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What Next?

Environergy - Solar PV and Thermal ENERGY - What NextWe can’t trust the Ministry of Justice. The response of the Attorney-General to the current policy of no returns (with which I do not agree) at the Bar Council meeting on Saturday was to threaten the Bar with OCOF. That was, in fact, an eminently predictable position and I shall deal with the CBA’s failure to predict it (or if they did predict it to tell us about it) later. But the AG attends the Bar Council as an ex officio member. He is there as the senior member of the profession, not as the Secretary of State’s snout. It may be that he intended his threat to be a friendly warning, but as a politician his antennae are supposed to be better than that. He is perfectly entitled to be against the current policy and perfectly entitled to say so. But, in the end, he must assess where his loyalties lie. If his response to a policy supported by most of the Bar (even, however reluctantly, those of us who don’t agree with it) is to back the Ministry’s attempt to punish us for protesting – perfectly properly – then he ought to resign from the Bar Council. He is no longer behaving as a barrister debating the issue with his profession, but as an enforcer for a third-party.

It speaks volumes that the MoJ is talking in terms of threats. That the default position of Grayling and his second-rate staff is to threaten is not in itself a surprise. But history suggests that when the MoJ resorts to threats, it is losing. Making threats was how the MoJ responded the last time we refused to do VHCCs. We won that round.

The issue is critical because we have to decide what to do next. Before I address that, I want to address the CBA position. For the last 5 months the CBA have taken the stance that a meeting in November 2013 gives them a mandate. That proposition is nonsense of the highest order. There was no agenda at that meeting. There was no circulation of competing motions, or even positions. Those attending – if they had a mandate from their Chambers – could not have had a mandate to agree anything specific unless their Chambers had been daft enough to say “whatever you want to agree to, we will agree”. That is unlikely. Having no mandate themselves, they had no mandate to confer on the CBA.

Since then the CBA have produced a series of proposals – none of which have been discussed amongst the membership until after the proposals were put. Consequently, like the recent referendum in the Crimea, we have been able to say yes or no, but nothing else. Unsurprisingly, we have said yes. But that is not necessarily because the proposals were good ideas. It is because we wanted to do something, to hit back at the double-dealers and scoundrels at the MoJ, and what was proposed was the only game in town. And, as the Bar does, we have talked each other up in robing rooms and Chambers meetings. We are rightly furious and we are good at expressing it. No wonder the mood has hardened as it has.

The CBA needs to be aware that this way of proceeding is neither democratic nor professional. That is particularly important now, because there is talk of refusing all new work. However gratifying that may be on a personal level to those very senior members of the profession who loudly promote the idea, it is irresponsible to support that idea without identifying the following information clearly:

  1. What is the ultimate realistic aim?
  2. How do we achieve it?
  3. What are the staging points which will permit assessment of whether we are likely to succeed?
  4. What are the options for changing the strategy if assessment at those staging points suggests it is not succeeding?
  5. What is the risk if it doesn’t work?
  6. How long is it going to take?

None of this is remotely surprising to any competent barrister. It is how we deal with our cases. We should expect and require no less professionalism from ourselves.

I would add the following question: what is the personal position of anyone proposing a strike in terms of how long they could refuse work for, without taking their kids out of school (if applicable) or having to borrow money to keep afloat? That is important, because it allows everyone to assess their own position as against those urging them on and thus to decide if they might survive, or be cannon fodder.

That is why I raise this matter now. Too many barristers are disgracing this profession by promoting a culture of “if you aren’t with us you are against us”. That is McCarthyite bullying of the highest order and anyone doing it owes it to their colleagues to stop. Promoting the idea that if the CBA has announced it then we must support it, is the same proposition. The CBA ought not to announce anything. It ought to debate things and allow its membership to make a decision. It ought to consult with the Circuit Leaders and ensure that other voices are heard – not just by a blog post but on the discussion document that determines what we do next. Nothing else will do.

I have been at the Bar now for 28 years. This truly is a tipping point. Consequently, I am disinclined to permit public debate of the most important issue to face the Bar since I joined it to be characterised as disloyalty or troublemaking. I don’t know about you but I instinctively revolt against that type of ‘persuasion’. Professionally, I despise it. Personally, it makes me cross. As a barrister I worry that it will induce us to take the Darwin option – culling ourselves so that only a (lucky) few are left standing. Hence my belief that those urging anything should declare the consequences for themselves.

