INTERVIEW: ‘It is time for barristers to make a stand and strike,’ said the human rights lawyer Michael Mansfield QC last week. The self-described radical lawyer made his call as defence lawyers and the government moved inexorably towards industrial action – and (as another leading QC tweeted) the profession’s leaders ‘bottled it’.
The Criminal Bar Association (CBA) last week backed away from direct action, despite a poll of their own members last month in which the vast majority of barristers (96% of 1,385 respondents) supported days of action and a policy of ‘no returns’ (refusing to cover for colleagues). Some 14 months ago short-lived unity in a notoriously fractious profession dramatically fell apart when the CBA struck a deal with the then Lord Chancellor, Chris Grayling to the outrage of solicitors and many of its own members. Solicitors accused the Bar of pursuing ‘a separate peace’.
Talking to the www.thejusticegap.com, Michael Mansfield points out that he has been calling on defence lawyers to flex their collective muscle to protect legal aid for almost ten years now. ‘I remember saying – much to the chagrin of some barristers – that industrial action was required to stop the rot,’ the silk says. ‘They were horrified.’
As Mansfield points out, the attack on legal aid lawyers ‘didn’t start with the Tories’. Ten years ago, New Labour was attempting to foist a model of price competitive tendering on a demoralised profession. The human rights lawyer set up Mansfield Chambers after the demise of his first set Tooks Chambers two years ago which he blamed on the legal aid cuts. Mansfield Chambers last week decided to break ranks and lead calls for an extraordinary general meeting of the CBA and a vote for direct action.
‘If the lawyers don’t stand up now the government will decimate legal welfare completely and will ultimately lead to the collapse of an effective and fair criminal justice system. Including the very existence of an independent and committed public service profession able to challenge the excesses of successive overweening Governments.’
Michael Mansfield QC
‘The rank and file of the bar – as the CBA discovered in their survey – are ready,’ Mansfield says. ‘They have had enough. They know that the writing is on the wall unless they do something.’
Earlier this month, the legal aid minister Shailesh Vara confirmed that the government would be delivering on the Coalition’s pledge to cut solicitors’ fees by 17.5% (there was a cut of 8.75% last year), and that it would press on with its forced consolidation of the solicitors’ profession. Under the plans, there will be a limited number of ‘duty solicitor’ contracts to provide legally aided on-call representation to suspects in the police station or defendants in court. Firms providing such services will drop from around 1,600 to 527.
What does the barrister make of the CBA’s recent climbdown? ‘It is the leadership of the criminal bar who obviously feel that their nests are feathered – or at least can remain feathered for a fair time. They do not want to take any risks,’ the barrister says. ‘That is the real dichotomy at play: ‘Don’t rock the boat/ Let’s get what we can for the time being.’”
It is predicted that the government reforms will devastate already impoverished solicitors’ firms that have struggled to survive years of frozen legal aid rates. Without the pipeline of duty work, firms will struggle to grow their businesses and many will close. However this also will have a calamitous impact on sections of the Bar – notably the junior end – as solicitors firms change their model and keep as much advocacy work inhouse as possible.
If some at the Bar feel they will escape the worst of the cuts, Mansfield believes that they are fooling themselves. ‘The source of the service we provide begins with the frontline solicitors,’ he argues. ‘That is where the contact is made through the duty solicitor schemes. If the high-street solicitor is going to go out of business – and the prognosis is that two thirds may not survive – then they will take the rest of the work in-house as firms that remain do the advocacy work themselves. The independent bar is never going to survive this.’
Michael Mansfield takes heart from the direct approach of groups such as the Justice Alliance, which organised a Justice Bloc at this weekend’s End Austerity Now march, and the Haldane Society of Socialist Lawyers. ‘Their message is that the protest about the legal aid cuts is not just be about lawyers. It should be about all the things that we talked about at the Commission of Inquiry into Legal Aid at the House of Commons.’ That 2011 initiative was organized by the Haldane and the Young Legal Aid Lawyers and its report Unequal before the Law was published by the JusticeGap (here). ‘The Justice Alliance is about young lawyers providing a service,’ he says. ‘They aren’t motivated by making a fat living.’
