Letter to The Lord Chancellor

Dear Lord Chancellor,

At the recent meeting with the Circuit Leaders, you made it crystal clear that you want to maintain an independent Bar. That is one reason why you are not introducing competitive tendering for the Crown Court.

Part of the Criminal bar has reacted with some suspicion to what looks like, in fairness to you, a pretty clear and unequivocal statement. They believe that it is a delayed execution, so that inevitably competitive tendering will come to the Crown Court after its introduction in the Magistrates Court.

I prefer to treat you as a man of honour who has given his word. I have no personal reason to think otherwise.

So I shall tell all young would-be criminal lawyers that the Lord Chancellor has made it quite clear that he wants you to make that choice. There will be a future for them and so far as you are concerned, our precious independence is guaranteed. I shall tell them that by inference you must want the structure of chambers to continue and understand the need for the young to have a training ground and the pursuit of excellence.

Further you told our dedicated circuit leaders that you do not propose One Case One Fee.

It must follow that you have both understood and accepted the logic of our position, following the many representations made. I am grateful for that and I shall point out to the young and all interested members of the public that it will indeed help to maintain the independence of the bar.

Then you are reported as saying –

“I have tried to protect the Bar. I hope that the Bar will not bite my hand off”.

Again I take you at your word. It is entirely reasonable for you to speak in those terms.

Speaking for myself, I absolutely deprecate any and all personal attacks which have been made on you. Nor do I think it is fair to have castigated your appointment because you are not a lawyer. Probably you have gone out of your way to seek to absorb the ethos and intricacies of the bar and will go the extra mile to negotiate with representatives of good will who treat you with courtesy. I
I heard you defend the independence of the Judiciary on Question Time and I have no doubt that you have the integrity to defend in public the independence of the bar. Indeed you are recorded as saying –

“It is very important to maintain an independent Bar. I will continue to give that message out”.

I repeat – I believe you. I shall continue to do so, unless of course you were to go back on your word.

However I do need to pick up one comment you are reported as making, which may be seen at odds with your opening remarks.

“If the Bar does not co-operate I may introduce PCT in The Crown Court.”

Now I was not present at the meeting so I cannot know whether that was threatening in character, or something of a bargaining ploy. No matter. I am going to go with your opening remark that you are not introducing PCT in the Crown Court because you believe in an independent bar and thus have accepted the strong submissions of the Bar Council as to why it would present insuperable problems for us in the Crown Court.

Then you openly and frankly told our leaders that you need to shave £1bn off your budget and will save some of that from Legal Aid. Most of it to fall on solicitors. £44m of that will have to come off the budget for the Crown Court.

Here again I part company with some of my colleagues. In a time of economic rigour, the Law and Legal Aid in particular cannot be immune. Why should we be? The rest of the country with a few exceptions are undergoing economic hardship of a character unknown for over a generation. So we are all going to have to knuckle down and earn less. If we want a better life style, we cannot expect it from the public purse. All that notwithstanding the serious cuts to our fees for well over ten years, which I know have been brought to your attention. That does not prevent me and many others wanting very specific alterations to the mechanism of some of the proposed cuts.

Nor will I challenge your absolute right as an elected politician to make those hard choices, aware as you must be of the knock on effect on both court users and practitioners.

So what remains?

Judgment, Lord Chancellor. The knife wielded as fairly as circumstances allow.

And here I detect a crumb of comfort from another of your very clear statements to our leaders.

You have given your word to consider any alternative strategy to save the money needed. You have given your word to consider alternatives to PCT. If we come up with something you will ensure that your officials help us to cost it.

I absolutely trust that clear and straightforward commitment. You can be quite sure that insofar as we can suggest viable alternatives, we shall do so.

But you went even further.

If we come up with other ideas that save some money, you will not “bank” those savings and then make the full range of cuts proposed in the consultation paper.

Again that sounds to me to be plain and straightforward, as does your commitment that after this you do not plan to come to the Bar for further savings. We will hold you to that and I see no reason why you should break that public commitment either

You said more by way of explanation, notably that abandoning client choice was designed to help new entities (such as the Bar) enter the market place. You were keen to see Chambers bid for contracts.

I will not comment on that, save that the bar is alive to the need to adapt its working practices to create some alternative business structures. But I note that you see a continuing and enterprising role for chambers and not for a moment by implication their demise.

You will have noticed so far that I have done little more than to set out your exact commitments courteously and make it plain that I am prepared to trust you to keep them.

Some in my profession will be choking over their cornflakes at so mild and trusting a response.
Naive will be the least adjective in their vocabulary.

But I am absolutely serious. If you keep your word, unlike so many politicians who have failed us, you may not make friends but you will be respected. You may even become Prime Minister. Reputation is everything, is it not?

But here may I enter a caveat of my own.

You told the Leaders that tapering proposals are designed as an incentive to keep a trial short.

That, with respect, suggests a deliberate tardiness to make money. Frankly, with good judicial case management, it isn’t the bar who are slowing the process down. Cases are delayed for a whole variety of reasons beyond our control. Trust me. I have been doing it for 46 years and time wasters are no longer the problem.

So I am sure if you think again about that suggestion, you will appreciate how offensive many of us have found it. But I do not accuse you of setting out to offend.

Lastly for the moment, you said that proposals to pay trials and GPs at the same basic rate is designed to help junior members of Bar who do the higher proportion of the GP work.

I am going to let our leaders answer that claim, made again I have no doubt, in good faith. They have already responded in detail pointing out our deepest concerns and fears and you have undertaken to see them again.

So in summary, Lord Chancellor, I have set out your own stall in your own summarised words. I have decided to trust you as a man of honour.

No one would be more relieved than me to find that faith was well placed.

For the point of public promises is that men of honour keep them.

Thank you for taking the time to read this.

Yours sincerely

Nigel Pascoe QC

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