You win some…

If a cat may look at a king, then maybe a criminal hack may risk a view on the prospects of appeal. Having poured over the tactful, thorough, clear and moderate QASA judgment, I would be gloomy over any prospects of outright success. Reading the runes, this scheme or something very like it is on its way. It will be a bonus if the BSB agree a common circuits starting date, as I strongly urge them to do. That will go some way to easing the pain, but of course it will not end it.

So time for plain speaking.

If a common starting date is delayed until December, I have little doubt that reality will catch up and the bar begin to accept that it is quite pointless to oppose regulation when we have no alternative scheme on offer and that if we don’t join, we cannot practise. It is as simple and terrible as that.

It is worth reading the balanced and sane speech recently of the Attorney General at the launch of the BSB handbook. He recognized the danger of over regulation or micro management of the professions. But there must be proper regulation of the bar. The key passage is –

” For a profession like ours which prides itself on quality, to refuse to be assessed does not strengthen our cause, and indeed is in my view completely counter-productive.”

He is absolutely right. Our failure to develop our own scheme is serious and frankly, indefensible. I have been banging on about the subject for over a year.

So QASA is the only current option.

In that position, of course I shall join it. So with a heavy heart will many other criminal practitioners. We will have no choice.

We can take a small crumb of comfort in the promised review in two years and we can continue to develop a better alternative. Why no one has run seriously with my own suggestion of a College of Advocacy for lifetime excellence saddens me, because that would be a million times better than what is on offer.

In my blog in September 2013 I set out the principle and it’s possible implementation…

‘ A College of Advocacy set up to replicate the advocacy training of the Inns for the life long regulation of all professional advocates.

Mandatory refresher courses for all professional advocates every three years

The trainers should be recruited from the best of the current Inn and Circuit and professional association trainers.

Here is how it might be created

1. A conference chaired by Lord Judge with the Chairman of the Bar, the President of the Law Society, representatives of each Inn, Circuit and Professional association to adopt the principle and consider the financial implications.

2. The establishing of an Advocacy Board with a tight administrative supporting structure

3. Trainers appointed and Training venues to be agreed

4. The very practical refresher courses to be a professional obligation – non attendance carrying ultimately the certainty of suspension.

5. Successful completion of the course would result in an advocacy kite mark. That means the course would be partly competitive.’

I suggest that others who have grasped the present weakness of the Bar’s position, with no viable regulatory alternative on the table, should continue to support this alternative, which could harness the combined skills of our best trainers, in the Inns and on Circuit.

But QASA is a secondary question of supreme unimportance to The Lord Chancellor. How are we doing on fighting the cuts?

It is a little difficult to know if you are not involved in the day-to-day negotiating. But I note the latest efforts of the Ministry of Justice to set out their justification, which is a more determined effort to set the cuts in context. Or put another way, a sort of advocacy which may quell dissent outside the profession itself. I remain of the view that the Leaders should continue to isolate key injustices as part of a negotiating strategy as well as costing and publicising our own suggested savings.

But we can recognise with gratitude the resolution and clarity of our new Chairman, as well as the outstanding civil practitioners who fought the QASA fight pro bono. From all of us, thank you.

Nigel Pascoe QC

PS I cannot be at the rally on Saturday. The reason is personal and incidentally a very happy one. But insofar as the meeting continues to raise the public awareness of the increasing risks of injustice, then I hope it is an outstanding success. It strikes me as far more fruitful than risking our reputations by more direct action. The bar in full flood articulating the greater good is utterly admirable. The same cannot be said for letting our clients down for the day or more.

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Bite his hand off

In the Times today the letter from Shailesh Vara MP ended –

“..the Justice Secretary and I remain open to sensible suggestions that enable us to make the savings we have no choice but to make.”

Now then, politicians’ mantras or the first cautious welcome steps to a potential settlement?

There is a very easy way to put it to the test.

Open a second front to this dispute.

Give NOW huge concerted publicity to the whole range of suggested savings that the Bar Council, CBA and Circuits have already made.

Cost it openly. Sell each and every measure with the skills we possess.

Then open immediate negotiations with the Ministers concerned.

Take them at their word.

