Direct Action

This is probably going to be an uncharacteristically short post. I have quite a lot to get through today (defence statement – unpaid, advice on leading counsel – unpaid, skeleton argument on abuse – unpaid). That list of work makes an important point about the work which the Bar does which never attracts any additional fee.

There is presently a debate about what form action, if any, should take. These are my brief thoughts. 

Like many others I support direct action. There should have been more in the past but we are where we are. When Des Hudson of the Law Society says that the Government does things because it can, he makes that assertion on the basis of past performance. In the past there was no real, concerted action, and so the Government could do what it liked. I believe that if we do not change that now, and make clear the manner in which the system depends on the co-operation, dedication and diligence of experienced and professional lawyers for its proper and efficient operation, the system will collapse in short order. Very few of those presently practising can afford to run businesses or maintain practices on the proposed rates, and even Des Hudson concedes that. It is inevitable that the best will no longer consider crime as an option and that will effectively kill off the future. Those who have other options will have no choice but to take them. That will effectively kill off the present.

We have a duty to those who come after us, and to society, to protect the professionalism of the system. The Government wishes to destroy it. Once it is gone it will not be recreated. We have to be brave and take direct action, unpalatable though it is, to that end.

I do not know that the young Bar can afford an all-out strike. Some may have other work they can do, but those who have already specialised will not. A total walkout risks severe hardship for those with no backing. Any strike must be accompanied with an urgent appeal for welfare funding.

I suggest a combination of partial walkout and work to rule, with assistance from Recorders and Deputy Judges.

The partial walkout shows what happens when the Bar totally withdraw but alleviates some of the problems of a protracted strike. I’d suggest one long weekend where the Bar do not work on a Friday or the following Monday, followed by a rolling series of Mondays and/or Fridays.

Recorders and Deputies should assist. It would be wrong for senior members of the profession to insulate themselves from the risks and consequences of action by simply choosing to sit. Sitting also assists the MOJ in propping up a woefully underfunded and consequently underperforming system. I agree with the call expressed elsewhere for Recorders to make it clear that they are unavailable to work. This would show that the court system depends on the Bar in many ways. Some may feel that their conscience demands resignation.

Finally the work to rule. This has a wider point of emphasising in a real and tangible way the additional work which counsel do but which is never seen or appreciated. It is taken for granted by many judges and it is destructive in real terms of family relationships, marriages, holidays and social lives. I’m sure I’m not alone in having had weeks on end where I do not see my children because I am working.

Counsel should work the designated court day and no more. No task that is not paid for should be undertaken otherwise than in the course of that day. Unpaid hearings should not be attended.

On days when the Bar is on strike there should be representative picket lines at relevant court centres. Those not on the picket line should, however, do good in other ways. I would suggest that local law centres, CABs and other such bodies (amongst the many worthwhile charities) might be pleased to benefit from the presence of some experienced barristers, willing to donate their time for the public good. Law centres and others have suffered at the hands of funding cuts too. We’re all in this together, as they say.

Timing. It must be soon. With the greatest of respect for Sir Anthony Hooper it cannot wait until the cuts come in. Better to stop it happening in the first place. If the cuts are to come in there will be firms of solicitors forced to close in advance of the date because their responsible officers will have to report the likely financial damage. If they look like they will become insolvent the SRA will have to intervene and they will close. Action then will be too late.

I hope that solicitors and solicitor advocates, as well as employed barristers like myself, will support the chosen action. We must stand together.

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22 comments

  1. Gary Woodhall

    Whatever we do it needs to have as close to an immediate effect as possible in order to protect the very junior practitioners who can ill afford a protracted period of action. I have suggested repeatedly that in addition to other forms of action we should also refuse all returns – when one considers how many cases are returned on a daily/weekly basis, this would have a profound and near immediate effect. There is no obligation to accept any return given that fees are now un-deemed and therefore such action would not be asking anyone to do anything in breach of our professional code/obligations. Such action would however cause chaos – trials aborted as no cover available when previous trials unexpectedly overrun etc

    • Stuart Duke

      What we need is a full week of not attending court . That ought to do it .
      Not a day off for a “meeting ” that has no affect and the courts just carry on regardless .
      We can treat it as a week off and do something with our families for a change . We would hardly miss the money !
      It would draw the media’s attention to our disgraceful treatment and flush Grayling out into the open .
      It would be a demonstration to Grayling of unity and that The Bar can actually “walk the walk ” and take direct action when we need to .
      It would be a reminder to the Nation of what an important and difficult job we do . What can they do , get the Army in to do the trials ?
      The Criminal Justice System is being slowly and quietly dismantled under our watch because we are allowing it to happen .
      This present Administration have demonstrated that they will not listen to reasoned argument or participate in genuine consultation .
      We need to hit them hard and hit them soon by all refusing to work for a full week at a time . The Junior Bar are so badly paid they would hardly notice the loss of income . Things are that bad !
      We must learn the lessons of the recent past where our leadership failed us and chose the path of appeasement . We have all paid very heavily for past weaknesses and failure of leadership who perhaps had personal reasons for not rocking the boat .
      There are no prize for weakness in this life . We are all trustees of this great legal system of ours and we must not allow it to be destroyed by a foolish but highly ambitious Minister for Justice !

