'Just a name on the door' - Why Justice does not wear a dress.

1, 2, 3, 3 and 3.  If you know what those numbers mean you know your Law or, more specifically, your Courts:  you are also probably a feminist.  These are the numbers of women in the Supreme Courts of the United Kingdom, New Zealand, the United States, Australia and Canada.  In overall number terms that is: UK 1 of 12; NZ 2 of 6; USA 3 of 9; AUS 3 of 7; and CAN 3 of 9.  Lest the message is unclear every other of these Common Law jurisdictions has at least 30% of its final court of appeal made up of women.  Australia comes closest to parity at 43% and Canada and New Zealand both have women as their Chief Justices.

We have one.  Or 8.3%.  Or one woman and an entire football team of men.  I don’t know how much Baroness Brenda Hale knows about cricket but it’s almost certainly a hell of a lot more than she knew before she became a judge.  But before you feel any awkwardness about this don’t worry she’s the Deputy President.  So that’s alright then…

If you are a young male barrister, which I am (just), you will have come to the Bar surrounded by women having left a university surrounded by women.  I did pupillage at QEB Hollis Whiteman; of the tenant barristers there of my Call (2004) and below 7 are women and 10 men.  I then spent a year at 3 Raymond Buildings 7 are women and 4 men.  In my chambers at 9 Bedford Row 11 are women and 8 are men.

The uninformed might ask what the problem is.  Just give it time and that truly grim statistic will be consigned to history.  But time is exactly what we don’t have.  If you asked the woman (or man) in the street to think of a judge, any judge, £1,000 says they will think of an old white man.  That is because it is not just in the Supreme Court where gender parity seems as remote as Narnia.  7 of 38 Lords Justice of Appeal are women or 18%.  None of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division, the Chancellor of the High Court, the Recorder of London or the Common Serjeant of London are women OR EVER HAVE BEEN.  With the one shining exception of Dame Elizabeth Butler-Sloss President of the Family Division (1999-2005) because, of course, women are good at families.  No Lady Chancellors, no Lady Chief Justices and no Mistresses of the Rolls since 1234.  Haven’t we come far?

Only last December was it announced that Alison Russell QC’s official designation as a High Court judge sitting in the Family Division would be Ms Justice Russell.  Otherwise she would have been known as Miss Justice.  Alright perhaps for a Hip Hop singer or a lesser Marvel comic super heroine but hardly commensurate with the dignity of the office of a senior judge.  However this endless litany of dismal statistics is not constructive.

A short word on why time alone will not be the great healer of centuries of gender injustice.  The Bar Standards Board has just published ‘Barristers’ Working Lives – A second biennial survey of the Bar – 2013’. (https://www.barstandardsboard.org.uk/media/1385164/barristers__working_lives_30.01.12_web.pdf )

The relevant extracts below deal with gender, retention and childcare responsibilities.  They also explain why if you look at the list of barristers’ names outside a chambers and run your finger about 1/3 up the list the chances are that any women you find will be on maternity leave, secondment, flexible working or, just that, a name on the door.  Many of them will go and never come back.

2.1.1 Gender, age and time since Call

Nearly two thirds of all barristers are men, with

women representing 37 per cent of the profession.

The age distribution of the Bar finds nine per cent

of all barristers aged under 30; 30 per cent are aged 30-

39; 31 per cent 40-49; 20 per cent 50-59; and nine per

cent are aged 60 plus. In terms of time since Call, seven

per cent of barristers are ‘The Young Bar (new entrants)’

(1-3 years’ Call); 13 per cent are ‘The Young Bar’ (4-7

years); 19 per cent are ‘Middle Juniors’ (8-12 years into

their careers); 29 per cent are ‘Senior Juniors’ (13-21

years); and 33 per cent are ‘Seniors’, 22 years or more

since they were called.

As might be expected, there is some variation in the

proportion of women between different age groups and

by year of Call. For example, among those aged under

30 women represent more than half of all barristers

(57%); reducing to 44 per cent among those aged

30-39; 35 per cent of those in their 40s; 30 per cent

among those in their 50s; and just 15 per cent of

barristers in their 60s are women. Similarly, there is

correlation between gender and time since Call,

grouped as above.

