The Unacceptable Tweet

When I was interviewed during my QC application I was asked why I thought that “Diversity” was one of the attributes that was required in aspirant Silks. Part of my answer was that, as a junior, I had looked to Silks to provide an example. That Silks were not just leading counsel but are, more often than not, the leaders in the profession.

This weekend I have spent a lot of time reflecting how best to react to a Tweet from a fellow member of the Bar, Jon Holbrook. I have debated with myself whether referring to it is amplifying the original Tweet and adds to the issues created by the original post. I have also reflected over issues surrounding free speech.

After that period of reflection I am quite satisfied that I have no choice other than to respond to the Tweet. And to make it clear that it is reprehensible and thoroughly unacceptable.

The context is that Mr Holbrook Tweeted about a case where a schoolchild and her parents challenged a school’s rule about hair which had seen her excluded from the school for periods of time. Her argument, ultimately successful, was that the rule was discriminatory.

His Tweet stated “The Equality Act undermines school discipline by empowering the stroppy teenager of colour” and quote Tweeted a short film about the original complaint.

I repeat – this Tweet is wholly unacceptable coming from a member of my profession.

I have no difficulty at all with Mr Holbrook seeking to debate the rights and wrongs of the Equality Act. I suspect he would be very wrong, yet it is an argument he can try to advance. But this Tweet has three very significant issues.

The first is that it is linked to the story of the young woman in the video. The implied criticism is, contrary to the fact that the school ultimately settled her complaint, that this was a frivolous and unfounded complaint borne out of caprice and not due to direct or indirect discrimination. Mr Holbrook, from the comfort of his keyboard, has implied that the young woman has “played the race card”.

In the BSB Code of Conduct core duty 5 states that “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”

The BSB have issued guidance about the use of social media and the interaction with CD 5. For my part it is difficult to see how the Tweet of Mr Holbrook does not demean the complaint made by the young woman. He has portrayed her not as a victim of some form of discrimination but as nothing more than a stroppy teenager who played the race card.

That is not acceptable.

Secondly Mr Holbrook’s Tweet links his perception of the Equality Act being used to undermine school discipline to one protected characteristic and one only. Race.

There are 9 protected characteristics. He does not complain that disabled students undermine school discipline by utilizing the Equality Act. Or students who follow a particular religion. Or male teenagers. It is “a….teenager of colour”.

Race is the one protected characteristic which is singled out as being misused by those bringing complaints under the Equality Act. We circle back to that phrase “playing the race card”. A phrase used to undermine those seeking to redress an injustice.

That is wholly unacceptable.

And finally it is the use of the phrase “stroppy teenager of colour”. It instantly sets the non-white teenager as being different. It sets them as having an advantage over their white peers by this legislation. It makes the accusation that the challenge to an unfair and discriminatory rule is based not out of legitimate complaint but a desire to cause trouble. It instantly diminishes any such complaint.

But it is so much more. “Stroppy”. It almost says “uppity”. It resonates with “know your place”.

It is simply unacceptable.

So what? Why does it matter?

I have read the Tweets that support Mr Holbrook. One of them came from someone who Tweeted that the Equality Act also facilitates BAME candidates being promoted beyond their competence, a view Tweeted by a man who also sought to justify a comparison between people of Afro-Caribbean heritage and primates. Just typing that sentence made rage creep through my body.

Mr Holbrook is not directly responsible for the views of others. His Tweet gives encouragement, however, to those who see the vital protections afforded by the Equality Act as nothing more than an unfair advantage to the undeserving. It is a fuel of racism.

Words matter. How we express ourselves matters. That an advocate should Tweet something which emboldens such a racist to add their support to the Tweet is appalling.

It is not acceptable.

And how would the teenager who is visually different from Mr Holbrook, the “teenager of colour”, who wants to be a barrister feel upon reading Mr Holbrook’s Tweet? Would they feel that this was a profession for them?

That is why it is vital that I, amongst so many others, say that this is not acceptable.

But saying is one thing. It is an important thing. But I feel that more needs to be done. Mr Holbrook has had more than enough time to reflect. He has had plenty of people point out the issues with what he has said. And yet the Tweet remains.

That is why I have decided to report Mr Holbrook to the BSB. This is something I have never done before. I don’t want to “cancel” Mr Holbrook. It is not for me to determine ultimately whether he has breached the Code we share. It is, however, vital that our Regulator examines this conduct.

Those of us that are a part of this profession are privileged. Mr Holbrook uses that privileged profession to be a “commentator” in publications like Spiked. He has a right to freedom of expression. But with that right and the enjoyment of that privilege comes a responsibility.

