I have resolutely hated being 'on strike' and I have absolutely no doubt that is true for the vast majority of criminal barristers. The Bar is not a job it is a vocation and there is a reason that barristers are 'called to the Bar' when they come into being. A barrister going on strike is in some respects like a priest going on strike; it conflicts fundamentally with their purpose, ethos and instinct.
If I wanted to be rich I would have practised commercial law or gone into financial services. I do not derive my meaning in life from money but from human connection, human interest and human justice. However, I just like every other criminal barrister have to make a living from what I do, hence the action that has been ongoing for many weeks now and appears finally to be reaching a denouement.
In some respects the clarity and unity of purpose that engendered the action was much easier to maintain when, reprehensibly in my opinion, the previous Lord Chancellor simply refused to engage with the leadership of the Criminal Bar in any way. The entire Criminal Justice System has drifted ever closer to the rocks as a consequence of that obduracy.
That is now the past. The present is that every individual barrister has to make a choice. Accept the MoJ's 'offer' or not. It is a yes/no ballot, it is not a checklist exercise. The CBA does not decide on our behalf, chambers do not decide on our behalf. Every one of us is free and must be free to make that decision.
And it is not an easy decision and anyone that pretends otherwise is fooling themselves. Is this is as good as it's going to get? Will the door be slammed in our face and will be sent away like Oliver begging for more gruel? How much longer can we as individuals afford to be out of court? Will the patience of the judiciary give out? Will we be overtaken by austerity? Will the Government collapse (again)?
All I know is that I never want to go on strike again and I never want to feel like I need to go on strike again and I am anxious that this proposal leaves open just that possibility. Criminal barristers serve the public but we are not public servants and we enjoy none of the protections that publicly employed people usually expect. No pensions, no sick pay, no holiday pay, no paid parental leave. And most of all no salary.
Our self-employed status has left us almost uniquely exposed when it comes to our incomes matching inflation and real terms cost of living pressures. Like all self-employed people we are free to walk away at any time and the grim reality is that is what criminal barristers have been doing in droves over the last 10-15 years. The Criminal Bar's leadership is constituted of barristers who give up their vanishingly little spare time to serve the interests of the Criminal Bar. They are not permanently positioned and have the unenviable task of speaking on behalf of a profession of the self-employed.
Accordingly negotiations with the Government on fees do not occur on a statutory footing, they do not occur on an annual basis, the Government is entitled to and usually does ignore requests for more funding until, calamitously, a crisis point is reached and action is taken. That action does not serve the Government, it does not serve us and it certainly does not serve those caught up in the Criminal Justice System but it is the only meaningful manifestation of our desperation.
The Institute for Government has produced an extremely helpful explainer on public pay review:
https://www.instituteforgovernment.org.uk/explainers/public-sector-pay
It has absolutely no application to the Criminal Bar. We are paid fees per case not a salary per month. We enjoy no annual review of those fees. If the Criminal Bar is to endure let alone thrive the guaranteed establishment of a body that replicates those that exist for so many areas of public employment, not least of all the judiciary, is an absolute pre-requisite for any resolution of the dispute between the Criminal Bar and the Government as far as I'm concerned. The benefit of a percentage increase in fees today will be rendered absolutely worthless if in 5 or 10 years exactly the same fee will be payable. That is a hopeless incentive for me to remain at the Criminal Bar and it will be an absolute deterrent to newcomers and those considering the profession as a career.
We have been provided with proposed Terms of Reference for a Criminal Legal Aid Advisory Board which, in principle, is exactly the sort of body that should prevent Criminal barristers from ever striking again. However I am very concerned about two issues. The first is its proposed membership and secondly is the degree to which the Government will need to take account of its recommendations. If the board members are unpaid or unremunerated in any way there will be real difficulty in securing meaningful long term engagement from the Bar in circumstances where this will be another free call on the time and energy of barristers who have little of either. Furthermore, if there is no meaningful commitment by the Ministry of Justice to follow its proposals then it will be no more than a talking shop.
For me more than any other part of the deal this is what really counts and I'm still weighing up whether what is proposed provides the reassurance I'm looking for.