  2. Ian Dodd

    Too many barristers?
    In March 2009 Jack Straw, then Lord Chancellor in the last Labour government, gave a speech at the LSE entitled ‘Constitutional Continuity’. In it he traced the history of the position and the future challenges the Lord Chancellor faced. Most of his speech, however, concentrated on the legal aid budget and the changes required to modernise and control it. The whole speech is worth reading as it might well have been written by either of his two, Conservative, successors.
    One of the points he made was that there were too many barristers engaged in legal aid work.
    Ken Clarke repeated the message (Legal Futures, October 11 2011) and Peter Lodder QC, then Chairman of the Bar Council, reported, after a meeting at the MoJ in October 2011, that “Although Ken Clarke praised the efforts which the Bar has made to improve access to the profession, he expressed the view that too many are trying to practise at the self-employed Bar.”
    Now, as reported in The Law Society Gazette (30 September 2013), Dominic Grieve returns to the subject; ‘legal aid cuts hurt but the Bar is just too big’.
    It is likely that all three were referring to those barristers engaged only in legal aid work and not the more specialist and, probably, less competitive, areas of advocacy. Indeed, the current Chairman of the Bar Council, Maura McGowan QC, has talked about a ‘two-tier’ profession.
    It might be worth considering, then, the size of the self-employed Bar and the number of barristers in it.
    The Bar Council reckons that there are about 12500 self-employed barristers. Of these about 400 are sole practitioners, who normally have very specialist skills, and the rest, about 12100, are in chambers. Experience shows that, at any one time, about 10% of the members of any chambers aren’t fully engaged. Maternity leave, sickness, ‘life-style’ members, etc reduce the active complement in chambers to about 10900.
    The CBA claims that it has membership of about 5000 criminal barristers which means that almost 50% of the self-employed Bar are engaged in crime work.
    If the Bar is over-manned by only 10% and, given the previous remarks, that is concentrated in the legal aid Bar then the ‘market’ can’t support about 500 criminal barristers. 20% over-manning is about 1000 and so on.
    Of course, it’s hard to establish how much over-manning there might be in a ‘market’ which is as artificial as the legal aid market. In a free market, where the price and volume of supply are governed by demand, there would be balance and, more or less, as many barristers as the work would require. In a finely tuned market there would be just enough barristers who would benefit from sufficient work to secure a good income. If that didn’t happen the market would shed numbers until equilibrium was reached. Unfortunately, self-employment, the universal democracy of chambers and the absence of any corporate endeavour within chambers all resist those market forces. Given the above, it’s a buyers’ market and will continue to be so.
    As the legal aid market works on prices fixed by the ‘client’ so the supply end of the chain is governed only by the number of barristers who want, and individually choose, to do the work at the fees available. As all the criminal cases that need a barrister have one, at the moment, then it might be assumed that the market has some sort of balance. However, not all criminal barristers have full diaries and some, it would seem, struggle to get by.
    Whilst the impending fee cuts the MoJ will be imposing might have been calculated to make the savings the Treasury require they will also have the effect, we’re told, of reducing the number of barristers willing to do the work at the new rates. Irrespective of calls for ‘direct action’ in opposition to the new fees there will always be barristers who will do the work; even at the new rates. What else can they do? Strikes won’t solve and never have solved anything.
    Perhaps it’s time for the criminal Bar to look at the problem through the other end of the telescope? If there are too many barristers working for insufficient income to support the current, traditional, chambers set up there might need to be a reduction in the number of criminal barristers and a new way to do business; much as Tooks have found out.

    • cjeyes2012

      I have to disagree with you in part. The level of fee and the disingenuous nature of the politically-motivated campaign to unjustly reduce it still further are not in the least bit connected with the number of barristers. Given that fees are paid per case the cost to the public purse would be the same whether there are 5,000 barristers or 10,000.
      I agree that one way to assist the survivors is to consider cheaper ways of working, and I recall my time in chambers as being a fairly expensive time, but I do object to my blog post relating to our political campaign being used by someone who presumably seeks to make money out of advising counsel and chambers on changing their practises, and therefore capitalises and exploits the situation we find ourselves in. I note that another partner in the business is heavily involved in work being undertaken by the Law Society and the MOJ jointly and, presumably, being paid for that too.
      I have approved this comment because I believe in the exchange of ideas and in free speech, but I find it offensive that you felt it was appropriate to comment in this way.

      • Ian Dodd

        I think you’re missing the point here. It’s a simple matter of supply and demand. If there were half as many barristers engaged in criminal legal aid work there would, theoretically, be twice as much money from the legal aid budget for each of them. The MoJ is not obliged to provide work for the Bar and the Bar has no entitlement to it.

        I hold no brief for Chris Grayling but I can see the point he was making in his letter to the Guardian yesterday when he said that many barristers prosecuted as well as defended and, probably, had other practice areas in which they could earn.

        Neither do I hold any brief for Des Hudson but, at least, he has clearly seen the future and, pragmatically and practically, engaged in a positive way with the MoJ to do the best deal for as many of his members that he could.

        Strikes don’t work. Ask Arthur Scargill. We all remember the ‘Great VHCC Strike’ of 2007 and the wild success that was. The same lack of solidarity, finger pointing about ‘strike-breaking’ and outflanking by HMG will characterise any attempt this time round. Meanwhile, solicitor HCAs will fill the void and benefit.

