Cometh the Man…

On Monday morning, large numbers of decent, worried, angry criminal barristers will chose not to work. They have thought of the consequences and are convinced by the argument that they should put the uncertain future of tomorrows clients before their duty to todays. It is, above all, honorable. Then it is brave. Then it is unselfish.

Readers know that I do not share the tactics of Direct Action, believing that today’s punter must come first and should never be abandoned.

On that single point of difference, I have sought as an individual to beg my fellow barristers to think again. A few have: the great majority are up for a fight.

Now the die is cast, at least for half a day. And I have little doubt that it will be strongly supported on this occasion.

Fortunately it will not prevent representation of the most vulnerable or those at risk of their liberty, as the protocol sensibly recognizes.

Yet as a strategy for relief of injustice it carries huge and continuing risks, if only because a strategy which sidelines so many other clients must remain vulnerable, like it or not.

That of course is why we must, sooner or later, find another way out of this mess.

Before that, I want to risk advice to all those who do not agree with me and who will stand by their own principles on the picket lines of Justice.

Beware of your enemies. Clothed as they may be in sheep’s clothing.

I mean – all in the media who cannot wait to exploit your position.

So if even one of you calls out ‘Scab’ to another barrister doing his or her duty – as they conceive it to be – you diminish and damage all of us.

The media will love that, but the Bar won’t.

The risk of far left non lawyers jumping on the bandwagon is one that you will have considered already and will recognize, as well as the risk of provocative mini violence which can disfigure the most worthwhile of causes.

All fuel for the intransigent right or those preferring fee misrepresentation to the true facts.

No, dare I say it, on and off the picket line, there is one factor which probably unites virtually every criminal barrister at this moment in time.

It is the desire for a just settlement.

Not capitulation. Honest resolution.

How is that to happen?

It is time to address The Lord Chancellor, at least in print – much as I would like to do so, face to face, if only to echo the representations of others.

The differences between a mere politician and a real statesman are vision and judgment.

You have the chance to reach out and listen to concerns running far deeper than reductions of fees. There are real and identifiable injustices which cry out to be addressed.

I urge you to pay heed to a wise and independent very senior perhaps judicial voice who could promote resolution. There will be a number of very acceptable names.

Agree to the immediate intervention of that figure.

Before or after Monday, do the right thing.

Post Script

The publication of figures of barristers doing legal aid crime is hedged with many reservations and incidentally will make the issues more difficult to cover for non specialist journalists. But it is likely to be a line of defence on and after the day of action. I still think the best response is to produce well presented real life examples, particularly from the very junior bar. Even at this late stage, it should be possible for spokesmen to have these to hand.

Post Action

When the dust has settled, the only question that now matters is – where next? That I wIll risk in a a day or more.

NP

Nigel Pascoe QC

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It Takes Two to Tango

The juggernaut rolls on and it’s momentum may well be unstoppable. But before or after strike action, one catchphrase will continue to resonate. Sooner or later, it will be time to talk.

Why not now?

A little very basic analysis.

The history of most industrial disputes is either capitulation or negotiation. It must be exceptionally unlikely that this Lord Chancellor will capitulate and withdraw his proposed cuts altogether. They are part of a Treasury led commitment to economic restraint. You may disagree with the policy, but we are stuck with it until the next election in two years or so.

Nor are the bar and other lawyers minded to collapse. Feelings are running incredibly high and voices of dissent are not popular. A risk I will run again a little later in another blog.

That leaves negotiation or mediation, take your pick.

My friends, get your head round this simple concept: sooner or later, that will happen.

Indeed, as one blogger said recently, we would probably bite the hand off the Lord Chancellor if he were to suggest it.

But say the critics, he is not listening and will not negotiate. Hence what options have we but the nuclear one of interrupting the access of others to justice and in that process of putting our clients at the risk of nonrepresentation. We don’t want to do that, but we feel we have no choice.

I trust I put the argument, which I do not fully share, fairly.