In my view Mr Holbrook is responsible for expressing a view which damages my profession and diminishes the standing of our profession. He hasn’t uttered a word of apology or contrition or acknowledgement of people’s concerns. Of course, that is not the way of the contrarian. He has not even responded to the repeated Tweets of the mother involved in the story, Tweets which contain a dignity which jars against the cowardice of silence in response.

This is why we have merchanisms of complaint. It may well be that I am wrong. That’s why others are in place to judge Mr Holbrook. But to stand by and not say anything, to not do anything, would be to abuse the privileged position that I hold.

I have no doubt that some will consider this approach as “virtue signaling”. I am not signaling my virtue. I am seeking to uphold the values which seem core to the bar taking its place in a modern society. With the privilege of our regulated profession comes responsibilities.

It is possible to debate the utility and purpose of equality legislation without implying unfair criticism of an individual and without a lazy generalised swipe at BAME teenagers.

The Gender Brief Gap

Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.

Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.

There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.

A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.

Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.

I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.

Let’s now look at each case in turn:

Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0

Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.

Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.

Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.

Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.

Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.

In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.

None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).

It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.

I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.

There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.

So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.

In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.

What I do know is that it is wrong. How do we put it right? I don’t know that either.

That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.

One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.

The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails. 

Pots, Pages and Pay

I have now read the entire consultation on fees. I have cogitated and calculated. I have some views to express (which is a good job or else the starting of a blog would have been a pretty pointless exercise). My thoughts have been concerning the figures in the boxes and the execution of parts of the scheme. In this blog I am going to deal with problem under which those shaping the scheme have had to labour – there is no new money. Fees that were set for cases many moons ago, fees that have been subsequently reduced, are still being paid at the same, reduced rate.  

It is also undoubtedly the case that the current AGFS remunerates some cases in an inadequate manner. There are times when you do a case and then see the bill. You do a double take. Surely there has been some mistake in the calculation of the fee? Surely all that work and worry must be worth more than this? 

There are those at the Bar who are canny and dodge the under-paying cases. There are those of us who think “never again”, right up to the next time you take on a similar case. The long and the short of it is that there are winners and losers when it comes to a fee scheme that pays by the piece rather than by the work put into the piece. 

When it comes to designing a scheme that is based on the same size pot, there are always going to be cases where payment goes down if money is shifted to other parts of the scheme. It is impossible to do it otherwise. 

In my opinion it is the inescapable truth that Silks are not paid enough for murders under the AGFS. I find it impossible to argue otherwise. It is right that these fees should be increased. The increase in these fees should come from extra money being paid into the scheme. The scheme under current consideration requires that the money comes from elsewhere within the scheme. And that means fees for other cases are going to be decreased. 

And here you have the point of tension. No one likes the idea of a pay cut. Those that see themselves as being the losers in this equation are going to cry foul. That is entirely understandable. 

I am not a Silk. I have never applied for Silk. I have no intention to apply for Silk in the next application round. I am a junior that does the occasional drugs conspiracy with a decent page count. I do some fraud type work. So I am going to be in a position where future fees may be reduced. I also do a fair amount of sex cases so I could see some fees increase. And no matter what it means for me, I can see that Silks are not properly remunerated for some murders at the present time. 

The information that accompanies the consultation indicates that the Silks’ slice of the pie is going to increase by 10%. This does not mean every Silk in the land is going to get a 10% pay increase. This does not mean that every Silk’s fee in every case is going to go up. It does not mean that there are no situations where a Silk is going to end up being paid less. It also means that, in some cases, a Silk is going to end up getting paid more than 10% extra on the current fee. But this 10% thing strikes me as a bit of public relations disaster for the new scheme. It makes it very difficult to sell to the rank and file. That 10% is coming from somewhere and it is coming from the fees paid to the junior bar. So I know that a fee increase for Silks is the right thing to happen. It is just that there is not a spoonful of sugar to help the medicine go down. 

It may have been easier if just a little bit of the extra money for Silks (produced by a formula explained within the consultation) had just been moderated slightly and the extra money put back into the fees that are being most significantly reduced (paper heavy fraud and drugs). It would have sugared the pill if it was the case that the consultation told us that the formula had worked out that the Silks should have been put up by more but that this figure had been adjusted due to the fact that the fees were being cut elsewhere and that the reduction would therefore be less. 

Of course this is a consultation. I am entitled to make that point. I am not arguing that Silks should not have some of their fees increased. I am arguing that, when the money in the pot is too little to begin with, such adjustments as are necessary should be dealt with not only by way of formula but also by way of sensitivities. 

