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.

Photo: Getty Images/Ian Forsyth
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The big battle in Corbyn's Labour party will be over organisation, not ideas

Forgotten and near-moribund institutions of the parliamentary Labour party will become vital once again, explain Declan McHugh and Will Sherlock. 

“Decidedly downbeat” was Chris Mullin’s assessment of the first Parliamentary Labour Party meeting following the 2001 landslide General Election victory. Blair was “received well, but without elation … the managing director was treated to some blunt warnings that this time around the boys and girls on the shop floor expect to be treated with more consideration.”

Assuming he wins the leadership, Jeremy Corbyn’s first PLP meeting will be anything but downbeat. The ‘shop floor’ will be more akin to a Lions’ Den. Labour’s new figurehead will face a PLP overwhelmingly opposed to him. Many will question the legitimacy of his election and some will reject his authority. From day one, he will face a significant number of Labour MPs not merely against him but actively out to get him. There has probably never been a situation where a leader of the Labour Party has been so far removed from the parliamentary party which he supposedly commands.

The closest historical parallel with Corbyn is arguably George Lansbury, another ardent socialist who took charge of the party after serious electoral defeat. But the comparison doesn’t really stand up to scrutiny. Lansbury may have been on the left but he had been a leading figure at the top of the party for many years. Corbyn has never been anything but part of the Labour fringe – rarely even attending PLP meetings.

Nevertheless an immediate move to oust him is unlikely. Whatever their concerns about the circumstances of his election, the scale of the contest will make MPs nervous about executing a coup. And crucially there is no obvious alternative leader waiting in the wings.

The internal battle against Corbyn will instead be more drawn out and fought through the internal structures of the party. The number of Labour MPs showing a sudden and hitherto undiscovered interest and expertise in the PLP Standing Orders is an indication of what is to come. When Labour is in government, journalists pay little notice to obscure internal committees. Now they are going to be the centre of attention. The PLP may be energised on an organisational front in a way that it never was during the Blair, Brown and even Miliband years. Conflict is likely to be focused in the following arenas:

  • Shadow Cabinet

Corbyn is now understood to populate his shadow cabinet by appointment, but opponents in the PLP are seeking a return to the system of elections. That will not be straightforward. Although the 2011 decision to end elections was primarily achieved by means of a PLP vote to change Standing Orders, it was subsequently agreed by the NEC and passed into party rules by Conference. It will be harder to undo that constitutional knot than it was to tie it. The PLP can vote to change Standing Orders again but the NEC and Conference will need to reflect that in further amendments to party rules if the decision is to have constitutional authority. That sets the scene for a messy clash between the PLP and the NEC if Corbyn chooses to defy the parliamentary party.

 

Even if elections are restored, it is not clear how Corbyn’s opponents in the PLP will respond. MPs seeking the return of shadow cabinet elections hope to run a slate of candidates who will work to emasculate the new leader. But others have already resolved to boycott the front bench, regardless of how it is selected. Corbyn’s opponents face a dilemma. On the one hand abandoning the shadow cabinet may be viewed as walking off the pitch at a time when others are prepared to get stuck in and organised. On the other, it will be impossible to take a shadow cabinet post without signing up to some level of collective responsibility. That means undergoing the daily grind of defending the party line in front of the 24 hour media spotlight, with all statements scrutinised and recorded by Conservative researchers for future use.  How many Labour MPs would be willing to support a Corbynite line on foreign affairs, defence and economic policy? The new Labour leader will soon find out.

 

  • PLP meetings

The Monday evening meetings of the PLP are a weekly arena in which the frontbench and the party leadership are held to account by the wider parliamentary party. In the Kinnock, Smith and Blair days, although occasionally raucous, there was a degree of deference to the Leader. That has waned of late but will likely be non-existent under Corbyn. No one can remember the last time the PLP voted on a matter of policy, but Standing Orders permit it to so – expect opponents of the leadership to use this device.

 

  • PLP Chair

John Cryer, the current PLP Chair, will have his work cut out trying to manage what are likely to be stormy meetings. Moreover, the annual election of the Chair is an important barometer of the parliamentary party’s mood and the easiest means of organising a proxy vote on confidence in the leader. Importantly, the Chair of the PLP approves what motions can be tabled at the weekly PLP meeting. 

 

  • Parliamentary Committee

The parliamentary committee are effectively shop stewards for the backbenchers and the election of representatives is similarly a reflection of political sentiment in the PLP. New elections won’t happen until next May but the PLP could decide to initiate earlier elections. Labour MPs will ask whether the current committee, which includes one Corbyn nominator, is representative of the majority view. If not, a slate opposed to the leader could be organised. The Parliamentary Committee has executive powers that it rarely uses but this may change and will be significant. 

 

  • Departmental Groups

The PLP’s internal policy committees have been in decline since the early years of Tony Blair and have rarely made waves but have potentially important powers, including the right of Committee Chairs to speak from the Despatch Box. MPs may use these bodies to challenge frontbench policy positions in a way that no leader has experienced, promoting alternative agendas at odds with the leadership line on foreign affairs, defence and the economy. The Chairs have not yet been elected and this could be a key focus in the autumn.

 

  • Whips Office

The idea of Jeremy Corbyn directing the PLP to follow three-line whips is, to many, a source of amusement. A man who regularly topped the charts of rebel MPs will struggle to maintain the traditional system of party discipline – and indeed he has already indicated that he has no intention of “corralling” MPs in the traditional way. Most likely the whips will play a distinctly different role in the future, acting more as shop stewards for backbench MPs who want their concerns made clear to the Leader’s Office. And the likely deputy keader Tom Watson, who hails from the right wing union tradition but is close to some of the left, will play a major part in trying to balance the needs of the new leadership with the real anger of backbench Labour MPs.

Corbyn’s lack of authority and support within the wider parliamentary party puts a major question mark over his long term prospects as Labour leader. He would certainly lose any direct trial of strength against the PLP.

But the Corbynite group will seek to avoid confrontation inside Westminster. They believe their strength lies in the party outside Parliament and in the new influx of members and supporters. Their agenda will be to capitalise – though they might not use the term – on the leadership triumph by instituting rule changes that will revive the left within the party machine. Not just inside the NEC, the Conference and the party HQ but in the regional and constituency party organisation.

Most particularly, they are likely to seek to convert supporters into members, with a role in the selection of parliamentary candidates. By such means they will seek to apply external pressure on MPs from their own constituency parties. Labour members may be understandably wary about moving to decapitate a new leader so soon after his election. But they face a race against time to prevent him and his supporters from reshaping the party machine in ways that will undermine them from below.

 Will Sherlock and Declan McHugh are former Labour special advisers who now work at Lexington Communication.