LSWU statement on CBA action and the response of the BSB and Lord Chief Justice
We are disappointed by the indications by the Bar Standards Board (BSB) and Lord Chief Justice (LCJ) that those participating in the ‘days of action’ this week will or may be subjected to disciplinary sanctions. While every case will turn on its own facts, we renew our commitment to support the profession as a whole, the collective will of our members and every individual member who plans to engage in such action.
To that end, we would like to point out the following :
The LCJ and BSB have chosen to descend into the arena one clear working day before the industrial action that was planned over a week in advance and had been debated for some weeks.
We know of no barrister who has ever been disciplined in the manner proposed by the BSB and LCJ, because days of action have previously been so successful that the authorities have been unable to deal with the sheer volume of participants. As always, our strength is in numbers and the more we stand together the more likely we are to win.
Criminal barristers are leaving the profession in unprecedented numbers (300 in the last year), and to threaten and/or take disciplinary action against those who remain, solely for withdrawing their labour on agreed and notified days, will be the last straw for many of us. Hundreds of trials a year are already having to be postponed for want of an available prosecution or defence barrister.
Any barrister engaging in the day of action will, by doing so, be exercising their rights under Article 11 of the European Convention on Human Rights (see Demir and Baykara v. Turkey  ECHR 1345, which included consideration and approval of two of the eight fundamental conventions of the International Labour Organisation, ratified by the United Kingdom: the Right to Organise and Collective Bargaining Convention No 98 in 1950, and the Freedom of Association and Protection of the Right to Organise Convention No 87 in 1949).
The case-law is clear – disciplinary sanction of a lawyer exercising their Article 11 rights can amount to a disproportionate, and therefore unlawful, interference with those Article 11 rights (Ezelin v. France  ECHR 29). A circular threatening disciplinary action for exercise of those rights can similarly amount to such an unlawful interference (Enerji Yapı-Yol Sen v. Turkey,  ECHR 2251). Disciplinary sanction of a lawyer exercising their human rights can also amount to an unlawful interference with their Article 8 rights (Bagirov v Azerbaijan  ECHR 187). LSWU will support any member bringing civil proceedings for breach of their human rights due to threatened disciplinary measures. The CBA has already committed to supporting members in disciplinary tribunal hearings; LSWU will also do so for its members if required.
None of the criminal Bar has arrived at this decision lightly, and we are therefore saddened that the LCJ and BSB have sided with the government and against workers exercising their right to organise. We respectfully invite those in power to listen to the criminal Bar, and not to threaten us. Our tireless efforts for vanishing pay show clearly that we are part of the solution, and not part of the problem.