I am not convinced that one can argue against the removal of page counts per se. It is a clumsy tool by which the seriousness of a case or the work involved is calculated. It worked better when it was first introduced, when it was used to differentiate between cases within a relatively small compass. But as page counts got bigger and the page count payments got extended to thousands rather than hundreds of pages it became less of an accurate measure of a case and more of a lottery in which you hoped for lots of pages on the PPE and a case summary that spoke of only one witness naming your client.

If you are to argue about the numbers in the boxes, it cannot just be by the slogan “save our PPE”. It cannot simply be by the cry that this time round your practice profile is going to mean you are in the column of fees being reduced. If any one wants to make the case why the figures in the boxes are wrong then I am more than happy to host any blogs on the subject. But I also repeat this request – those are argue that the figures in the boxes are right need to release more information to us. The Bar Council, the Circuits and the CBA need to provide us with information. Quickly. 

I will post another blog soon about one or two areas of detail in the proposed scheme. 

To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 

The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.

Relate

I am at risk of stealing a joke from Patrick Kielty. Actually, I may as well confess, I am about to just steal the joke. It is from Kielty’s famously (and some may say “only”) funny routine where he imagines a world where nations communicate on Facebook. 

So here goes, if barristers and solicitors were to describe the nature of the relationship in Facebook terms it would be “complicated”. And the MoJ would definitely “like” that. 

In fact there are many ways that the relationship would be better described as “open”. Barristers and Solicitors are allowed to see brief other people. When it comes to the Bar, we are even allowed to go into bat for both sides. Blimey, it is complicated. 

No matter what the nature of the relationship it would be fair to say that when news of “the deal” broke a while ago we were very much “on a break”. And during the break the Bar “did a Ross” and started to see the MoJ. And ever since then the relationship has been tempestuous. To say the least. 

I have been an interested observer in Bar politics, and therefore the politics of the wider legal landscape, since before Carter came along. In that time I have often pondered the unusual relationship that exists between barrister and solicitor. There is such an interesting dynamic at work. In my view it divides into three areas. Understanding the balance of power in those three areas may help in establishing a more unified approach. 

The most common way that the relationship is expressed is the commercial relationship between instructing solicitor and the instructed advocate. Without doubt the nature of this relationship is one where the solicitor holds most of the power. The solicitor is, in such cases, the holder of the Representation Order. They have the security provided by the Regulations which will bind the client to them in the majority of circumstances. The Bar have none of that security. The instructed barrister can be sacked the day before the trial and have no recourse whatsoever and little prospect of receiving a fee that equates to the work undertaken. 

And with that insecurity comes the power that the solicitors holds. Even in a “one-off” instruction the barrister is at risk of a withdrawal of instructions. And of course the barrister should be hoping for a long term relationship with that the solicitor with lots of work flowing their way. It is one of the factors, along with professionalism and pride, that spurs you on to impress and to continue to impress. And it is the ability to terminate that relationship that the solicitor should use to make sure their clients get absolutely top notch service from the barrister, the clerks and the chambers. 

In recent times there has been a regulatory relationship. The parent LSB has the SRA and BSB as the siblings with the slightly awkward relationship. This is a relationship where it is more difficult to gauge the balance of power. It is impossible to fathom what motivates regulators, other than the desire to regulate and regulate regularly. I suspect that the SRA often have the upper hand because of the cost of regulation. The costs of the LSB are divided between the BSB and the SRA in fractions that relate to the comparable numbers of professionals regulated ie the SRA pay more because they regulate more individuals and entities. And it is preserving this division of costs where the BSB will often tread on eggshells – they never want their big brother to push for more money from them. 

Now we have the nature of the relationship in the visceral world of politicians and civil servants. This is where I suggest the Bar currently edge it. I suspect that we have, in fact, wielded more “power” in this arena than our colleagues than we even realised. It is not just the influence that was garnered as a result of “the deal” and subsequent engagement. It is not influence gained by the Bar being more “establishment”. 

It is slightly perverse that solicitors undertake the lion’s share of criminal work within the system and yet the Bar wields the greatest power to cause embarrassment in the Crown Court. It is the focus of interest in cases that appear in the Crown Court which means the Bar are “feared” more than solicitors. It also stems from the fact that the Bar prosecute a significant proportion of the cases in the Crown Court and are, to that extent, of greater perceived value to the Government. 

As I say, it is all incredibly complicated. 

Understanding the nature of the relationship is important in improving the relationship. Politically the relationship is at quite a low ebb at the moment. I have said this before in a previous blog but that relationship is not going to be improved if solicitors continue to find offence in everything the Bar do. It is not going to improve if every time the Bar try to promote their strengths they are accused of denigrating solicitors. 

