Right and Wrong

Agreement first. It is an excellent idea to pursue JR to test QASA. It is splendid that we are getting organised to sell our case to the public and yes, winning some successful coverage.
It is wholly admirable that we are making common cause with our solicitor colleagues. And the agreed note following the meeting with the LC shows just how superbly the Circuit Leaders are putting our case.

Common ground – or it damn well should be. The bar must have in place an agreed high quality quality assurance scheme of it own AS SOON AS POSSIBLE. We cannot leave the public for one single moment with the impression that the present BSB scheme is unacceptable, but that we do not have our own in place or ready to go. That would be arrogance of the highest order and would undermine our case.

Areas of Disagreement

1. The vilification of our regulators. It must stop forthwith. Some very stupid barbs are undermining reasoned opposition

2. The down-tools approach if we cannot change QASA, bearing in mind the sanction. In the front line, unable to practice, would be the young and the not so young on two circuits, carrying the risk of immediate professional immobility. They should not be put in that position. Families come first.

3. The line between not agreeing to join QASA and so organising our affairs so that we disrupt court sittings may be blurred, but the end result is the same: we shall lose every ounce of public sympathy and fall an easy pray to a strong man.

4. it will mean that every trial we disrupt will be giving one or more ordinary member of the public delayed access to justice. That strikes me as irresponsible and just plain wrong. Whether it would or could itself break the law is beyond my sphere, but no doubt there are industrial experts out there who can answer such issues.

So for goodness sake let us get off this ridiculous QASA clanking treadmill and concentrate on a wholly legal hard fought extended campaign based on Reason and not a whit on threat. The good news is that enormous effort is going into coordinating analysis of the cuts. On that all of us can unite.

One final thought and it needs a separate blog. We need to look at exactly what The Lord Chancellor said to the Circuit Leaders as well as their excellent response. On the record.
That may prove very important in the fight ahead.

More anon.

Nigel Pascoe QC

Peace with Honour

Time to end part of our problems and do so in a way that will move the debate to where it belongs: how to uphold access to Justice and allow the criminal bar to survive.

QASA is here to stay. I do not rule out some late amendment, but the chances are falling away.

What is crystal clear is that if we do not join it, we cannot practice. It really is as simple and terrible as that. We can disrupt courts and in that process, other peoples’ right to access, but it is coming. Full stop. End of argument.

The key weakness of our principled and honourable stand is that
at this point, we have not our own agreed alternative quality
assurance scheme in place.

So here is my solution. Or if you prefer, the blindingly obvious way forward to restore sanity, provide a real assurance for the public and put us into an unassailable public perception of integrity and quality. Three simple steps.

1. The bar must devise AT ONCE its own quality assurance scheme worthy of the name. I suggest AKM: an Advocacy Kite Mark.

That scheme can be achieved by a meeting of the chief officers of the Bar, the Circuit Leaders and the Chairman of the CBA deciding whether it should be led by the Inns and/or the Circuits. Then it must be ratified by the Bar Council. The key point is speed: it MUST be ready for purpose before QASA is due to begin.

2. The Bar should then say to the regulator that we will now advise our members to join QASA, but at the same time every barrister will be subject to a much higher professional standard.

3. At the conclusion of the two year review period which the Bar Standards Board have already announced for QASA, the Bar will contend that they have in place a patently better system. Then it will be time for a negotiated change to bring in proper quality assurance for the Bar. Over the two years we can have user panels to monitor the two processes.

Now this is why such a scheme will work and also allow us to fight on where it really matters.

First, the BSB cannot possibly object to a system running coincidentally with their own, which patently is seeking to impose higher standards. Indeed to be fair to them, I predict that they would welcome it.

Second, we can all stop tearing ourselves apart, friend against friend, simply over regulation, and get on with combating the huge challenge of ameliorating terrible cuts and saving if possible the solicitor’s guillotine. That is a huge public relations battle that is yet to be won and I shall continue to offer as much help as I can.

The Lord Chancellor told the Circuit Leaders that QASA was an irrelevance to him. Let us make it an irrelevance to us in a much bigger fight.

PLEASE bite the bullet and save the bar.

The new badge should be YES TO AKM

Advocacy Kite Mark

That is a badge which we must earn and then wear with pride.

Nigel Pascoe QC

 

 

The right way to fight

I want to bring together a raft of ideas to fight our fight within the law and avoid the twin perils of mass suspension (No to QASA) and wasted costs orders. Hopefully also Sun headlines on the lines of
RAPE VICTIM ABANDONED BY STRIKING BARRISTER

Oh yes they would!

1. The Chairman of the Bar and the CBA and the Circuit Leaders should write an open letter to all the main papers indicating the unprecedented level of anger at the criminal bar on the inadequacy of QASA and the continuing fear that BVT will in time devastate access to justice. It should avoid threats but pull no punches.

2. Two hundred Criminal silks should sign a similar round robin. I am only too happy to write the first draft.

3. We should appoint as soon as possible a first class spokesman to be at the front of all our major communication. This need not be a lawyer – I would settle for a top media journalist.

