Febrile. Angry. Resolute. And about to risk everything. What business is it for an old advocate to try once more to calm the waters? Well I am lucky enough still to be at the coal face – very much so, as it happens. And I still care about my profession sufficiently to ask them to think this through very carefully. Not to let the headstrong rule the waves by intolerant passion and the odd insult.
So let me try calmly to examine the alternatives…
1. No returns.
This seems to me to be a defensible position. You are not letting down your individual client and you are asserting your professional independence. You are saying – I will not work to cover for others on these very low rates. If the consequences are a gradual snarl up of the legal system, then time for further hard negotiations. In short, I support this course.
2. Walk out.
As I have argued from the outset of these terrible battles, this is indefensible for a professional owing a duty of care to a specific client. A cancer surgeon would never withdraw his labour, save for illness or overwhelming personal circumstances.
Nor should we.
If the Bar walk out for the day when I am in court, I will not profit. My fee for the day will go to a strike fund or a legal charity. But I will NOt let the client down.
3. No legal aid work done at the reduced rates.
So far I have avoided commenting on the appalling dilemma of our instructing solicitors and how they have sought to address it. It is impertinent to do so. I know that many face catastrophic loss. The reduction of suppliers is a shocking prospect for justice and for many individuals and maybe friends. The most potent argument is that the reduced rates make practice unviable. What then have they to lose by refusing to work for them?
The only answer is to think hard about political reality.
The Conservative Government have a working majority and a declared objective to cut public expenditure across the board. Does any serious advocate really think that they will cave in to a lawyers’ nationwide downing of tools? I hesitate to give the government ideas, but I can see ways in which some sort of legal Defence process can and will continue, notwithstanding a national walk out. It won’t be efficient, just or fair but it will survive our protests until sheer poverty and family pressures force us back into the fold or worse.
Then there is the position of the new committed Lord Chancellor.
Does anyone except the blindest ideologue think for one single moment that that a legal revolution would deter this particular Minister or his Cabinet collegues?
With honeyed words of sweet reason he will have us for breakfast.
And David Cameron and the Treasury will support him.
Sorry. Thisis an impossible battle. Pull the nuclear option and we have behaved honourably but the cost to the profession and all users of justice cannot be measured or predicted.
Hang on. Why would it not contribute to the further negotiations which you, PASCOE, are so keen to pursue?
I concede that it might. At a price. The further decimation of the profession and the headlong rush of the young to supposedly safer legal pastures.
So what is the alternative?
I fear that cutting the list of suppliers may be irreversible in the short term.
Long term, I can see the possible chance of some amelioration when the service declines. That will take a continuing campaign which we can all support.
What we should do is first to make our case plausible by literally thousands of real and projected individual cases. Sod the Mail by telling it exactly as it is, including the reality of chambers/practice expenses. Put them all in a hard hitting joint bar solititor publication.
Second, we should seek to return to old fashioned negotiation against the reality of nationwide cuts. No dramatic alterations are politically possible. Some modest changes still may be. I favour the isolation of those areas of work we do for nothing and making a huge fuss about them, item by item.
Third, we should mobilise more effectively our political and journalist friends. We need a publication collating the best of the articles written.
These are but a few ways short of chaos and damage . The most constructive of you can improve them,
So as meeting after meeting seeks to fight, spare a second to think this through very carefully.
Lord Chancellor, you have the chance still to talk. If all fails, have the courage to appoint a person of the highest repute to intervene.
Nigel Pascoe QC
Thank you for powerful responses. I cannot predict the full effect of dual contracts I do not expect any favours to silks.. I do not agree that the Criminal Bar is on its last legs. The issue is how we fight on most effectively. Although it will annoy some to hear it, I do not think I am the only moderate in the village.. Indeed I know perfectly well I am not. Some understandably are not putting their heads above the parapet. That I understand. But sooner or later a mre nuanced view is likely to emerge.