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 ” So to answer your question, we want the whole package of cuts withdrawn.”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


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