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

Advertisements

4 thoughts on “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

  1. Nigel,

    I am one of those ‘Young Turks’ (more a middle-aged Turk, actually) who espouses direct action. Why? Have I no consideration for my clients? Of course I do. On 6th January, I was defending a man charged with witness intimidation. I told the lay and professional client, and the court, that I wouldn’t be there until 2.00pm. In the event, the court, on the Friday, simply accepted the fait accompli, and listed the case at 2.00pm. Had it not done so, I was confident that the judge, when the case was called on at 10.30am, would have adjourned until 2.00pm to start when I got there. I was as confident as I could be that no sane judge (and at Teesside CC the judges are all sane) would have attempted to start the trial without me. (Had that happened, my plan was to join the trial at 2.00pm, do my best, and appeal if the client was convicted.)

    You are probably appalled that I even ‘took the risk’. I am not proud of having done so, even though I knew the risk was zero. I did so, because, having been involved in criminal Bar politics – as an elected member of Bar Council, and a member of RemCom, and the BC’s Carter Response Team, latterly as a member of the CBA Executive Committee – I have learned that there’s no negotiating with a bully. If you give a bully your dinner money on Monday, it doesn’t matter how little he asks or you give him, or what he says about that will be the end of it, you had better know that he will be back on Tuesday, and Wednesday, and every day until you punch him on the nose, and stop giving. (In fact I learned that lesson at school, forty years ago.)

    Mr Grayling is a bully. He is unlike any other Lord Chancellor there has been – certainly in my time, or ever. The position used to be reserved for eminent lawyers, and was regarded by them as a non-political appointment, and the pinnacle of a career in the law. Charlie Falconer broke that mould, but Grayling has stamped all over the pieces and swept them away. He regards the post as a stepping-stone to higher things. He cares not for the value (as opposed to the price) of the family silver of which he is the custodian. He is in charge of a small spending department, and one which has relatively little control over that spend – criminal legal aid being typical, in that it is entirely responsive to legislative, and prosecutorial decisions. That said, Mr Grayling does not fight for his departmental spend in negotiations with the Treasury. He would rather gain political ‘brownie points’ with Gideon by giving him every budget cut he asks for, and more, in the hope of personal advancement. By way of example, the cut demanded of him by Gideon last year was £142m: http://www.lawgazette.co.uk/news/osborne-imposes-further-142m-of-cuts-on-moj/70016.article but Grayling unilaterally decided to make it £220m – a figure which has now acquired the status of holy writ, when it is nothing of the sort.

    But back to the client. Of course, I am unhappy about even the possibility of leaving my client in the lurch. Every barrister is. But barristers are, though you may like to think so, in reality no different from any other wage-labourer. I do the job I do not out of a love of my clients, or even an overwhelming sense of duty to them, but to earn a living. In that respect, I am no different to a tube train driver, a fireman, a doctor, or anyone else. Strike hurt the service user. That’s what they are meant to do. The labourer has no other weapon but the withdrawal of his labour if he is unhappy at the price on offer. Strikes are always a matter of last resort; the ‘nuclear option’, and especially for barristers. But there comes a time when that nuclear option becomes the only option. And that, I regret to say, is the position the criminal Bar faces now. Mr Grayling is not for negotiating. There is no reasoning with him. This goes against all of our instincts as lawyers. we are used to placing rational arguments before a decision-maker (a judge or jury) who has no agenda, in the expectation that reason will prevail. Mr Grayling is not a judge, and it is a serious mistake to try and deal with him as if he were. he is a hard-nosed politician, who sees a desire to talk, and an unwillingness to withdraw labour as weakness to be exploited.

    So, much as I regret having to ‘gamble’ with my clients’ liberty, in reality I know that the judges know that it’s not their fault that I’m not there, and they are sensible enough to wait until I am there. The judges may privately fume at the inconvenience I cause them, and the client may be annoyed by the delay in dealing with his case, but there is a bigger picture here. We are embarked upon a struggle for the very survival of our profession, a profession that has endured for hundreds of years, and which serves the nation well (and cheaply). Mr Grayling, who knows the price of everything, but the value of nothing, cannot be permitted to destroy the Crown Jewels of which he is but a temporary custodian.

