Introduction – the problem
Organising barristers, so the saying goes, is a bit like herding cats. Is there any chance of getting us to agree on anything? Yes, when everyone is agreed. Around the robing rooms of London there’s been a rare unanimity amongst the barristers I’ve spoken to that we have had enough. Finally, things have gone too far. Maybe we should have done more before, but we are where we are. We have tried reason, but the government has been consistently unreasonable (this is not a party political point – from the Bar’s point of view, the last lot were just as bad). We have tried negotiating, but even when there is an agreement, the government thinks nothing of ripping it up when it suits them.
We have had cut upon cut, but, on the horizon is a far greater threat – QASA and OCOF. As much as the government treat them as separate, they are part and parcel of a new plan for legal aid that will spell (whether intended or not) the end of the independent Bar. We all know the issues and the consequences of it, but what can we do about it?
What can we do?
The only thing that we can do, the only thing that can force the government to change their mind, is direct action. Not a phased-out withdrawing of instructions as happened before (that was doomed to fail), but a shut down of the Crown courts for a period of time to show that we are serious. And a clear statement that we will simply not co-operate with QASA, we will not register and, given the way that it has been imposed, we do not consider it reasonable to be bound by it.
Why direct action?
Because everything else has been tried and has failed. We’ve got nothing left in the tank, no other weapon at our disposal. Since I’ve been practising (11 years now) there has been only one time that I can think of where the Bar has successfully stood up to the government and that is on confiscation (see here). What is different about that? The payment rates for confiscation were wrong, but no more wrong than for either way elected cases. In these hearings however the Bar stood firm and refused to cover the cracks in the legal aid system. Ultimately, the government had to back down. There is a lesson for us there.
Grayling does not care about the merits of the arguments. He wants to cut money, and if he gets to slap down a few of the pesky barristers that keep on challenging the government, so much the better.
Won’t this be counter-productive? The media will eat us alive : fat cats etc?
I can see that is a genuine concern. However, they do that anyway, don’t they? There has been some excellent work done on making known the truth about the publicly funded Bar, but that doesn’t fit the narrative the media want to spin. Direct action can’t make it any worse for us, and it may force the media to actually address the facts rather than the myths.
Won’t this lead the government to clamp down on the bar? What will the regulator say?
This may be threatened, but if we don’t do something and let this pass, then it’s the end of the Bar anyway.
In terms of the BSB, if the Bar as a whole refuse to engage with QASA, then QASA will not work, it’s as simple as that.
Won’t solicitor-advocates just swoop in and steal the work?
I don’t think that we should be so cynical. Solicitor-Advocates also have problems with QASA. It may be from a different angle, but we are united in opposition. As for OCOF, yes, the partners in some firms will benefit from it, but the vast majority of solicitors will suffer and they realise that. There is much common cause to be had there.
Won’t some chambers just undermine it and see this as an opportunity?
I hope not. If there is a ballot of CBA members, then hopefully we will all stick with it. On this, we stand together or we’ll be squeezed out and die alone. The last attempt at a ‘strike’ involved declining new instructions. This allowed people to be in favour in public but carry on in private. If everyone does it at once then it will be clear who, if any, will be the ones that decide to carry on working in the face of the opposition of the profession.
Is this fair on the clients?
This is obviously a worry for many people. Historically the Bar has been excellent at ensuring that people have representation, even if we have to do it for free. I understand that. However, there comes a time when we have to look at the wider picture. If we let OCOF and QASA in, we are letting down all the clients of the future. The judiciary will know what is happening. Many support us. We have to trust that for the period of time any action is taken, they ensure that our clients’ rights are protected. I have faith in our judges that that will be the case. We cannot afford to do nothing.
Conclusion
The Bar has a great history of standing up for others in the face of government. It’s time we stood up for ourselves.
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