        Oh, I think I’ll avoid any personal comments in this, or any, reply.

    • Joseph

      I assume that when you say ‘strikes have never solved anything’ you are speaking about a very limited and specific group of strikes. If you are saying in general that strikes have never solved anything then you are making an argument which ignores the history of industrial action.

      Regarding the rest of your argument, it relies upon free market principles which are, at least partially, inappropriate when discussing the provision of legal services. Defendants in a criminal trial are not voluntary consumers, they cannot opt out nor opt in to the criminal justice system. For the system to function they must have access to lawyers who are sufficiently capable, knowledgeable and experienced to enter into an adversarial contest against a (relatively) vastly well funded state. It isn’t good enough to say ‘someone will do it’ no matter how poorly the work is funded.

      Secondly, regarding the overmanning of the profession. This would be a fine argument if the only complaint from the bar was that there is not enough work to go around. However, many of the complaints and protests come from people who do have full diaries and who will still be disastrously hurt by the cuts.

      Finally, in terms of restructuring the traditional Chambers set up. It will be very interesting to see how well Mansfield Chambers does and maybe that will provide a possible new model. However, not all the protest is coming from sets based in the Temple. Many of the most vocal protesters come from sets in the North where rent is much lower, this is clearly not a problem of barristers have overly expensive wallpaper. The argument, which comes from the MoJ, that Chambers need to cut their cloth overlooks the fact that the bar is about advocacy, it is the presentation of arguments and by extension the person making the argument in a way that makes you take them seriously. I wouldn’t need my brief to have Corinthian columns on her glasses but I also wouldn’t like her office to be above a bookies in Bracknell. My confidence would ebb.

  3. Clare Ashcroft

    Ian Dodd, you have missed the point. There is no lack of unity of the Criminal Bar on this. We all know the agenda of successive governments and I won’t repeat it here. What is different this time is the all-encompassing attack upon a system that Grayling purports is the best in the world; but only if you are a rich man in the civil courts, it would seem. Those of us who comprise the Criminal Bar are paid predominantly from Legal Aid. There are in fact very few rich men who find themselves before the courts for the most serious of offences. The compound reductions in our fees, decreased wholesale since the introduction of Graduated Fee Scheme, have achieved what you and Grayling disingenuously say is or was over-supply. There are fewer and fewer talented individuals able to make a career at the Criminal Bar and they are choosing more lucrative work. The Criminal Bar has already contracted and it will continue to do so not just because of these cuts, but because of those that have gone before. On the other hand, as the Criminal Law is constantly changing, so our work becomes ever more complex, ever more demanding and ever more stressful. It is not an attractive career prospect as it drains everything from you and gives back very little. It used to be that those of us speaking to students about a career at the Criminal Bar would be able to tell them that while we would never be rich as many of our civil colleagues are, we at least were able to make a comfortable living and the real appeal of the Criminal Bar was being involved in trials where interesting issues of law would be argued against a worthy opponent and before a judge who respected the role of Counsel.
    There is not an over-supply of Criminal Barristers at all. People are leaving the profession in droves.and it is time we spoke the truth about this, rather than to endure the relentless spin and politics involved in engaging with this administration.

  4. Ian Dodd

    I hope Chris won’t mind me using his blog for a little longer and, of course, it wasn’t my intention to offend him, or anyone else, by my remarks.

    Reading Clementi, way back in 2003, made me understand that it would come to this. Not in the stark detail we have today, of course, and not in the exact way it is unfolding. Carter (2006) et seq must, though, have awoken even the most sleepy. The need for the MoJ to save money (you might argue this) due to the unfortunate events of 2008 has only escalated it.

    I know all the arguments that you and the rest of the criminal Bar are putting. I’ve had enough late nights, often in premises licensed for the sale of alcoholic beverages, having them rehearsed for my benefit. I might, for all you know, agree with many of them.

    However, we have the facts as they are, not as we wish them to be. There will be cuts. There will, also, be an ‘afterwards’.

    My main difficulty with the Bar Council, the CBA, the Circuits and most chambers is that there is no proper planning for the afterwards. Having a ‘not a penny less’ strategy (and no Plan B) is restricting, not to say suicidal. What happens if the MoJ say, ‘ok, it’s only a 10% cut’?

    Michael Mansfield and his confreres are making virtue of a necessity. I wish them well. The successful criminal set of the future won’t look much like whatever little information we have about them; it will have evolved.

    I’m too old, experienced and thick-skinned to be hurt by Chris’s completely unfounded assertion that I seek to capitalise and
    exploit the situation the Bar now finds itself in. So, I’m happy to give my services, pro bono, to any chambers that wants to design the criminal set of the future.

    Ah, one last thing. My studies, and first hand experience, of solutions to industrial conflict led me to my conclusion that strikes never solved anything. I am prepared, though, to be swayed by quantitative, reliable and real evidence to the contrary.

    • Joseph

      Hello.

      Here are a few examples of strikes which have either been effective in of themselves or have been significant or instrumental parts of wider social, political and industrial movements:

      The Ford Sewing machinist strike of 1968 leading to the Equal Pay Act 1970.
      The French General Strike of 1968 which had a huge impact on French politics and is responsible for a marked improvements in student welfare in France.
      The Two Hour General Strike of 27th November 1989 in Czechoslovakia, not an insubstantial contribution to the Velvet Revolution.
      Pennsylvania anthracite coal workers strike 1902.
      The Gdansk Shipyard strike of 1980 (the start of the solidarity movement).

