Harry Mount's attack on barristers is shot through with personal loathing

These cuts will actually destroy the legal process.

Harry Mount’s scathing article about barristers in the current issue of the Spectator is shot through with a very personal loathing of the profession, which I suspect is accountable for its vitriol. It is also heavily reliant on point-missing observations about how much some top QCs earn, riddled with false generalizations and concludes with distressingly flippant observations about the effects of Chris Grayling’s massive cuts to Legal Aid. I think I might expire of boredom and irritation – an odd combination, I know – if I read one more journalist sounding off about how top barristers earn "too much".

Anyone with the most rudimentary knowledge of what life at the Bar is actually like knows that the profession, especially the criminal Bar, is stuffed with bright young things working twelve hour days for far less than the average graduate starting salary. It is this group – not the established high fliers – who will really feel the devastating impact of Grayling’s funding cuts. These cuts - on which more later - will reduce income and workloads for young barristers, and could stunt the flow of able, ambitious young practitioners up through the ranks of the profession.

The minimum award for Pupillage – the compulsory one year training contract undertaken by newly qualified barristers and which, if his book "My brief Career" is anything to go by, gave Mount one of the worst years of his life - is £12,000, and many chambers don’t raise it much more than that. When you’re made a tenant, you’re essentially self employed, and junior barristers trying to get a practice started can work for weeks if not months before a cheque arrives in the post. And then it’s more likely to be £60 for a hugely stressful and exhausting day in court, rather than £600 for performing the menial, unskilled tasks Mount seems to think most barristers spend their time engaged with.

If you don’t believe me, wander around Temple any day of the week post 5 pm, and gently inquire of the harassed looking young men and women you see scurrying around with boxes of files how they feel about their remuneration. They will give the lie to Mount’s skewered portrayal.

When these fledgling barristers have plugged away for fifteen or twenty years they might, if they are very lucky, get close to earning the enormous sums that Mount talks of. And like anyone who has slogged away to get to the top of their profession, they deserve their financial rewards. It is this select group of barristers, right at the top of their profession, that Mount is actually writing about when he says:

“….[I]t is far from clear why QCs get vastly inflated fees from public funds to pay for Georgian terraced houses, Buckinghamshire country piles and children’s school fees. Barristers still benefit from the gilt-edged perks of the last great unreformed profession (I write as a former barrister). And now they fear that, for the first time in half a millennium, the rule of pampered, flattered lawyers may be coming to an end.”

These lawyers might be flattered by their clients, who may be deeply grateful for their help in traumatic periods of their lives, and esteemed by their peers, who will respect their achievements and know how hard they have worked to obtain their eminence.  And they might live a comfortable lifestyle (although Mount’s sniping remarks about what they choose to spend their money on are entirely irrelevant to his argument): but if either of these are true, they are so because of phenomenally hard work.

Mount is also sloppy in talking of "the Bar" as if it were one homogenous profession when in fact, depending on the area of law in which a barrister practices, the day-to-day work and the skills and abilities they require can differ. But even if that weren’t true, the following assertion is plain false:

"Most things barristers do for hundreds of pounds an hour could be done as well not just by solicitors but by any intelligent person. Many of the things high-street solicitors do, too — conveyancing, divorces and wills among them — are a doddle, especially in the age of the internet."

Mount favours dissolution of the distinction between solicitors and barristers, pointing to the fact that, after the 1990 Rights of Audience Act, solicitors can address judges in certain courts and perform their own advocacy.  And many solicitors are excellent advocates. But because barristers are specially trained advocates, and solicitors are not, for the most part there is a substantial discrepancy in their oral abilities.

During my time at Spear’s, I have spoken to many in the legal profession who say that solicitor-advocates – with some exceptions, of course – are just not as good in court as barristers. No doubt Mount would leap in here and say that of course millionaire QCs, with their hugely inflated sense of self-importance and ingrained God-complexes, would argue thus – but they have not all been QCs. Indeed, they are not all even barristers. Leading solicitors in different areas of law have told me that they would far rather instruct a barrister than a solicitor-advocate if a case goes to court.

This is not only because of barristers’ oral abilities. Even the best solicitor advocates will not be in court day in, day out, and so they will lack the nuanced understanding of how particular courts and particular judges work. This knowledge the barrister has, and it can be crucial in effective representation.

Mount destroys his own argument here in any case by talking of ‘high street solicitors’ rather than barristers. I would not be so arrogant as to claim detailed knowledge of what these professionals do on a day to day basis, but I’m sure it’s not a "doddle."

