Down but Not Out – an alternative to Direct Action

What is the alternative to Direct Action? Those of us, a minority, who do not favour such a course, owe the profession as good an alternative as we can muster. Let us start at the worst possible point. Indeed to do otherwise would be totally indefensible.

The cuts take place regardless of all protest – so that there is No More Money.

Hit hardest will be crime only chambers. There will be a significant and fairly swift reaction. Some small chambers will fold, others will seek amalgamation, significant numbers will leave the profession. All who wish to battle on will think immediately of every conceivable cost-cutting measure. Sadly that will mean jobs lost in the Clerk’s rooms. Certainly buildings will go and working from home will increase. Some may have invested in technology which may have made that process easier to manage.

In chambers doing other work, there will be a limited opportunity for purely criminal practitioners to rebrand. This should not be exaggerated. Some criminal practitioners simply will not be able or have the chance to begin new work. At the same time, there are some signs of such movement into regulatory work and even practitioners completely reinventing themselves, for example, into employment law. But it would be unrealistic to suggest this will be the norm.

In a sentence, there will be over a period of about two years a significant exodus from the criminal bar with many of the personal hardships already predicted and very significant long term damage to the Criminal Justice system and those dependant on it. I have tried to avoid excessive language. Others would paint an even bleaker and even more powerful picture.

UNLESS

Well – unless we band together in a wholly practical way to survive the worst that is to come.

I have blogged already along these lines. We need to consider a salary structure for desperate times.

The very idea strikes at the fierce competitive individualism that makes us what we are. But if chambers really are to survive in part, sadly we need more than direct action to break open a treasure chest with no spare change in the box anyway. For with the best will in the world, it cannot succeed. There is no money, or if you like, no cut of any significance which will be conceded. That is quite apart from the other reasons for its unsuitability, such as it’s necessary interference with the right of access of others to justice.

So let me spell out how a proud and loyal profession just may survive in part.

All members of a mixed set of chambers have to be involved.

We need to invent an internal short term fee mechanism which pays a minimum living wage to every member.

Pool a significant percentage of income, but with a formula which still allows the highest earners to keep a proportion of their greater earnings.

Each set of chambers would have to reach an agreement which reflected their different work, but it should be possible for the Bar Council to develop a working model.

This emergency solution should be in place initially for two years before a fundamental review on an individual chambers basis.

No, I can hear the cries, it would never work. We are all far too selfish even to think along those revolutionary lines. Better just abandon crime and let our criminal brothers and sisters in chambers go to the wall…

Or could it work? Work where there is no other alternative? None at all.

I am sufficiently naive to think that we may care about each other sufficiently to want to save each other.

Or have I totally misjudged my profession in extremis?

The second obvious way forward arises directly fro the tremendous recent cooperation between both sides of the profession. Under revised structure reform, we could form close working relationships with local solicitors doing crime. The nature of those links is defined by the degree of openness of chambers. Some could come in house, others reduce their own buildings to share ours. Everything in theory is possible to keep our criminal work through the very dark days which lie ahead.

The third longer term course lies in negotiation. We MUST claw back payment for work we are now doing for nothing. Paperwork, further prison visits and the sort of night work that nobody outside the profession really understands. Working for nothing remains a huge cause of resentment and such an obvious professional injustice.

We need to think beyond these times. It is possible, if we have the foresight and courage to do so.

Nigel Pascoe QC

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