3. The bar should choose at once a really good small team of our very best communicators on each circuit to explain to the public our legitimate deep concerns. Then we should approach all the media outlets open to us to offer a spokesperson available at all times. We must include young barristers in the team.

4. As part of all communication, we must have available real life fee examples which make plain the true figure after deduction of our chambers and other expenses. Every criminal barrister could provide such an example and that could be then set against comparative GP or consultant figures for a similar period.

5 We need one criminal barrister to adopt, monitor and write to each major provincial newspaper along the lines of the excellent recent article in the Northern Echo.

6. We should rebuild a parliamentary consensus using the bar contacts in both Houses. This should be done on a highly organised basis from a specific bar subcommittee.

7. We should seek public debate with the Lord Chancellor and the Regulator via Today, Newsnight
etc. Refusal to participate should be made public.

8. We should address bar poverty within chambers by creating a minimum chambers bar wage and address our structures so that no one fell below that sum. If that means a major financial upheaval, well that is what the spirit of unity should be proud to have achieved. Or simply create within each set a simple hardship fund administered with discretion. And real depression must be addressed by professional help such as Law Care. I would even suggest a Chambers welfare officer.

9. We should trump QASA by introducing our own high quality QA scheme. We should consider recruiting retired judges to help. We should be proud to claim that we have a far better scheme operating in the public interest.

10. We should be open immediately to a real growth in alternative business structures. That would bring ex police officers on board when required to take proofs for Direct access case and solicitors in house.

11. We need to coordinate support for our solicitors facing unprecedented change

12. We should promote circuit growth by reduced subscriptions and subsidised events for barristers under five years call.

It is a motley and incomplete list and some ideas will be rejected out of hand. That doesn’t matter. Improve it by your own ideas. Just don’t let unprecedented anger lead to indefensible action.
That way we can win. Ultimately reason will prevail.

Nigel Pascoe QC

Them and Us

O judgment! Thou art fled to brutish beasts and men have lost their reason.

New readers start here. I am a Western Circuiteer proud once to have been its Leader, convinced that my brave and honourable profession is hellbent on its own self destruction. The pity of it is that they are doing so with a fighting spirit which is little short of heroic.

QASA is a wretched creature which we must continue to fight. But not to join at all is, in the words of a good and decent man, foolish. We need if necessary to bite the bullet and bring alongside our own better scheme. We cannot be seen to oppose the principle of QA.

Are the savage cuts a reason to bring us on the streets, not least when the whole country suffers? What is the point of that! No, we need instead the intricate analysis of our best minds to seek amelioration if that is possible. And if it is not, we must cut our cloth and find, as ever, ways to adapt, share and cope. That is not surrender, but a pragmatic recognition that we also must endure.

Whilst the strife intensifies, language and reason are inevitable casualties. I was truly shocked to hear the word scab used by one barrister of another. Both sides are taking up positions which both demonise and demean. Instructions from on high that the bar cannot meet in court hours will not surprise, nor sadly the personal attacks on a politician or regulation Chairman. It really will not do for a profession that lives and thrives by reason.

I who also love rhetoric plead now for sane dialogue and calm heads. Now before it is far too late.

Nigel Pascoe QC

Just like solicitors?

My favourite add is ‘Communist with own knife and fork seeks fellow Communist with steak and kidney pudding.’ Could a collectivist approach ever seep into the structure of chambers?

The bar is fiercely competitive. Over the years I have heard muttered voices about X and Y doing little more than my returns and with no work of their own. Mouths to feed is the frequent epithet. So any suggestion of a collectivist structure or even partnerships will meet fierce resistance. But is there a middle way to provide a guaranteed wage to all, whilst allowing the best to prosper still, as indeed they should if you believe in merit.

The starting point may be a pragmatic choice: the bare minimum which a given set of chambers would expect its lowest earning member to receive. It will vary and I shall not suggest a figure.

Then take chambers turnover, the percentage we pay for all expenses including wages and the number in chambers

Then work out what the contribution would be if on the first day of January, every member in Chambers were to receive the minimum wage. That presupposes a friendly chambers bank prepared to come up with the cheque on the basis of previous years turnover.

Now the difficult bit. What would that cost those who hitherto have received more and much more than the minimum cheque? Put another way, how much would they need to put in the chambers pot to put such a system in place? What are the tax issues – and the really big question – why should they do it anyway?

This may be the point where I have lost my diligent and perceptive readers for good.

But think of the principle. Is there a way in which we could follow the solicitor’s partnership model without losing altogether the competitive zeal that still rewards individual skill and ability?

Here Dear Reader, I confess it is much easier to ask the question than to provide the answer. But I am left with the nagging feeling that that far better financial brains than mine may see a way to promote a new model that might work.

By the way, that is not the Baldrick plan. But cooperative steps are part of it. More anon.

