What now?

The people have spoken and we who thought otherwise must bite the bullet. I entirely accept the identified disconnect between politicians and populace and there is no doubt that it must be addressed by all politicians who aspire to lead. We must limit future immigration on a rational basis. No party can afford to prolong the status quo. All manifestos in future will have to move beyond vague platitudes to reasoned proposals.

All that suggests a future healthy and constructive debate on this most difficult issue. There is every reason now why that can be conducted openly and calmly with no quarter given to the minority of racists who peep beneath the bedspread of great parties or none. I absolutely agree with those who call for a kinder less malevolent politics as a legacy for Jo Cox and in any event. We simply cannot live anymore with vicious and evil personal attacks in print, which debase campaigning journalism and are not justified by results. The virulence of the bitches of Fleet Street should no longer be heard.

Not one part of that deliberately provocative description should be taken as covert support for censorship. It is simply the cruelty that I find so painful. The fine tradition of radical journalism does not encompass deliberate personal attack, demeaning and spiteful as they have become. We can do better.

All of which is a prelude the the question of the hour – what now? The answer is the need to stimulate other trading relationships as soon as possible. There will be an economic downturn which will hurt most the very dispossessed who have dared to vote to leave. Those of us who wanted to remain should avoid endless recrimination and post-match analysis. In one sense we should outbrexit Brexit. By that I mean promote every conceivable initiative which stimulates other trading relationships. If Europe in the short term will not accommodate us, others will.

So the new government should create the most dynamic gold plated sales force we have ever possessed, A new Department led by someone of the calibre of Andrea Leadson working with the best and most successful businessmen in the land. Recruit a whole new generation of super sales personnel. Pay them by results. I have no qualms about that. And when they succeed, they should be recognised for the heroes they will have become. The economic saviours of a fractured worried divided nation.

In short, the sooner we trade ourselves out of trouble, the better.

Nigel Pascoe QC

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England expects…

I started intending to Remain and nothing has changed my mind. But that does not mean a condemnation of all canvassing. The best advocates have been from that side of the debate. Michael Gove, Andrea Leadson and Gisela Stuart have been outstanding, with charismatic contributions from Boris Johnson. David Cameron has worked his socks off, but I have been less than impressed by the support he has received across the board. Sadiq Khan and Ruth Davidson this evening were honourable exceptions

But will advocacy carry the day? It would be in the teeth of the overwhelming economic evidence in support of Remain. I have absolutely no doubt that there would be real financial hardship in the short term and a run on the pound if we leave. The weak Brexit response that experts should not be believed is hard to credit. They have been defeated comprehensively in this field and that probably will be decisive.

That leaves sovereignty, security and immigration, where the evidence and assertions are far more difficult to assess. The great majority of voters accept the premise that our sovereignty has been compromised and there is precious little we can do about it without decisive action. Similarly with immigration. Forget the covert or even overt racists. There is widespread frustration outside London at the scale of immigration. It takes calm careful argument to seek to highlight its positive benefits, particularly in the NHS. Remain simply have not addressed the issue and fears over a long period and it remains the joker in the pack, which of course could upset all calculations and polls.

For me, security is the decisive issue. We are safer trying to keep the peace inside Europe rather than pontificating outside. We can be the decisive voice round the table. I also favour maximum European cooperation to combat terrorism. Secondly our children have better prospects if we remain. Thirdly and personally, the French medical system supports one of my children admirably and nothing would persuade me to compromise that. And cooperation in medical research is vital.

Personal and political reasons, like most electors. What I worry about now is the sense of disillusion when Remain win. That is where leadership will be critical.

Nigel Pascoe QC

The Price of Pain

We are a compassionate people. We know that most disabled people suffer pain or reduced mobility or both. We recognised their reduced or non existing chance to work. We wish that our money will alleviate to some degree their suffering. We wish it freely and without strings. We do not fine-tune our compassion.

That is the true background against which the Chancellor has made the worst political mistake of his life and his colleagues in government should hang their heads in shame. Cutting benefit for the disabled, in whatever form, eventually will be seen as a bigger mistake than the poll tax. Electoral poison in the hands of the clumsiest of spin doctors. A shocking and disgraceful mistake for the rest of us.

Fortunately there are decent Conservatives who feel exactly that and even now are mobilising support. The Chancellor, who in many respects constructed an intelligent and imaginative budget, must realise that the gravity of his mistake will rob him in time of the highest office in the land. He should recognise his mistake and abandon this cruelty without delay. In a word, it stinks.

Nigel Pascoe QC

Hang on

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.