Let the public in on our constructive thinking.

Seek to deal.

And then we can get back to the necessary structural changes we need to make to revive the ethos and success of our beloved profession.

Who dares to say that chance is not worth pursuing?

Not me, guv. Not me.

Nigel Pascoe QC

All out. No work

All out. No work
As long ago as April 2013, I was sounding off about QASA. I know that quoting yourself is a sure sign of vanity but I will risk it.

” My fear is that the profession I have loved for over 47 years may rush headlong into a protracted suicide, destroying many practices in the process. Don’t misunderstand me. Militancy undoubtedly has helped to create a fighting spirit after years in which we have been betrayed by successive governments. But the question is whether we are shooting ourselves in the foot by promising a non-cooperation which ultimately carries such a high risk.

My circuit is the first in line. Forced to choose between the future of their profession and putting bread on the table, you cannot blame the young or indeed anyone for choosing the latter. …….Meanwhile I support every possible effort to Improve this sick mouse of a scheme before it comes into place, Including going for judicial review.”

Well I have continued to argue for our own scheme so that we can be immune to the taunt that, in a uniquely arrogant way, we refuse to accept the need for any system of continuous assessment. But still no scheme, ideally Inn/Circuit based, is on the table. And time is drawing on. March 7th to be precise for my circuit.

So what do we do if we want to be able to practise? Several answers spring to mind.

Nothing till the result of the hearing and Appeal

Or mass refusal

Or reluctant angry acceptance.

I have no intention of dodging the question if and when the moment comes. Although many want a double lock – fighting with increasing interference AND refusing to sign up, the bottom line is that these are separate decisions and more importantly, individual ones. No one has the right to tell another individual practitioner what he or she should do about QASA. If asked at the moment to vote on the issue prior to March 7th, I would probably abstain. But that is really because of the legal challenge.

Remember that The Lord Chancellor has indicated that he is not concerned about the issue of QASA.

Are we really going to vote for mass red cards, rather than continue to fight the cuts?

Cool heads you may think are needed.

Nigel Pascoe QC

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The Way Ahead

A spare afternoon and a little field research, downloading the coverage of the day of action and the aftermath. It was a worthwhile exercise. For two central truths shone through: the low average earnings of the majority at the criminal bar and no, it isn’t simply about money. Real issues, thoughtfully captured by responsible journalists. I exclude the patronizing and truly unpleasant bias of the Daily Mail.

Here is my very brief selection of a few key quotes and facts made public. My apologies where the author has not been identified.

* Ministry of Justice We entirely agree lawyers should be paid fairly for their work and believe our proposals do just that.

* Nigel Lithman QC. The average barrister involved in legal aid earns £36,000 a year.

* 24% of criminal barristers doing publicly funded work receive less than £20,000 per annum

* ‘I do expect a living wage.’

* Spending on legal aid for 2012/2013 decreased by 8% compared to the previous year.

* Fees are already down some 40% on the rates charged in the late nineties.

*. Plans to cut £200 million could lead to ‘catastrophic’ miscarriages of Justice, quoting Sarah Forshaw QC

In terms of effective communication, we should add the very impressive and responsible statement
read outside courts throughout the land. Congratulations to its author or authors.

And I should add that if anyone has not yet seen the quite outstanding Bristol film at http://vimeo.com/82558007 they should do so without delay. A beautifully presented and introduced contribution with unanswerable logic which puts one specific really key issue superbly.

Further, I have not heard yet of any wasted costs orders threatened or imposed. Nor of anything remotely approaching discord on the so-called picket lines. So that was one unnecessary fear, as I am very happy to admit. And I loved the quote –

‘If this was indeed a strike, it was probably the most well-argued and eloquent dispute in English labour history.’

Altogether a rather English and unthreatening business, by barristers of real principle. Colleagues and friends.

So in summary, a very visible demonstration of the strength of feeling of the criminal bar.

But now it has been done, we need an ice cold analysis of where we should go.

Here are the obvious possibilities.

A. An exact repeat performance

That means the same careful protocol and thus a determination to limit the damage to the most vulnerable of our clients.

It will take the same degree of planning, the same assumed blind eyes of a sympathetic judiciary and the same sense of moderation.