To claim that what all high street solicitors do, and what all barristers do, could be done by anyone with a brain, but with no legal – or perhaps even formal – education is absurd. Unless the circles in which Mount moves are populated with people who have just acquired, as if by some magical process of intellectual osmosis, a thorough grasp of the law, of advocacy techniques, of professional codes of conduct of client handling skills....The list of specialist knowledge – which takes years of work and study to acquire, and which clients pay for – goes on. 

By far the most distressing aspect of Mount’s diatribe, however, is his stance on Chris Grayling’s proposed cuts to public funding for the Bar. Introducing the Justice Secretary, Mount points out that Grayling is the ‘first non-lawyer to be made Lord Chancellor since the 17th century’. Grayling’s complete lack of legal background – he worked at the BBC and Channel 4 and as a management consultant before being elected to parliament – is worrying enough in itself, but Mount doesn’t seem concerned about that, possibly because he thinks it’s a job ‘any intelligent person’ could do. He introduces Grayling’s proposed legal aid cuts in such a way that you’d be forgiven for wondering what all the fuss is about:

‘[H]e has simply said he wants to make some savings in the legal aid bill. To the lawyers, unaccustomed to having their privileges and subsidies challenged by anyone, this means war.’

Because Mount is so caught up with slamming barristers in his piece, he cannot focus on the real reason these cuts are being so hotly fought against – not just by barristers, but by the general public too.

I would, of course, not wish to disagree that some, perhaps many lawyers, are in part angry because they will earn less money at the publicly funded Bar than they have been doing – which, to make the point again, will not be as much as Mount casually implies it is. But if so, what is wrong with that? Why shouldn’t they fight that? They’d better stop ‘wasting’ money on buying nice houses and privately educating their children.

The truth is, though, that they are fighting the cuts because they are committed to the justice system in this country, and they know – better than anyone – the effect those cuts will have on those seeking representation in court. Mount is breathtakingly flippant when he says Graying "just wants to make some savings." The extent of those savings? A proposed £220m to the legal aid bill.

In The Times on Thursday, Alastair MacDonald QC explained why barristers are opposing these cuts, and it is because they are worried that miscarriages of justice will abound. This, argues MacDonald, is an unavoidable consequence of clients not having access to suitable representation.

Of the changes Grayling proposes, the one of which everyone should be scared is the Price Competitive Tendering model. According to this, the Government will allocate chunks of the publicly available money to a certain number of law firms in each region of the country. When a defendant in that area requires legal representation, the job will go to the firm with the available funds, rather than the firm with expertise in the relevant area of law.

You really don’t need a law degree to see what a dreadful and hugely unfair model that is. These firms, paid whether they win or lose, will be under pressure to turn the case around as quickly as possible, and thus it will be in their interests to push for guilty pleas regardless of whether that is right for the defendant or not. And defendants – normal people, people who have made a mistake and need a voice in court – will be assigned to the first available barrister, whether he or she practices the relevant area of law or not.

But far, far worse for defendants is the fact that, if Grayling’s PCT model is pushed through, prosecuting barristers will be picked from a specialist group with expertise in the relevant area of law. So if you find yourself in court, you will not be able to pick your barrister, and might end up with a relatively inexperienced advocate unused to practicing the law you need him or her to know thoroughly, instinctively. But you can be sure that the barrister on the other side will be an expert, and will put the case against you as well as it can be put. Is that fair?

How anyone  - whether a lawyer or not – can possibly think that is anything other than deeply worrying, and to be opposed as vigorously as possible in the interests of justice, is staggering. But Mount either doesn’t care, or is too mired in his very personal loathing of barristers to notice.

This article also appeared in Spear's magazine.

Photograph: Getty Images

Mark Nayler is a senior researcher at Spear's magazine.

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What I learnt when my wife and I went to Brexit: the Musical

This week in the media, from laughing as the world order crumbles to what Tristram Hunt got wrong – and Leicester’s big fall.

As my wife and I watched Brexit: the Musical, performed in a tiny theatre above a pub in London’s Little Venice, I thought of the American novelist Lionel Shriver’s comment on Donald Trump’s inauguration: “A sense of humour is going to get us through better than indignation.” It is an entertaining, engaging and amusing show, which makes the point that none of the main actors in the Brexit drama – whether supporters of Leave or Remain – achieved quite what they had intended. The biggest laugh went to the actor playing Boris Johnson (James Sanderson), the wannabe Tory leader who blew his chance. The mere appearance of an overweight man of dishevelled appearance with a mop of blond hair is enough to have the audience rolling in the aisles.

