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Barristers need to strike We're fighting for our independence, not money

The Bar: small but significant. Credit: Richard Baker/In Pictures/Getty

The Bar: small but significant. Credit: Richard Baker/In Pictures/Getty


July 4, 2022   6 mins

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.


Adam King is a criminal barrister at QEB Hollis Whiteman.

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Jeremy Bray
Jeremy Bray
2 years ago

Sadly the author fails to clearly set out the facts regarding the threat to the bar’s independence or to the level of fees. Not a particularly good piece of forensic advocacy.

Mel Shaw
Mel Shaw
2 years ago
Reply to  Jeremy Bray

Quite. Has anyone actually proposed the corporate profit sharing model he presents as such a threat? Or, is that just a straw man argument that would be given short shrift if presented in court? Also, he says the dispute is not about money, but i suspect this would over quickly if the government increased its offer from 15% to nearer the 25% they have asked for.

Michael J
Michael J
2 years ago

The criminal bar has an image problem on two fronts.
First, a lot of people wrongly think they earn bucket loads of cash just like corporate lawyers.
Second, given the laxity of what passes for justice in our criminal courts in recent times, barristers need to demonstrate that defending criminals remains a value to society.
Unfortunately, it is not work that creates a tremendous amount of public sympathy for the lawyers.

Matt M
Matt M
2 years ago
Reply to  Michael J

Their predilection for indulging in left-wing lawfare in areas like deportations of illegal immigrants or foreign criminals doesn’t exactly help their image either.

Malcolm Knott
Malcolm Knott
2 years ago

Much public sympathy, I fear, has been forfeited by the self-promoting ‘human rights barristers’ who appear to be – and I think often are – predominantly left wing and sometimes seem to embrace with enthusiasm the cause of some pretty ghastly individuals. There is no logic in this – indeed it may be positively unfair to the profession – but public opinion is not always driven by logic or fairness.

Harry Child
Harry Child
2 years ago

This raises the question in my mind, is the legal profession in this country fit for purpose and when will MP’s stop passing ever increasing amounts of legislation that we the public have to endure. Blair’s 10 years is reported to have produce 28,700 or more bits of legislation and Parliament has not let up since. How the hell are the public to have a clue what we are being expected to know under the mantra ‘ignorance of the law is no excuse’ This is of course bread & butter for the lawyers the more convoluted the law the more money they make.
The adversarial nature of court proceedings is not the most efficient way of producing justice but more a way of allowing tricky barristers to confuse judgements.

Matt M
Matt M
2 years ago

No government can capitulate to strikers. This is doubly true in times of inflation as it just opens the floodgates. All the barristers are doing – by allowing themselves to be associated with the RMT and with the Remainiac/Open-Borders Twitter set – is further blackening their reputation with the public.

Billy Bob
Billy Bob
2 years ago
Reply to  Matt M

The public are well aware that inflation is running at double digits, so why shouldn’t wages rise by at least the same rate?
Seeing as the benefits of multiple rounds of quantitative easing has predominantly gone to the wealthy with ridiculous rises in asset values such as housing and share buy backs, why is it the workers who should then carry the burden when inflation follows by accepting what is essentially a pay cut?

Matthew Powell
Matthew Powell
2 years ago
Reply to  Billy Bob

Because matching pay to inflation during a supply side shortage is inflationary.

Billy Bob
Billy Bob
2 years ago
Reply to  Matthew Powell

So rather than those at the top accepting less profit while inflation is running high, all the heavy lifting has to be done by those at the bottom by accepting pay cuts in real terms? You wonder why the young are becoming increasingly left wing, they’ve come of age after the credit crunch in which wages remained stagnant for over a decade despite large company profits, they’ve endured insecure employment through the gig economy while watching house prices and rents climb out of reach, and now they’re expected to work for less pay to bail out those that have made billions through QE

Matthew Powell
Matthew Powell
2 years ago
Reply to  Billy Bob

I don’t believe you actually understand what inflation is.

Billy Bob
Billy Bob
2 years ago
Reply to  Matthew Powell

I’m fully aware what inflation is, and if your pay rise is lower than the rate of inflation then you’ve essentially received a pay cut. Why should the workers have to bear the brunt of inflation, when it is the wealthy asset holding class that has so benefited from most of things that has caused it in the recent past?

Matthew Powell
Matthew Powell
2 years ago
Reply to  Billy Bob

If you understand what inflation is then you’d understand that increasing the wages of the largest working demographic during a supply side contraction will only increase the inflation rate, making the issue worse. Since you don’t understand this, I think it’s fair to conclude you don’t know what it is.