      I would be happy to discus these in detail to try to persuade you of their importance and efficacy.

      Also, the power of the strike or more specifically the threat of strike action can and does (and I know this from personal experience) work in some situations to force the other side to negotiate. I am very surprised if your experience doesn’t include a strike which motivated a side to talk.

      I apologise if my comment seemed rude, that was not my intention. I tried to qualify what I said with reference to my genuine assumption that you were talking about to a particular body of strikes in time and/or place. My only objection was to your assertion that strikes ‘never work’ which is, in that form, simply not an accurate statement.

      That is not to say that a strike will work in this instance, I do not know if it will, but would support the lawyers if they decided that it was the best way to counter the thoughtless attack on Justice which this government is making. I would also argue with your use of the word ‘facts’. The cuts are not a fact, they are a policy.The amount of money under discussion is not a large sum for the government, I believe it is around 1/64 of one day of government spending (though this is from memory). Winning this argument is not unimaginable.

      • Ian Dodd

        Hallo there. I’m just back from a morning with a chambers that won’t be striking and wants to change. They’re very much aware that their clients (including the MoJ) are under great pressure (just look at The Law Society Gazette – ‘more than 1000 small legal practices go under’, ‘175 firms face closure after failing to find insurance’) and need to be much more in tune with their needs and requirements.
        So, where were we? Ah, yes; strikes.
        Joseph, thanks for your information about ‘successful’ strikes. However, as we were discussing industrial disputes I think we can discount the French General Strike, the Czech General Strike and the Gdansk Shipyard Strike. I think they were civil disobedience. I happened to be in Paris during the 1968 strike (but that’s another story). Let’s hope, though, the Bar doesn’t bring on itself any CRS-type intervention. Those blokes weren’t messing about.
        As far as the Pennsylvanian Anthracite Strike of 1902 was concerned that, of course, was called off after three days following involvement by President Theodore Roosevelt who suspended it. The following negotiations between the miners and the owners resulted in a compromise which was much more favourable to the latter. Now, if you meant the 1897 Soft Coal Strike; that was a different matter.
        The Ford Sewing Machine Strike ended after three weeks when the women were awarded a pay rise. However, it was still 8% below the rates the men enjoyed and it wasn’t until 1976, some eight years later, that they gained parity. The Equal Wages Act (1970) wasn’t, itself, enacted until 1975. The film ‘Made in Dagenham’ bears as much relation to the historical reality as does ‘Braveheart’ to the exploits of William Wallace.
        The thing that characterised the two industrial strikes was that, in each case, the workers had a strong union, professionally organised and manned by full-time, experienced union officials and staff who were well versed in running and managing strikes. You can see, already, where this is going, can’t you?
        Recommended reading about strikes is ‘On Strikes’ by V I Lenin, written in 1899 but not published until 1924.
        Back to reality.
        If the Bar is considering strike action I would encourage it to think, long and hard, about the following points.
        • What are the chances of success?
        f there is 100% solidarity and backing there might be a chance. I was at the Northern Circuit meeting at the JJB Stadium, in , Wigan, on 16 August 2005 when strike action by the Bar was being debated. Stirring speeches were made. Strong solidarity was promised. Spirits were high. It all crashed and burned. What will be different this time round?

        • How long are the strikers prepared to be out?
        Hours, days, weeks, months? Is there a proper ‘Hardship Fund’ set up? There’s nothing worse than a trickle, then a stream, of people going back to work. As Arthur Scargill found out, to his bitter cost.

        • Who will man the picket lines?
        It’s not going to work by the strikers sitting in Caffe Nero, reading the Guardian. There will be those who will work. How will you deal with them? There will also be threats and intimidation and, possibly, violence. Do you think I’m kidding?

        • How much are you prepared to compromise?
        The CBAs ‘not a penny less’ stance might become a hostage to fortune. Strikes end in compromise. Professional negotiators are different people than barrister advocates. Expect the MoJ to have them.

        • What’s the ‘exit strategy’?
        Never go into a room unless you know how you’re going to get out, as they say in Hereford.

        And, the above is just for starters. So far (it might all be a very well kept secret, though) I haven’t seen a shred of evidence to show proper preparation for a strike. Indeed, telling the MoJ, and everyone else, that strikes won’t begin until after the new fee structure is introduced, as Nigel Lithman has, is removing the valuable element of surprise and, more dangerously, giving the MoJ plenty of time to come up with their own plans to counter/overcome any action.
        And then, as I mentioned previously, there’s the ‘afterwards’. Current legal aid rates aren’t enough everyone says. So, how will a strike which will result in even lower rates (the MoJ won’t capitulate but they may compromise) help individual barristers, their clients and their chambers?
        As I said a while ago. Strikes don’t SOLVE anything.