But still some less vulnerable clients will be unrepresented for a period, which is why again I personally could not support it.
For me, today’s client has to come first and there are no circumstances which could alter that belief.

The very best to be said for it is that it will continue to keep the issue in the public consciousness and that it should continue to attract the support of the fair minded elector.

B. A full day’s action.

That means a decision to risk the real interruption of an existing trial. I assume in its favour the same protocol.

It is reasonable to suppose that escalation will not carry quite the same tolerance from the judiciary. Not so easy to explain to a jury anxious to be back in the real world that this will be a wasted day for them.

How will the press respond? Probably still largely supportively. I leave the Daily Mail again on the back burner, which is where their deliberate distortions deserve to be.

How will The Lord Chancellor respond?

Probably not well.

And the DPP/CPS?

Less well than this time.

C. Up the ante

Here you get rid of the protocol or even worse, seek deliberately to target vulnerable cases to cause increasing up to maximum disruption. Call it the militant option.

That in my view is complete bloody nonsense and will utterly destroy any prospect of change or widespread support. The battle will be over. Lost.

The sufferers will be all the clients whom we can never forget are our personal professional responsibility.

I cannot believe my profession will be so unwise as to precipitate such a dangerous escalation.
I also do not think it will carry the same degree of support that existed for the limited direct action so far undertaken.

D. Move away from Direct Action and simply refuse to work for the new rates.

Now this proposal requires very careful and calm analysis.

It presupposes a bar remaining united and the limited depredations of carpetbaggers. It certainly avoids letting the client down mid-case.

It simply means that increasingly there will be more and more unrepresented defendants in the whole range of cases and equally worryingly, less and less able people to prosecute them.

Ultimately it is likely to be be a financial sacrifice that we cannot afford.

So sadly I find it difficult to support it as a solution, but I do see it as a proposal that merits careful consideration.

So what then is left?

ISSUES

Live compelling Issues which need to be negotiated.

In other words, seeking to achieve something less than the total capitulation of The Lord Chancellor’s plan.

Yes I know that is the beating heart of the committed supporter. That somehow extreme public and professional pressure will cause a spending Minister to abandon his proposals entirely.

But realistically, that is not going to happen, is it?

You have only to remember that on the very day of action, George Osborne indicated the planned further cuts in public expenditure as part of the present policy of restraint.

No spending Minister is going to be able to pull the plug spectacularly on his own publicly
announced cuts.

This financial nightmare is not going to disappear, BUT it may yet be possible to alleviate it.

So the issue remains the same. How to bring The Lord Chancellor back to the table.

The way forward is for the Leaders to identify the key issues which may be capable of specific negotiation within the projected cuts.

Second, the Lord Chancellor must be brought back to his clear unambiguous undertaking to consider and cost identifiable alternative spending cuts and not to bank them.

This is indeed the moment for a whole new front of the campaign.

We need to spell out all the cuts the bar have already identified as realistic ways of saving money.

By way of example, to adopt a suggestion made to me by a friend very recently, we could abolish a huge majority of section 51 or preliminary hearings by making them telephone or even video exercises. That is potentially a big court cost saving, but taking the point of a very recent comment, would not prevent it being a topic to be negotiated as a legitimate payment. I am not in the business of suggesting unpaid work should continue. The end result would still be a saving.

Not enough publicity has been given to the cuts suggested by the Bar Council itself last year.

This concerted ‘Alternative Cuts’ strategy needs to be publicized with all the clarity and enthusiasm which has characterized the analysis of the fees cuts.

I visualize, for example, a press conference of all the circuit leaders and the CBA leader, each setting out specifically how money could be saved by specific proposals.

You see the point. Take the initiative. Appear properly to be wholly constructive.

This two stage strategy is where an independent senior figure may play a vital role. Indeed I repeat that such a figure could turn out to be the crucial key to ending this dispute.

For it is time to move towards constructive settlement and away from increasingly destructive action.

We have the time to redefine our strategy.

Dare I suggest it, time for calm voices to be heard.

Nigel Pascoe QC

PS. There is a further way, operating at a combined political level, which I want to explore in a later blog.