The 25 Bedford Row silk talks elitism at the Bar, public clashes with the CBA, and the seduction of Gove

‘I’ve never told anyone this before, but in my early years at the Bar, I suffered from mockery and significant bullying, based upon my background.’

John Cooper QC is known to be as fearless an advocate inside of the courtroom as outside of it, whether that be within the professional associations of which he is a member, the pages of the press, or on that most modern of battlegrounds, social media. Called to the Bar in 1983, before taking silk in 2010, Cooper has a reputation for being forthright with his views. Yet with this startling frank admission, the 25 Bedford Row silk appears vulnerable for the first time since meeting him.

Astonishingly, the hounding Cooper received did not originate from fellow pupils of a higher social class but from the fully qualified members of his chambers. ‘It was quite horrible,’ he admits. ‘I didn’t make a fuss of it. What was the point?’

Hesitant that he may be immediately regretting such an honest answer to a question about the current make-up of the criminal Bar, I ask Cooper if he is happy for me to write about this experience. ‘My approach to life and work is simple: I hate bullies,’ he replies. ‘It reflects on the work I do at the Bar, on my attitude to politics, and to others. I hate bullies, and that comes from being subjected to them. You wouldn’t believe it now, would you?’ he smiles. ‘That’s an exclusive.’

Cooper comes from a working-class background and had a comprehensive school education before obtaining his undergraduate law degree at the University of Newcastle-upon-Tyne. However, when he first expressed an interest in a career in law his teachers discouraged him. ‘“People like you don’t become barristers,” they said. That was in the 70s and it was all the motivation I needed. To pay for my finals I took a year of and worked as a driver’s mate. My gap year was spent on the back of a furniture van and getting stuck at the top of the stairs with wardrobes.’

Now, as a visiting professor of law at Cardiff University and a Master of the Bench at Middle Temple, Cooper is well placed to comment on the travails of law students and the present state of legal education. ‘It’s very expensive, and can be prohibitive,’ he says. ‘When I came to the Bar, I received a full grant from the local authority.

Those halcyon days are long gone, but it’s important that the Bar is a broad church that represents all of society.’ The ongoing issue of diversity is a big concern for Cooper, who fears that many aspiring barristers must be well-heeled if they want a career in chambers. ‘The Bar is in grave danger of once again becoming a rich person’s game, like it was in the 50s and 60s. Whereas the Bar once allowed people like me – those of limited means – into it, now people like me wouldn’t survive. If we’re not careful we’ll go backwards because of the enormous cost of education and a lack of legal aid work for youngsters to test their skills.

‘I am utterly impressed by the quality of these young people,’ adds Cooper. ‘Despite the doom and gloom, many are still determined to come to the criminal Bar. I put it to them this way: “With all the sacrifices you’ve made you have earned the right to fail on your own terms.” They’re sensible young people and entitled to take a chance. Who are we to tell them not to do something?’

The criminal Bar

This honest appraisal of life at the Bar should have come as no surprise to me. Cooper rarely – if ever – shies away from expressing an opinion. It is a trait that has resulted in some rather public fallings out with fellow counsel via the medium of social media.

In 2015, as lawyers prepared to protest outside the government’s Global Law Summit (GLS), Cooper found himself at the centre of a war with the Criminal Bar Association (CBA) over its decision to appear at the controversial ‘Magna Carta jamboree’. A former CBA vice-chair candidate, Cooper had been critical of Tony Cross QC’s plan to take part in a panel to discuss the rule of law as, he argued, the criminal Bar’s attendance would give the government-backed event a legitimacy it did not deserve. Cooper’s appeals seemed to fall on deaf ears, however, and he even found himself blocked by the association’s Twitter account. While an unblocking and apology quickly followed, relations between the association and the assertive criminal silk remained frosty to say the least.

This breakdown in relations stemmed from a number of contentious decisions taken by the CBA leadership, specifically Nigel Lithman QC’s deal with Chris Grayling to postpone advocacy fee cuts in 2014, a deal one criminal practitioner described as leaving solicitors ‘up s**t creek without a paddle’. The agreement – which was backed by 1,249 barristers compared to 629 against – broke the united front presented by both barristers and solicitors in face of swingeing cuts to legal aid.

‘The so-called “deal” – struck initially without consultation – still rankles with many,’ explains Cooper. ‘People feel it was the wrong thing to do, particularly at a time when the campaign to protect legal aid was at its highest. We had ministers under intense pressure. We had the public coming out in support on various forums. We even had editorials in the Daily Mail supporting the cause. Most importantly, we had a unity with solicitors that we hadn’t had in decades. But in one stroke the momentum was lost.’

The subsequent decision by Cross – Lithman’s successor as CBA chief – to appear at the GLS was followed by a controversial strike ballot. The association’s executive came under fire from both barristers and solicitors after it dismissed a previous ballot as just a ‘survey’, even though a reported 96 per cent of respondents backed direct action against government reforms. The next ballot was much closer, however, with barristers voting by 982 votes to 795 in favour of downing tools.

‘“Trust the leadership”,’ intones Cooper. ‘That is the old way.’ Referring to the original ‘survey’ vote, he adds: ‘That vote was an important moment in our history. Up until then the Bar was a hierarchical profession. There was an atmosphere of bowing in deference to the leaders. That was smashed by that vote. That’s not to say leaders can’t do good things, but you need a leader you respect.