        Hallo there. I’m just back from a morning with a chambers that won’t be striking and wants to change. They’re very much aware that their clients (including the MoJ) are under great pressure (just look at The Law Society Gazette – ‘more than 1000 small legal practices go under’, ‘175 firms face closure after failing to find insurance’) and need to be much more in tune with their needs and requirements.
        So, where were we? Ah, yes; strikes.
        Joseph, thanks for your information about ‘successful’ strikes. However, as we were discussing industrial disputes I think we can discount the French General Strike, the Czech General Strike and the Gdansk Shipyard Strike. I think they were civil disobedience. I happened to be in Paris during the 1968 strike (but that’s another story). Let’s hope, though, the Bar doesn’t bring on itself any CRS-type intervention. Those blokes weren’t messing about.
        As far as the Pennsylvanian Anthracite Strike of 1902 was concerned that, of course, was called off after three days following involvement by President Theodore Roosevelt who suspended it. The following negotiations between the miners and the owners resulted in a compromise which was much more favourable to the latter. Now, if you meant the 1897 Soft Coal Strike; that was a different matter.
        The Ford Sewing Machine Strike ended after three weeks when the women were awarded a pay rise. However, it was still 8% below the rates the men enjoyed and it wasn’t until 1976, some eight years later, that they gained parity. The Equal Wages Act (1970) wasn’t, itself, enacted until 1975. The film ‘Made in Dagenham’ bears as much relation to the historical reality as does ‘Braveheart’ to the exploits of William Wallace.
        The thing that characterised the two industrial strikes was that, in each case, the workers had a strong union, professionally organised and manned by full-time, experienced union officials and staff who were well versed in running and managing strikes. You can see, already, where this is going, can’t you?
        Recommended reading about strikes is ‘On Strikes’ by V I Lenin, written in 1899 but not published until 1924.
        Back to reality.
        If the Bar is considering strike action I would encourage it to think, long and hard, about the following points.
        • What are the chances of success?

        If there is 100% solidarity and backing there might be a chance. I was at the Northern Circuit meeting at the JJB Stadium, in , Wigan, on 16 August 2005 when strike action by the Bar was being debated. Stirring speeches were made. Strong solidarity was promised. Spirits were high. It all crashed and burned. What will be different this time round?

        • How long are the strikers prepared to be out?

        Hours, days, weeks, months? Is there a proper ‘Hardship Fund’ set up? There’s nothing worse than a trickle, then a stream, of people going back to work. As Arthur Scargill found out, to his bitter cost.

        • Who will man the picket lines?

        It’s not going to work by the strikers sitting in Caffe Nero, reading the Guardian. There will be those who will work. How will you deal with them? There will also be threats and intimidation and, possibly, violence. Do you think I’m kidding?

        • How much are you prepared to compromise?

        The CBAs ‘not a penny less’ stance might become a hostage to fortune. Strikes end in compromise. Professional negotiators are different people than barrister advocates. Expect the MoJ to have them.

        • What’s the ‘exit strategy’?

        Never go into a room unless you know how you’re going to get out, as they say in Hereford.
        And, the above is just for starters. So far (it might all be a very well kept secret, though) I haven’t seen a shred of evidence to show proper preparation for a strike. Indeed, telling the MoJ, and everyone else, that strikes won’t begin until after the new fee structure is introduced, as Nigel Lithman has, is removing the valuable element of surprise and, more dangerously, giving the MoJ plenty of time to come up with their own plans to counter/overcome any action.
        And then, as I mentioned previously, there’s the ‘afterwards’. Current legal aid rates aren’t enough everyone says. So, how will a strike which will result in even lower rates (the MoJ won’t capitulate but they may compromise) help individual barristers, their clients and their chambers?
        As I said a while ago. Strikes don’t SOLVE anything.

        Hallo there. I’m just back from a morning with a chambers that won’t be striking and wants to change. They’re very much aware that their clients (including the MoJ) are under great pressure (just look at The Law Society Gazette – ‘more than 1000 small legal practices go under’, ‘175 firms face closure after failing to find insurance’) and need to be much more in tune with their needs and requirements.
        So, where were we? Ah, yes; strikes.
        Joseph, thanks for your information about ‘successful’ strikes. However, as we were discussing industrial disputes I think we can discount the French General Strike, the Czech General Strike and the Gdansk Shipyard Strike. I think they were civil disobedience. I happened to be in Paris during the 1968 strike (but that’s another story). Let’s hope, though, the Bar doesn’t bring on itself any CRS-type intervention. Those blokes weren’t messing about.
        As far as the Pennsylvanian Anthracite Strike of 1902 was concerned that, of course, was called off after three days following involvement by President Theodore Roosevelt who suspended it. The following negotiations between the miners and the owners resulted in a compromise which was much more favourable to the latter. Now, if you meant the 1897 Soft Coal Strike; that was a different matter.
        The Ford Sewing Machine Strike ended after three weeks when the women were awarded a pay rise. However, it was still 8% below the rates the men enjoyed and it wasn’t until 1976, some eight years later, that they gained parity. The Equal Wages Act (1970) wasn’t, itself, enacted until 1975. The film ‘Made in Dagenham’ bears as much relation to the historical reality as does ‘Braveheart’ to the exploits of William Wallace.
        The thing that characterised the two industrial strikes was that, in each case, the workers had a strong union, professionally organised and manned by full-time, experienced union officials and staff who were well versed in running and managing strikes. You can see, already, where this is going, can’t you?
        Recommended reading about strikes is ‘On Strikes’ by V I Lenin, written in 1899 but not published until 1924.
        Back to reality.
        If the Bar is considering strike action I would encourage it to think, long and hard, about the following points.
        • What are the chances of success?