Matt M
Matt M
2 years ago
Reply to  Billy Bob

The public are well aware that tens of billions of taxpayer’s money was paid out to support workers, industries and public utilities throughout the pandemic. Not to mention the ultra-easy monetary policy, restrictions on repossession etc.
Everyone will have to take a hit now that the tailwinds of those policies are being felt. My (private sector) team didn’t get inflation-busting pay increases this year. Why should public sector employees get them? Surely the government’s approach of protecting the very poorest is the best use of scarce resources.

Last edited 2 years ago by Matt M
Billy Bob
Billy Bob
2 years ago
Reply to  Matt M

So pay rises that don’t are less than inflation (pay cuts in other words) are your way of protecting the poorest?

Matt M
Matt M
2 years ago
Reply to  Billy Bob

No I mean protecting the very poorest – granny in the freezing flat, family man who gets laid off etc. The rest of us will have to take a hit. The alternative is the 70s death spiral. Luckily employment and economic activity is still strong. Hopefully inflation will drop before long and we avoid a recession.

Last edited 2 years ago by Matt M
Billy Bob
Billy Bob
2 years ago
Reply to  Matt M

So once inflation is under control, I suppose the workers will receive above inflation pay rises to allow their wages to catch up with what they were before? All that wealth will trickle down I’m sure

Matt M
Matt M
2 years ago
Reply to  Billy Bob

I’m afraid not.
We will have to take the hit for this spike in the same way that we got financial support through the lockdowns.
You can’t take the furlough and then demand a pay-rise 12 months later!
If public sector workers, like those of us in business, wish to make up the difference then we must look for ways to increase productivity.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
2 years ago

This may not be a popular opinion but an independent bar is the best institution this country has. No I am not a barrister

Mel Shaw
Mel Shaw
2 years ago

Yes, but independent of what? No one is suggesting defence lawyers become an arm of government. They work for their clients even though their fees may be paid out of taxpayer funded legal aid funding. When they prosecute they are paid for by the Crown Prosecution Service. I think there are some fine distinctions being drawn here.

Arkadian X
Arkadian X
2 years ago

That was an interesting read as I know nothing of these matters. Best lines, on many levels:
“Longeurs almost comical to the unfamiliar are commonplace”

Richard Hopkins
Richard Hopkins
2 years ago

So barristers from the Criminal Bar Association have gone on strike – though conspicuously not their colleagues operating in the Family Court. I wonder why? Perhaps a windfall tax could be levied on Family Court barristers to help out their less generously paid colleagues in the Criminal Bar?

polidori redux
polidori redux
2 years ago

“We’re fighting for our independence, not money”Well maybe. My policy of always following the money has served me in good stead over the years.

Nicky Samengo-Turner
Nicky Samengo-Turner
2 years ago

If Boris and his Government have their way, we will all be ‘ convicted’ via the Star Chamber of the internet and soshul meeja, and lives as a result will be worse than prison, and it cost The Government nothing… On a less satirical note, I cannot find words to express my horror of what Conservative governments have done to the legal system, to rights, and freedoms… as magistrate and Crown courts imprison people for utterly victimless ” crimes”, and always ‘ go easy’ on policemen, even those convicted of violence.

Nicky Samengo-Turner
Nicky Samengo-Turner
2 years ago

Nothing more the corfam shod, polyester clad mason ” slisters” would love more than the obliteration of The Bar,…. so long, of course, that it’s not ” The 13″th at some intra M25 ‘ gofe club’….Anyone who has had the misfortune to encounter this breed in their role as County Court and Divorce Court ‘ District Judges’ will know what I mean….

Christopher Barclay
Christopher Barclay
2 years ago

Another article where criminal barristers fail to mention why the public is largely indifferent to their cause: the belief right or wrong that legal aid is largely for the benefit of career or habitual criminals.

jane baker
jane baker
2 years ago

Well we all need a good laugh! There is a VERY GOOD REASON the words Criminal and Lawyer fit together so well.
You’ll find out when they present the bill.
That Hollywood story,its been rehashed over and over,the idealistic lawyer who believes in the justice of your cause so works for free to further truth and justice. Its a Hollywood movie. No real actual lawyer will so much as give you 3 words of advice for free,you gotta pay.
Why do you think they swarm around migrants and petty crime like flies round a hot t**d,its where the money is,no not directly from those people,from the grants,funds,fees and God knows what else they can apply for to get paid.

polidori redux
polidori redux
2 years ago
Reply to  jane baker
polidori redux
polidori redux
2 years ago
Reply to  polidori redux

Oh dear! A downvote. Some lawyers just don’t have a sense of humour.

Roger Meadowcroft
Roger Meadowcroft
2 years ago
Reply to  jane baker

Ho hum

Last edited 2 years ago by Roger Meadowcroft