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.

Show Hide image

The attack on Les Bleus was an attack on the soul of France - that's why Euro 2016 must go ahead

As a continent reels politically from the refugee crisis and emotionally from the Paris attacks, football must find a new, confident voice.

After the Paris attacks, the great Bill Shankly’s words have rarely been so tested: “Some people believe football is a matter of life and death. I am very disappointed with that attitude. I can assure you, it is much, much more important than that.”

As bombers detonated their suicide belts outside the Stade de France, French and German football fans cheered what they thought were fireworks. They were unaware that it was the opening salvo in a night of barbarity. One of the bombers had a ticket for the game but, mercifully, was turned back at the turnstile. Had his bomb gone off inside the stadium, the immediate loss of life, plus the panicked stampede and two more suicide bombers lying in wait outside for escaping fans, could have produced a death toll higher than at Hillsborough, Bradford, Heysel or either of the Ibrox ­stadium disasters.

The French intelligence services have yet to conclude publicly whether the attacks were timed to coincide with the prestigious friendly or whether the crowd of 80,000 was simply another target of bloodthirsty convenience on an already preordained date. Either way, there’s no mistaking that an attack on Les Bleus was an attack on the soul of France. In the aftermath, the Germany-Netherlands friendly game was called off and Belgian football went into lockdown.

How should British football respond? To those who think that the sport is just 22 players kicking a ball around a field, this may seem a peculiar question. But ever since the tail end of the 19th century, when football escaped from its self-enforced ghettoisation in Britain’s public schools, it has had a greater purpose.

More than any other sport, football has been intertwined with politics. As Harold Wilson said: “It’s a way of life . . . a religion.” When President Rowhani of Iran wanted to bolster his image as a new kind of leader, he didn’t deliver a speech but tweeted a picture of himself wearing an Iranian football top, watching a match. Franco’s dictatorship clung to the all-conquering Real Madrid and punished FC Barcelona. On Robben Island, ANC prisoners idolised Billy Bremner of Leeds United and successfully demanded the right to play football.

In October, one of the biggest protests against the closure of the north-east’s steelworks was from 10,000 Middlesbrough fans at Old Trafford. When Catalans challenged hikes in transport costs, they boycotted public transport from the Camp Nou. The biggest “Refugees Welcome” signs in Europe weren’t produced by governments but by fans of the Bundesliga champions, ­Bayern Munich.

So while the singing of the Marseillaise at the England-France match at Wembley was a “hairs on the back of the neck” moment, most of us understand that it’s not enough. What is less well known is that this wasn’t the first time that one of the world’s few genuinely inspiring anthems has been performed in earnest in British football. A century ago, bands took to the pitch to play patriotic British, French and Russian music – not out of altruism but military necessity. The British army was under intense pressure at Ypres and urgently needed new volunteers. The War Office turned to football.

For many, the journey to Loos, Flanders and the Somme started with a routine visit to cheer on their local team. Their sport transported them from a home football field to their foreign killing fields. Many clubs, including Everton, held military training on their pitches, while Manchester City’s then stadium, Hyde Road, became a 300-horse stable. Hundreds of players died serving in the Football Battalion.

But for too long our national sport reflected Britain’s lack of ease with diversity. From the 1920s, the religious sectarianism that poisoned the west of Scotland was allowed to fester in Glasgow’s football. The sport’s tolerance of recreational racism became widespread. Outside stadiums, right-wing extremists sold their propaganda while, inside, black players were vilified – even by their own supporters. Football’s racism corroded its heart and was rationalised in its head: it was allowed on the pitch, cele­brated on the terraces and accepted in the boardroom and far too many changing rooms.

And now, as a continent reels politically from the refugee crisis and emotionally from the Paris attacks, football must find a new, confident voice. The sport and its fans cannot sit on the subs’ bench at a time like this.

In a nation where only one in five male workers joins a trade union, football is a rare regular collective experience. It is more authentic than click-and-connect social media communities. Despite high ticket prices, football offers the one place where thousands of working-class men, including many politically disenchanted young men, come together in a common cause.

British football has long since jettisoned its ambivalence regarding racism. But for organised extreme right-wingers, Islamophobia fills the space vacated by the anti-Irish “No Surrender” tendency on the sport’s fringes. Although the number of top-flight British Muslim players is infinitesimally small, the streets of Bradford, Blackburn and Birmingham teem with young British Muslims kicking a football. More clubs can harness their power to inspire and increase their ­involvement in community counter-­radicalisation strategies. Clubs should also take the lead by having zero tolerance for Islamophobia, training stewards and backing fans who stand up to fellow supporters.

And, finally, the European Championships, for which all the home nations bar Scotland have qualified, must go ahead in France next summer. There’s no liberté in cancelling. In the name of fraternité, let’s all back France as our second team. Allez les Bleus!

Jim Murphy is the former Labour MP for East Renfrewshire and leader of Scottish Labour 2014-15.

This article first appeared in the 26 November 2015 issue of the New Statesman, Terror vs the State