The most fundamental threat, surely, is that posed by the Ministry of Justice plan to reduce further the already modest fees paid by criminal legal aid. Over the last 20 years these have already been cut to rates that make the criminal Bar an unattractive profession to all but the richest or most optimistic new entrants. Should the proposed round of new cuts be implemented it is hard to see how the profession of criminal barrister could survive in anything like its current form.
Simultaneously the Bar Standards Board is attempting to impose on the criminal Bar a scheme of quality assurance that has, in the view of many practitioners, little relevance to assuring the quality of advocates but is an essential step on the road to a fused and subservient profession. Ultimately, in this view, the independent bar faces the prospect of extinction.
It is by his response to these two issues that Lithman’s success will be judged. So who is the man to whom the criminal Bar has entrusted its defence?
He is normally, he insists, a happy man. Astonishingly he says he cannot remember a single day in court when he did not laugh, or at least giggle. Unfortunately when we meet, one would be hard pressed to detect much sunshine in his demeanour – it is more that of a grizzled elder of Harold’s fyrd standing at the top of Senlac field during the latter stages of the battle of Hastings. Though grimly determined to win he has no illusions about the existential crisis in which the criminal Bar finds itself, facing an ambitious and equally determined opponent who says, simply, and to the criminal Bar chillingly, that there are “just too many barristers”.
Lithman grew up in what he describes as “quite posh” Essex and attended the same school – Bancrofts – as David Pannick, perhaps the brainiest barrister of his generation. While Pannick “kept his head down and applied himself” – all the way to the House of Lords – Lithman was no swot, he says, preferring acting and rugby. He was a notable Judge in a school production of Ben Jonson’s Volpone, and an enthusiastic hooker on the rugby field.
And he does indeed have the build of a hooker. He is a sturdy terrier of a man, a necessity for the player whose main function is to win the ball in the midst of the scrum, by fair means if possible, and if not by foul. If I saw him for the first time in the opposing pack I would fear for my ears if my leather scrum cap was not tightly tied down.
Yet appearances can be deceptive. Whatever he may have done in the front row of the Bancroft scrum, he refuses to indulge in personal abuse of the man with whom he is locked in mortal combat. Some have mocked the Lord Chancellor’s lack of legal knowledge, jeered at his dreary voice or even, particularly rudely, questioned his need to use Parliamentary expenses to refurbish his second home, but Lithman will have none of it:
“My relationship with Mr Grayling is always polite and respectful. I will not call him a liar or dishonest.”
But does he believe Mr Grayling when he says that he wants a
strong and independent Bar?
“No. All the indications are against that. Why do they bring out fat cat lists to name and shame high earners? They don’t do that to doctors or other professions. Why did Shailesh Vara claim that the average criminal barrister earned £84,000 when the real figure is less than half of that?”
Those perhaps are indications that could come from the Ministry of Justice rather than Mr Grayling himself, but he does rather give the impression of being near to his wits’ end in his personal dealings with the cost-cutter from Epsom and Ewell.
“We need to sit down with the Lord Chancellor, and discuss the
But he’s done that already.
“I’ve met him twice, first on my own, secondly as part of a delegation. One always tries to get a personal rapport, but that has proved to be wholly impossible. I’ve asked for his protection against
the cuts. His reaction is that they are written in stone and he won’t be dissuaded from them.”
Lithman is realistic enough to appreciate that the Ministry of Justice will not back down without being able to point to further savings and to that end he has made what he considers the constructive suggestion that they should sit down with “the brightest and the best” to work out a solution. But he sees little chance that the Lord Chancellor will agree.
Does he think there is any mileage in trying to get a third party such as a respected senior judge to act as a mediator?
He is polite, but dismissive. “It will get nowhere.”
So if talking is getting nowhere, what can be done to persuade the Government to change course? The half-day “strike” on 6 January was successful enough but hardly sufficient on its own to reverse the Grayling juggernaut.
“The single most effective thing that the Bar has done has been the refusal to accept VHCCs at the new rates. In a recent case at Southwark the defence advocates walked out and they haven’t found anyone to replace them.”
The response, says Lithman, was immediate: the Ministry of Justice started to reclassify VHCCs as graduated fee cases.
“They have been performing somersaults to turn VHCCs into graduated fee cases. If I was instructed in a VHCC case converted in this way into a graduated fee case I would not accept it.”
What is more, “I think we should not accept any new case at a new rate, however it is disguised.”
The Ministry of Justice recently announced that it has appointed two silks, Greg Bull and Alun Jenkins, into the beefed up Public Defenders Office. Lithman’s contempt is obvious.
“It will be of no interest to anyone who truly believes in an independent Bar.”
So all the indications are that criminal barristers are facing a prolonged period of blood, sweat and tears. But Lithman’s object is clear and honourable: no further reduction in fees and the survival of
the independent criminal Bar.
“I hate injustice. What the government is doing is unjust so I will fight against it.”
Lithman takes a similarly firm stance with the Quality Assurance Scheme for Advocates (QASA). The decision in the judicial review was still pending when I met him, but he was full of praise for Dinah Rose QC, Tom de la Mare QC and their juniors. They, together with the solicitors, acted pro bono which was praised as well by the Divisional Court in its judgment.
But is an opposition to quality assurance really an issue on which the public will have any sympathy with the Bar?
He explains that it is not regulation per se that he objects to, but over-regulation. There are two features that particularly grate: the existence of the plea-only advocate and the need for silks to be categorised on the same basis as other advocates.
“I won’t be prepared to sign up to QASA unless those changes are made – the BSB say they won’t make them. The irony is that had the amendments that we want been made, QASA would be in force and would be acceptable.”
These are battles that Lithman intends to win. Even if he loses he will not be a broken man. He has a hinterland: he loves making what he is told are very funny after dinner speeches, a family of which he speaks with evident pride, a prominent role in the Highgate Jewish community and a wanderlust that has taken him as far as Antarctica.
But if he wins he will step down with the satisfaction that he has helped to save a criminal justice system which, for all its faults, remains the envy of much of the world.
Matthew Scott, Pump Court Chambers