Not everyone believes that direct action is the way forward in fighting the cuts the MoJ seem intent on imposing. Nigel Pascoe QC has consistently argued that direct action cannot be resorted to. You can read his observations at his blog http://nigelpascoeblog.wordpress.com/2014/02/12 . Ian West, barrister at Fountain Chambers, Middlesbrough who recently spoke at the One Bar One Voice event in London argues that direct action is what must happen. What follows was originally posted as a response to Nigel’s blog.
I am one of those ‘Young Turks’ (more a middle-aged Turk, actually) who espouses direct action. Why? Have I no consideration for my clients? Of course I do. On 6th January, I was defending a man charged with witness intimidation. I told the lay and professional client, and the court, that I wouldn’t be there until 2.00pm. In the event, the court, on the Friday, simply accepted the fait accompli, and listed the case at 2.00pm. Had it not done so, I was confident that the judge, when the case was called on at 10.30am, would have adjourned until 2.00pm to start when I got there. I was as confident as I could be that no sane judge (and at Teesside CC the judges are all sane) would have attempted to start the trial without me. (Had that happened, my plan was to join the trial at 2.00pm, do my best, and appeal if the client was convicted.)
You are probably appalled that I even ‘took the risk’. I am not proud of having done so, even though I knew the risk was zero. I did so, because, having been involved in criminal Barpolitics – as an elected member of Bar Council, and a member of RemCom, and the BC’s Carter Response Team, latterly as a member of the CBA Executive Committee – I have learned that there’s no negotiating with a bully. If you give a bully your dinner money on Monday, it doesn’t matter how little he asks or you give him, or what he says about that will be the end of it, you had better know that he will be back on Tuesday, and Wednesday, and every day until you punch him on the nose, and stop giving. (In fact, I learned that lesson at school, forty years ago.)
Mr Grayling is a bully. He is unlike any other Lord Chancellor there has been – certainly in my time, or ever. The position used to be reserved for eminent lawyers, and was regarded by them as a non-political appointment, and the pinnacle of a career in the law. Charlie Falconer broke that mould, but Grayling has stamped all over the pieces and swept them away. He regards the post as a stepping-stone to higher things. He cares not for the value (as opposed to the price) of the family silver of which he is the custodian. He is in charge of a small spending department, and one which has relatively little control over that spend – criminal legal aid being typical, in that it is entirely responsive to legislative, and prosecutorial,decisions. That said, Mr Grayling does not fight for his departmental spend in negotiations with the Treasury. He would rather gain political ‘brownie points’ with Gideon by giving him every budget cut he asks for, and more, in the hope of personal advancement. By way of example, the cut demanded of him by Gideon last year was £142m: http://www.lawgazette.co.uk/news/osborne-imposes-further-142m-of-cuts-on-moj/70016.article but Grayling unilaterally decided to make it £220m – a figure which has now acquired the status of holy writ, when it is nothing of the sort.
But back to the client. Of course, I am unhappy about even the possibility of leaving my client in the lurch. Every barrister is. But barristers are, though you may not like to think so, in reality no different from any other wage-labourer. I do the job I do not out of a love of my clients, or even an overwhelming sense of duty to them, but to earn a living. In that respect, I am no different to a tube train driver, a fireman, a doctor, or anyone else. Strikes hurt the service user. That’s what they are meant to do. The labourer has no other weapon but the withdrawal of his labour if he is unhappy at the price on offer. Strikes are always a matter of last resort; the ‘nuclear option’; especially for barristers. But there comes a time when that nuclear option becomes the only option. And that, I regret to say, is the position the criminal Bar faces now. Mr Grayling is not for negotiating. There is no reasoning with him. This goes against all of our instincts as lawyers. We are used to placing rational arguments before a decision-maker who has no agenda – a judge or jury – in the expectation that reason will prevail. Mr Grayling is not a judge, and it is a serious mistake to try and deal with him as if he were. He is a hard-nosed politician, who sees a desire to talk, and an unwillingness to withdraw labour, as simply weakness to be exploited.
So, much as I regret having to ‘gamble’ with my clients’ liberty, in reality I know that the judges know that it’s not their fault that I’m not there, and they are sensible enough to wait until I am there. The judges may privately fume at the inconvenience I cause them, and the client may be annoyed by the delay in dealing with his case, but there is a bigger picture here. We are embarked upon a struggle for the very survival of our profession, a profession that has endured for hundreds of years, and which serves the public interest well (and cheaply). Mr Grayling, who knows the price of everything, but the value of nothing, cannot be permitted to destroy the Crown Jewels of which he is but a temporary custodian.
If that means going on strike – and in my view, and for the reasons I have set out, it does -then that is what must happen. The clients will be inconvenienced, but no more, and in the long term, they, and the wider public, will thank us for what we are about to do.