        If there is 100% solidarity and backing there might be a chance. I was at the Northern Circuit meeting at the JJB Stadium, in , Wigan, on 16 August 2005 when strike action by the Bar was being debated. Stirring speeches were made. Strong solidarity was promised. Spirits were high. It all crashed and burned. What will be different this time round?

        • How long are the strikers prepared to be out?

        Hours, days, weeks, months? Is there a proper ‘Hardship Fund’ set up? There’s nothing worse than a trickle, then a stream, of people going back to work. As Arthur Scargill found out, to his bitter cost.

        • Who will man the picket lines?

        It’s not going to work by the strikers sitting in Caffe Nero, reading the Guardian. There will be those who will work. How will you deal with them? There will also be threats and intimidation and, possibly, violence. Do you think I’m kidding?

        • How much are you prepared to compromise?

        The CBAs ‘not a penny less’ stance might become a hostage to fortune. Strikes end in compromise. Professional negotiators are different people than barrister advocates. Expect the MoJ to have them.

        • What’s the ‘exit strategy’?

        Never go into a room unless you know how you’re going to get out, as they say in Hereford.
        And, the above is just for starters. So far (it might all be a very well kept secret, though) I haven’t seen a shred of evidence to show proper preparation for a strike. Indeed, telling the MoJ, and everyone else, that strikes won’t begin until after the new fee structure is introduced, as Nigel Lithman has, is removing the valuable element of surprise and, more dangerously, giving the MoJ plenty of time to come up with their own plans to counter/overcome any action.
        And then, as I mentioned previously, there’s the ‘afterwards’. Current legal aid rates aren’t enough everyone says. So, how will a strike which will result in even lower rates (the MoJ won’t capitulate but they may compromise) help individual barristers, their clients and their chambers?
        As I said a while ago. Strikes don’t SOLVE anything.

        Hallo there. I’m just back from a morning with a chambers that won’t be striking and wants to change. They’re very much aware that their clients (including the MoJ) are under great pressure (just look at The Law Society Gazette – ‘more than 1000 small legal practices go under’, ‘175 firms face closure after failing to find insurance’) and need to be much more in tune with their needs and requirements.
        So, where were we? Ah, yes; strikes.
        Joseph, thanks for your information about ‘successful’ strikes. However, as we were discussing industrial disputes I think we can discount the French General Strike, the Czech General Strike and the Gdansk Shipyard Strike. I think they were civil disobedience. I happened to be in Paris during the 1968 strike (but that’s another story). Let’s hope, though, the Bar doesn’t bring on itself any CRS-type intervention. Those blokes weren’t messing about.
        As far as the Pennsylvanian Anthracite Strike of 1902 was concerned that, of course, was called off after three days following involvement by President Theodore Roosevelt who suspended it. The following negotiations between the miners and the owners resulted in a compromise which was much more favourable to the latter. Now, if you meant the 1897 Soft Coal Strike; that was a different matter.
        The Ford Sewing Machine Strike ended after three weeks when the women were awarded a pay rise. However, it was still 8% below the rates the men enjoyed and it wasn’t until 1976, some eight years later, that they gained parity. The Equal Wages Act (1970) wasn’t, itself, enacted until 1975. The film ‘Made in Dagenham’ bears as much relation to the historical reality as does ‘Braveheart’ to the exploits of William Wallace.
        The thing that characterised the two industrial strikes was that, in each case, the workers had a strong union, professionally organised and manned by full-time, experienced union officials and staff who were well versed in running and managing strikes. You can see, already, where this is going, can’t you?
        Recommended reading about strikes is ‘On Strikes’ by V I Lenin, written in 1899 but not published until 1924.
        Back to reality.
        If the Bar is considering strike action I would encourage it to think, long and hard, about the following points.
        • What are the chances of success?

        If there is 100% solidarity and backing there might be a chance. I was at the Northern Circuit meeting at the JJB Stadium, in , Wigan, on 16 August 2005 when strike action by the Bar was being debated. Stirring speeches were made. Strong solidarity was promised. Spirits were high. It all crashed and burned. What will be different this time round?

        • How long are the strikers prepared to be out?

        Hours, days, weeks, months? Is there a proper ‘Hardship Fund’ set up? There’s nothing worse than a trickle, then a stream, of people going back to work. As Arthur Scargill found out, to his bitter cost.

        • Who will man the picket lines?

        It’s not going to work by the strikers sitting in Caffe Nero, reading the Guardian. There will be those who will work. How will you deal with them? There will also be threats and intimidation and, possibly, violence. Do you think I’m kidding?

        • How much are you prepared to compromise?

        The CBAs ‘not a penny less’ stance might become a hostage to fortune. Strikes end in compromise. Professional negotiators are different people than barrister advocates. Expect the MoJ to have them.

        • What’s the ‘exit strategy’?

        Never go into a room unless you know how you’re going to get out, as they say in Hereford.
        And, the above is just for starters. So far (it might all be a very well kept secret, though) I haven’t seen a shred of evidence to show proper preparation for a strike. Indeed, telling the MoJ, and everyone else, that strikes won’t begin until after the new fee structure is introduced, as Nigel Lithman has, is removing the valuable element of surprise and, more dangerously, giving the MoJ plenty of time to come up with their own plans to counter/overcome any action.
        And then, as I mentioned previously, there’s the ‘afterwards’. Current legal aid rates aren’t enough everyone says. So, how will a strike which will result in even lower rates (the MoJ won’t capitulate but they may compromise) help individual barristers, their clients and their chambers?
        As I said a while ago. Strikes don’t SOLVE anything.

