal system as it applies to the normal citizen. It promotes access to justice for the rich individual or big business yet restricts the ability of the private citizen to challenge governmental actions. We, as lawyers, have a positive duty to stand in the way of this. Yes I do not want to see my fees cut. But I also have a wider concern that talent is being driven away from the Bar, that corners are being cut on a daily basis due to economic pressures and that society as a whole is poorer for it. To take action against a Government that will not listen to reason is the only way forward consistent with my ethical belief in our system of justice.
Let me make one thing clear. I am kind of angry. Anyone who has read some of my previous blogs may have noted an undercurrent of pissed-off-ness. I have years of anger in store. From the moment when the Chairman of the Bar was simply summonsed to The Lord Chancellor’s office many years ago to be told that the Statutory Instrument was going before Parliament to effectively end “Red Corners” to the fact that Carter was an independent review of remuneration (politicians like these) that recommended figures in the boxes that were much higher than the Government introduced (they like the independent review until they do not like their findings). I am angry that this model of certainty of cost has been eroded and reduced year in and year out. I am angry that the Lord Chancellor allows, and profits from, fat cat stories. I am livid that the valuable contribution made by the Bar is never recognised by the Government. And now I am angry that they come again. That they want to reduce ongoing contracts by 30%. I am furious that they tell the press we have not engaged in the consultation.
So from such fury comes my view that I would bring the system to a halt tomorrow. Possession of sufficient insight allows me to realise that this view is clouded by the latent fury of a balding middle aged man raging against the machine. I realise that we are not all going to agree about the method of direct action. Some will want more militant action. Others will baulk at how direct we are being. The important thing, and this is my mantra, is that we do whatever action proposed by the CBA and/or the Circuit Leaders. Should one or both of those bodies show leadership I will follow without further debate.
My personal view is that the direct action taken should be taken by us all. I do not expect others to fight my fight for me. I know that will potentially cause financial difficulties. I know it will potentially cause some anxiety. I want to be part of the fight. And I know whatever difficulty caused by the fight will be easier to bear than the difficulties caused by acceptance of the cuts and other mutations to the system.
As a matter of logic the direct action should include a refusal to undertake work at the new rates. It has to. I would also like to see some form of direct action that has a more immediate impact and registers a proper “protest”. I shall leave further discussion on that to others. Whatever is proposed I will do it without carping.
Will it work? Will direct action achieve anything? I believe it will. I believe the system cannot work without us. We have to make sure that we demonstrate that the failing system is brought about by chronic underfunding. Any disruption caused by direct action is just another symptom of the malnutrition caused by these unfair cuts. We make our case. We make it strongly and fearlessly.
History shows us it can work. When there started to be cases of confiscation where there were no counsel willing to undertake them the fee scheme changed. When conflict arose over VHCC rates the administration panicked when faced with unrepresented defendants.
It can work. We will only know when we have tried. And now is the time to try before it really is too late.
It also does not have to be unanimously adopted direct action. Some (I hope and believe only a small proportion) will not have the appetite for the fight or will not agree with it. The direct action that is taken only has to have some impact and will so do if at least a significant number of the Bar adopt it. The Attorney-General and The Lord Chancellor may think there are too many of us, let us see how they like it when only 100 of us are accepting new instructions.
A high degree of unity can be achieved by the widespread provision of information. That information has to be shared in as many ways as possible – meetings, emails, blogs, Twitter, robing room chat. Keeping us reliably informed is one of the challenges that faces those that would lead us at this time. It is crucial that counsel in Birmingham knows I will not take the brief he refuses. It is important that I know counsel in Winchester is refusing work on the same grounds I do. It is vital that we let the public know that we have been cut and cut again. It is vital that we let the judiciary know that the problems they see on a daily basis are only going to get worse.
There can be very few barristers in independent practise who welcome the cuts. There can be very few who do not see the damage it is doing. Pupillages are drying up. Talent is being lost. We have to put a stop to this. We must act.