The flip side to that is that the leadership of the Bar need to carefully consider the nature of their public pronouncements. As advocates we should be able to make sure our words do not cause offence or leave room for offence to be taken. That is particularly important when being “pro-Bar” to make sure it is not either the product of, or an unintended manifestation of, an anti-solicitor rhetoric. 

It is important to remember that the various representative bodies represent their members. It would be ridiculous for the Criminal Bar Association to ignore the concerns of its members. Everything such associations do should be consistent and not contrary to the public interest. But it should be done on behalf of their members. To recognise that would be a huge step forward to effectively working together. 

We are not yet a unified profession. For a number of reasons there are still some competing interests. These are capable of being recognised and coped with in a mature and mutually beneficial relationship. A complicated, but not impossible, relationship. 

The Agreement YOU Made

Let us remind ourselves that we all agree that you cannot trust the MoJ. Then lets look at what the MoJ believe has happened. It is available on their website. I reproduce them here with some commentary.

Agreement between Ministry of Justice, Bar Council and Criminal Bar Association

No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014.

The timing is crucial to the MoJ. They were facing a summer of discontent from both sides of the legal profession. Cases and CTLs going wrong. All of this in the run up to a General Election. We have given them a stay of execution.

Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that:

No recognition of the impact of VHCC changes

1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below. This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind.

The cuts, these cuts, are still on the table. All we have is a promise of an open mind. We have already made all our good points to this Lord Chancellor and these Civil Servants. Their mind has never been open. I anticipate part of the gamble is that we have a different Government in the future. Firstly if we do not we are then dealing with a Government with a fresh mandate and five years to tough it out. And we have the same civil servants…..

2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence.

As part of the deal we have had removed from us the one, small improvement of the scheme. Advocates will still go to court for little reward in either way cases which resolve. This was a small step. A token crumb. We have not even secured that small positive change.

3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular:

 Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy;

 Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;

 criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;

 any impacts on legal aid spend from falling crime rates; and

 a comprehensive analysis of income and earnings of criminal advocates,

including effects from changes in recent years.

We are reliant upon their comprehensive analysis of income and earnings. Given the MoJ’s form with our earnings does this prospect fill you with confidence?

4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported.5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament.

The likes of Nigel Pascoe who hope that this review will deal with the iniquities of the current mutilated grad fee scheme can stop such hopes right now. The review will do no more than tinker with the size of the cut. That is all. And if we get nothing from that then whoever leads the CBA at that point will be faced with galvanising the troops for a fight. A fight on their own, the solicitors will nto trust us and their fight will be over by then. A fight when the Bay will face solicitors having moved into our work. Good luck with that, you’ll need it.

6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.

The money that has been slashed and slashed again will remain. The cuts of 30% are not going. We are offered here the possibility of rearranging the deckchairs. That is all. Not a penny more? We have conceded the VHCC budget.

7. The Officers of the Bar Council and the Criminal Bar Association, having engaged with the Circuits have stated that, in return for the Government’s proposed approach (outlined above):

 whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs

 there is no reason why barristers who want to work on VHCCs should not do so;

 the ‘no returns’ policy should be withdrawn; and

 normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action.

We have, in return for these meagre almost non-existent concessions, ceded our movement of direct action. We have rendered ourselves impotent to assist our solicitor colleagues. We have effectively ended the VHCC boycott. The line was holding because we were holding the line. Having completely fractured now the ethos of unity is gone. Advocates will work on VHCCs. They may not be the best but they will be found. And here we have, written in stone, that there is “no reason” why they should not do so. If we complain that the fees are not good enough? Well not according to our betters. If someone raises abuse of process because they cannot find an advocate? The prosecution will simply point to the fact that the Bar Council and CBA concede there is “no reason” why advocates should not work on VHCCs.

8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.

There has been no problem with our engagement. The problem has been with the Government engaging with us. And now with the leadership engaging with the rank and file.

Unpick this rotten mess now or plan for a bleak future.

Hannah Evans – Legal Aid Heroine

At the weekend Hannah Evans, a third six pupil at 23 Essex Street, gave a speech to the One Bar: One Voice event arranged by the Bar Council. It would be fair to say that she stole the show. The room listened to her eloquent speech in total silence. Not bored silence but totally rapt silence. One senior member of the Bar remarked to me afterwards that he was almost moved to tears.