The proportion of women in the profession reduces

after approximately 13 years’ Call. There is little

difference in the numbers of women at the Bar 1-3

years, 4-7 years and 8-12 years’ Call at around 47 per

cent of all barristers at these points in their careers.

However, among those 13-21 years into their careers

the proportion of women reduces to 39 per cent and to

23 per cent among those 22 years or more into their

careers. Taking these figures together suggests that the

number of women working at the Bar is likely to result

both from generational changes and increases in the

numbers of women entering the profession; and as a

result of more women than men leaving the profession,

perhaps to take career breaks, with around 13 years

into their careers being the point at which it would

seem more women start to leave the Bar. This issue is

explored in a little more detail later in the report.

The average age of the Bar is 43.6 but among men the

average is 45.4 and women 40.5. Similarly on average

women have been qualified slightly less time at 14.6

years compared to 19.6 years among men (17.8 years

across the whole Bar).

 

2.1.3 Marital status and caring responsibilities

Two thirds of the Bar are married (64%) or in a civil

partnership (2%), a further eight per cent are divorced,

separated or widowed and 26 per cent are single.

There is a strong relationship between age group

and gender in the likelihood of barristers being single,

married or divorced/separated/widowed. Firstly, across

the whole Bar, women are twice as likely as men to be

single (38% compared to 19% of men). As one might

expect, age is also a key variable. Three quarters

(77%) of barristers in their 20s are single compared

to 35 per cent of those in their 30s; 20 per cent in

their 40s; 11 per cent in their 50s; and three per cent

of those in their 60s. However, although there is little

difference between men and women in their 20s,

among those in their 30s 42 per cent of women are

single compared to 30 per cent of men; 28 per cent in

their 40s compared to 15 per cent of men; and 18 per

cent in their 50s compared to eight per cent of men;

and 11 per cent in the 60s compared to just one per

cent of men (Figure 2.2).

It is also apparent that female barristers are more likely

to be divorced than male barristers. For example, in

their 50s and 60s 17 per cent of women are divorced

compared to just seven per cent of men.

It is also noticeable that barristers from BME

backgrounds are more likely to be single (34%

compared to 25% of white barristers) while those with

no religious affiliation are also more likely to be single

(32%). However, this is primarily a function of the fact

that more barristers from BME backgrounds are in the

younger age groups and a higher proportion of BME

barristers are women; this also explains much of the

difference in marital status by religious affiliation.

Just under a half of all barristers have dependent

children (48%). Fewer women have dependent

children (41% compared to 52% of male barristers).

By age group, just three per cent of respondents in

their 20s have dependent children and this rises to

44 per cent of those in their 30s and 68 per cent in

their 40s, then declines slightly to 55 per cent in their

50s and 18 per cent in their 60s. Barristers from BME

backgrounds are more likely to have dependent children

(54% compared to 47% of white barristers).

Respondents were also asked to indicate whether they

had ever taken any maternity/paternity leave lasting three

months or more. Overall, 13 per cent of all barristers

have had this amount of maternity/paternity leave but

again gender differences are significant (33% of women

and 2% of men). Among barristers who have dependent

children, three quarters (77%) of women and three per

cent of men have had this level of maternity/paternity

leave. Take up of longer term paternity leave remains low

at the Bar, and there has been no discernible increase in

take up among younger age groups.

On the other hand, there would seem to have been an

increase in the proportion of women at the Bar who

have taken extended maternity leave. Among women

aged under 40, 88 per cent have taken maternity leave

of three months or more at some stage in their careers,

compared to 78 per cent of women aged 40-49 and

56 per cent of women aged 50 plus. However, it is

likely that this is as much a retention issue as it is a

result of increase in take up, with more women who take

extended maternity leave subsequently leaving

the profession.

