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 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?


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.


2 thoughts on “The Way Ahead

  1. Nigel,

    If I have my way, the next step will be for the criminal Bar in the other four Circuits to resolve to down tools on 10th March if the BSB ‘locks out’ practitioners on the Midland and Western Circuits for refusing to sign up to the sham QASA scheme. Even if the court finds it to be lawful, QASA, with its plea-only advocates, QCs, and case allocation by ‘negotiation’ is still a flawed scheme that will perpetrate a fraud on the public by providing a fig-leaf of respectability for cheap, bad advocates. It must be defeated or the Bar is lost. And the rest of us cannot permit the BSB to divide and rule us by making you carry a burden that is for all of us to share. At present, next to no-one has signed up, and if it remains that way (as it must) on 10th March the Crown Courts in Birmingham, Winchester and Bristol will grind to a halt, because the barristers who were competent to do the cases there on Friday, 7th, are deemed no longer competent on Monday, 10th. It’s a nonsense. If the BSB wants to close the Crown Courts on two Circuits, they had better be prepared to close them all. I doubt that they have the courage to do it, as long as you, and we, hold our nerve. So by the time Mr Grayling’s cuts to the AGFS are due to come in in the spring, none of us will be working anyway.

    • You must be psychic! I have every intention of addressing QASA yet again, but like many, am waiting for the judgement. In short, Iain I don’t accept the logic. We want a bar practising and fighting on, not laid low by a tecnicality. But promise to address yor comments fully in time. Regards, Nigel

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