At the the end of her speech I tweeted that she has displayed every talent and skill that required nurturing, not extinguishing. She is the very reason why the Lord Chancellor should hang his head in shame and rethink these proposals. As a member of the Bar, when you are asked to perform a selfless act to fight these proposals you fight for access to justice, for yourself and for Hannah.

With Hannah’s kind permission I reproduce her speech here

“Life at the very junior end of the criminal Bar is tough. Make no mistake.

It’s tough to get here. It’s tough to stay here. It’s tough in a way we (most of us, at least) expected: long hours, difficult clients, challenging briefs. But it’s tough in another way too – financially. And that’s something that perhaps isn’t always fully appreciated by others:

• Sometimes more senior members of the profession don’t always appreciate how difficult things can be financially. Many of them came to the Bar at a time when grants were available for higher education and Crown Court trials and junior briefs were plentiful.

• Those practising a branch of law that’s not publicly funded don’t always appreciate what things are like at the junior end of the criminal Bar. They are properly remunerated for their services (as they should be) and find it difficult to believe the sums we are paid for our work.

• As for the public, I’ve lost count of the number of times that people, on discovering that I’m a barrister, assume I’m earning a small fortune. It’s very much the public perception that you must be: after all, you went to a good school no doubt, then a posh university, now you swan around court in your wig and gown and have fancy legal arguments with others like you that no one else understands or cares about. You’re milking the system. Out for what you can get. But we know that nothing could be further from the truth: their assumptions are wrong on so many levels.

• Even those trying to ‘break into’ the profession don’t always comprehend what it will be like for them at the junior end of the criminal Bar- if they get here. They’re almost certainly told how difficult it will be: “when it comes to money, things aren’t what they used to be”. I know I was told that by many when I was completing my mini-pupillages. But you assume at that stage that, while things may not be quite the way they used to be, you’ll make a living. After all, the people warning you are managing to get by. You assume that you will too and you don’t worry too much, not realising until you’re at the Bar yourself just how tough things are.

When you are here, experiencing the difficulties for yourself, you tell yourself that you might be struggling to pay the bills now, racking up debt by the day, but it will be worthwhile. You’re doing it for a reason. You’re gaining the necessary experience, forging the right connections, and then those Crown Court briefs will start coming your way. You don’t expect riches. Speaking for myself – and I’m sure every other junior barrister at the criminal Bar – I did not enter this profession for the money. But I did – I do – expect to be paid enough to make doing the job I love a viable career option.

Of course, with the cuts this government plan to impose that won’t be the case at all. A career that is currently difficult to sustain will become nigh on impossible for people like me.

What do I mean by “people like me”? I came to the Bar from an “ordinary” background. I attended a comprehensive school on what was once the largest council estate in Europe. At the time I left, about 23% of pupils were leaving there with 5 GCSEs graded A*-C. By 2012 – the year I began my pupillage – this had fallen to 16.9%.

I got my 5 A*s-Cs (and a few more besides) and moved onto my A-levels, along with about 25 of my classmates. I did well at A-level and with the support of a handful of teachers and family members applied to Oxford. Unsurprisingly, when I was accepted, one teacher who quite openly told me that “Oxford isn’t for people like [me]” was not one of those who lined up to congratulate me.

Funded by my student loan I went up to Oxford where I spent a wonderful 3 years studying law, assisted occasionally by various collections prizes and scholarships. Not so wonderfully, I left with a small mountain of debt – and this was before the £9,000-a-year fees were introduced…

After graduation, I moved immediately onto Bar School here in London. I was unsure for the first few months after being accepted whether I’d actually be able to attend. There was no way I could fund the cost of the BPTC (as it had then just been renamed), let alone living costs on top. Thankfully, I was awarded one of the many scholarships that this very Inn bestows each year and it was enough to fund my course. The Inn also provided my living accommodation during my year at Bar School. As for my living costs, they were covered by a bank loan, tipping me even further into debt.

I applied for pupillage during Bar School and – miraculously it seemed! – was offered a place at a London set. Of course, pupillage now being what it is, I had to take an obligatory year out before starting. The dream would have been to travel – see new places, try new and exciting things: the reality was very different. For largely financial reasons, I moved back home and lived with my mum. I tried hard to find a job that would have me for a few months, knowing that I’d be leaving to really start my career very shortly. Luckily, one materialised and kept me afloat until I returned to London.

And then: pupillage. Again, I was fortunate. I was accepted at a good set that by the standards of criminal pupillages provided a generous pupillage award. Quite honestly, as much as I so badly wanted that place when I applied, I would not have been able to apply had chambers not offered the award they did. Indeed, there were chambers I did not apply to because the pupillage award they offered was the bare minimum and I knew I couldn’t afford to live on that.