      • cjeyes2012

        Well, I’m pleased to have started a debate. I’m in the camp which believes the CBA leadership should, and will, consider all these issues carefully. I myself have raised the welfare/hardship issue, as well as the start date point.

        I was very irritated by your post yesterday Ian. Not because you and I may disagree, both about method and about the effectiveness of industrial action, but because you had linked to your professional website and were at least in part advocating a course of action which you could assist with via that website. I have been very careful not to make this blog into a platform for advertising myself, my firm, chambers or whatever, and so I was not happy about the link back to your site.

        You do raise some important points. Even if we disagree, the questions are there. I have every hope that my elders and betters will be answering them. We may not be an organised union, but we are experts in the system we work in, and the only suppliers to whom the Government can turn. We are also skilled communicators and we’ve shown in the course of this campaign that we can take on the might of the Government propaganda machine and beat it against the odds. We should not underestimate our strength.

        A strike won’t solve anything in and of itself. You’ll have seen that my view is that we should not in the first instance be looking to have a protracted period of downed tools. But real concerted action is a powerful negotiating tool which will exert real pressure at a time when it needs to be exerted.

        On totally different matters, I’d be interested to hear about your experiences in Paris 1968, just as a matter of revolutionary history.

        Finally, no matter how good you might think your comment is, was there really a need to post it four times? 😉

  5. Ian Dodd

    Well, thanks for the swift response and I’m rather baffled about the 4x posting. I’m not that self-infatuated and I think it was because I cut/pasted it and nothing appeared in the reply box the first three times (note to others – beware)

    I’m much less optimistic than you about the legendary powers of the Bar’s communication skills when up against the darker arts of the MoJ.

    For example, I almost laughed out loud when I read that the Circuits were going to lend the CBA their ‘PR people’. I’m afraid that, no matter how well versed the young bar in the circuits, who have that task, are in getting a local message about they will be slaughtered by the professional spin/PR the MoJ have and have access too.

    Having been involved in the UK Student Actions in the summer of 2008 and having seen the, then, President of the NUS visit the university sit-ins/barricades (if they actually qualified for that name), a group of us decided to go to the heart of the matter and spent some time roaming the streets of Paris. The President of the NUS then? Oh, some bloke called Jack Straw. I wonder what happened to him?

    Just the one posting, this time, I think.

  6. Joseph

    Ian

    Thankyou for the reading advice, though I assure you none of my information came from Made in Dagenham. I agree with what you say about preparation for a strike being a key issue.

    I would still argue that saying strikes don’t solve anything is only true to the same extent that you can say ‘negotiation doesn’t solve anything’ or ‘letters of complaint never solve anything’. None of these things are totally effective in isolation but may form part of a campaign of persuasion which has a desirable effect.

    In the reality of the moment, many very serious people have spent many months stating that these cuts will destroy the independent bar and have serious consequences for justice. If the CBA have concluded that a compromise here will only be followed by more compromise later or that ‘one penny more’ of cuts will do terrible damage then it seems reasonable that they would be thinking about extreme action. Again, I’m not arguing that a strike would work, I don’t have the necessary information or experience to make a make such a prediction. I am saying that policy can change and that the amount of money being discussed is sufficiently small that it wouldn’t be an economic nor a political disaster if the government didn’t cut it or cut it from somewhere else. They are after all Conservatives, in favour of law and order, small businesses, private education, tradition and men wearing silk stockings under their work clothes all of which the bar has in spades. The press release stating that after months of consultation they are not going to cut this money so as to protect our justice system would not be hard to write.

    A quick question and I promise to be a cynical realist: Do you think that Chris Grayling would be tempted by the chance to present himself as simultaneously; a doughty supporter of Justice, a friend to the underprivileged, a protector of tradition, an investor in small business ,a man who will stand up for what is right even against the Treasury, a responsive politician, a keeper of ancient rights and a guardian of the law all for the price of a policy reversal, safe in the knowledge that there is an army of barristers from across the political spectrum who, despite disliking him, will loudly and thoroughly defend his position?

    • Ian Dodd

      Amongst the other things required to prepare for any action, including a strike, is a serious consideration of the consequences of such an action. They won’t all be good.

      If the Bar was to leave the MoJ in a ‘defeated’ state then you can imagine that, in concert with many other consequences, the LAA might be even slower in paying fees and even less (if it were possible) responsive to properly documented requests for outstanding payment. You can entertain (or frighten) yourself by compiling as list of other possible consequences.

      As for the unintended consequences of any action very serious thought and consideration has to be given to how any outcome might affect both the MoJ and the Bar as well as a range of others. A difficult task as these really are the ‘unknown unknowns’. However, they might be the most savage results of what might, at first glance, be classed as a ‘victory’.

      With regard to the question of Chris Grayling’s possible ennoblement in the eyes of the Bar we all have to understand that it is the Treasury who are in charge here. Grayling is only the man who promised them the savings, has to deliver them (or others to the same value from the same source) and who is on the unstoppable ‘rue rollant’ of destiny.

