The Government alone control and pluck the money tree.
That gives them the power to dispense with the pretence of an independently funded legal aid defence system and seek to replace it with a criminal defence service at a time of their choosing.
Unquestionably the system is broken: of course, The Secret Barrister is right.
The Courts, prisons, probation service, CPS and legal aid lawyers all have a strong case for increased funding.
However in the eyes of the public and the Government, the NHS is in greater need than the legal profession.
Therefore to pluck fruit from the money tree, we need a superbly argued case to carry the public as well as the Treasury. A strike alone will not achieve that.
Our case is better presented as part of a series of reforms as above – than as a stand-alone claim.
Refusal to accept new instructions will, within 6 months, have a huge impact on the operation of the legal system.
After that, without a shaking of the money tree, the criminal bar will be deeply impoverished to the point where a significant minority will be unable to continue in practice. That is an appalling prospect.
Also by that time, a significant number of defendants will have been unrepresented or markedly less well represented than had we been representing them.
** Some emergency provision must be devised now to represent very serious cases on a rota basis. Unrepresented defendants inevititably produce hostile headlines. We know that and we must be seen to be flexible.
That is because one consequence of continuing action is that the public mood is likely to be more polarized than at present.
So, by deliberate repetition, if the position remains unresolved, the Government will attempt to introduce a beefed-up Criminal Defence Service. Further, many independent criminal barristers will feel compelled to join it or starve or leave. Without an attempt to reach out by Goverment and by the profession, we will be in an even more parlous state than we are now. There MUST be another way.
So what is the ALTERNATIVE?
I do not suggest we stop our actions altogether at this specific moment.
However there will be reason to do so in a period of less than 6 months – when hardship has increased but is still short of financial Armageddon.
WE HAVE TO KEEP TALKING and theLord Chancellor MUST in conscience respond. If that requires an intermediary, I could name a number of ideal candidates and so could many others.
The success of such discussions will depend on all the other ways open to us of ventilating our just case in a democracy. We should enlarge that process without delay. More Leaders and retired Judges should speak out.
Such ways should include the publishing of true case fee underpayments, brought to life by our best advocates, young and old.
It is absolutely vital that we support equally clearly the other underfunded parts of our criminal justice system.
Specifically, we should not slag off the CPS, but urge their fuller funding also in the interests of justice.
Underlying the thrust of our persuasion must be the dire need to provide a continuing career in crime for young advocates.
1.The fundamental barrier to higher fees is the present management of the economy with its emphasis on limiting public spending. Short of a sudden election, that is unlikely to change radically in the next 4 years. Only the strongest case will achieve significant success.
2, It follows that we must continue to fight our corner so as to retain public support, using a range of good advocates.
3, We must provide emergency cover in serious cases.
4. A key part of our campaign should be the present non-payment for huge amounts of material.
5. It is time, please, to talk more.
And that is a two way street.
Nigel Pascoe QC
PS A vote along party lines is an indication of the scale of the battle ahead. But I do not think that it should make us shut up shop and not talk.