Home » Barrister Contributions » Direct Action? The view of a Legal Aid Barrister

Direct Action? The view of a Legal Aid Barrister


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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48 thoughts on “Direct Action? The view of a Legal Aid Barrister

  1. Pingback: Justice For Sale Meeting – 1st October 2013 | Dan Bunting - A Life in the Bus Lane

  2. “Listening”
    That word again. I just did a search of my emails for that word. It appears most frequently in emails from the CBA, Bar Council and Circuit. More there than in spam from mp3 online retailers. That’s impressive.

    But these emails about listening go back to the first month of my Gmail account. That’s around Carter era. A bit earlier, in fact.

    Our Leader, MMQC, was required to appear on television over the weekend to defend a member of profession and our profession itself. No mention of the disgusting manner in which that barrister was hounded all the way from Court to her Chambers.

    Our profession acted with the dignity and ethics for which it was one famous.

    What I thought watching our Leader was: she really is very good. Likeable. Measured. Genuine. Tough. No doubt the very things that took her to the top in the first place.

    I then wondered why somebody like that isn’t out there calling for everybody out. Using the fact that the Beeb and the public know who she is for now.

    But the listening continues. As it always has. They have even come for the silks now. So busy listening but they never heard them coming.

    • Problem in the past had been no matter how much listening, there was maybe not much paying attention.
      The whole point of the twitter and blog campaign has been to encourage responses from all levels of practice, in a medium where everyone can see and respond to it. Which you just have.
      Blog has had about 3,500 views in just under two weeks.
      70 or so responses from individuals, which themselves inspire further comment.
      So please don’t knock the fact that we say we are listening. We ARE, but we are acting on what we hear, and encouraging others to do the same.

      • Please do not take it as knocking. You know I have been banging this drum with the best of them. Northpod Law was like a broken record last year with the amount we discussed this.

        The thing is that nobody will yet tell us what is coming next. We have all listened. We have all voiced our anger and frustration. What will it take to reach critical mass and who will pronounce it so?

        I’m sure you will take those questions in the spirit in which they are intended.

  3. What option is left? Every day brings new attacks on the system and on us (and our sister profession). We have behaved over the last 20 years with integrity in the face of incessant assaults on the system that is (was?) the model that all democracies admired. It has been eroded, defiled and brought to its knees. Has there been one substantial improvement in the myriad changes brought in by recent governments? Be it cell staff / transport, be it interpreters, be it fees, the list is endless. But end there must be. I quite like this “job” and would like to continue doing it a while longer….. So to the battlements. What are we if not advocates? What are we here for if not to persuade? So fight the Govt and persuade the rest! No one particularly likes the Coalition – so now is the time. Strike while the iron is hot, strike while we still can, strike……

  4. We have no choice but to take direct action now. Not just in our own interests but to protect the beloved Criminal Justice System that we all proudly, came into this profession to be part of.

  5. Pingback: Michael Turner on direct action and a united Bar

  6. Excellent article Dan. It’s about time a profession who – day in, day out – stand up for those who have no voice (often against the odds), yet are scared to stand up for ourselves. The time must be now. Direct action is the only card we’ve got left, and I say let’s play it.

    Reply ↓

  7. Joined up action with all in the criminal justice system! All around us we see too many cuts, nonsensical changes and privatisation. Unless we do something soon an important public service will be all but destroyed.

  8. We the willing, governed by the unknowing, have been doing the impossible for the ungrateful for so long and for so little that we are now qualified to do anything for nothing. This isn’t about self interest, it is about the survival of the criminal justice system and if we don’t take action to defend it who will?

  9. There is no legitimate basis or coherent argument for the phased introduction of QASA. It is quite obviously a cynical ploy to divide and rule. We must not allow that to happen. There must be complete unity between both the bar and our fellow solicitors on this issue. the time has come my friends.

  10. A simultaneous week’s holiday by the whole criminal bar would be a useful starting point. If that didn’t work, we should ratchet up the pressure. One out, all out.

  11. A comment from a Criminal Law Solicitor. Solicitors object to QASA but in part for different reasons from the bar. We must all unite in defeating it. On plea only advocates the bar will score an own goal if it were to get it dropped from QASA. In my firm we have 7 HCAs. 3 do trials 4 can be described as POA’s. What will happen if the only way the POA’s can continue to do their pleas is by doing trials to get accredited? Answer, in my firm at least, the 4 POA’s will be forced to do trials.

    Is that what the bar wants? Think about it for a moment.

    Just one point on OCOF. There is no pressure from Solicitors firms to implement OCOF. I understand entirely why it worries the bar but there is no agitation from us to implement this.

