The History Boys (and Girls)

History teaches us many lessons. Do not invade Russia in the winter. Never invade Afghanistan. Do not marry Henry VIII. Turn the television off before an English side start the penalty shoot-out.

When it comes to “bar politics” we should not be slow to learn the lessons of recent history. And we have been here before. The Government poised to make cuts, the legal profession up in arms. We have had revisions to fee schemes, cuts to graduated fees and cuts to VHCCs. We have had defence cuts, prosecution cuts then defence cuts based on the prosecution cuts.

So what has happened before when we have been in a state of such revolt? We have failed to act with unity. We have either been talked down by wise heads who think there is a different way or we have been defeated by a failure to act with common purpose. I am afraid the wise heads have always been wrong. It is because we have never taken action before that we find ourselves in such a desperate fight for our very future.

What has been remarkable so far is that the leadership of the CBA have taken their cue from the rank and file. First Turner and now Lithman have recognised the need and the desire for direct action. Cross has been elected to his post on that very ticket. The CBA national delegates rally gave the opportunity for each chambers to be represented and have their say. We spoke. The CBA listened. There was a clear mandate for immediate and direct action.

So I am afraid the wise heads will have to keep their counsel. There is obvious room for discussion but the greater imperative is that once action is declared we all get behind it. Some may think that a proposed action has its flaws. Put it to the back of your mind and get behind the action. Some may think that what is being done is too little. Have your say, make your views known but then put it to the back of your mind and get behind the action. Some may be concerned about taking action. Put it to the back of your mind and join the fight.

Many people will have reservations based on protecting the most junior. This fight is all about protecting the future for those individuals. It is impossible to devise some form of direct action which creates problems for the system that does not also create difficulties for practitioners. Those difficulties are nothing compared to not existing any more. Let me share with you the views of a member of the bar of less than ten years call;

“I want a mortgage, I want a pension and if someone is daft enough to have children with me, I want to be able to provide for a family. Strictly speaking I suppose these are “selfish” aims but it’s only the same as what most aspire to. With the new fees, I will be renting for the rest of my life and will be retiring the day before I die.

I actually care quite a lot about having a fair justice system and I also care about my future. Going to a meeting on a Saturday will say nothing to this government. Waiting until the fees come in and then refusing to work, will firstly be too late…and will lead to my bankruptcy.”

One thing that everyone can agree is that if we do not fight, we cannot win. And surely we can all see that action has to be unified. I am certain that the majority, democratic view is to take such action. Any sign of disunity, any sign of reluctance will hand the initiative to the MoJ straight away. If we stand firm, if we stand together, we can make history boys and girls. And in making history we can protect our future.

4 thoughts on “The History Boys (and Girls)

  1. Ian West (@ianswest)

    Churchill said that those who fail to learn the lessons of history are condemned to repeat its mistakes. Theodore Roosevelt said (of American foreign policy) “Speak softly, and carry a big stick”. The mistake that successive Bar leaders who came before Max Hill QC, Mike Turner QC, Nigel Lithman QC and Tony Cross QC, made is that they only read the first two words of Roosevelt’s observation. They submitted lengthy, well-reasoned, evidence-based Responses to successive government proposals to cut barristers’ pay. Unwilling to regard legal aid barristers as mere common wage-labourers, they cast pearls before swine, refusing to deploy the only weapon that a wage-labourer in truth has, namely the withdrawal of his labour.

    There remains a rump of the Bar which clings to the quaint view that the Bar Chair, and the Circuit Leaders, will ‘sort it all out’ like gentlemen with the Lord Chancellor over a sweet sherry in his lavishly-decorated chambers in the House of Lords. They, and patrician Heads of Chambers, claim to seek to protect the ‘junior Bar’ from the vicissitudes of anything so uncouth as a strike, or the refusal to do returns.

    Fortunately, the junior barristers, never having experienced the luxury of being in the position of having earned a comfortable living, or the security of a substantial pension pot, or the prospect of a place on the Circuit bench, know better. They have not had time to forget the lesson they learned not so long ago at school, that if you give a bully your dinner money on a Monday, he’ll keep coming back every day until you punch him on the nose and tell him you’re not giving any more. They recognise Mr Grayling for what he is not – a judicial tribunal who will listen to reason and make a rational judgment – and for what he actually is – a bully, who will press home his advantage if he sees any sign of weakness in his adversary.

    That is why the rank and file, the ‘troops in the trenches’, the workers at the coal face of criminal justice, know that, if they are not to suffer (yet another) pay cut to follow all the others, and another next year – an election year, they must not merely speak softly, but produce, and use, the big stick. Mr Grayling, a right-wing, law and order tub-thumper, cannot stand to see the criminal courts grind to a halt, even for a short time. It is a measure of the complacency that successive Bar leaders have permitted the Lord Chancellor to acquire that Mr Grayling thought that he could cut VHCC fees by 30% and barristers would still do the work. Big mistake, as he is now discovering. The VHCC debacle is a ticking time-bomb that will explode in Mr Grayling’s face when the first trial is stayed because he is in breach of not merely his Art. 6 duty to ensure that accused persons have a fair trial – that he can dismiss as European bureaucracy – but because he is in breach of his duty to ‘make available’ legal aid to the 41 presently unrepresented defendants in the VHCCs. He will have more trouble explaining that one away to the Justice Select Committee, because the obligation is one he imposed upon himself, in s. 1 of LASPO 2012.

    The patrician QCs and Heads of Chambers who seek to shield the young Bar, because ‘they can’t afford to go on strike’ have missed the point by a mile. The fact is that the young Bar are the most militant precisely because they can’t afford to go on strike. Of course, the junior Bar can’t afford to go on strike. But those wise young heads also know that the reality is that they can’t afford not to.

    Ian West.



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