CBA Chairman calls for unity to save democracy

In a week that saw the government reject any meaningful reform of the Justice and Security Bill, members of the Bar criticising colleagues for profiteering out of the ambitions of aspiring practitioners and on a day when pre-eminent solicitor Imran Khan warned of the “toxic, back-stabbing atmosphere” of most chambers and of a profession that “everyone knows is sexist and racist in certain pockets”, Michael Turner QC’s rallying call for unity, speaking at the “How to get pupillage: interviews and applications” seminar on Saturday, could not have been more timely.

Turner, Chairman of the Criminal Bar Association and a leading silk at Garden Court Chambers had a chillingly simple warning:

“This government is hell-bent on destroying the publicly-funded, independent Bar. The Bar needs to unite with solicitors and protect its citizens from having a corner-stone of its democracy stolen from it”

Our now partly-privatised court system is beholden to G4S, to produce defendants on time and to provide security. Meanwhile, Capita have recently replaced   Applied Language Services to provide translators. For that privilege, according to the Chairman, G4S made an annual profit of £42 million, little wonder when they were paid the equivalent of £11.45 per hour for each member of staff but actually paid staff the minimum wage. G4S’s work for the state was worth a total of £759 million. Despite this, persistent failures to produce detained persons at court on time, often not at all, went unchallenged. Their all too public dressing down by the Culture Media and Sport Committee over the Olympic Park security debacle was an all too rare experience of scrutiny and accountability for G4S. Just ask the family of Jimmy Mubenga.   The outsourcing of translation services has been condemned by the Commons Justice Committee as “nothing short of shambolic”. 

“The cost of these delays is hidden on another balance sheet [privatisation] has not saved the public a brass farthing”.

It is the public that have to pick up these costs, running into millions. It’s no wonder that “there’s no money left.” But neither  LAPSO nor the Justice and Security Bill will do anything about these issues. Which begs the question, if the government’s agenda is not about money then what is it about?

“This is part of the long and subtle road started by the previous government, to the extinction of an independent legal profession.”

The crude “fat-cat” lawyer rhetoric is the most basic illustration but the roots run much deeper. The government take advantage of the fact that judges cannot speak out in public about cases or government policy to propagate ideas of “soft judges” failing to properly punish rapists or murders when, in fact, all they are doing is implementing the sentencing guidelines set down in law. Changes to the position of Lord Chancellor have meant that it is more difficult for the legal profession to engage in meaningful dialogue with the government. 

One point that struck me most strongly, not least because it is a link that I had not made before, is that by cutting publically funded-work, does not just mean that practitioners in these areas have less income. It means that they cannot afford to invest in and train the future of the profession. As much as there is to criticise about it, the Bar is the only profession that recruits and trains its own without any subsidy from the government. Contrast young doctors, trained and recruited by the NHS or teachers funded by the Teaching Agency. “If you kill off the trainees, the profession will be left to wither on the vine and die.”

Cue, the Alternative Business Structures created by the Legal Services Act 2007, which allow other sectors to compete in the legal market, including recruitment and training. Of the 30 odd ABSs that have been approved and the 39 in waiting, not one is an amalgamation of a law firm and chambers.  Take this together with proposals to change the cab-rank rule from one which requires barristers to take on cases in which they have sufficient expertise to one modelled on the New York State Bar, which allows instructions to be returned unless it would amount to discrimination on the basis of protected characteristics (age, sex, sexual orientation etc.). Then, you see the ground being prepared simultaneously for the profession to increase private-sector dependence and reduce State reliance. The position of solicitors, he stressed, was no better. You need only look at the number of high street firms have folded in recent years to see that.

This all about profit: “These new proposals are aimed at ensuring that when [lawyers] are forced into work, the public are forced to accept.” Those that are unable to afford the costs of the new legal world will fall back on a State never less willing to support them. The days of having an advocate of one’s choosing, he warned, will soon be over.

The cause for concern is all the greater when this attack on the profession and the subsequent reduction in choice is put alongside the “secret court” proposals. As I noted in my last post, whilst the courts have always had the power to hold closed proceedings in appropriate cases, their essential position as option of last resort is not a philosophy carried into the Security and Justice Bill, which proposes an unprecedented expansion in their availability. We are agreed on the real motivation behind these proposals:

“To hide from the public the behaviour of a government prepared to indulge in illegal wars and be complicit in torture. That is true is shown by the government’s own  Impact Assessment which lists the top benefit as protecting the government from bad publicity.”

As page 2 of the Impact Assessment states:

“UK national security would be better protected. The UK would also benefit from a reduction in reputational costs abroad and increased international co-operation.”

A “benefit” which the Equality Impact Assessment warns is likely to fall heaviest against Muslim men:

“Many of the recent court cases, which illustrate the challenges posed by the use of sensitive information in civil proceedings, involve Claimants who are men from the following racial groups: Asian, Middle Eastern, North African; and from the following religion: Islam. There is therefore some limited evidence of a differential impact on the basis of sex, race and religion or belief.”

The assessment might try to downplay the possibility but the prevalence of racism and racial prejudice in the criminal justice system, made all the worse for those who follow (or who look like they might) Islam post 9/11 – from racial profiling and Stop and Search statistics to the over-representation of Black men in the prison population to a disproportionate number of deaths in custody - makes a mockery of such attempts.

Of course:

“if you don’t know [what the government is doing] you cannot judge them. Keep people in the dark and they think all is well.”

As Michael Turner so passionately demonstrated, all is not well, far from it. It would be too easy to dismiss the speech as the rhetoric of a man on behalf of a profession seeking to protect its own interests. The ire was genuine and the issues raised simply cannot be ignored. What the speech also did was to re-emphasise that the challenge against the savage, neo-liberal cuts agenda requires a co-ordinated and united approach. If people descend into bickering and infighting, consumed by the scramble for individual survival that challenge is doomed to fail. 

So far as the independent, publically funded Bar is concerned:

“Once it is gone, we will never, ever get it back”

That should be of concern to everyone.