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

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2 thoughts on “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

  1. What is the alternative? We have tried evidence-backed arguments and dialogue. The MOJ are not listening. I understand your principled opposition to “strikes” but I don’t see a plausible alternative. I, for one, would rather go out fighting – it is after all what our clients pay us for.

    • Yes, that is how it appears. Nor am I opposing what is analogous to a work to rule. I would not accept a return from a colleague as part of such an approach. But the idea of seeking to bring our system to its knees is not for me. I want us to negotiate on very specific points and make the public know exactly what they are and why. They are very obvious injustices and more likely of remedy than the MOJ caving in completely. That is my alternative. Thank you for responding. Nigel Pascoe

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