    My comments above are in a spirit of solidarity. We need a strong independent bar but please be careful what you wish for. QASA needs to be stopped not modified.

    Andrew Bishop

  12. Excellent work by MTQC and the CBA. If you disagree with QASA, put presssure on the Bar Council to oppose it. At the moment it is cooperating with QASA.

  13. I have recently seen a commercial at the cinema starring Simon Callow and very deftly explaining why human rights are important for all. Our public image needs to be promoted by making the ordinary citizen reflect on what could happen if she/he was accused of a crime and how disastrous it would be if the state prosecuted and Tesco’s or Eddie Stobart defended. We have many non legal supporters-Martin Shaw springs to mind;could we not engage their talents in getting the message across?

  14. Many Criminal Sets are having to increase rents at a time when income is year on year reducing for equivalent work. Most of the junior Bar are just about getting by or having to borrow money.
    Solicitors firms are faced with severe cuts so have had to take on advocacy that most don’t want to do. As a branch of the profession we are at a turning point. I believe that we should do anything possible to preserve the independent profession that an adversarial system needs to protect the interests of those who could not be expected to fight within the system alone.
    The whole Bar needs to look to the future of the profession not simply short term personal interest.
    I would like to see not only real drive to ensure an effective independent criminal Bar but a joint approach with solicitors. Do not let the classic approach of ‘divide and rule’ bring about the destruction of a proper publicly funded criminal system that we were once very proud of.

  15. It is really now or never. It seems to me we must support each other regardless of circuit or set. There can be no divide and rule. We also need to counteract the “fat cat” or equally ill informed “they’re all rich and from public schools anyway” view that the public have thanks to our collective poor media profile. The public need to see that cuts to funding doesn’t just impact on the quality of representation for clients, but also the aspirations of the next generation. We have little chance of continuing to attract those from less well off economic backgrounds if the fees they will earn mean that they will still be paying of their student loans and bank loans taken to fund the bar course well into their late 30’s

    • Errrr, you could try talking to your H of C! Huge support from the junior bar, and the silks are now waking up too it seems. This blog has had over 1200 views in just over two days. If the support continues to grow at this rate, then we are in a very strong position. Implementation of first roll out of QASA is 30th September, on Midland and Western Circuits.

      We have plans!

  16. A good post. Surely it’s now or never? If we don’t unite we die. Simple as that. The impact on the justice system in this country would be catastrophic.

  17. Agree with every word and so I suspect will pretty much every hard-working publicly funded criminal practitioner. Not only were the Bar successful as far as confiscation was concerned but also in not co-operating with the ill-fated VHCC panel. Aux armes!

  18. I a not a barrister yet. I did get a law degree and have started my LLM (in Oz, so please forgive me if my thought do not completely apply to the UK situation). I feel that part of this is because barristers fight alone. Even when they are in a chambers. A barrister is a corporation of one. What if next to the inn’s a new house comes. Not in stead of, but in addition for those on the criminal bar? A house of resource that would also give unity as well as a resource of legal aid for criminal cases. If would also be a great place for mentoring and aid to new additions. Added to this a barrister doing any pro bono might not lose too much revenue as a case stretches through time.

  19. Sounds like a great rallying call but can you really rely on your Bar to tow the line? I am a Barrister in Northern Ireland. When the Solicitors here took direct action our Bar supported them. A few non-criminal Solicitors broke ranks and were assisted to an appalling degree by members of the Bar of England and Wales who swooped in and took the very briefs turned down by the local practitioners. It was this which ultimately killed any meaningful effect the action may have had. Similarly a couple of years ago when our Bar refused to take VHCC cases due to cuts, the very briefs were taken by English Barristers thus defeating the effect of the action. With this in mind can you really rely on your own members?

    • Rory. We are very conscious of what has gone before. In particular we urgently need to support the Midland and Western Circuits if #QASA goes ahead. See “Why are We Here?” It’s part of a deliberate government plan to Divide and Rule. The Bar had GOT to realise that by not supporting others, they are signing their own dole queue application. Thank you for posting the view from NI. It is another salutary lesson to all.

  20. I’m the author of the above post and must say I’m really pleased at the positive support for direct action that have been received. It gives me great hope.

    I also agree with Patrick (and implicit in the other posts) that the issues of fees need to be addressed as well. The point raised by notabarrister is also important – we will need to have a coherent and agreed position.

    But a big thank you to the CBA for listening to barristers and getting the ball rolling! As someone who has often been critical of the CBA (and Bar Council) it is good to see this.

  21. Completely agree that direct action is the only way forward. The government lose no votes in slashing legal aid and so it stands to reason that the only thing that will work is refusing to play ball. They can’t introduce QASA if everyone refuses to sign up to it. They can’t continue to slash the already lamentable fees if no one will go to court for them. This needs to be done as a matter of urgency.