Where respondents have indicated that they have

childcare responsibilities, in 38 per cent of cases they

have children under the age of five; 39 per cent aged

5-10; 36 per cent 11-16; and in 25 per cent of cases their

children are aged 17 plus.

Respondents who have dependent children were also

asked to indicate who takes the main responsibility of

providing/organising child care. Two thirds (66%) of all

female barristers take the main responsibility for this, in

23 per cent of cases it is equally shared between them

and a partner, and in 11 per cent of cases someone else

takes the main responsibility for providing/organising

childcare. However, among men just four per cent take

the main responsibility for childcare; in 26 per cent of

cases it is equally shared; but for 70 per cent of men

someone else organises their childcare (Figure 2.3).

Among barristers aged 50 plus, more responded

indicating that childcare is equally shared (35%),

however this is mainly due to a higher proportion of

this group’s children being aged 17 plus, where there is

less requirement for a parent to be away from work to

arrange or deliver childcare. There is little difference by

ethnicity in the division of childcare responsibilities.

Just one in 11 (9%) barristers has a regular caring

responsibility for an elderly relative or other adult. Older

barristers are more likely to have these responsibilities

(15% of those aged 50 plus compared to 9% of those

in their 40s and 4% of those aged under 40). Again,

more women (11%) than men (7%) have adult caring

responsibilities, but there is little difference by ethnicity.

As well as looking at maternity/paternity leave, the

survey also asked barristers to indicate whether or not

they had taken any other form of long-term leave lasting

three months or more (e.g. long-term sick leave, career

break, study leave or leave to care for an adult relative).

Across the whole Bar, 13 per cent had taken a long-term

career break rising to 23 per cent among those who

indicated they have adult caring responsibilities and 39

per cent of those who said they have a health problem

or disability that limits their day-to-day activities.

It is also worth noting that a higher proportion (21%)

of barristers who said they were divorced, separated,

or widowed, had taken this form of career break. Also

one in five barristers (19%) who said they were mainly

responsible for childcare said they had taken a career

break (in addition to any maternity leave taken).

There was also some correlation with age, but this was more

a function of the other life experiences mentioned

previously, than any link to age per se.

What is to be done? I shall take the liberty of addressing the men of my generation who have a choice (because, of course, men have always had a choice).  You can choose to be part of the solution, an agent of progress and enlightenment or you can stand idly by, a tacit guarantor of the tedious and necrotic status quo.  Platitude and benevolent sentiment are the shields behind which men ensure nothing ever changes: ‘Good old Brenda on her soapbox again!’  I obtained a fascinating insight in April at the Junior Lawyers’ Division Conference.  I attended a session entitled: ‘Women in the law: breaking career barriers and mentoring’.  There were about 50 women in the audience and all the speakers were women one of whom said: ‘Right here is the problem with these sessions: no men come to them.’ The woman to my right was good enough to flag up the interloper in their midst and I did remark that I thought the beard might have been a giveaway but the sentiment was spot on.

So in no particular order:

1. Children – if you have them care for them at least as much if not more than their mother.  And caring does not = cash.  If you have daughters imagine the workplace you’d want them in and make it happen.
2. Paternity leave – take it, in full, and enjoin all fathers around you to do the same.
3. Clerks – make sure they do everything in their power to facilitate career breaks and resumption of practice.
4. Committees – encourage women on to them and especially to lead them.
5. Silk – encourage and help the women around you to apply.
6. Judicial office – encourage and help the women around you to apply.
7. The Inns – if you’re a Bencher put women forward for election (and if you’re a Bencher of my Call well done!)
8. Practices – in private cases there is no justification for women to be paid a lower fee than a man. Ever.  Solicitors don’t instruct women in sex cases every case.
9. Support – give it fulsomely and unconditionally.  The Bar can be a frightening and lonely place; if you support the women (and men) around you they will support you back.