‘The junior Bar should have its own representative body, just like junior doctors,’ he argues. ‘The CBA, for all its merits, has a constitution whereby only silks can become chairs. There are some senior juniors who could more than ably lead the CBA. Why should they be disenfranchised? Why is it still a hierarchical structure?’

Despite its many supportive statements, Cooper is also critical of the Bar Council for, in his view, not engaging enough on the issue of legal aid. ‘[The Bar] has to represent the corporates, the chanceries, and the international work. It might be that the Bar Council has a conflict of interest and cannot criticise the government too much, because the government can be of assistance to it in other areas.’

Special advice

Cooper is as active on the political scene as he is in the legal arena. A member of the Labour party and a former councillor, he has also advised Karl Turner MP, the current shadow attorney general, and Keith Vaz MP, chair of the Home Affairs Select Committee. In addition, he chaired the international steering committee and was prosecutor at the Iran tribunal in The Hague.

It is thanks to this experience that Cooper was recently appointed special adviser to Lord ‘Willy’ Bach, the chair of a 13-strong commission to consider legal aid and access to justice. ‘The commission is an entirely independent body comprised of people from different backgrounds and political perspectives. My advice isn’t to them, it’s to Lord Bach. It’s the only show in town at the moment, there’s no other legal aid review, and it’s important we keep the momentum up on this issue.’

Yet despite the independent nature of the commission, does Cooper really expect the government to take the findings seriously, considering its persistent reluctance to review the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)?

‘We’re hoping the Tories see the commission’s proposals and adopt them,’ he responds. ‘It is a genuinely non-political review; there are people on that commission who have nothing to do with the Labour party. Lord Bach has been very careful in ensuring the composition of the commission cannot be criticised for having a pro-political party standpoint.’

The scale of the problem should not be underestimated. As the Labour party relinquished power in 2010, the number of social welfare cases granted legal aid totalled 471,418, an all-time high. However, since LASPO was introduced in April 2013, the number of cases granted legal aid has shrunk from 275,678 to 54,635, according to annual figures up to 2014/15.

In addition to hearing from a wide catchment area of legal service providers with a stake in the provision of justice, Cooper says the commission will also be looking at ‘broader blue sky issues’ and how to ensure legal aid is at the forefront of public debate. ‘Legal aid is the national health service of the law. The problem is that, with the NHS, everyone knows that at some point they, a family member, or a friend will be ill. Therefore, they understand the importance of a national health service.’

Raising the profle of the national legal service will inevitably involve engaging with the press, elements of which still refer to legal aid as a ‘gravy train’ ridden by ‘fat cat’ lawyers. How is the commission to convince Fleet Street that legal aid is a vital public service?

‘We’re always going to fnd people who are going to have a trenchant, negative, or confrontational view. The “fat cat” term is so old and out of date, but it’s still wheeled out. The fact that it still has traction, however inaccurately, is something we need to look at. As long as the public perceive legal aid as how the media portray it, there’s a problem. This is an opportunity to start with a broad canvas and consider the wider issues of how legal aid is perceived.’

The legal aid debate has, however, evolved with a new face as head of the Ministry of Justice (MoJ). During our interview, news emerges of the justice secretary’s plans to scrap the dreaded dual-contracting for criminal solicitors. It is the latest U-turn of MoJ policy from Michael Gove, yet Cooper remains sceptical of the Lord Chancellor’s long-term intentions.

‘The approach taken by Grayling was so ill-informed, so blatantly party-political, and so crass that any new regime is going to look better than that. What we’ve seen with Gove is someone who has a far more professional hand on the tiller. To put it bluntly, anyone would look better than Grayling.

‘Our profession shouldn’t be lulled into a false sense of security,’ he continues. ‘Let’s remember Gove’s track record. He had a love-in with the teachers, but that soon broke up acrimoniously. He is no supporter of the Human Rights Act. In his past he was pro-hanging. I would be the first to accept that he’s a more competent incumbent than Grayling, but competence doesn’t necessarily mean he’s going to be sympathetic. My concern is that we as a profession are not seduced.’

Referral fees

2016 is set to see many important political and legal issues come to a head. Lord Bach’s commission, the government’s British Bill of Rights, a looming EU referendum – with serious implications for the legal profession – and the impending Competition and Markets Authority examination of the legal marketplace are just a few of this year’s coming attractions. But what else does Cooper expect will make headlines over the coming months?

‘Referral fees have not gone away, and that’s going to be a flashpoint in terms of the regulation of people who distribute work,’ he replies. ‘There’s an economy out there which has people in it that don’t do the preparation and aren’t really associated with solicitors, save that they distribute work. That sector of the economy is almost a third structure: solicitors, barristers, and rainmakers.’

Cooper explains that this ‘growing industry’ may have a ‘perfectly legitimate place’ in the legal marketplace, but stresses that questions need to be asked about how it is regulated. ‘It’s a big issue and quite a controversial one. I’m not saying these people haven’t got an important role to play. People who rain-make and provide access to justice for the public do a superb job. But there needs to be some form of understanding as to how they work and, if necessary, regulation, just as with solicitors and barristers. It should be recognised as a function that goes on, and not just ignored.’

This article first appeared in Solicitors Journal and is reproduced with kind permission.