Caveat Vendor - why barristers should not be forced to settle for less.

This is my response to the Bar Standards Board's consultation proposing to make it a disciplinary offence for barristers to refuse to work for less money than they have contractually agreed. Q.1: Have we adequately identified the risks to clients, the administration of justice, third parties and the wider public interest where a barrister withdraws from a case? Are there any additional impacts or any unintended consequences arising from this guidance? The administration of justice is served by cases being presented by proper advocates properly remunerated. It is a basic marker of civilisation that where the individual is unable to fund his or her own representation that the state should step in to fill the gap. The Bar Standards Board serves justice by ensuring that quality representation is available to all regardless of means. To that end it should be campaigning for the proper remuneration of barristers. Q.2: Are the additional considerations included in gC87 .1 - .7 adequate to assist a barrister in deciding whether or not they would be justified in withdrawing? A barrister, like any worker in any sphere of endeavour, should be entitled without any sanction to withdraw his services in circumstances the price agreed for his work is unilaterally reduced without agreement. No employee of the Bar Standards Board would continue to work in such circumstances. Q.3: Do you consider it proportionate to remove the automatic assumption in guidance that instructions are withdrawn if there is a fundamental change in remuneration? Does the revised guidance achieve the right balance between the interests of the barrister and of clients, witnesses and the interests of justice? If not what safeguards would you propose to protect the wider public interest? No and no. Q.4: Are there any further matters the BSB should take into account that are relevant to this guidance? The BSB does not explain in this document how it proposes to safeguard standards at the Bar if barristers are unable to make a proper living performing the essential work they do in administering the justice system.

How much for the judge?

One of the best but also the very worst traits often found in British people is a tendency to presume the worst of life.  As a positive this is one of the factors that has historically militated against the totalitarian ambitions of megalomaniacs from taking root here.  The necessary grandeur of vision required of dictators just doesn’t chime with the average Brit’s perception of what this country is like: a place where ‘leaves on the line’ stop the trains from running to time.  As a negative we had to endure interminable doom laden prognostications about what a dire cock up the Olympics would be only to be pleasantly surprised when they were a corking success.

This baleful negativity and cynicism feeds into many people’s perception of the criminal justice system.  It’s hopeless and when it’s not hopeless it’s corrupt.  Judges are all loony lefty liberals sending murderers to prison holiday camp on day returns with a free Xbox thrown in.  That’s if the CPS (that’s criminal protection service to you mate) can even get the bastards convicted in the first place.  And don’t get me started on those filthy paedos; hanging’s too good for the lot of them… Ad infinitum.

In the mind of these people the whole thing’s a racket: a gravy train where the judges are the conductors, the ‘parasite’ lawyers the passengers lording it up in First Class with their criminal chums while the ‘hardworking taxpayers’ are breaking their backs shovelling coal in the engine room to keep the whole thing going.

This dismal narrative is only interrupted occasionally when some hapless Brit gets busted trying to augment their holiday money by bringing a suitcase back for a ‘friend’ from naughtyland when suddenly PC Johnnie Foreigner and his heartless sidekick are obviously trying to ‘fit up’ innocent Amanda from Sunderland.  Terrible tales about these foreign prisons are splashed all over the newspapers conjuring images of places so hellish that suddenly HMP Pentonville sounds like the Ritz.

As ever the truth is much more boring and unsensational but that does not sell copy.  However, in my view, there is a serious point at stake.  If the general perception is that the criminal justice system is broken and failed now people will get one hell of a surprise in 20 years’ time.  In fact the vast majority of those working within it are doing their best, often in very trying circumstances with ever decreasing budgets, to achieve justice.  Fair hearings where all the evidence is presented and it is all tested to the best skill of the advocates instructed in the case are still the rule rather than the exception.

Where I am especially quick to take up the gauntlet is when casual assertions are made that the judiciary are dishonest or corrupt.  Britons born and bred do not have a clue what judicial corruption looks like.  I challenge you to recall the last time you read an article or heard a report of an English judge caught taking a bribe or a bung.  Obviously I am not ingenuous enough to assert it has never happened but it is worth reflecting for a moment that among all the institutional scandals of the last 20 years: police; politicians; social workers; even the NHS you will not find the judiciary named.

There are mad judges, there are bad judges, ill tempered, peremptory and idle but show me the judge who has taken an envelope full of Fifties and you will not be showing me an English judge.  When I worked on capital appeals in Louisiana one of the cases I was assisting with concerned a man convicted of contracting his wife’s murder to claim on life insurance.  The prosecutor in that case was concurrently representing the deceased’s family in their claim against the insurance company apparently unconcerned about any conflict of interest.  He went on to become a judge and ended up being imprisoned for accepting bungs following the aptly named Operation Wrinkled Gown.

None of this means we should pretend to ourselves that the English as a people are in any way intrinsically more honest than their Continental cousins or friends across the Atlantic.  Indeed there are some clear causes for the general incorruptibility of the English judiciary and they have nothing to do with national character.

It is extremely unusual to meet an English judge under the age of 40 and there are not in fact many of them under 50.  If a candidate for the Bench is a bad apple the likelihood is that a dishonest inclination will have been exposed by decades of practice surrounded by skilled peers swift to recognise and leap on wrongdoing.  With the transparency and rigour demanded by the Judicial Appointments Commission there is now in place a structured mechanism to test integrity during the application process.  The collegiality of the Bar also means that the actions of any judge rash enough to be inclined to dishonesty would be swiftly known about in all corners of the land.

The truly prosaic explanation though for the integrity of the judiciary is money.  Judges are properly paid and generously pensioned.  This not only accords with the dignity of their office and the difficulty of their roles but it keeps them on the straight and narrow.  Though hardly on footballers’ wages a bribe to an English judge would have to be of a very significant size indeed to balance against the risk of discovery, disgrace, prosecution and prison.  Furthermore English judges have security of tenure against political interference and this includes the threat of democratic eviction from their chambers.

One of the most alarming and little acknowledged developments under this government has been the creation of elected Police & Crime Commissioners.  Extending the ambit of the franchise to the courtroom would be nothing short of catastrophic for the integrity of judges and justice in this country.  Any judge who knows that the whim of the electorate could see him turfed off the bench in a few short years is hugely incentivised to curry political favour in return for financial kickbacks.

This brings me, inevitably, to the future.  Judges are made not born and even to this day the vast majority of them are made at the Bar.  Some criticise the narrowness of the professional background of the judiciary but it hardly needs saying that judges need to know the law and perforce, therefore, are recruited from the legal professions.

If barristers are not properly paid they will become worse and fewer in number.  This in turn will reduce the depth of the talent pool from which judges are recruited.  Worse judges will make worse decisions and, worst of all, may be more tempted to top up their salaries by offering justice under the Bench to the highest bidder.  Save Legal Aid and you save the judges, save the judges and you save justice.