The heart of it then is bringing the Lord Chancellor to the table.

Into that analysis, we need to consider the question of timing.

From the Lord Chancellor’s point of view, he may think the best policy is to keep quiet and await public support as a strike intensifies. I do not however see how he could avoid a public response on the day of action.

Whether that would include exposure to the forensics skills of John Humphrys on the day of action, I cannot predict.

But I can see why he may consider it is best at present to keep his powder dry

If that indeed is his position, I strongly suggest that it is a profound mistake.

The sooner the two parties start talking again to each other the better. It will happen eventually unless you contemplate the nonsense of a complete collapse of the judicial system.

But what about?

I repeat my suggestion that the leaders of the bar draw up a list of urgent topics for immediate reform.

That is going to take some courage, because the mood of some fanatics does not contemplate anything other than the unrealistic total surrender of The Lord Chancellor.

Incidentally some of the same hotheads are ridiculously keen on personal abuse of the Lord Chancellor, which I find totally unprofessional and unnecessary. You don’t win any argument by stupid abuse.

In saying that, I stress that I don’t belong to any political party: I have voted for all three of them in the course of my life!

Then the bar leaders should insist on independent mediation with a highly experienced retired High Court judge who would command universal respect.

For the Lord Chancellor to turn down mediation in the light of the many private representations he has received politically and otherwise would be unwise. I do not think he will continue to turn a blind eye if that is one construction of his present position. I do not think he could afford to take that attitude indefinitely – because sooner or later, if the bar does not prejudice its position by absurd tactics, public opinion would turn against him decisively.

In a word, Lord Chancellor if I may be so bold, do the decent thing and respond constructively. New members to the government may further promote moves to a constructive, fairer settlement. Could this in turn be a real chance to end the threatened chaos?

I will keep my thoughts on further conduct on the Day of Action until another time.

PostScript.

We now have the position of the Judges, the calm language of the DPP and the proper and inevitable guidance of the BSB.

The position of the individual client has to be what matters most, for there our professional responsibility ultimately lies.

Sober warnings in careful language. None of the guidance should be called a threat. Just Imagine how such warnings could have been phrased.

All the more reason to get round the table.

Which is the whole point of this blog.

Bite the Bullet – a Plea for Sanity

“To thine own self be true
Thou canst not then be false to any man”

Lines for all criminal practitioners fighting the good fight against massive cuts, though our preferred tactics may not be the same.

So how does the ground lie now on the proposed day of action?

1. As readers know, I am opposed to Direct action in principle and for pragmatic reasons. I see it as a slippery slope into intransigent drawn out confrontation. Most of all, I see it as inevitably letting the individual client down. I favour mediation today, tomorrow and in the future. Jaw. jaw and not war, war. It will happen eventually and we should contemplate the process now.

2. That said, I want to acknowledge two very remarkable documents.

3. The CBA Monday morning message of Nigel Lithman QC is the best single exposition of our cause that I have yet seen. No one could fail to be moved by his passion and clarity of purpose.

4. The suggested protocol drafted by him and all the Circuit leaders is as good an attempt to bridge the unbridgeable as can be devised. It seeks to minimise the damage that implicitly it recognises will happen.

5. Specifically I welcome the passage in bold type which allows barristers to attend where there are vulnerable clients or loss of liberty is at stake.

6. I also applaud the concept of senior barristers on call to stand up for individual barristers placed in conflict with the Court

All that means that a legal army is girding its loins for an honourable fight and voices like mine pleading for sanity are no more than an uncomfortable itch which must be ignored, for, goes the argument, what else can we do? We have nothing to lose.

Very well. The time has come to face the logic of a continuing strike process head on. I do so, making these assumptions in favour of the strikers

A. The day of action receives very widespread support
B. The Judiciary does its best to accommodate the disruption without penal consequences.
C. Senior barristers stand up very effectively for any individual advocate criticised
D. There are few complaints in the broadsheets of individual clients who have complained.
E. The press response is largely sympathetic

AND THEN WHAT?