And, with a great deal more circumspection, some advice for the women:

1. Keep going – do everything in your power to stay at the Bar and demand that the men in your life (clerks, heads of chambers, judges, solicitors, fathers and husbands) help make that happen.
2. Outmanning – don’t outmen the men, achieving this almost impossible task will destroy you as a woman and sends the message that the system can’t be changed only beaten at enormous personal cost.
3. Step forward – be assailed by self-doubt, we all are, but don’t be disabled by it.  If you don’t speak your voice won’t be heard.  If you don’t apply you can’t be appointed.  Your experience, your learning and your wisdom is as valuable as any man’s.  Often more so.
4. Don’t scorn other women – join the Association of Women Barristers but remember that women talking to women is just that and goes unheard by men.
5. Sons – get them with programme young and watch them like hawks.  Well thinking and well meaning young graduates will be quickly turned by the world of men and implicitly adopt its practices and expectations before you know it.
6. Lead by example – don’t expect of others what you are not prepared to do yourself.  Some of your forebears died for their principles.  Death is no longer the price of progress but courage and self-sacrifice still are.
7. You are not alone – always remember that your allies and supporters far outnumber your enemies.  Know who they are and do not hesitate to ask for and expect their support.

If you think we can’t go on like this you are right and you must do something about it.

Whither the Young Bar - a junior barrister responds to Sir Bill Jeffrey's Review

When the Ministry of Justice announced that Sir Bill Jeffrey was to produce a review of the provision of criminal defence advocacy I was intrigued.  There are many who contend in the heat of the struggle against Legal Aid cuts that the MoJ and most of all the Lord Chancellor are motivated by ideology in bringing the justice system to its knees.  The argument goes that the cuts have nothing to do with money and everything to do with control.  If this were the case the commissioning of the Jeffrey Review would seem a particularly futile act emphasising unequivocally, as it does, the virtue of independence under the current system. 

Daniel Sternberg, the vice-chairman of the Young Barristers’ Committee, and I met Sir Bill at the start of the year as part of his voyage of discovery.  He struck me as being a man of unimpeachable integrity, dispassionate and impartial as all civil servants should be.  Most importantly he was an outsider with a brief to listen, to reflect and suggest.  This he has done with care and a genuine desire to offer constructive proposals.  That his proposals do not provide a complete solution to the problems that bedevil the criminal justice system could not possibly be held against him.  In one particular regard Sir Bill was hamstrung from the start forbidden, as he was, to comment on the funding of the system.

In summary Sir Bill notes, with measured concern, the wholly different paths by which barristers and solicitor advocates end up in the Crown Court.  He highlights that a barrister will train for many months in advocacy before being eligible to appear before a Circuit Judge whereas a solicitor advocate can achieve the same with as little as 22 hours dedicated advocacy training.  He expresses surprise about the startling dearth of published research into higher criminal court advocacy and significant statistical shortcomings.  I share his anxiety on this score and I hope it is uncontroversial to suggest that the Ministry of Justice, the Bar Council and the Law Society would all benefit from fuller research than Sir Bill was able to perform with his limited brief.

Some disquiet has been expressed about partisan commentary to the Review possibly triggering tension between barristers and their solicitor colleagues.  It would be unconstructive for either side of the legal profession to seize on the Review as vindication for ill will towards the other.  Solicitors are on their feet in the Crown Court, they have been for some time and they aren’t going anywhere and barristers who dismiss them en masse are in danger of pointing out the mote in another’s eye while ignoring the beam in their own. 

That being said I have yet to see anywhere any realistic defence of the extraordinary disparity between barristers’ advocacy training and solicitors’.  It is hard to see how, in good conscience, it could be contended that an individual with a few hours of advocacy training is going to be as ready and prepared for serious criminal advocacy as someone with months of training at the hands of specialist advocates.

Accordingly I for one wholeheartedly support some sort of harmonisation of the training regimes for barristers and solicitors.  Looking down the line it is hard to see how the Inns of Court, for centuries the crucible in which junior barristers were shaped, can continue to be the standard bearers for advocacy if they ignore and refuse to admit or train increasing numbers of advocates from the solicitors’ profession.  On which point a client with a grievance against a barrister currently goes through a completely difference complaints regime than a client unhappy with a solicitor-advocate’s conduct of a case.  Having twin regulators regulating fundamentally the same activity engenders inconsistency and inconsistency of approach is the enemy of all good lawyers everywhere.