Nigel Pascoe QC

The future of silks in crime

Speculation is rife that the days of criminal silks are over. The proposed cuts will reduce the differential to the point that it is not worth it. Settle for regular work as a busy junior. Forget silk and its guarantee of inactivity and enforced workless leisure.

I happen to believe that will not be the position in the long term, but a rather more contentious picture is likely in the short term. Just think for a minute about John Doe QC, recently successful in the list…

John Doe took silk with the hope that his solicitors in the first flush of his success will want to share in his triumph and brief him if at all possible. And there are those good junior briefs which have not yet come to trial…..well, a few of them.. And look at the diary for the next three to six months. Not bad, is it? A warm glow that lasted well beyond that splendid party and the obvious delight of Chambers.

The telephone rings from his worried clerk, who knows the true diary of the three silks senior to him in chambers. You know that Murder in Lewes we talked about? The one where the CPS felt their in-house advocate would need his hand held? Sorry to tell you Sir, but it looks as though he is doing it himself…something about accepting a plea to diminished. Not sure they have any others at the moment. Work very thin at the moment.

John Doe remembers that his best mate in chambers who didn’t apply is about to begin a two week three hander for the same employers. Great man, BIll and very good too. Make a bob or two out of that one, I expect. Pity I shall be doing the crossword or whatever..

At which point Doe QC has a rather unworthy thought. I could be doing that case for the same money. Better than days of enforced idleness…

You see the point. Before long, silks and juniors will be in direct competition all over again. If there is no differential and less opportunity to have two counsel, then all bets will be off. And who can be sure that a beautiful friendship will survive?

There are no simple answers to widespread criminal silk underemployment. Diversification will be possible for some, not I think the majority. Others will go in-house. Some will leave the law in anger and despair. Most, like me, will soldier on, hoping against hope for a better day and remembering that brief out of nowhere. Eventually, over years, we shall slim down and then demand will grow again for our services. That is the reason for longer term optimism, if that is the right word.

So can nothing be done? Like Baldrick, I have a cunning plan. But that is for another blog..

Nigel Pascoe QC

Quasa. One way forward?

Assume the worst. Obduracy reigns and QASA cannot be altered. Not my position – I hope yet for democratic change – but it must be faced. It’s chief fault is the very low standard it would set for a quality profession which prides itself on its very high standards.

Very well. We should consider an IMMEDIATE coincidental high quality internal appraisal scheme to run alongside the hated QASA. Call it an Advocacy Barmark.

I leave the details for others to improve, but it could well be circuit led, overseeing individual chambers with overarching Bar Council supervision. It would amount to a yearly or two yearly review with emphasis on advocacy training before ultimate sanctions. Then we could say to the world: this is what we are – a profession with far higher standards than the official Law regulator seeks to impose.

The next objection is Plea only advocates. That is a concept which I find absurd when you think how tactically complex a plea may be and how damaging a plea in aggravation sounds. And we know why it on the table – it would aid ultimate BVT. However such a concept is already
in being and plainly if we are going to bite the bullet of QASA as currently drafted, we could not then opposes the regulation of those so practising.

But the real fear of the bar is that the present recent exclusion of the Crown Courts from BVT is merely a prelude to its later introduction, a fig leaf as a friend calls it. Now no one can rule that out, although I would like our leaders to press the LC hard to give a commitment in time if not in principle.

I would ask simply whether that distinct possibility, putting it no higher, is really a sufficient basis to decide not to cooperate at all with QASA? Put rhetorically as they say, does the bar need to die in a ditch at this moment in time? I think not.

Finally mediation, which I accept is a somewhat off the wall idea. But think long term. If we had in place a really respected legal figure with a brief to press the regulators both now and in the future, we could find elements of our own proposed assurance scheme making its way into a higher code for the public. In that process, our public stock would rise and not fall. But all- out opposition now would fail the Humpheys, Paxman Mair testing, although I would dearly like our best to be heard.

Nigel Pascoe QC

QASA Revisited

Sometimes it is positively dangerous to be a lone voice. No matter. I want to put on record my own views in the hope that they will contribute to a reasonable solution.

My fear is that the profession I have loved for over 47 years may rush headlong into a protracted suicide, destroying many practices in the process. Don’t misunderstand me. Militancy undoubtedly has helped to create a fighting spirit after years in which we have been betrayed by successive governments. But the question is whether we are shooting ourselves in the foot by promising a non-cooperation which ultimately carries such a high risk.

My circuit is the first in line. Forced to choose between the future of their profession and putting bread on the table, you cannot blame the young or indeed anyone for choosing the latter. I am concerned that there is a body of mostly younger advocates who feel compelled to agree with militant action whilst fearing the very worst.

Somebody has to speak up for them. I shall continue to do so. Meanwhile I support every possible effort to Improve this sick mouse of a scheme before it comes into place, Including going for judicial review. But I can also see a role for a top legal figure to act as a mediator. We have plenty of Senior mediators at the bar and there must be well disposed retired judges who could take such a role.

Nigel Pascoe QC