Where do we go from here? In one sense, the question is irrelevant because we have set our face towards continuing industrial action which carries massive support. Again and again the cry is – what else can we do? Continuing action will produce one of three results: government capitulation, increased professional poverty and decimation or ultimately settlement. And thousands of otherwise conservative lawyers say in those circumstances we have no choice but to fight. I find it utterly heartbreaking. The sight of my beloved profession placed in such a terrible place that it is committing itself increasingly to bringing the system of Justice to a halt. Yet some form of work to rule surely is defensible, notwithstanding the personal risks it carries. That is why I think a policy of No Returns is a smart response which can be justified very easily in the court of public opinion. It will produce some internal tension, but in the short term it will be very strongly supported. For me there are four questions. How far will Direct Action be pursued? How long can we exert legitimate industrial pressure? In the face of no further Government response, how can the criminal bar survive? What price settlement? If you read the blogs and listen to the anger in chambers and elsewhere, there are calls for the very maximum pressure possible. So we should abandon a protocol and target the most vulnerable cases to achieve the maximum effect. I call that sick nonsense. Or all Recorders should refuse to sit in solidarity, ignoring the responsibilities implicit in a judicial oath. Or we should strike either in a wildcat way or with very limited warning, which is another daft suggestion. Or we should down tools for a week, a fortnight or until the cows come home. All such destructive irrational unprofessional nonsense that I hope the Leaders of the Bar will have the moral strength to resist. There are, of course, the far more responsible official voices speaking in steely terms and without the extreme threats I have mentioned above. They support Direct Action but with a protocol firmly in place. I would be betraying my own beliefs if I agreed that direct action which affected a single client was acceptable, but a good protocol is the least we should do. Leaders must stick to that minimum position and have the courage to resist extreme measures. Now the second question. How long do we pursue a policy of No returns? Here it seems to me that the CBA and others are being very responsible. It is a policy under regular review, initially after a month. It’s merits are obvious and I do support it in its present form. Of course it requires absolute unity in chambers and between chambers, but I certainly think that is possible in the short term. Third question. Survival in the face of no response or change from Government, bearing in mind their very latest decisions. Some months ago I blogged a little tentatively about what we should do if all failed. Could we pool incomes and survive by creating a minimum wage within chambers? I was tentative because it is alien to the whole concept of independent practitioners standing on their own feet within the umbrella of chambers. It is also naive to expect that all chambers could begin to operate such a policy. But now with financial ruin facing us, perhaps we could give more thought to communal solutions or at least safety nets. As a start, someone could draw up a draft financial model. However I recognize that for some this would be a complete non-starter. That leads instead to very difficult chambers economies which means job losses and less pleasant working environments. Last question. What price settlement? I can hear the howls of derision and anger over the air waves. Try talking to the profoundly deaf would be the least of those responses. But eventually it will happen. So there must be voices quietly working to keep the flame of possible agreement burning, even at the very moment when it appears to be dying. Nigel Pascoe QC


No More Returns I wrote last week that this policy is likely to be widely supported by the Criminal bar. It does not entail a breach of our professional responsibilities as we have not accepted a brief which unconditionally creates them. On its face, it looks like a clever and proportionate response which will create considerable pressure. I want to risk a little further analysis, but stopping well short of opposing it. It plainly remains an individual decision and I do see its merits. The first practical issue is likely to lie within individual chambers. Bluntly, for how long could we afford it? And does it militate against those without a reasonable diary with fixtures in place? These are very difficult and painful questions, because as I have always argued, families come first and that means putting bread on the table. No one should be talked into penury for putting their family first. The consequence of those uncertainties must be that such a policy must be time-limited. I hope I am right in construing that as implicit in the position of the CBA. An indefinite period of no returns will bring some individuals and chambers to their knees. There will be a knock- on effect on the Clerks room: in other words, we will be unable to sustain all jobs. We will be losing the very people who, at their best, keep us going and still build our practices. That said, a short campaign will carry probably the support of most chambers. The second issue is what it may say about our tactics in opposing cuts. For me, very anxious for the bar to isolate and fight specific injustices, it sits a little uneasily with continuing responsible negotiations. Let me try to flesh that out by analogy. Imagine similar threatened cuts to NHS consultant surgeons. Yes, I know it is not an exact parallel but bear with me. The medical leaders have deemed that they could not possibly stop all surgery, because of their duty of care to the patients they have undertaken. But some bright spark suggested that everyone of them should stop covering each other when on holiday or attending medical functions. On those days, the operating lists will be either smaller or in some cases, non-existent. The consequence will be that sick, perhaps very sick patients will have to endure their pain and discomfort longer… Faced with such a response, I would anticipate a very sudden increase in shortterm contracts for EU surgeons and from elsewhere. No doubt the Government would find the money to help out Trusts unable to cope. And do you know, some of those replacements might find their way into permanent positions… At which point, the surgeons forget the whole idea. Alright, please rush to point out it is not the same as not accepting returns. I can see that for myself. But please also consider the similarities and the dangers. For that policy will have made surgeons very very unpopular and the key political catchphrase would be ‘holding a gun to the head of the Government by a cynical exploitation of the sick.’ And you can invent headlines for the bar for yourself, assuming a policy which really brought the system to a stop. It does not bear thinking about, does it? So all that takes me back to a very well worn mantra. However unlikely it looks, we have to keep the door open to pursue a negotiated solution, with the possibility of independent intervention to achieve it. That may not be so easy if we carry, point and fire a loaded shotgun. Nigel Pascoe QC

What do we want? And what can we achieve? If you were a jobbing reporter outside the Old Bailey on the day of Direct Action, you would not be short of barristers for a vox pop interview. You would have a list of stock questions in mind, one of which probably would be ” And what do you hope to achieve by staying out of court?” – or words to that effect. It will be a good question and it is time to think of realistic answers. The inclusive answer would be something like this.. “It is not all about fees for the Criminal Bar. The Lord Chancellor has launched an unprecedented attack on the provision of legal aid which will diminish our society and lower our reputation throughout the world…” and specific examples of the cuts would follow. ” So to answer your question, we want the whole package of cuts withdrawn.” That is a wholly moral, unselfish and understandable position. But Is it a realistic position? Well I suppose the completely unexpected could occur, the 1000 to 1 outsider romp home. It would require, I imagine, The Lord Chancellor to be moved to another post and a new figure rebuild a very fractured relationship. It would represent a huge volte face and recognition that very serious damage was being done to the prospects of re-election. But in the hard and cut throat world of politics, I have to say that I do not think that is very likely. But of course that is not a reason to stop campaigning in hope. Back to the Old Bailey and the seasoned criminal practitioner completely and utterly fed up and depressed. He practically swallows the microphone… “We at the criminal bar have suffered massive cuts already and we simply cannot survive another assault on our fees. If these cuts are imposed, huge numbers of us will have to give up and the criminal bar will be good as dead.” In truth, he would say a great deal more, but the essence will be – enough is enough. And who can blame him? So the high position is that articulated by the Chairman of the CBA: not a penny less. Again, as a negotiating position, you do not make concessions in advance. Now the hard question. How realistic is that? I can only give a personal response. Real politics tells me that, sooner or later, there will be a negotiated solution. That pre-supposes that neither the bar nor our solicitors will get all that is desired and being fought for so passionately. That’s is why I am arguing for a strategy which identifies the most obvious injustices and seeks to remedy them in the course of eventual negotiation. That way the bar will not come through this terrible process completely empty handed, with all the depression and anger which will follow. Now back at the Old Bailey, I suppose it is just faintly possible that one interviewee speaks about a fair settlement. I fervently hope so, for that will be the pragmatic language of realism. How then can that be achieved? Let me take first a very powerful argument which has been put to me strongly by friend and foe alike. Nigel, no one wants to go on strike, but they are simply not listening. SO WHAT ELSE CAN WE DO? It is a cry of utter despair and I understand every syllable of it. This is my answer. The only way this will dispute will end is by intense negotiation. But that is NOT to argue that we should stop all protest. The value of a policy of not accepting returns is that it ratchets up the pressure without the personal failure of professional obligation. It therefore is likely initially at least, to have widespread support. The problem of course is whether we could afford it as the months go by. That means that it is both a chambers and an individual decision and it is probably too early to predict whether it will be supported fully and if so, for how long. What then do I mean by Negotiation, beyond that which is taking place fitfully? I would like to see a senior legal figure with a top accountant appointed to sit down with the two sides and hammer out a deal. The composition of such an independent panel may be a matter for further discussion. I suppose it could include a senior civil servant and an outstanding lay figure who is widely trusted. Baroness Martha Lane Fox, or someone of that integrity. Then specific issues could be tackled. I have listed my own choice already in my last blog. The Criminal Bar needs to pick its list of primary injustices and negotiate to end each of them. It could even circulate a draft list in advance to keep its members fully on board. All this could happen, however bleak the present mood music. After all it is the way that most disputes are resolved. Except those which are industrial suicide by another name. Nigel Pascoe QC