The Jeffrey Review explicitly acknowledges a profound and pervasive pessimism at the Criminal Bar and in so doing he accepts that if the Bar hopes to soldier on as per the status quo it faces a finite lifespan.  The financial pressures that deter solicitors from briefing self-employed counsel are proliferating and becoming more entrenched.  In conjunction with the recent reduction in the number of cases coming before the criminal courts a situation is being created where less and less work is being made available to criminal barristers.

It is at this juncture that one considers what alternatives Sir Bill moots.  He commends much greater certainty in the fixing of trials with the trial advocate being identified at an early stage and accommodated.  He suggests reinforcement of the client’s right to select an advocate best suited and skilled for a particular case.  These are one hopes uncontroversial suggestions.

More controversial suggestions include panels of defence advocates administered by the Legal Aid Agency replicating in some measure those held by the CPS.  The point of this reform would be to limit the number of advocates entitled to conduct defence advocacy with the intention that those advocates appointed to the panels might expect a more regular and predictable supply of work.  However difficulties caused by such a scheme are immediately apparent.  Would the scheme operate in tandem with QASA?  If so what would be the point of it?  How would advocates be appointed to it?  The CPS scheme is paper based which seems a strange way of determining a group of contractors whose main skill base is oral advocacy.  If numbers on the panels are limited that might make people even more hesitant about embarking upon a career in criminal advocacy knowing that a time might come when removal from the panel would mean overnight ruin.

The second suggestion is that barristers be enabled to contract directly with the MoJ.  This is of course not a new idea.  Progress has been very slow in this direction due to a combination of regulatory holdups and (possibly well founded) anxiety on the part of the Bar that direct contracting represents the start of the slippery slope to fusion.

It is very important that the Bar and particularly the Young Bar is prepared to think and act creatively in response to the Jeffrey Review which, while no panacea, provides plenty of food for thought.  But nothing should be tolerated that impinges on the independence of the Bar because that is the surest bulwark against injustice and wrongdoing.

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.

 

Deal or No Deal. What now?

At the CBA meeting I voted in favour of the ‘deal’.  At that moment, albeit with reservation and hesitation, I thought that was the right decision for the Young Bar.  With the benefit of hindsight I am completely ready to accept I may have been mistaken in that view.  Of one thing I am certain and that is I ought to have sought further opportunity for reflection and consultation.  The ballot now in action is a belated opportunity for that reflection and consultation to take place.  Agreements made at gunpoint are rarely fairly forged.

The way I looked at the ‘deal’ was in terms of a continuum incorporating that which was acceptable, that which was possible and that which was wishful.  It seemed to me at the time that the ‘deal’ was acceptable even if it perhaps fell short of what which was possible.   The wishful position was clear to me and that was an undertaking by the government to tear up its proposed response to the Legal Aid consultation and to reverse the cuts already implemented. 

In explaining my thinking as it was I do not seek to persuade simply to explain my thought processes and to affirm my willingness to listen to the views of those I represent, namely barristers under 10 years’ call, and take account of those others who have justice in their hearts and minds.

There were some obvious questions that came to mind at the time of making the decision: What about VHCCs? Deferment is not withdrawal? What about junior barristers? and What about the solicitors?

To a greater or lesser extent all of these questions are inter-related and I don’t need to be told that the Bar does not exist in a vacuum.  What affects solicitors affects us and, to a greater or lesser extent, vice-versa.

In order therefore starting with VHCCs.  There is no doubt in my mind that the lion’s share of the credit for the progress that has been made lies at the feet of those who walked away from VHCCs; something that they did before they had any way of knowing what the consequence of their sacrifice would be.  Reading the government’s consultation response makes it plain that their unity of action was not anticipated for a second.  The undignified efforts that have been made to find representation betray the desperation within the walls of the Ministry of Justice.  This has culminated, astonishingly, with the BSB launching a consultation seeking to discipline barristers for refusing to retain briefs following unilateral amendment to their contracts.  This consultation has nothing to do with ethics and everything to do with political interference in a supposedly independent regulator.