Well I suppose if you are living on Mars, a repentant Lord Chancellor will appear on the Today programme and say – John, I have plainly got this wrong. Let me think again and try not to implement the worst of my cuts.

It is not going to happen.

So then the next half day strike takes place.

This time the reaction is a little less favourable, but broadly, public support remains high.

No response from The Lord Chancellor.

Right. Time for a full day’s strike.
Then two days in a week.
Then a week.
Then – that’s it. Let us close down the Judicial system.

By which time, anger has turned to despair, barrister has turned on barrister, and the great British public is thoroughly fed up with us.

Oh yes, many clients now have spoken out of betrayal and the Judges are no longer so sympathetic. Write the script yourselves.

At which point, there will come ultimately an humiliating climb down and the further decimation of the Criminal bar.

UNLESS

Unless the voices, mine included, who seek a negotiated solution are heard and independent mediation at last begins.

So I ask simply this.

Why not start that process now before our system of justice founders further and it’s honourable practitioners brought to their knees?

Here then again is my answer to those, the great majority, who are crying out What else can we do, adding The Lord Chancellor refuses to listen.

1. The leaders should draw up a key list of the most obvious injustices which exist now.

2. They should call for the immediate appointment of a distinguished would-be negotiator who possesses personal experience of criminal practice. I would suggest a recently retired High Court Judge or if he would do it, an even more distinguished figure.

3. They should elicit support for negotiation right across the political spectrum

For his part, The Lord Chancellor should display the wisdom and common sense which I heard him display on television when he defended the independence of the Judiciary. In short, he should reach out and seek a just solution.

And we can all pick up the pieces of our damaged profession

And never ever again contemplate the abandonment of a current client in the supposed greater interest of future clients. That simply is a fig leaf to justify that which we know inside ourselves we should not be doing.

Above all, that is not why any of us came to the Bar.

This strike does not have to happen.

Nigel Pascoe QC

Your place or mine

Change of tone. Well, Christmas is coming and there is much to be said for a pause in hostilities and a simple question.

Is there room for a negotiated settlement?

You see, to my knowledge, not so many years ago there was a Lord Chancellor who behaved with admirable common sense. When a Circuit Leader went to see him, he sent his civil servants away and talked to the Leader man to man to understand the problem.

A politician’s trick? I think not. A reflection of the LC certainly. And yes of course it was a talk between two lawyers. Not much chance you may think that would happen today…

And yet and choosing my words very carefully, a sensible approach may be more welcome than the profession realizes.

Hang on – I had better qualify that. We are not talking about deals in smoked-filled rooms; talks which would infuriate those who believe that past bar leaders have been selling us down the river for years in precisely that way.

No, I mean the bar leaders isolating key issues and inviting independent mediation.

There are plenty of senior trusted legal figures out there who would fit the bill – I can think of three immediately. Someone who understands the coal face and the true picture of legal poverty. I mean poverty. Tax demands from better years, mortgage arrears and real depression masked from colleagues. Don’t tell me otherwise.

My own list would not be everyone’s, but I would start with the concept of a realistic minimum fee for all procedural court applications and unforeseen adjournments. Not particularly radical but listen to the robing room anger at wasted days for damn all. Then I would invite a very detailed analysis with comparable professions existing in the public sector. Travel costs need to be re-addressed, as does paid necessary preparatory paper work. Even VHCCs could be back on the agenda, despite the anger that has been generated. The price would be no implementation of proposed cuts before mediation has been tried.

Now before we get back to barricade talk and of course we probably will in the New Year, perhaps those preparing for the worst might like to put out negotiation feelers. Only a truly stubborn man would want the chaos to escalate, if there was another way.

Finally if this doesn’t bear immediate fruit, think beyond catastrophic chaos and loss of good will.
If MPs can have an independent settlement, so can we.

So Mediation may be the sleeping dog that saves us.

