Tag Archives: Grieve

To Strike or Not to Strike

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.

Ethics

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.

Method

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.

Efficacy

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.

Unity

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.

My Learned Dodo

When I came to the Bar I hoped for a glittering career. I have always been suspicious of any barrister who does not begin their career with a hope of obtaining Silk. It takes such a tremendous quantity of confidence and self-belief to take to your feet for the first time it can only be a life which those who believe that they can be the very best would embark upon.

The extent to which my aspirations have been held back consequent upon my ability is not for discussion here and at least some of my confidence can remain intact, even if it is misleadingly so. However the time has come now, 20 years in, whereby my fears are not where my career will go but when it will end.

In recent times both The Lord Chancellor and the The Attorney-General have expressed the view that there are too many barristers. It would seem to be the case that they are linking this to a reduction in the level of fees paid in each individual case. My contention is that the number of barristers is not a matter for Government, and my instinct would be that it is certainly not a matter for a Conservative Government. Surely a Tory administration would welcome open competition between individuals who are engaged according to their ability?

Leaving political persuasion to one side, I find it remarkable that the level of fees is being used as a tool by the administration to thin out the number of barristers. At the outset of the PCT consultation the Badger cull was metaphorically referred to. This is now a more direct comparison. The Bar are being culled. Remuneration is the lethal device of choice.

The reasons why this is wrong are palpable. Not one word of either of the consultations refer to fee cuts being wielded as the executioner wields his axe when it comes to the Bar. The case for cuts is made out on the basis of economic need. The longer this goes on, the more I am convinced that the cuts are motivated by ideology. Economic difficulties have given the Government the opportunity to pare down the numbers of pesky lawyers.

Why is it any business of the Government how many barristers there are? When we are not working we cost the taxpayer precisely nothing. When a criminal lawyer is required barristers are available to advise and represent. We are an army of specialists and locums available without being on the payroll or representing a pension burden.

To prove the point I will rely upon this quote “if I were running a business and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”. Not my words but the words of Chris Grayling. So why does he want to reduce the number in the team of the experienced freelancers?

Fees for cases should be set at a rate which represents fair remuneration for the work undertaken. It seems that implicit in the uttering of Grayling and Grieve that they acknowledge the rates will be fixed at a level that only members of the Bar with extensive diaries can survive. Which is great news for anyone hoping to divide their time between their family and their career. And gives little hope to those yet to carve out their own practice. This is not a series of cuts aimed at fat cats. This is a cull which will come for the scrawny cats first. Oh, and by the way, I can only really do one trial at a time. So I would like to be paid appropriately for the work which it involves.

Let there be no mistake. Not only are the Bar right to fear we cannot survive further cuts to our remuneration but we should now fear that is the intended consequence of the proposed cuts. A fan of conspiracies may view this as sinister in the context of a Government that seems intent on reducing or removing the ability of the citizen to challenge the State. I do not know about that. But I do know one thing – the Bar and the opportunity for people of ability to become part of the Bar are things worth fighting for.

We should not sit back and simply accept cuts. This is about each of us fighting to preserve our existence. In War of the Worlds, HG Wells described man’s initial failure to react to the Martian invasion in these terms “So some respectable dodo […] might have lorded it in his nest, and discussed the arrival of that shipful of pitiless sailors in want of animal food. ‘We will peck them to death tomorrow, my dear’.”

Fighting the cuts is not to oppose austerity. The Bar are not the latest public servants to experience cuts. We were at the vanguard of the cuts. Now it is about each individual taking responsibility for taking action against the proposals. The stated intention of the Government is to put you out of business. Do not be a dodo. Start pecking back. NOW.