The reason why I voted to accept the ‘deal’ was that those barristers that considered 30% cuts to VHCCs would, I anticipated, continue to take that view and therefore the representation crisis would continue unabated until market forces dictated a climb down by the government.  I saw then and see now that those trailblazing barristers who walked away from their contracts might regard this as scant reward for their efforts but I saw the ‘deal’ as being a stepping stone to the Bar’s ultimate aim.

In answer to the deferment anxiety my view was that the cumulative effect of the Jeffrey Review; Leveson LJ’s efficiency drive and HH Rivlin QC’s criminal justice ‘think tank’ would point out savings far in excess of what AGFS cuts could provide which would obviate the need for the cuts ever to be implemented.  Furthermore summer 2015, as hardly needs stating, is beyond the next election date.

In relation to anxieties about the junior Bar I was fully aware that this was and is a very vexed concern.  The ‘no returns’ policy is hurting junior barristers; of that there is no question.  However I also acknowledge the considerable force in the argument that with solicitors’ firms reduced in number the amount of work available to junior barristers might diminish very dramatically.  Set against this I had to weigh up a tangible offer that would allow junior criminal barristers to return to full work now.  Heroic sentiments regarding the virtue of death in battle over long term strangulation run the risk of being just that.  The young Bar is my constituency and I count myself among its number: its fate is mine also.

In weighing up what was the right course for the young Bar I had to consider what the response of solicitors would be.  In candour I had anticipated anger.  However I also had a hope which seems to be coming to fruition.  There are many actors intimately involved in the proper functioning of the Criminal Justice System.  Barristers are perhaps the more high profile part of the CJS but solicitors are the source of almost all of our work and are there at the genesis of almost every criminal case.  Solicitors have it as much in their power to bring the government to the negotiating table as the Bar does.

Whenever criminal Legal Aid is subject to negotiation the phrase ‘Divide and Rule’ is not far behind.  However the tactics of 19^th century warfare and diplomacy are far behind us.  Modern battles are fought by guerrillas and in coming to an agreement with barristers only the most short-sighted minister would assume solicitors and, for that matter, probation officers would fall into line.  It seemed to me that the Bar could accept the government’s concession and offer what support it could to solicitors seeking to achieve the same through their own actions.

I was asked to cast a vote in my capacity as a member of the CBA executive.  That is not to say that I don’t have common cause with solicitors and their aims but before adopting them as my own I must understand them and share them.  I don’t support the proliferation of in-house advocacy or the de facto delimiting of client choice of advocate to employees of a firm.  I certainly don’t acknowledge any virtue in or justification for the presence of ‘plea only advocates’ in the Crown Court.

This brings me to the question of whether the wishful can also be the possible and if so how it can be achieved.  Concerted action by solicitors forces concerted action by the Bar because if the solicitors are not briefing cases then barristers are not working.  In that respect I regarded the ‘deal’ as being but one early step in an incremental approach to achieving the aims of all actors within the CJS.  A gradual climb down seemed to me to be more realistic than a forced volte-face by the government on its entire programme.

It would appear that in the turbulent aftermath of the CBA’s announcement that solicitors have been galvanised into taking the initiative.  Though we all strive for justice it would be naïve to pretend that we do not have different agendas and motives, sometimes they are best achieved through common action and sometimes by allowing others to lead the way.

As I have already said I welcome this ballot; I wish I had the courage and presence of mind at the time to demand it but never has the adage better late than never been called to mind.  Unprecedented threats to justice demand hitherto unknown levels of transparency and candour.  Direct democracy is unwieldy and unworkable but when treaties are being signed everyone should be entitled to know.

These are my reasons for voting and thinking in the way that I did.  Only pride would prevent me from admitting that I may have been mistaken and I urge young barristers or anyone else who cares for justice to tell me if I was: max.hardy@9bedfordrow.co.uk