PS I have received a powerful blog saying that calm straight talking with The LC was tried and has failed.. In short that he will not negotiate. To which I would say simply – it will happen in time, but our prospects are linked to the way we pursue our cause.

Nigel Pascoe QC

Judicial small talk

They were mulling it over at lunch. Two utterly decent straightforward men who saw the writing on the wall and took a job. Good Judges whose sympathies lie with the bar and who know from first hand personal experience the truth about declining fees and morale.

The issue was the day of action and how they would respond to applications for adjournments…

With reluctance, they agreed there can be no special treatment.

Case by case basis.

How could they do otherwise? Judicial oath and all that.

So some applications may succeed because no great harm will be done to others.

Some won’t because the trial is at a stage when it would be unfair to interrupt it.

Which only leaves the decision for individual barristers even more difficult.

Is my case at such an unimportant stage that I can leave it with a clear conscience?

Or should I stay put because I owe it to the punter?

Come to think of it, when does the client NOT matter?

Answers please on a small postcard.

Nigel Pascoe QC

Stand up and be counted – a direct challenge to fellow Criminal Silks

First, a word of thanks. I have had an unprecedented response to my blog on Mr Jinks’ dilemma on the perils of Striking. The response continues and so much the better, for this is no time for pussyfooting. Many of those who strongly disagree with me have responded with generous comment as well as passionate argument. I am genuinely touched, if not converted. The odd brickbat of course – old and naive are par for the course. I would only have been offended if some lunatic had called me rich..

So why am I returning to the fray?

Because quite deliberately I want to hone in on the Leaders at the criminal bar and thus exemplars for the young and ask them to answer one fundamental question.

ON THE PLANNED DAY OF ACTION ( and happily assuming you are in work) WILL YOU LEAVE YOUR CLIENT UNREPRESENTED?

Yes or no, please. Money where your mouth is.

Please note the question, as the best teachers say.

If you are choosing not to accept a brief starting before the day, I would not begin to question your decision. It is the absolute right of all of us, now and in the future, to say I am simply not prepared to work for those fees.

I suspect many have refused to work on new VHCC cases and that is a completely tenable and principled decision. Let no spokesman say otherwise – how dare they! I support the fight for fair fees completely and will continue to offer my own suggestions on how we can fight the fight even more effectively.

But what I cannot countenance is any withdrawal of labour in the course of a trial where the client, including incidentally the CPS, is left unrepresented.

The question is addressed deliberately to silks, because we are meant to lead. Even where our cause is incredibly unpopular, as mine may well be in this blog.

Let me tighten the question. I know that not one of you would be so calculated as to walk off for the day on a point of principle and leave your junior, if you have one, to face the condemnation of your fellow strikers. No, if you strike, it will be all out for the day. But what if the Judge, as in my fictional Jinks case, says that he or she WILL be sitting, regardless?

You see, I happen to think that judicial reaction to a day of protest cannot be predicted with absolute certainty. Leave aside directives from the top, although my friends I strongly fear they will come under pressure to keep sitting.

Just stay with the premise that some will sit and some will not.

Now then, at the dire risk of repetition what the hell are you going to do? Honestly?

You all have the point by now. As an individual, I am begging my profession to grasp the point and think twice.

There are all sorts of pragmatic reasons to oppose striking and there is nothing wrong with pragmatism in this dreadful situation.
But I want to stay with the principle, if only because it concentrates the mind wonderfully.

How can we abandon our clients?

One final personal point. I am lucky in that as it happens I am not conveniently on holiday but working that day in a non criminal context. So I am not having to make the decision which I am urging on others. But no matter – next time the strike is called, with luck I will be. That day I will give my refresher to the hardship fund. But I bloody well won’t let the client down.

Sorry, this matters too much to shut up. It causes me pain and I care too much for my profession not to beg them to think again.
We still can win concessions, but I cannot believe this is the way.

Finally, I ask the Bar Council to spell out their position well in advance of any day of action. I know I will not be alone in that simple request.

Nigel Pascoe QC