The effect of this government’s cuts will be that fewer and fewer chambers will be able to pay such generous awards to their pupils. That is, if they’re able to take pupils on at all. This means less – if any – people like me in this job; less people without a private income or family to support them; less people from ordinary backgrounds.

Now I’m a third six. At the very beginning of my life at the Bar. What’s the next chapter? What are my prospects for a successful career? It’s something that nearly all people at my stage of their professional lives ask themselves I imagine. But for junior barristers – particularly those in my position – the question is more poignant.

As I’ve said, financially, life at the criminal Bar is difficult in the early years. Let me give you an example. A trial fee in the Magistrates’ Court can be as little as £80. That £80 may represent a full day at court (9-5pm): in court for the trial; in conference with your client before, during and after court; in discussion with your opponent or the witness service or Probation… Out of that £80 comes your travel costs, unless you’re fortunate enough to be reimbursed your travel by chambers or by your Instructing Solicitors. Then there’s tax to deal with.

Sometimes, many junior barristers find that they are paying to work: they earn less than it costs them to get to court! With train prices the way they are, you don’t have to travel very far before what you’re being paid for your first appearance or your mention is subsumed by travel costs. I can think of no other word for that than “perverse”. We are professional people doing a difficult job and we deserve adequate recompense. It is worth stressing again that I did not come into this job to make money. It’s been clear for many years that the criminal Bar is not the route to riches. If money was my motivation I’d have gone to the City, or down another of the well-paying avenues open to me when I graduated. Indeed, I’d have gone as soon as I got on my feet and received my first fee and realised just how bad things were going to be! But I, and others like me, resist the lure of other lucrative careers because we are committed to seeing justice done. Not just a hackneyed phrase for us: it’s what we work at day in, day out.

Our reward? Late rent payments, and an inability to pay bills or buy that new suit or book we so desperately need. These are facts of life for us at the junior end. And when you don’t have parents that can offer financial support, or a husband or wife to help you out, or savings you can dip into when times are hard, you have one option: you take a long hard look in the mirror and ask, very honestly, if this is a life you can really sustain. I’ve lost count of the number of times I’ve had this conversation with myself. “How much longer can you do this?” The answer at the moment? “I’m not sure; it’s tough; hang in there”. The answer if this government gets its way? “Not much longer”.

The most frustrating thing is that this soul-searching is not borne out of disillusion with the job itself. On the contrary, I love this job. Even with its long hours and difficult clients! But love of the job does not pay the bills. The simple reality is that I can barely survive earning what I currently do. I will not be able to survive if the governments ‘reforms’ are implemented.

Speaking of the government, a friend of mine said to me a few weeks ago that I should consider myself its poster girl. Rather taken aback I asked what on earth he meant. He said that I represented everything this government lauded: through hard work and determination, I had come from an ordinary background into this wonderful profession, once considered the preserve of the elite. I am just the sort of person they want to hold up, to encourage, he said. How odd, then, that they seem committed to doing everything they can to ensuring that people like me – their poster girl – never get to the Bar in the future, and that those of us who worked so hard to get here cannot stay.”

Iolanthe Part 3

The last in an occasional series where I meet the Lord Chancellor…..

Now people, don’t be lazy. Please read Iolanthe Part 1 and Iolanthe Part 2 before reading on in order to get the full context.

A recap. In Part 1 I reported how the Lord Chancellor was asked if he could give an early reassurance on client choice and his response was to say he was listening but could do no more at the moment because he was in the midst of a consultation that he had to let run its course…..three days before he was widely reported in the press giving an early reassurance on client choice. In Part 2 I told you how the Lord Chancellor revealed he had been talking to people who thought they could provide a service within his “financial envelope” of savage cuts……which turned out to be the Law Society.

In Part 3 you will hear some of the Minister’s views on lawyers, fat cats and Michael Turner. And when you hear how some of those views are expressed you may also find out what his opinions really are!

So the next topic covered was the eligibility criteria for criminal legal aid and the £37,500 income threshold. In what you may view as a socially awkward moment the Minister asked the questioner if he understood the income threshold. He then went on to explain, speaking very slowly so we could keep up, that it was disposable income that was the determining factor and not income. He then went on to explain what disposable income was. We were all managing to keep up. He then went on to explain that it basically meant that someone had to be earning a six figure salary before they would be caught by the income threshold.