The lesson we should take from Brexit and from Trump’s election is that politicians of all shades, including those who claim to be non-political insurgents, have zero control of events, whether we are talking about immigration, economic growth or the Middle East. We need to tweak Yeats’s lines: the best may lack all conviction but the worst are full not so much of passionate intensity – who knows what Trump or Johnson really believe? – as bumbling incompetence. The sun will still rise in the morning (as
Barack Obama observed when Trump’s win became evident), and multi­national capital will still rule the world. Meanwhile, we may as well enjoy the show.

 

Danger of Donald

Nevertheless, we shouldn’t deny the risks of having incompetents in charge. The biggest concerns Trump’s geopolitical strategy, or rather his lack of one. Great power relations since 1945 have been based on mutual understanding of what each country wants to achieve, of its red lines and national ambitions. The scariest moments come when one leader miscalculates how another will react. Of all figures in recent history, the Soviet leader Nikita Khrushchev, with his flamboyant manner and erratic temperament, was probably the most similar to Trump. In 1962, he thought President Kennedy, inexperienced and idealistic, would tolerate Soviet missiles in Cuba. He was wrong and the world only narrowly avoided nuclear war.

How would Trump respond to a Russian invasion of the Baltic states? Will he recognise Taiwan as an independent country? Will he scrap Obama’s deal with Iran and support a pre-emptive strike against its nuclear ambitions? Nobody knows, probably not even Trump. He seems to think that keeping your options open and your adversaries guessing leads to “great deals”. That may work in business, in which the worst that can happen is that one of your companies goes bankrupt – an outcome of which Americans take a relaxed view. In international relations, the stakes are higher.

 

Right job, wrong time

I rather like Tristram Hunt, who started contributing to the New Statesman during my editorship. He may be the son of a life peer and a protégé of Peter Mandelson, but he is an all-too-rare example of a politician with a hinterland, having written a biography of Engels and a study of the English Civil War and presented successful TV documentaries. In a parallel universe, he could have made an inspirational Labour leader,
a more thoughtful and trustworthy version of Tony Blair.

No doubt, having resigned his Stoke-on-Trent Central seat, he will make a success of his new job as director of the Victoria and Albert Museum. If nothing else, he will learn a little about the arts of management and leadership. But isn’t this the wrong way round? Wouldn’t it be better if people first ran museums or other cultural and public institutions and then carried such experience into parliament and government?

 

Pointless palace

When the Palace of Westminster was largely destroyed by fire in 1834, thousands gathered to enjoy the spectacle. Thomas Carlyle noted that the crowd “whew’d and whistled when the breeze came as if to encourage it” and that “a man sorry I did not anywhere see”.

Now, with MPs reportedly refusing to move out to allow vital renovation work from 2023, we can expect a repeat performance. Given the unpopularity of politicians, public enthusiasm may be even greater than it was two centuries ago. Yet what is going through MPs’ minds is anyone’s guess. Since Theresa May refuses them a vote on Brexit, prefers the Foreign Office’s Lancaster House as the location to deliver her most important speech to date and intends to amend or replace Brussels-originated laws with ministerial orders under “Henry VIII powers”, perhaps they have concluded that there’s no longer much point to the place.

 

As good as it gets

What a difference a year makes. In January 2016, supporters of Leicester City, my home-town team, were beginning to contemplate the unthinkable: that they could win football’s Premier League. Now, five places off the bottom, they contemplate the equally unthinkable idea of relegation.

With the exception of one player, N’Golo Kanté (now at Chelsea), the team is identical to last season’s. So how can this be? The sophisticated, mathematical answer is “regression to the mean”. In a league where money, wages and performance are usually linked rigidly, a team that does much better than you’d predict one season is likely to do much worse the next. I’d suggest something else, though. For those who won last season’s title against such overwhelming odds, life can never be as good again. Anything short of winning the Champions League (in which Leicester have so far flourished) would seem an anti­climax. In the same way, the England cricket team that won the Ashes in 2005 – after the Australians had dominated for 16 years – fell apart almost as soon as its Trafalgar Square parade was over. Beating other international teams wouldn’t have delivered the same adrenalin surge.

Peter Wilby was editor of the Independent on Sunday from 1995 to 1996 and of the New Statesman from 1998 to 2005. He writes the weekly First Thoughts column for the NS.

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era