July 4, 2022

In a remote and smelly robing room in Isleworth Crown Court there remains pinned to a wall a notice from 2007. It tells barristers to sign in on the new computer system “to avoid delays to your pay”. In the gentlemanly script of one who entered middle-age without having had to learn to type, the word “pay” has been crossed out and “fees” written in its place – an impermanent memorial to a sad little protest in a sad little room. But it points to something profound about the profession, from which flows much of its public good: barristers’ independence. This, not money, is at the heart of the ongoing Legal Aid strike.

Independence creates responsibility, and personal jeopardy. These then give rise, over time, to the good sort of institutional pride, and so to exactly the kind of “strong culture of ethics” noisily boasted of by organisations where it is so obviously absent.

Income has fallen by about 30% in 15 years. The Government rejects the Criminal Bar Association’s request for a 25% increase, and offers what it claims is 15%, but which really amounts to less. This will only apply to new work and not to the 60,000 cases in the backlog, which will take a year or two to complete. So by the time new trials are finished and paid, inflation will have annihilated the benefit.

Among the reasons given by the Government to the Chair of the Bar as to why any increase cannot be applied immediately, in line with their own report’s recommendation, is “software challenges”.

So on the surface, yes, it’s about money. Baby juniors’ income horror stories are well-known, and £50K for 50 year-olds in London — for banker hours and teacher stress — will not attract students of the first, or even the second, rank. But it would be wrong to insist that no one, or only the incompetent or wealthy, would do the job unless the money improves.

A profit-sharing corporate model could get the Government over the hump: subsidise the juniors’ income from the seniors’. Standards would fall, as there’s not much fat left on even the higher incomes, but at least no one would drown in debt while earning £10,000 a year. The real problem, though, would be the end of independence.

Barristers who work in the traditional way — that is, as members of a set of chambers, but self-employed — do not share profits. Instead, they are paid directly for the work they do. They chip in for clerks and an office — about 20% of gross income — but they do not have to chip upwards to a boss. This is of course different from the way solicitors operate: all their fees go to the partners, who then pay a proportion in salaries.

Now, profit-sharing — or labour-exploiting, if you prefer to see it that way — does not turn lawyers bent. Partners are responsible for the actions of their junior employees, and it is in a firm’s interests to maintain an ethical culture appropriate to their corporate structure. But there is something about the way things move in and around a criminal courtroom that makes them intractable to a corporate ethical culture.

Anyone who has watched a criminal trial knows it is not all action. Longeurs almost comical to the unfamiliar are commonplace: a room full of people sitting in silence for half an hour, taking turns to glance about for something that might remind them what everyone is waiting for. But the blasts of activity, when they occur, are intense, and — importantly — unobserved.

A short private conversation with a client, opponent, witness, or police officer can suddenly shift the course of a trial. Usually these exchanges are not, and cannot be, written down. Promises must be kept, yet no one else can ever be sure what was said. So how is trust maintained? The answer is, by an ethical culture based on individual responsibility, and individual reputation.

Run into a friend at court, and you will soon be discussing each other’s opponents: in particular the extent to which they can be trusted. And despite great opportunity for short-term advantage through dishonesty — or perhaps because of it — it is rare to hear of serious ethical failure. Those who do cross the line become infamous and do not prosper.

An obvious counterexample is employed advocates: they are many, and play fair. But they are still in a minority, and so their culture, the culture in which they must try to succeed, is the culture of the independent Bar. Many of them come from its ranks,  and those who do not, but who want to build the respect required for advancing their clients’ interests, must adopt the prevailing ethical norms. “My boss said so” can never be a good answer to a judge’s question.

Of all the corollaries of independence that feed this culture of integrity, perhaps the most significant is the habit of most independent advocates to both prosecute and defend. The sometimes giddying sense of “I could have been on the other side of this” helps keep temperature low and probity high. Yes, there is increasing specialisation, but the majority keeps the right culture alive. With a mainly employed Bar, however, it would disappear, and the courts would soon thrum with the tribal attitudes of mutual distrust and moral disgust that we have found so inimical to justice on social media.

There are foreign jurisdictions, of course, where integrity in criminal courts is high, and where advocates are not fully independent. But this will be thanks to their own professional culture and their own complex network of long-standing conventions. Just because they might manage without their independence does not mean we can do without ours.

And in fact, I suspect we do have something special over here, and not just in comparison with the obvious example of America. A recent Times piece on the strikes described us as an “extraordinarily kind” lot who only do the job “to help people”. Perhaps it’s the company I keep, but I wouldn’t personally put it quite as high as that. But while I may never find it difficult to tell the difference between my esteemed colleagues and, say, the volunteers at a children’s hospice, I am certain we are far more honourable than we are perceived to be — and that this has a substantial positive effect on what ultimately matters: trial outcomes.

Even putting justice aside, there is another important public good that depends on independence: efficiency. Independent counsel at court — with personal responsibility, personal jeopardy, and a personal reputation to consider — can often sort out in 15 minutes what a more corporate litigation process might take weeks to decide. That is not to suggest that the slow business of pre-trial litigation could be sped up by handing it over to barristers – on the contrary. But rather that there comes a time when they, and their independence, are required.

So why is the Government fighting? Simple short-termism and bloody-mindedness, no doubt, and because they do not believe the warnings. But also, I suspect, from the politician’s natural reluctance to pass up an opportunity to acquire power. The Bar is a small but significant national institution, whose members sometimes humiliate ministers with impunity. Wouldn’t it be nice if the Bar were weakened somewhat, made a little more biddable? Of course, destroying the independence of the legally aided Bar would not affect most Public Law practitioners, but there are not always bright lines between the two, at least not in the minds of the Government, and petty resentments are not always rational.

I personally didn’t love the cries of “All Out” on the steps of the Old Bailey last week, or the cheers when the RMT turned up in solidarity. Theirs is a very different battle. Extreme strike rhetoric — with its menacing undertone of hostility towards “scabs” — is not, in my opinion, appropriate to a walk-out of the self-employed that will leave some defendants spending extra time in custody.

Yes it is the Government’s fault, and yes we are doing this to reduce this kind of outrage in the longterm. But nevertheless, a small number of Counsel, in particularly sensitive cases, are choosing to continue with their trials, despite their support for industrial action – and they must be respected. We are a “fees” profession, and if we do not want to become a “pay” profession, we should be careful not to behave like one.

The right of barristers to strike has been much discussed, and much advised on. The conclusions are vague. But what is clear is that the barristers participating in the walk-outs — unlike teachers, train drivers, or even doctors — are risking serious professional disciplinary sanction. Strength of feeling is not an infallible guide to the merits of an argument of course, but here they do coincide. And these are actions, not words — actions that have never been taken before. I cannot see the Bar backing down.

There is a well-known handful of barristers on Twitter who over the last few years must have damaged the profession’s reputation among Government even more thoroughly than among the public at large. This is not their fight. This is the fight of the inconspicuous thousands, who can give honest advice to a client, argue fearlessly with a judge, or carve a sensible deal with an opponent, without having to factor in the career-affecting demands of a line-manager or HR department. This is a fight any Minister of Justice should be happy to lose.