[I am just going to interrupt at this point. He had been doing a good job up to now of telling us what we already knew. But his protestation that it basically only captured those on a £100K salary did, perhaps, reveal something he did not know. It is household disposable income. So two headteachers, married to each other and their work, would in many instances have a joint income in excess of six figures. If it was the case that one of them was the subject of a malicious allegation by a disgruntled or emotionally vulnerable pupil then they may well not get legal aid to assist them through one of the darkest hours of their life. This income threshold does not just capture the wealthy. It captures many a hardworking household.]

However the Lord Chancellor then went on to reveal the things he really did not know. He was asked how many cases that were granted Legal Aid last year would now be excluded by this threshold? He did not know. He was asked how many households fell in to a bracket that would be excluded by this threshold? He did not know. He did qualify the restriction by saying that there would be a discretion to allow Legal Aid in certain cases.

[I presume by this he was not simply referring to cases where the public would quite like the defendant to have Legal Aid but was a reference to financial hardship etc. Let us for a moment just imagine that the Lord Chancellor was right and this provision only captures those in the very highest bracket of earnings. In these circumstances I would imagine a high proportion of people falling in to that category are prosecuted for fraud or commercially related offences. Those are often the more complex prosecutions. Not made complex by the lawyers but by their very nature. Hence they are often quite costly. So costly that most people’s disposable income would be dwarfed by the cost of the case. So they would be exempted and receive Legal Aid under a hardship test. So all we have achieved is the added cost of the whole process of eventually granting them Legal Aid with all the administrative cost and delay that will entail. Brilliant.]

The most junior practitioner in the room, a barrister conducting publicly funded family work, then addressed the Minister. He described the increasing reluctance for practitioners to undertake publicly funded work. He described his own regret at having followed this path already. He eloquently told the Minister, “the Bar is not making up the fact it is under threat – it IS under threat”. The young barrister then deplored the fact that the consultation introduction drew unfair comparisons with the salaries of public servants and the press statements relating to the income of the Prime Minister.

[Hold on to your hats….] The Lord Chancellor responded, “If somebody is deriving their income from Legal Aid work, in my view, rightly or wrongly, then I struggle to see why, taking in to account chambers fees, VAT, pension contributions, why someone’s actual personal income from criminal Legal Aid should be more than the Prime Minister earns and the truth is at the top end of the scale we have people earning considerably more than that.”

[I am making no comment. The fallacy of this argument has been dealt with elsewhere in an excellent piece by Matthew Scott.]

He continued, “I have been accused of saying that barristers are fat cats, I have never said barristers are fat cats.”

[You may never have used those words. It is just an unfortunate coincidence that those words appear in newspaper stories that report your view that barristers should not earn more than the PM whilst we are treated to another photograph of you, arms folded, looking tough in a prison. I await your complaint to the PCC.]

And then, “Look, financially and logically we should just go for one case one fee. It is obvious. It makes perfect sense. Its easier to operate. It creates a streamlined system but I don’t do it because I didn’t want to destroy the Bar. I have had colleagues say I should do it but I didn’t want to because I want to preserve the Bar.”

[And in that moment we have both reassurance and a threat. I feel cared for like an orphan being called “my dear” by Fagin.]

Yet the words of support kept on coming, “I don’t think the Bar is in trouble per se. I think the Bar has a big challenge because of the number of people in it and the number of people trying to come in to it. I recognise coming in to the publicly funded Bar is much less financially attractive than coming in to the commercially funded area of the Bar but that’s the decisions we take. That’s why I became a member of Parliament instead of carrying on with a job where I earned £60,000 per year more than when I became an M.P. You do it because you want to do it.”

[Now reader, wipe away that tear. Stop the gratitude swelling your heart for the selfless sacrifice to public office made by Chris. When he became an M.P. he had the prospect that the more successful he became his income would increase in proportion to the responsibility of his role. He also had the safety net of the potential for a pay rise. I have no such comfort. He was able to emply his wife on a salary of £37,500 per year, paid for by the state. I am sure if I could employ a member of my family as my clerk and have the State pay for it, I would find my income would go that little bit further. He has the State contribute towards his living expense for a second home, despite his proximity to London. When I go to Bristol next month to do a trial, I will pay for my hotel out of my fee. If he is voted out of office at the next election he continues to receive an income from the State as he continues to receive his salary. If all my solicitors go out of business in the autumn I receive an income from the State. But it is means tested and called Job Seekers Allowance. So Lord Chancellor, although I began in Part 1 saying I was impressed by you, this is the point when you started to lose the room completely. This was the moment when we were treated to the duplicity that lies behind the cuts.]

