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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Expressions of sympathy for terror's victims may seem banal, but it's better than the alternative

Angry calls for "something to be done" play into terrorists' hands.

No sooner had we heard of the dreadful Manchester Arena bombing and before either the identity of the bomber or the number of dead were known, cries of “something must be done” echoed across social media and the airwaves. Katie Hopkins, the Mail Online columnist, called for “a final solution”, a tweet that was rapidly deleted, presumably after she remembered (or somebody explained to her) its connotations. The Telegraph columnist Allison Pearson wanted “a State of Emergency as France has” and “internment of thousands of terror suspects”, apparently unaware that the Nice attack, killing 86, happened after that emergency was declared and that nobody has been interned anyway.

It cannot be said too often that such responses play into terrorists’ hands, particularly if Isis was behind the Manchester bombing. The group’s aim is to convince Muslims in the West that they and their families cannot live in peace with the in-fidel and will be safe only if they join the group in establishing a caliphate. Journalists, striving for effect, often want to go beyond ­banal expressions of sympathy for ­victims. (It’s a mistake I, too, have sometimes made.) But occasionally the banal is the appropriate response.

Pity begins at home

Mark Twain, writing about the “terror” that followed the French Revolution and brought “the horror of swift death”, observed that there was another, older and more widespread, terror that brought “lifelong death from hunger, cold, insult, cruelty and heartbreak”. The first, he wrote, we had been “diligently taught to shiver and mourn over”; the other we had never learned to see “in its vastness or pity as it deserves”.

That is true: more children across the world die each day from hunger or disease than could ever be killed in a terror attack. We should not forget them. Nor should we forget that the numbers killed in terrorist attacks in, for example, Baghdad far outnumber those killed in all European attacks of our times combined. In an age of globalisation, we should be more cosmopolitan in our sympathies but the immediacy of 24-hour news make us less so.

When all is said and done, however, pity, like charity, begins at home. We naturally grieve most over those with whom we share a country and a way of life. Most of us have been to concerts and some readers will have been to one at the Manchester Arena. We or our children could have been present.

Cheers from Highgate Cemetery

What a shame that Theresa May modified the Tory manifesto’s proposals on social care. For a few giddy days, she was proposing the most steeply progressive (or confiscatory, as the Tories would normally say) tax in history. True, it was only for those unfortunate enough to suffer conditions such as dementia, but the principle is what counts. It would have started at zero for those with assets of less than £100,000, 20 per cent for those with £120,000, 50 per cent for those worth £200,000, 99 per cent with those with £10m and so on, ad infinitum. Karl Marx would have been cheering from Highgate Cemetery.

Given that most people’s main asset – the value of their home – did not have to be sold to meet their care costs until death, this was in effect an inheritance tax. It had tantalising implications: to secure their inheritance, children of the rich would have had to care for their parents, possibly sacrificing careers and risking downward mobility, while the children of the poor could have dedicated themselves to seeking upward mobility.

The Tories historically favour, in John Major’s words, wealth cascading down the generations. In recent years they have all but abolished inheritance tax. Now they have unwittingly (or perhaps wittingly, who knows?) conceded that what they previously branded a “death tax” has some legitimacy. Labour, which proposes a National Care Service but optimistically expects “cross-party consensus” on how to finance it, should now offer the clarity about old age that many voters crave. Inheritance tax should be earmarked for the care service, which would be free at the point of use, and it should be levied on all estates worth (say) £100,000 at progressive rates (not rising above even 50 per cent, never mind 99 per cent) that yield sufficient money to fund it adequately.

Paul Dacre’s new darling

Paul Dacre, the Daily Mail editor, is in love again. “At last, a PM not afraid to be honest with you,” proclaimed the paper’s front page on Theresa May’s manifesto. Though the Mail has previously argued that to make old people use housing wealth to fund care is comparable to the slaughter of the first-born, an editorial said that her honesty was exemplified by the social care proposals.

On the morning of the very day that May U-turned, the Mail columnist Dominic Lawson offered a convoluted defence of the failure to cap what people might pay. Next day, with a cap announced, the Mail hailed “a PM who’s listening”.

Dacre was previously in love with Gordon Brown, though not to the extent of recommending a vote for him. What do Brown and May have in common? Patriotism, moral values, awkward social manners, lack of metropolitan glitz and, perhaps above all, no evident sense of humour. Those are the qualities that win Paul Dacre’s heart.

Sobering up

Much excitement in the Wilby household about opinion polls that show Labour reducing the Tories’ enormous lead to, according to YouGov, “only” 9 percentage points. I find myself babbling about ­“Labour’s lead”. “What are you talking about?” my wife asks. When I come to my senses, I realise that my pleasure at the prospect, after seven years of Tory austerity, of limiting the Tories’ majority to 46 – more than Margaret Thatcher got in 1979 – is a measure of my sadly diminished expectations. l

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 25 May 2017 issue of the New Statesman, Why Islamic State targets Britain

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