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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Celebrate Labour's electoral success - but don't forget the working class

The shutting down of genuine, constructive debate on the left is the great danger we face. 

In the moment when the exit poll was released on 8 June, after seven weeks of slogging up and down the streets of Britain, dealing with scepticism, doubt and sometimes downright hostility, we felt a combination of relief, optimism, even euphoria.
 
This election broke wide open some assumptions that have constrained us on the left for too long; that the young won’t vote, that any one individual or political party is “unelectable”, that perceptions of both individuals, parties and even policies cannot change suddenly and dramatically. It reminded us that courage, ambition and hope are what’s needed and what have been missing from our politics, too often, for too long.
 
We have learnt to tread carefully and wear our values lightly. But in recent weeks we have remembered that our convictions can, as Jonathan Freedland once wrote, “bring hope flickering back to life” and meet the growing appetite for a politics that doesn’t simply rail against what is but aspires to build a world that is better.
 
In this election at least, it seems the final, anticipated fracture of Labour from its working-class base after Brexit did not materialise. Shortly before the snap election was called I wrote that while Brexit appeared to be Labour’s greatest weakness, it could just be our biggest strength, because: “consider what remain voting Tottenham and leave voting Wigan have in common: Labour… We will succeed if we seek the common ground shared by the decent, sensible majority, and more importantly, so will Britain.”
 
But consider this too. The Tories ran a terrible campaign. It was, without any doubt,the most inept, counter-productive campaign I’ve ever seen in British politics. The day their manifesto hit the headlines, even in our toughest neighbourhoods, we could feel change in the air. Arrogance is never rewarded by the British people and Theresa May has paid a price for it. Yet, despite a Tory manifesto that was a full, square attack on older people, the majority of over 65s still came out for the Tories.
 
And despite the growing relevance of freedom, internationalism and tolerance in an era characterised by Donald Trump and Vladimir Putin, the Liberal Democrats managed to become bystanders in the political debate. They stood on a platform that aimed to capture the support of those remain voters for whom Brexit is the major question, but neglected the rest. And they quite spectacularly failed to foresee that those who were intensely angered by May’s conversion to a little England, hard Brexit stance would vote tactically against the Tories. Over those seven weeks, they all but disappeared as a political force.
 
As Bob Dylan once said, "the times, they are a-changin" – and they will change again. The recent past has moved at extraordinary speed. The Brexit Referendum, the rise and retreat of nationalism, the election of Trump and his crushing unpopularity just a few months later, the reversal in fortunes for May and Jeremy Corbyn, the astonishing phenomenon of Emmanuel Macron and pro-European centrism, and the dramatic rise and sudden collapse of Ukip. Politics, as John Harris wrote last week, is now more fluid than ever. So now is the time, for hope yes, and for conviction too, but not for jubilation. We need some serious thinking. 
 
We should be cautious to rush to judgment. It is only two weeks since the exit poll sent shockwaves across the country. There is no comprehensive explanation for the multitude of motivations that delivered this election result and will not be for some time. But there are some early indictors that must make us think. 
 
After seven years of austerity, as John Curtice observes, the Tories made some of their biggest gains in some of the poorest areas of Britain. It is something I felt in all of the eight constituencies I campaigned in during the election. While the Labour vote rose significantly in towns like Wigan, so too did the Tory vote, despite little or no campaigning activity on the ground. As Rob Ford puts it, “Labour, founded as the party of the working class, and focused on redistributing resources from the rich to the poor, gained the most ground in 2017 in seats with the largest concentrations of middle-class professionals and the rich. The Conservatives, long the party of capital and the middle class, made their largest gains in the poorest seats of England and Wales… Britain’s class politics has been turned completely upside down in 2017”.
 
To acknowledge the growing, longstanding scepticism of many working-class men, and women, towards Labour in towns across England is not to take away from the hard work and drive of the activists, advisers and politicians that helped to fuel such a dramatic turnaround for Labour during the short campaign. To have won considerable gains in wealthier suburbs is no small achievement. 
 
But if the future of Labour lies in a coalition between middle-class young professionals and the working class, what is the glue that binds? While there is shared agreement about investment in public services, how are those interests to be squared on areas like national security and immigration? I believe it can and must be done, but – as I said to conference when I was first elected seven years ago - it will demand that we begin with the difficult questions, not the easy ones.  
 
Just a few days before the election, statistics were released that pointed to a collapse in trade union membership. What does the decline of an organised Labour movement mean for who we are and what we can achieve? These are not new questions. They were posed by Eric Hobsbawm in his brilliant lecture, "The Forward March of Labour Halted" in 1979 - a challenge laid down in the year I was born. Now, 37 years on, we are no further down the road to answering it. 
 
The most dramatic finding from this election was the support Corbyn’s Labour party appears to have won from middle-class, young professionals. They said he couldn’t do it and quite stunningly it seems they were wrong. But a ComRes poll last week caught my eye – by a large margin those 30-44 year olds would favour a new centre-ground political party over the current political settlement. In an election where we returned strongly to two-party politics, it appears they moved to us. But what would a dynamic and renewed Liberal Democrat Party, or a British En Marche do to our support base?
 
After a hellish two years we have learnt in Labour, I hope, that unity matters. The public and private anger directed towards each other, whether the Labour leadership, the parliamentary Labour party or elected councillors, is desperately damaging and its (relative) absence in the campaign was important.
 
But unity is not the same as uniformity, and while two weeks ago I felt there was a real danger of historic fracture, now I believe the shutting down of genuine, constructive debate on the left is the great danger we face, and must avoid. No one person, faction or party has ever had the monopoly on wisdom. The breadth of the Labour movement was and remains our greatest strength. 
 
Consider the Labour manifesto, which drew on every tradition across our movement and demanded that every part of the party had to compromise. Those broad traditions still matter and are still relevant because they hear and are attuned to different parts of Britain. Our country is changing and politics must catch up. The future will be negotiated, not imposed.
 
As we witness the age of "strong man" politics across the world, here in Britain our political culture has become angrier and more illiberal than at any time I can remember. The Brexit debate was characterised by rage, misinformation and a macho political culture that demanded that we abandon nuance and complexity, an understanding of one another and tolerance of different points of view.
 
But this is not where the future of Britain lies: it lies in pluralism. It lies in a politics that is nimbler, more fleet of foot, less constrained; a return to the great tradition of debate, evidence, experience and argument as a way to build broad coalitions and convince people; not shouting one another down, nor believing any of us are always right; an arena in which we listen as much as we speak; a political culture in which we are capable of forming alliances within and across party lines to achieve real, lasting change.
 
And ultimately that’s the prize: not just seek power but, to paraphrase a philosopher whose work inspired millions, in the end “the point is to change it”. We could sit tight in Labour and hope to see the current government fall apart. We might even inherit power, we could temporarily reverse some of the worst of the last seven years, but what then? If we have learnt anything from 13 years of Labour government it should be this: that to build lasting change is the hardest political task of all, and it requires now that we do not turn to the political culture, the tools or even the ideas of the past, but that we think hard about where the future of our movement and our country really lies. Now is not the time to sit back and celebrate. Now is the time to think.

 

Lisa Nandy is the MP for Wigan. She was formerly Shadow Secretary of State for Energy and Climate Change.

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