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

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13 thoughts on “Bite the Bullet – a Plea for Sanity

  1. The Bar would jump at that opporrtunity like a shot. Such schemes have been proposed. The Lord Chancellor has been invited to await the Jeffries Review. He has been invited to broaden its scope. He has been invited to initiate Carter Mark II. He was invited to establish a Royal Commision to look at the whole of the CJS. He has refused.
    To avoid direct action all the Lord Chancellor has to do is pause and look again. He refuses to do so. It is not the Bar refusing to “come to the table” it is the Government. So what do you propose, other than Direct Action, which will bring the Lord Chancellor to the table before these cuts take effect and young barristers leave the profession?

  2. Nigel,
    I wish – I really wish – I agreed. I don’t like direct action either and I certainly prefer work to rule to strike. And, as one of the flying defenders of striking counsel, I hope you’re assessment of judicial approach is correct. But – a huge but – I simply don’t see any sign of the MoJ being willing to negotiate. Not that McNally is necessarily honest, but he said plainly that there would be no rethink. They are confident they can get all this through and, even though the case that justice will truly suffer is made, they simply don’t care.

    I have said for years that part of this is simple envy by the Civil Service who – as the contracts with various private companies to our overall detriment, and the constant failure to comprehend how stupid cuts waste money demonstrate – are poor performers, cushioned from the type of scrutiny that the Bar receives by protected salaries and pensions. That envy, allied to a Lord Chancellor who is keener on emphasising his willingness to fight than on thought, is a toxic brew. It prevents a proper assessment of what is required and substitutes personal desire for acting in the public interest.

    That being so, what options are there? Is your scenario – if correct – any worse than what happens of we do nothing? And the solution is political if it exists, which means persuading the PM that his Lord Chancellor cannot control his department and has failed to ensure that it is doing its job. At the moment Grayling is a man who can bully the small boy without anyone much noticing.

    I accept that I am cynical and bitter but can you identify even 3 matters which persuade you this ministry is capable of approaching this fairly? In my view they are simply untrustworthy. If that is right then the choice is between confrontation and prostration. I don’t want that choice at all bit, given it, I know what I’m going to do.

    • Such a fair reasoned response deserves one back and I hope to do so in time. Essentially, trust for me is a man across the table making clear commitments which he honours. I do not blame a politician in a spending ministry looking for cuts in these times. But when his responses are filtered through the mouths of spinners or contemptible press outlets, I try to ignore them. What we need is the LC to have the courage himself to face reasoned public debate and engage now. Not after public chaos, now. Although I have never met him, I am prepared to wait for that to happen, at least for a little longer. It is easy to hate one’s perceived enemies, but that will get us nowhere.

      • Nigel. As I said in my previous reply that you declined to post, I HAVE met him, I have looked him in the eye across a table, I have offered him positive help to reduce waste and save costs. He rejected the offer out of hand. He will NOT negotiate.

  3. Somehow I don’t think an afternoon of genteel absenteeism will have Grayling quaking in his boots. But his form up to now suggests that no amount of reasoned argument and advice from wise & disinterested people will move him. He is in for long haul and I fear Nigel’s prediction will be accurate. But what else is there? The Lib Dems?

  4. Pingback: The end of the day round-up

  5. Of course direct action is a troubling prospect. I have always supported it in theory. But it took a deep intake of breath before I could press the “send” button on the email to my instructing solicitor, asking him to inform the man that I am defending on a serious charge that he would be alone in the court building – and, perhaps, the courtroom – for the duration of the morning.

    But let us look at this another way. Provided it acts through its legitimately acquired parliamentary majority, it is the right of this government, of any government, to destroy the criminal bar and the network of criminal defence solicitors’ firms. We cannot stop this – at least not alone. All we can do is to fulfil our duty to make the public aware that their government’s current course will lead, inexorably, to this unhappy annihilation.