      • Graham Pressler

        It’s a little too simpistic to say look at strikes that haven’t worked but better to examine why they haven’t. The questions firstly to be asked are who are those directly affected and how, and what alternative measures can be put in place? The underlying own side question is what level of solidarity exists.
        Miners were successful under Heath where no alternative strategy was available to the government and there was powerful solidarity. Under Thatcher some of the resolve had gone, there were stockpiles and the UDM existed to further weaken the position.
        A strike by 100% committed legal profession could work as the government have no alternative means of running the courts. (I did say 100%!) The system would collapse very quickly. Politically the Lord Chancellor is on thin ice as he is concurrently trying to promote Britain as the forum of choice for international arbitration.
        But, hey, you can’t have it all ways!

  7. Ian Dodd

    Correct! Unless it is 100%, well organised and managed, sustainable and prepared for a savage backlash the resulting failure, climb-down, absence of any future negotiating strength and finger-pointing blame is hard to contemplate.

    Any strategic advantage, though, is already slipping away. As I mentioned earlier, not taking action until the fees are in place is giving time and ground for the MoJ to plan and act. Views and perceptions are already being planted for later cultivation.

    The DPP was quoted, in last Friday’s ‘Times’, saying that he didn’t think that a lot of current offences should go to court. Arguable, but, of course, the non-legal reader is left with that idea as a possible fact. and, when it comes time to defend strike action, that reader will have, in the back of his mind, the ‘fact’ that there’s no need for many of these cases to go to court thus providing lawyers with ‘fat’ (don’t worry, that will have already been sown in the sub-conscious) fees.

    Similarly, there was a piece in yesterday’s ‘Times’ about the cost of Judges lodgings. The reader, again, may be left with the idea that it’s a bit rich for Judges to complain that their Sky subscriptions, chauffeured cars, entertaining and flowers are going to be restricted when the rest of the country are suffering. They’ll remember that too when the time comes. Judges will/are, in the mind of the general public, be indistinguishable from barristers.

    In today’s Law Society Gazette there’s a piece about a presentation Franklin Sinclair of Tuckers made at a recent meeting in which he says that there are too many solicitors and barristers all chasing a smaller amount of legal aid fees. This would seem, though I’m sure that it wasn’t Franklin’s intention, to be in direct contradiction to yesterday’s CBA weekly update when solidarity was claimed between solicitors and barristers. Many more people, I’d suggest, will read the Gazette than the update and many, I’d also suggest, might have more sympathy with Franklin’s views and carry that forward.

    So, there is, and will continue to be, a steady erosion of most positions the Bar is going to take to defend a strike and, long before that day, views about it will have hardened amongst the non-barrister world.

    What was it I said about the Bar’s PR/Press activity being slaughtered? It’s already happening.

  8. iandodd2013

    Here we have a current industrial dispute.

    http://www.bbc.co.uk/news/uk-scotland-24647843

    A trades union, thinking it had a mandate from all its members; which, it found, it didn’t, decided on a confrontational call for strike action against the employer of its members. So strongly did it feel and so convinced of the right of all its claims, it left itself no room for manoeuvre, no areas for negotiation and no exit route. This despite clear, quantitative information from the employer and an unequivocal statement about the consequences of its actions.

    Sounds familiar?

    The union called for the strike and the employer stood firm. Result? A fundamental reappraisal of strategy by the union and what must be a humiliating return to the ‘negotiating’ table. Some negotiation. The employer gets everything it wants.

  9. Ian Dodd

    Afternoon Chris.

    It seems that you deleted my last posting. (I imagine you’ll do the same with this).That’s a shame as there is a lot, I think, we can learn from last week’s failed Grangemouth strike.

    We had a trades union using 1970 tactics to solve a 2013 dispute.
    We had a trades union cloaking a political strike with a economic/social veneer
    We had an employer who couldn’t afford to agree to the union’s demands

    Ring any bells?

    • cjeyes2012

      I didn’t actually delete the comment Ian, I just hadn’t got round to approving it (previous comments didn’t need approving after the first one and I didn’t appreciate that this one did).

      I’m all for free speech but I’m not entirely sure why my blog has become your personal soapbox. It would be better if you used your own blog on which others could comment.

      I don’t agree with your parallels. There is a genuine economic/social/legal aspect to anything which may impact on the running of the courts, and the MOJ is neither the employer of criminal lawyers nor can it not afford to avoid cuts. It chooses not to because of where it has chosen, politically, to let the axe fall.

      Anyway, I wonder if I can plug my other project? I’m running the London Marathon next year to raise money for Combat Stress, the veterans’ mental health charity. My experience with ex-service personnel in the criminal courts has led me to want to assist in some way. Perhaps you can pay for all the space taken up in my comment stream by circulating my fundraising efforts? 😉

      My fundraising page is at http://uk.virginmoneygiving.com/ChrisJeyes/ and my blog about my training efforts (just started…) is at Run4CombatStress.

      • Ian Dodd

        Thanks for the responses.

        One man’s soap box is another’s perfectly reasonable alternative viewpoint.

        I would be delighted to contribute to your London Marathon fundraising. However, I’m not sure I can circulate it to my mailing list as I’m too busy raising funds for MS Research when my son does the Windsor Triathlon next June. My daughter has the disease.

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