What did Michael Mansfield make of the Independent Police Complaints Commission’s decision this month not to mount a formal investigation into allegations of criminal wrongdoing by police at Orgreave in 1984 at the height of the miners’ strike. The decision came two and half years after the South Yorkshire Police referred themselves to the watchdog.
‘An abrogation of responsibility,’ the QC replies. ‘The IPCC’s record on recommending prosecutions is just appalling. I don’t think anyone has got any faith left in them.’
‘I didn’t expect anything from the IPCC,’ the barrister continues. ‘I just thought that at least they would do us the favor of letting us know earlier. It really needn’t have taken two years to reach that decision. It was perfectly obvious it was going nowhere. There was no stomach for it. ’
Mansfield calls the timing of the new IPCC report an ‘entirely political decision’ coming after the May election and before the June 18 anniversary of the most infamous confrontation between police and miners at the Orgreave plant. ‘The IPCC wanted the decision out therebut at the same time they were conceding that there was misconduct,’ he says.
Mansfield has described the Orgreave evidence as ‘the biggest frame-up ever’ (and Hillsborough ‘the biggest cover up’). As reported in the Guardian, the force now appears to admit one of the main claims made in the 1985 trial of 15 miners which collapsed, that detectives dictated – or guided – parts of other officers’ statements. You can read Mark George QC on his experience reading through the original police statements on www.thejusticegap.com here.
‘That these were not isolated incidents. It was perfectly clear at Orgreave and elsewhere, that this was systemic. It was not just the odd copper “out of control”.’
Why does Orgreave still matter? ‘For me it could not be more important,’ the barrister replies. Mansfield set up Tooks chambers in May 1984, represented many striking miners and moved to Yorkshire with his wife Yvette Vanson in 1984 (who made the Channel 4 film The Battle for Orgreave).
‘Miners were accused of treachery, treason and God knows what – they called it ‘riot’,’ Mansfield says. ‘Kinnock and the Tories all came out condemning the miners for what had happened at Orgreave elsewhere. The trials collapsed one after another. The miners were on the frontline. It was a national incident.’
The Labour leadership candidate Andy Burnham last week called on Theresa May to set up a Hillsborough-style independent panel to examine all documents relating to events at Orgreave during the 1984-85 miners’ strike. Mansfield has been representing some of Hillsborough families in the inquests in Warrington. ‘What Andy Burnham and the families were asking for – an independent panel type enquiry to disclose all materials – is a pretty fine model and it works on event that happened all those years ago. That is what should be happening,’ the QC adds.
The barrister was also touted to lead the inquiry into historic child sexual abuse, after Lady Butler-Sloss stepped down from the role amid controversy. A petition on website change.org requesting Theresa May to appoint Mansfield to the post attracted over 2,000 signatures (here). ‘I didn’t hold myself out for it until someone contacted me ’ he says. As Mansfield recognises, he was never going to be appointed. ‘The government didn’t approach me, never have and never will – not in a month of Sundays’.
‘But what is far worse is that is that they didn’t consult the survivors about the appointment of the first chair or the second chair,’ he says. ‘There is a problem for the inquiry with the survivors because there is no core participation by them in it. Until the inquiry really embraces them – and brings them into the fold – that’s an issue. Getting evidence about child abuse is hugely sensitive and hugely difficult.’
Is the barrister, whose name has been associated with countless miscarriages of justice, worried about the political clamour for a victims’ law and a shift towards the rights of victims at the expense of defendants’ rights? ‘No,’ he replies; adding that he is ‘perfectly at ease’ with the idea of ‘some kind of charter, a protection and recognition’ of victims’ rights.
‘There has been an imbalance,’ the barrister says. ‘We have a procedure whereby the state prosecutes and a defendant needs to be protected but the person in the middle is often forgotten. It’s that person who maybe the main witness in the case. They need protection and advice. We have not sufficiently recognised their problems.’ He cites the example of Frances Andrade, the professional violinist who killed herself a week after giving evidence about indecent assaults by a former teacher. ‘I was appalled by that. The system should not allow that to happen.’
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award