  22. Thanks Richard.
    Grayling’s recent media forays have demonstrated just how disingenuous he is prepared to be. (See most recent CBA weekly email.) Daily Mirror has already published a more realistic article, based on an interview with MTQC. Grayling was extremely miffed by it.
    We have the merit of right on our side. If media can see a new angle then they may well go for it.

  23. “Won’t this be counter-productive? The media will eat us alive.”
    Probably the most successful trade union leader of modern times is Bob Crow. Look at the salaries that LU drivers are on. Does he worry about his media profile? I don’t think so. He gets on with representing his members and does so brilliantly. This is about our livelihoods, not our media profile.

  24. Thank you Richard. You’ve hit the nail on the head. Dan Bunting’s Post, above, is exactly what we need to hear and from all levels. Don’t knock all the leaders. MTQC is doing a great job picking up where Max Hill left off.

    But we DO agree that the voice of the junior Bar needs to be heard. that is why we have set up this blog. As you can see from this morning’s responses, and over 400 views in just over a day, there is strong support which needs to be encouraged.

  25. To my mind the CBA and the CLSA must come up with a counter proposal to what is proposed in QASQ. It’s not good enough to simply say I don’t want that, you have to say categorically what you want. If you what you want has been agreed with the other criminal advocacy association it will carry much more weight.

    I am completely in favour of some form of action but let it be focused on achieving a viable solution.

  26. It would be nice if our leaders came out and said it. The ordinary member of the Bar has asked for leadership on these issues for at least 5 years. Previous calls for action before nearly all had been lost were at best paid lip service. Some sets actively profited from previous action eroding trust massively. So lets hear our Leadership say what we should do and when and then we’ll find out where everybody stands once and for all

  27. I agree, and what’s more I think that it is barristers like our colleague who wrote the piece above that ought to speak for the profession rather than the usual ‘leaders’ of the profession. The MoJ don’t get to hear our voices, only the points translated into real politik by the silks. This may be one way in which we can dispell media myth about fat cat legal aid barristers.

  28. I entirely agree. There will always be potential pitfalls in taking any meaningful action but, sadly, taking meaningful action is now exactly what we all need to do. Dutiful compliance isn’t going to be enough if we want the independent Bar to survive.

  29. Something has to be done but it is vital that as a profession we all act together. Acting in our own self-interest as individuals will only be damaging further down the line. I see little option other than direct action. Luckily we’re a profession of stubborn people who like the sound of our own voices!

  30. Thanks Ben. This blog, and the Twitter account is part of the “Active Canvassing” Professional PR does not come cheap, but all offers of help are much appreciated.
    What we really need is a realisation amongst individual practitioners that they CAN make a difference even now, by standing up to be counted.
    This post was from a member of the junior bar. Their voices are the most important, (See “Why We are Here” above)
    And Daily Mirror did post MTQC interview re Tesco Law and Tesco Judges. Grayling was NOT pleased!

    • The idea of PR doesn’t bother me that much. Let the papers say what they like and people think what they like. Who honestly cares? The Government will realise that they have to compromise when the courts grind to a halt and at that point they will give way.

      People will always think that the Bar is stuffed full of fat-cat lawyers. No amount of PR is going to change that so why waste time and money trying to make people like the Bar?

      When solicitors withdrew their services from the courts a few years ago, the Bar refused to join in and showed up to ensure that the courts ran smoothly. Unless both branches of the profession work together you might as well forget about any sort of action.

  31. I have no doubt that the time is now. When ex-LSC staff tell a joint CLSA CBA event that the LSC and MoJ will keep going until we stand in their way, it is time. That was about 4 years ago.
    Weekend courts were defeated by joint action. The POCA fees. The NI lawyers winning some gains in their version of Carter in 2012.
    But waiting for a mandate to come to you is not enough. Active canvassing is needed and quickly.
    There is a PR battle coming. We talked with John Cooper QC about this on Northpod Law last year. There are ways and means. We must be ready to defend the Junior Bar as well as QCs. Sad that the things have truly only stepped up since Grayling threatened silks’ fees. Well, whatever it takes! The red tops actually might be interested in what has been happening. We need a PR person. A proper one. From the world of the press, not the Bar.

  32. I have the sneaking feeling that the author of this post is not alone!
    Vitally important for all those who share his view to stand up and be counted.
    The louder our voice, the more chance we have of finally being heard.
    Please submit your own comments here, or better still, spend a little while writing one of your own.
    As you can see from the first post “Why We’re Here” – we intend to publish ALL viewpoints.

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