The CBA response concerning March 7th 2014 is clear, measured and firm. It merits careful analysis. DIRECT ACTION as the choice of individual barristers Readers will know that I have argued against Direct Action for over a year. Specifically I believe that there are no circumstances short of illness or bereavement in which a practising barrister should desert an existing client in their hour of need. There is nothing remotely revolutionary about such a view. It is the way that we have practised for centuries. Now we are in a time of huge crisis and real poverty. Outstanding young barristers like Hannah Evans cannot afford to stay at the Bar. If we struggle on at reduced rates, we shall wither on the vine and there is a real risk that only those with private means or support can survive. No wonder the talk of Direct Action has such a potent attraction. But it is wrong. Even in extremis, it is wrong. There must be another way. Before I turn yet again to that possibility, I want to move beyond assertion and the single reason I have given above which would prevent me unconditionally from supporting Direct Action. For the case against Direct Action has many other components. I will risk the obvious ones. 1. Where it operates successfully, it denies access to other court users, including every witness called on either side in the case of the day. 2. It cannot be condoned by any sitting Judge, however directly or indirectly sympathetic that Judge is to our cause. 3. It is a clear and unconditional breach of our existing professional standards. 4. It carries enormous professional and personal risk. Without question in the short to medium term it would lead to wasted costs order on a combined scale that no hardship fund could afford. 5. It will be condemned sooner or later by the senior Judiciary, the DPP and thus the CPS and the Law Officers. 6. It will interfere with the process of Justice, so that individual injustices will occur daily. Try cross examining on your own when charged with serious fraud. 7. It cannot bring the Government to ransom, only to widespread condemnation. We could not succeed where so many more powerful groups have failed 8. It is not supported by some sections of the bar who, short of striking, nevertheless are giving us fantastic and unselfish support. 9. It does not carry at this moment the official support of the Bar Council. 10. Ultimately it will not carry majority public opinion That will do for the moment. None of it means that I do not recognise every ounce of our plight. I need no lessons whatsoever in struggling with financial problems: at one end, borrowing money to pay tax on a perpetual treadmill: at the other, being stony broke with a large young family to feed. My story is no different from many if not most of the criminal bar. NO RETURNS This suggestion will delay justice, but crucially it does not involve any breach of our individual professional responsibilities. The great majority of criminal practitioners will see it as a measured and appropriate response to the present stalemate and will support it. However down the line I foresee an even greater need for some form of high level negotiation or mediation. Personally I would like that begin now. OTHER ALTERNATIVES The first is the even wider circulation of the Bigger Picture. That seems to me a reasonable description of the meeting in Lincoln’s Inn. I have now read most of the superb speeches and have had first hand accounts of their power. The bigger picture must be how incredibly damaging the cuts are over the whole range of legal work and the damage they do to our world wide reputation. These cuts bite deep into our understanding of a civilized and inclusive society which protects the vulnerable and disadvantaged as well as it’s least popular members. They are shameful and they damage us internationally. It is small wonder that some very responsible politicians and commentators are expressing at last deep unease of a character that no senior politician can afford to ignore indefinitely. It follows that the phrase One Bar represents an admirably coherent and cohesive philosophy. But let us not delude ourselves. That admirable unity does not imply an agreement across the board to support any Direct Action in breach of our professional duties. However it certainly encompasses the clearest intention to bring the structural deficiencies and likely consequences of these so called reforms to the widest possible audience, including an international audience as well. Where so respected a system is being undermined by regrettable political misjudgment, the world should indeed know about it. I agree with the argument that it may very well have real economic repercussions as the system is seen to be diminished. And the next alternative to Direct Action? The Lincoln’s Inn meeting provides the clue. We must isolate and seek to eliminate specific INJUSTICES, obvious on the face of the papers. A few examples. TRAVEL EXPENSES It is absolutely indefensible for young lawyers, or indeed any lawyer to go to court and LOSE money because of a lack of travel expenses. No politician or civil servant in the land would or should carry out their duties without payment or allowances for getting to their place of work. That is axiomatic. It is absolutely ludicrous that Hannah Evans and her contemporaries should have to operate like that. IT MUST BE ENDED, even before other needs. To use an old phrase, it is a matter for righteous anger. So why have we allowed this position to develop and continue? It should be the easiest argument in the world to propound and the most difficult to rebut. REASONABLE DAILY FEE Next we must move towards a reasonable daily fee in every single circumstance. Crucially that must include any adjournment. The idea that trained professional advocates should be fobbed off with £48 or so a day for a wasted day not at their behest is utterly absurd. PAID WRITTEN WORK Once more we must be paid properly for the essential written work we have done in advising before trial. All of us know the value of a perceptive and careful advice on evidence. Issues can be reduced and time saved. It should not be a case of ‘Lord Chancellor, have this one on me.’ No other section of the bar is in a comparable position. It must be ended. I want to add in response to the magnificent speech of Paul Harris that the proposed reduction to £160 for police station attendance in all circumstances is an outrage and all of us should support our fellow lawyers in opposing it. There are other aspects of our fee structure which can be characterised as unfair, as those at the coal face know well. Time to highlight them back round the negotiating table. TWO TO TANGO All of the above leads me back to the central question in this continuing public debate. Are the Ministers of Justice listening? The only decisive pressure which ultimately changes political minds is the fear of electoral defeat. The issue of an assault on legal aid is rising rapidly up the scale of potential electoral liabilities. I am not a member of any party, but if I were Ed Miliband I would not miss an open goal. Were I the Prime Minister, I would be listening to inside voices and responding accordingly. I repeat again – it is time to talk. If you have ears to hear.. Nigel Pascoe QC