But he did go on to reassure us that he “knew junior publicly funded barristers are not earning a massive amount of money and are not fat cats. I have never suggested they were [my dear]”

It was probably for the best that the discussion turned at that point to the unintended costs of litigants in person becoming more prevalent. The Minister was adamant there was no evidence of that. [By that he meant statistical evidence, we can ignore the experience of the Judiciary.] He also stated that he was not worried about not being able to find suitable experts as “we still pay experts £70, £80 or £90 per hour so they are not going to be impoverished as a result of it.” [ Can I be paid £70 per hour? Can I be paid for my preparation and my attendance at court? Please Lord Chancellor, can I?]

As the allotted time neared it’s conclusion we were told, ” We are going to take decisions as sensitively and as thoughtfully as we can. Every decision we’ve taken has been taken for a reason. We may have got some of those reasons wrong but that is why we do a consultation and looking at what people have said and being smart enough to spot when someone says you haven’t got that right and work on it through the summer.” [Except when it comes to client choice, which he will decide upon immediately before appearing in front of the Select Committee because that could have just been embarrassing.]

And then came this gift, “I promise you I do listen and try to talk to people. It is said Chris Grayling never talks to lawyers. That is simply not true.” Which allowed Paul Becker to immediately pounce with, “Well why haven’t you met with Michael Turner?”

Answer……”Michael Turner had a meeting last week with my colleague Lord McNally. There are a lot of people to meet, we are not each meeting with everyone. I have met with the Bar Council, the Law Society, Circuit Leaders, Law Society regional committees and about seven meetings like this with lawyers. Lord McNally saw Mike Turner a couple of weeks ago. Maybe three weeks ago, so we are not ignoring anyone.”

[I probably need make no comment. And yet I cannot resist a little word or two. The list of people the Lord Chancellor had met was impressive. The name Mike Turner is a glaring admission. When dealing with a consultation that includes swingeing cuts to the fees paid to members of the Criminal Bar who would you have at the head of the list that the Lord Chancellor should spend his Friday evening talking to? Me, a criminal hack, or Mike Turner, the voice of the Criminal Bar Association? The idea that this is as a result of Mike Turner having been met by Lord McNally instead of the Lord Chancellor was just too delicious for me, as anyone who has read The Wizard of Epsom will understand.]

And with that, following a photo opportunity which was, for reasons I will not trouble you with, personally hilarious, the Minister was gone.

So what did I get from the meeting? It made it clear to me what we face. As has been demonstrated in the last 48 hours there will be changes and modifications along the way. However I am convinced that he still considers it necessary to introduce catastrophic changes to the system. Yes he will ameliorate the proposals by altering client choice. Everything else is still in the mix. I cannot help but think reducing access to justice is as troubling as ignoring justice. I cannot help but think headline grabbing capital is being made out of things like a residence test for eligiblity. I make no bones about the fact that the perceived need to reduce fees is dangerous, unfair, unthinking and just wrong. I will not apologise for feeling that the work I do requires adequate remuneration. I do not think it is self interest in wanting skilled, not just competent, advocates and lawyers to be present to play their part in the prosecution of the culpable and the protection of the innocent.

Those who oppose these changes oppose almost every aspect of them. The brutal truth is that the Lord Chancellor sees himself as a reformer. Transforming Legal Aid is his crusade. A petition alone is not going to defeat him. Articulate argument is not going to defeat him. Demonstrations with lawyers carrying the coffin of legal aid are not going to defeat him. Strongly worded letters to the Times will not defeat him. Vaguely amusing blogs will not defeat him. But defeat him we must. He has to be forced to see that cuts are unsustainable. He has to be forced to see that the concept of justice is not about unit price, or mere competence, or commerce but is about excellence. I cannot think of anything that underpins our nation in terms of its spirit, rather than just a flag, more eloquently than a sense of right and justice.

Everything that has gone before in terms of opposition has to be redoubled. The petition needs another 100,000 signatures. We all need to keep sharing our thoughts and information. We need to keep the clarity and force of our arguments in the public conscience. In a coalition of thought as disparate as those who oppose these plans there will be difference of opinions but we need as much unity as we can muster in line with our individual beliefs. We need to be prepared for the fact that, in due course, the Government will introduce a series of changes which are unacceptable. And then we must prepare for action. Direct action. And in that we must be bold, unswerving and skilfully led. I know my enemy. I do not underestimate my enemy. I know we can win.

PS it really bugged me throughout the meeting who the Lord Chancellor reminded me of. Then it struck me. His incessant use of “Guys” was reminiscent of Cliff Richard in Summer Holiday…..

Thank you for reading. If you have not done so already, please see what else was said in Iolanthe Part 1 and Iolanthe Part 2.