NP

Seize the moment

With the choice of a new Justice Secretary, it would be good if the Bar avoided a few past own goals. The first will be not to bitch because the new incumbent is not a lawyer. I wish that he were and thus understand more readily the ethos and inticacies of the profession. But as Joshua Rosenberg has pointed out, we have in post a highly intelligent politician who, incidentally, plainly will have the ear of the Prime Minister and the clout which may go with that. 

Second, we must not make the fundamental mistake of demonizing the man. One of the key rules of good advocacy is never to attack your opponent personally.  So many brilliant members of the Bar forgot that, time after time, in their anger and concern.  It is not that the cause is not just. It certainly is. It is that we demean ourselves by childish ridicule.

Third, we should move very quickly to set up working links. This is emphatically not a plea for sycophancy, but rather the institution and demonstration of civilized discourse. So the associations should seek meetings and make sure their delegations are well staffed with outstanding junior members to tell it as it is.

Fourth, we should seek to negotiate matters where there would be little if any public dissent. Proper travel expenses is an obvious example. Too many advocates are losing money, which is quite absurd.  This obvious reform is years overdue.

Fifth, we should show a responsible public face by supporting the reforms which we know should be in place. Someething as basic as court canteens offer an opportunity for enterprising small local businesses to provide a service. This is happening already.

Sixth and in many respects, the open approach that I most favour, we should invite the Lord Chancellor to find the time to join practitioners in a wide variety of Courts for an hour or two during his busy schedule.  I would be very surprised if this particular Justice Secretary turned that down.

In a sentence, seize the moment. We do it every day in Court

Nigel Pascoe QC
 

What other choice?

The Director of Public Prosecutions has run into very heavy water. I have no doubt that she has taken the only realistic decision open to her in deciding not to proceed today against Lord Janner. What is necessary is some careful responsible sensitive support for the decision which makes sense to the public. I encourage responsible criminal lawyers to attempt to do so.

Why?  Because there are individuals deeply and profoundly distressed as a consequence of the decision.  You cannot expect everybody to applaud the strict application of fundamental principles when its consequences for identified victims are the continuation and even increase in long term appalling distress. That is why the idea of a judicial investigation by a very experienced retired High Court Judge may offer some alleviation of that terrible trauma.

Somehow reponsible individuals must explain that when any individual facing trial becomes seriously ill and or incapable of taking part in the trial process, the process of trial comes to an end in specific ways as a matter of course.  If Lord Janner had been ambulanced to a trial centre, his trial would not have taken place. I avoid setting out the legal routes which would have ensured that was the case. It just needs to be said that you cannot try anyone with serious dementia or for that matter, about to die in the predictable immediate future.  It is not in the public interest to seek to do otherwise.

I also hope that some one tries to explain that if there has been a cover up in the past, that cannot be the case today. This decision owes nothing to conspiracy and everything to the application of recognised principles. But the pain remains.

Nigel Pascoe QC

 

Decency and Principle

Listen up, as they say.

Here is an extract from the recent interview with Justine Miliband, wife perhaps of the next Prime Minister.

‘Ive thought about this and I think it’s going to get worse, I think over the next couple of months it’s going to get really vicious, really personal, but I’m totally up for this fight and I’ve thought about the reason why and the reason is because I think this goes way beyond Ed as an individual, I think it’s about whether decency and principle count for something in political life, wherever you are on the political spectrum, and so it’s not just about Ed, but it’s about every single politician who tries to do the right thing, despite the personal attacks and I think it’s incredibly important that this country, political life in this country stays open to decent, principled people, so if you ask me why I’m up for a fight, I’m fighting not only for Ed, but I’m fighting for a principle of decency in public life.’

Now insofar as it matters, I have never met Mrs Miliband and I am not a member of any political party. But what she says will chime with every elector who despises personal attacks and fears a very dirty campaign. Democracy will the loser and millions of younger voters will be even more disillusioned.

So how can this be countered?

Well the process exists to complain, whatever the present understandable sceptisism.

But what about a systematic approach to every cheap and nasty newspaper personal jibe in the next two months?  

Report the lot. Every single personal attack, regardless of party. Thousands of instant complaints.

AA Gill foresaw recently what will happen to UKIP, for whom, incidentally, I can never see myself voting. They will be traduced systematically. So probably Alec Salmon will be, altough he can ceratinly look after himself. And above all, so Ed Miliband will be. The politics of the gutter.

I find it truly shocking and I know I am not alone.

So this is the moment to strike back. The democratic way. Is there a bette one if you believe in decency and principle?

Nigel Pascoe QC