“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 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