    If that means going on strike – and in my view, and for the reasons I have set out, it does – then that is what must happen. The clients will be inconvenienced, but no more, and in the long term, they, and the wider public will thank us for what we are about to do.

    Ian West
    Fountain Chambers
    Middlesbrough.

  2. 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.

    Response
    Every day, because of inefficiencies in the system, witnesses and other court users are denied this access. Cases are regularly adjourned for lack of court time after witnesses have been waiting all day. This may not be apparent to those who only deal with the most serious cases in the Crown Court such as might merit the instruction of Queen’s Counsel. To criticise a day of action on this basis demonstrates a terrible lack of awareness of the problems already blighting the proper administration of justice in the Crown Court

    2. It cannot be condoned by any sitting Judge, however directly or indirectly sympathetic that Judge is to our cause.

    Response
    Of course it can’t. But how is this point relevant to the argument either for or against a day of action? Aside from ultimately having to preside over cases conducted by whoever might end up conducting publicly funded cases after the publicly funded bar has been decimated what interest does the judiciary have in the dispute? They will be victims of these cuts as much as everyone else if for different reasons but that does not mean that their support or condemnation matters. They may ultimately have to hold their individual heads in their individual hands lamenting the loss of the independent criminal bar.

    3. It is a clear and unconditional breach of our existing professional standards.

    Response
    Is it? And what is the point of having existing professional standards which apply to a non-existent profession? Imagine the 22nd century historian puzzling over the question how such a noble profession sat idly by watching the ignorant Executive of the day poisoning it to death with unjustified cuts.
    “And they justified their inert response by saying “our own rules won’t allow us to put up a fight”” he or she might say. “How ironic that a profession with a reputation for being so potent in defence of others turned out to be so impotent in defence of itself.”

    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.

    Response
    This argument completely misses the point. We are fighting for the preservation of a system which protects others. We are meant to defend fearlessly putting personal considerations aside in the interests of our clients. If the system fails then we fail our clients now and in the future. This is not a “short and medium term” battle. This is a long term battle.

    5. It will be condemned sooner or later by the senior Judiciary, the DPP and thus the CPS and the Law Officers.

    Response
    See the response to paragraph 2 above

    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.

    Response
    This is already happening but not as a result of any day of action; this is happening because the fees being imposed for serious cases are ludicrously inadequate. If the cuts to graduated fees are imposed this will also happen in the vast majority of cases. This argument also misses the point. It is not the day of action which will interfere with the process of justice. It’s the cuts.

    7. It cannot bring the Government to ransom, only to widespread condemnation. We could not succeed where so many more powerful groups have failed.

    Response
    Nobody is trying to bring the government to ransom. Without knowing which “powerful groups” you refer to it’s difficult to respond further to this point.

    8. It is not supported by some sections of the bar who, short of striking, nevertheless are giving us fantastic and unselfish support.

    Response
    To which specific sections of the bar does this argument refer?

    9. It does not carry at this moment the official support of the Bar Council.

    Response
    Well the Bar Council needs to wake up and smell the coffee. But I suppose that the commercial bar will be happy enough to pay the increased fees necessary to finance the Bar Council once the publicly funded bar has been decimated.

    10. Ultimately it will not carry majority public opinion

    Response
    It doesn’t carry public opinion now. But that argument misses the point as well. The publicly funded independent bar will never attract public support. It protects the public at large in a way that the public at large will never fully appreciate. Mr Grayling needs to appreciate that because if he brings about its demise the public we serve will be in a worse place than they are now. And you know why that is.

    • Thank you for replying in detail to my ten subsidiary arguments. But I notice you have not addressed the central one: namely that it is never right to put tomorrow’s potential clients before the actual client you are representing today. Careful protocols may limit the damage to vulnerable clients or those facing a loss of liberty: they cannot eliminate the unexpected problem which an unrepresented defendant will face. I also think it is a cop out to say that you have got your clients permission not to be present. The bottom line is that all of us know we need to be present save in extremis.
      Beyond that I really fear for the noble and understandable militancy as the months drag on. In my book, it is far better to continue to try to talk, however intractable the present response appears to be. Incidentally I would like to hear whether you agree with the tactic of seeking to isolate specific injustices if we cannot have our whole cake. My regards and thanks, Nigel Pascoe

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s