Withholding Bar Council Subscriptions

Date: November 15, 2007

Expertise: Employment



Some members of the bar will already know (having read the expurgated version of my article in Counsel Magazine November 2006) that I am a retired Recorder and am engaged in litigation in the Employment Tribunal against the Ministry of Justice (aka the Department for Constitutional Affairs, aka the Lord Chancellor’s Department). I am seeking to enforce the right to equal treatment, which the Part-time Workers Directive (97/81/EC) requires the United Kingdom to implement in domestic law. If properly implemented in UK law, the government would have to pay part-time judges (Recorders and chairmen of tribunals) pensions adjusted pro rata to the amount of work (ie sitting days) done by them.

The unexpurgated version of my article is on the 2 Temple Gardens website ( under Publications. The benefit to be gained is not simply a pension but also abolition of the particularly objectionable rule that those part-time judges who attend JSB training, do so on half pay.

This is an issue not only for my own benefit but for the benefit of all members of the bar who undertake, or at some stage in their careers will undertake, a part-time appointment whether as a Recorder or as a part-time chairman of a tribunal. Ultimately it will probably be of benefit therefore to most members of the Bar (apart from those who become full-time judges and serve 20 years as such thereafter).

Having dutifully paid my Bar Council subscription for over 40 years, I thought that when there was a genuine ‘trade union’ function for which I really needed the help of my professional body, the Bar Council would be there to assist me.

I feel strongly that this litigation (whether by me or by another member of the bar equally prepared to raise his head above the parapet) should be supported by the Bar Council and not left to one or two individual barristers to pursue at their own expense and risk. A number of part-time judges have kindly and generously contributed to my ‘fighting fund’ but this cannot be an excuse for the Bar Council to shirk what I believe to be its responsibility.

In the real world a worker looks to his trade union to help in these circumstances and a professional man looks to his professional body.

The Bar Council however, while recognising the likely merit of the claim, refuses to lift a finger to help. Its excuses are frankly pathetic.

The present position in the litigation is that the government has secured a decision of the EAT in its favour in a case involving another barrister who is or was a chairman of tribunals. That case did not involve determination of all the points available to Recorders. Quite apart from my own views, on the basis of the opinions of four QCs expert in this field (three in England and one in Scotland) it was wrongly decided. Subject to permission it is on its way to the Court of Appeal. Sooner or later there may have to be a reference to the ECJ in Luxemburg. I would like be able to assist this appeal but really it is the Bar Council who ought to be fighting for its members interests.

If you agree with me, it is open to you to withhold the Voluntary Subscription which is part of the sum which most barristers pay to the Bar Council on 1st January. If you write or instruct your chambers’ accountant to write saying that the voluntary subscription will not be paid unless and until the Bar Council accepts the obligation to support these claims, so much the better. The important thing is to withhold the money. All it takes is one telephone call or e-mail to you chambers’ accountant or whoever pays the subscription on your behalf and the Voluntary Subscription can be withheld. (QCs £110, 12yrs+ £70, 8-12yrs £55, 5-7yrs £25, 0-4yrs £nil.) Obviously this needs to be done before 31st December 2006.

I have a separate request to make. I would be very grateful if those who feel as strongly as I do that their money would be better spent supporting the litigation, were to direct the money saved (or an independent contribution) to my fighting fund. The fighting fund is not with my own private bankers but is at Coutts & Co (Sort Code 18-00-02 A/C No 80560720 “Dermod P O’Brien – PTJ Action Group”). Re-imbursement will be as set out in my article.

I believe that we can defeat the government on this. The machinations, to which the government has resorted in its efforts to prevent public disclosure of the facts behind its blatant discrimination against part-time judges, a large proportion of whom are members of the bar, suggest to me that the government itself knows that what it is trying to do is unlawful. It is a pity that I should find myself at odds with my own professional body while trying to act in the interest of so many of its members as well as in my own interest. Sweet reason has failed to coax the Bar Council act as I believe it should; withholding the voluntary subscription may do so.