    Imagine that we fail: that the public does not hear us, or that the government does not listen to the people. Imagine that, years down the line, when most of us are making far more money doing something more lucrative and less important, someone says to us: why did you not tell us? why did you not make a fuss? why did we not know that the instrument in the Lord Chancellor’s fist was not a scalpel trimming the fat on a fat cat but an axe swung at the neck of a valuable profession?

    Will it be enough to say: we sent a man in to negotiate? Will it be enough to say: we talked, but nobody listened?

    We can, it should not be forgotten, mitigate the effect of direct action by acting together. I know that the fellow member of the bar who will prosecute my client on Monday 6 January will also be elsewhere in the morning. This knowledge made pressing the “send” button a lot easier. But even without this, I think I would have pressed it anyhow.

    It is not pleasant to contemplate failure in our current task; to think that, round the corner, is a world full of Monday 6 January 2014s stetched end to end, but with no respite for the unrepresented come the afternoon. But it is far worse to think that we might fail without having tried everything.

  6. Nigel
    I am an Non Lawyer who everyone on Sawve UK Justice knows and think you make some valid points ie we, as in Lawyers and us Non Lawyers standing with them are between a rock and hard place. This place is difficult at the best of times and might cause the divisions you so rightfully fear this could go so easily wrong when we must work collectively to overturn the critical balance where the Government is forced to acknowledge us because there is no other option.
    There are problems galore real nightmare scenarios. You are right to have the courage to draw our attention to these just as the CBA was big enough to publish your comments in a CBA blog post.
    My thoughts as an humble Non Lawyer at the beginning of my journey in Law and Law for Campaigning purposes are this: LET THESE WARNINGS BE A SPUR TO US TO SEE WORST CASE SCENARIO IN TERMS OF OUTCOMES AND FRAME OUR RESPONSE ACCORDINGLY. IE LET US WORK TO GET PUBLIC OVER ( I have noticed two schools on this to engage is fruitless/fruitful), LET US (nay even us NON Lawyers get our colleagues/fellow would be Comrades over to our side eg the Civil side POST LASPO affected Law);
    LET US WORK TO KEEP OUR UNITY THAT HAS WE NOW HAVE AND SEEK TO DEVELOP IT. I would use novel means eg Non Lawyers in places with people not been before to refreshing thinking made stale by the genociding of the Profession). WE CAN USE ALL MEANS AND THEN SOME AT OUR DISPOSAL. PARTIES ETC We can be creative. We can also monitor
    the effects so far.
    You are so right to point these mission-critical points to us. It is part of your dignity as a QC who totally rightly wants to see College of Trial advocacy in the Inns of Court to deal with the QASA threat.
    But as has been stated many times before with pay issues preventing skilled and experienced lawyers come into Legal aid work and a haemoraging of the Legal aided Criminal Bar where REAL ADVOCACY IS LEARNT the Profession has had enough and the Government must be forced to listen done rightly of course as befits the Legal Profession.
    My very best to you Nigel
    Kate Non Lawyer #saveukjustice
    #savingtheindependentbarforthepublicgood
    #fightforlegalaid
    who went to the CBA Delegates Conference at Lincolns Inn a Non Lawyer and Lawyerly First!!!!!!!!

      • My pleasure Nigel I am trying to find solutions as much as you Lawyers. only want us to win. Me and other Non lawyers identifying with you all, in my case seeing what boundaries may be tested in terms of Non lawyerly inclusions into what are rightly formally Lawyerly territory,
        I believe including us Non lawyers is a positive thing and can be positive so long as right things happen. Right people, right time, right things etc etc,
        Thank you for your inclusion of my thoughts on your Blog it makes me feel part of what you do and makes a wee connection.
        I hope The College of Trial Advocacy gets off the ground you are the person to bring it forward and also the Inns of court need saving (amongst so many other things!).
        Kate

  7. Pingback: In reply to Nigel Pascoe QC as a Non Lawyer ‘Bite the Bullet-a plea for sanity’ My Proposed Solutions to the problems Nigel Pascoe rightly poses for us to listen too | Supporting UK Justice: For the Defence! by a layman

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