An Appeal to the Lord Chancellor

It is a marker of privilege to have the opportunity to reflect upon why it is you do what you do. And by that I mean literally how you earn your living. The vast majority of the world's population have little or no say or choice in the matter; they do what they must to feed, heat and shelter themselves and their family. If, however, you are granted that privilege, if you have a choice, it is often not an easy choice. What is your motivator - money, meaning, travel, flexibility, development, connection?

In the main we don't spend much time reflecting upon the motivation of others for doing what they do. That's a matter for them. The glaring exception to that general rule is politicians. Politicians spend their entire lives having their motivations questioned, doubted and scorned. So much so that starting with an assumption that politicians act in good faith and in accordance with their conscience seems the outlook of a child or a lunatic. I can only begin to imagine how wearing and depressing being the object of such second guessing must be.

Being at the receiving end of that torrent of cynicism must make it very difficult for politicians to avoid sinking into the quagmire themselves. Such musings lead me to The Rt Hon Dominic Raab MP, Deputy Prime Minister, Lord Chancellor, and Secretary of State for Justice since 15 September 2021 and Conservative MP for Esher and Walton since May 2010. What motivates this man of many jobs? What gets him out of bed in the morning?

If his proposed revamp of the Bill of Rights is anything to go by it would seem that the preservation of jury trial is one such thing. A totemic cornerstone of Britain and British values. How then does one reconcile that avowed aim with the reality on the ground in the criminal courts. It's easy to forget that Mr Raab has only been in post since last September. Or should that be posts because, as his job titles suggest, he is a very busy man. Now is not the time to query whether the Lord Chancellor and the Secretary of State for Justice should be the same person nor whether being the Deputy Prime Minister is more than enough of a job in itself.

It is, however, the time to query and perhaps try and predict what the Lord Chancellor (as a barrister my preferred of his job titles) is going to do about the crisis in the criminal courts. And believe me they are in crisis. A backlog running to 60,000 cases in the Crown Court is a symptom not of a system sclerotic but of a system shattered. Contrary to what you might hope or believe or assume we do not currently have a functioning criminal justice system in this country we are pretending at one and barristers have, I regret to say, been participants in that pretence.

In 2014 we striked (struck?). In 2014 I was also chair of the Young Barristers' Committee which gave me a ringside view of Bar politics coming into direct conflict with Politics politics. It will not surprise you to hear that behind the public pronouncements there was substantial and ongoing dialogue between the CBA, the Bar Council, the Circuit leaders, the solicitors' profession, the judiciary and the MOJ. Mercifully, for my sanity and any vestige of what passes now for my family life, I am after a decade or so on the Bar Council and Criminal Bar Association well out of it. I remain, as every barrister should be, endlessly admiring of those that have entered the fray on our behalf.

That means I have no idea now what dialogue is taking place off stage. However I have a very disquieting sense that it may be much less than it should be. Many, if not most criminal barristers are nonplussed at the apparent lack of harmony between the pronouncements of the CBA and the Bar Council. As our trade union the Bar Council, in my personal opinion at least, needs to be much, much more vocal in spelling out to the government what the consequences of a collapsing criminal Bar will be for society.

But back to the LC. He has publicly regretted the action taken by criminal barristers. There is certainly no word of acknowledgement that any of our concerns are well founded, still less has there been a public offer to sit down with the leaders of the profession to discuss those concerns. I am going to assume that he acts in good faith. That his reason for being an MP is that he wants to do right by his constituents and by society more widely. He owes a duty to taxpayers, of course, to spend their money prudently and without waste. Insofar as he is responsible for the administration of the criminal justice system that appropriately entails getting the best value for a functioning system that he can.

But the system is not functioning and it has not been for some years. Even before any action commenced trials were being listed with no advocate available to prosecute them or sometimes defend them. A few years ago such a situation would have been absolutely inconceivable. Defendants in custody now spend months beyond what used to be the statutory time limit for pre-trial detention awaiting trial. Trial listings are now an unholy amalgamation of a tombola and the hokey-cokey. The ever shrinking court estate is constituted of collapsing, stained, shoddy and frankly disgraceful buildings.

That is why I describe it as pretending at a system and barristers as (however creditably) aiding and abetting that pretence. If you're not a participant in that system all of this will have been happening out of your sight. But ask yourself this - When did you last get to have a face to face GP appointment? Something seismic has happened in the provision of family health services and that will be obvious to you. That same something is happening to the criminal justice system and barristers are desperately trying to stop it.

Many criminal barristers have already or will vote with their feet. And that is to just stop. Whatever drew them to the Bar is no answer to the implacable financial reality of not making a living. Of course new recruits still come. The Bar, justice, jury advocacy still appeals and always will. But when barristers leave in droves before 10 years call there is no progression through the ranks, no development, no emerging cadre of skilled and experience advocates to prosecute and defend properly the murderers, rapists and terrorists of 10 years' time.

The Lord Chancellor is perhaps not especially concerned about 10 years time. He should however be very concerned about right now because it is right now that criminal barristers are saying just stop. Stop pretending we are making a living. Stop saying the system is functioning. Stop pretending that the Rule of Law is not in serious jeopardy.

I'm going to assume (perhaps in naivety) that Mr Raab is in fact in good faith and that the scale of the crisis he is presiding over isn't wholly understood by him because he is still a relative newcomer to the justice brief. That's why I'm writing this: to make it clear. If he inclines to the view that the outrage of criminal barristers is confected or not in earnest it is vital that he be disabused of that.

The criminal Bar is genuinely livid at what has happened to the profession we love and the system we struggle to uphold. Almost all of us endured a pandemic without any financial support of any description, an unexpected and, for must of us, an unwanted free sabbatical. I queried at the time what the contingency planning was for the criminal courts for disruption such as a pandemic and to this day I have never seen an answer to that question. There is definitely no contingency plan for no criminal Bar. If this action sets in the pretending will have to stop because the courts will literally have stopped.

It is always unwise to try and negotiate with someone with nothing to lose. It's possible that the threat of regulatory sanction or costs figures in the government's calculations as to how criminal barristers will be brought to heel. But if a dog is kicked repeatedly in the head eventually it just wants to be put out of its misery. If a job becomes intolerable and an outside force tells you that you may no longer tolerate it that is a blessed release not a punishment.

So as an appeal to the Lord Chancellor. You make the law in service to democracy. We practise the law in service to justice. Our common aim is service to society. Your office is deserving of our respect and our profession is deserving of yours. Let's do what politicians and barristers alike do best - speak.