Let me answer my own questions:

  1. The ultimate aim is to persuade the MoJ that their savings can be found elsewhere. It is not realistic to expect them to reverse themselves otherwise, coming up to an election year, when the public don’t give a monkey’s about us.
  2. Action is required because the MoJ listens to neither facts, nor persuasion. It has a loose relationship with facts at the best of times. Persuasion is not something that those armed with a baseball bat are terribly interested in. The question is what that action should be. I do not believe refusing all work will achieve our aim. Too many people will crack too soon (and the current debate actually produces a false result because people feel disloyal for telling the truth about that). I do not believe days of action achieve our ends because, in the end, they are a strike/refusing work.  I do not believe no returns will achieve our aim because it disproportionately penalises the youngest members of the profession who cannot afford to carry on doing it for long. I do believe a work to rule achieves our aims because it permits some income, in full accordance with our professional obligations, whilst strangling the system. And, whilst agreeing that we are paid by the case, we still aren’t paid for more than an 8 hour day – which is what we ought to work. But you can test your own preferred option out anyway, and see where it leads.
  3. The staging point of refusing work is when people start to go back. At that stage we are finished and we can never negotiate credibly again. Ditto refusing to do returns. On a work to rule the first staging point is whether those doing it can survive on what they earn – that will reduce because the rates will be lower and the number of cases less. Those who cannot survive ought to stop doing it – there will be swings and roundabouts because only 1 person in a 2 person case (and a minority in a multi-perosn case) needs to work to rule to effectively enforce it on others. Consequently, we will be able to see if we really need anyone to make a sacrifice they cannot afford.
  4. As I have set out, a work to rule permits changing options. No other course of action does so. If we refuse work and then take it we are a busted flush. Finished.
  5. What is the risk? Not sure. On a work to rule I think it limited because it is difficult to attempt to punish the Bar for working normal hours (as the CPS do). Introducing OCOF in those circumstances would look mean and spiteful. I don’t suppose the MoJ has much objection to that, but it would also look weak and it would be difficult to justify politically. On a refusal to work/strike the MoJ would be entitled to say that its primary obligation was to keep the court system running and that OCOF – allowing the big firms to do our work – was the only way. I don’t know whether they would do it. If it didn’t work then it would be the MoJ’s equivalent of a failed strike. If it did work the criminal bar would be destroyed overnight and briefs would be available only through fee-sharing with solicitors – a prospect that would have us looking back nostalgically at these proposals. I think refusal to accept work is a bad idea for other reasons, but because of this, it is an additional and enormous risk to the entire profession.
  6. It is going to take 6 months I think, and maybe more. Grayling is a man who equates toughing it out with morality. I have had clients like that and, although they are invariably idiots, they are tough to shift. We can’t keep up a refusal for that long. Or days of action. Or no returns.

The other option is to refuse to take certain classes of work – mainly those involving serious cases and CTLs. The advantages are that it would hit the senior people the hardest – which is as it should be – and that less people have to stick together. The disadvantages are that it means lots of ‘fat cat’ stories (offset by the palpable truth that we would be doing it for everyone) and potential public outrage as murderers walked out of jail. However, I believe the proposal worth discussing.

As I have said, the discussion cannot omit the factors raised above – and probably some others I haven’t thought of. Each of us must stop taking refuge in the stance so cogently critiqued by Sir Humphrey Appleby – “We must do something. This is something. Let’s do this”. And our leaders must lead by allowing us to discuss the options openly and fairly: not by presenting limited choices which stifle what we trust them to promote.

Meanwhile here are some other ideas to achieve our aim, which we should explore and think about as additions to – not replacements for – our own action.

  1. A national day of action supported by all members of the Bar. Those with private clients should try and sell them on the idea of a 1 day stoppage to demonstrate that the British system of justice is indivisible.
  2. Immediate cessation of all cooperation with events in which the MoJ are involved which promote the justice system at home and abroad. Those involved could make it clear that the MoJ is not trusted with the justice system and that the event can go ahead as soon as the MoJ is not involved at all.
  3. A campaign to persuade the big city firms to devote some of their (considerable) pro bono budget to paying junior barristers to do cases at the current rates. The pro bono work is vital but it is also advertising. No reason why that budget shouldn’t be spent to permit criminal clients representation. If the LSC would permit a top up payment that would be fine. It won’t, but refusal will be a political embarrassment, focusing attention on the spite that informs this debate.
  4. A campaign to persuade the ‘top’ commercial chambers to devote some of their (considerable) pupillage funding to the Barristers Benevolent Fund. They could agree a 20% reduction, thereby allowing them to preserve the current rates amongst themselves. They would suffer as against the solicitors, but how good is a candidate likely to be if they only come to the Bar because of the money they get whilst training?

All of these things would demonstrate support amongst the whole profession and would provide the financial support that we are going to need if we really want to tough this out. They would make the MoJ’s position difficult. They would offset the bad press we get by showing that real sacrifices are being made. They would provide a narrative from a group of people who are not the allegedly ‘fat cat’ criminal bar. They would make us all feel much better – and morale is important.

If you are going to post about the way we are treating each other, I expect you to give your real name.

Otherwise, see you on whatever barricades we erect.

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30 thoughts on “What Next?

  1. As for the Senior end of the Profession taking the hit…. All Recorders could say they are “unavailable” for 2 months or whatever…. Grinding halt. Removal of goodwill again…..

    1. I have actually suggested this a few months ago but have been persuaded that it won’t work and that it’s wrong. It won’t work because too many Recorders want to launch the purple lifeboat – and who can blame them? It’s wrong because if we sit as Judges we have to act as Judges and being unavailable is not acting as we are sworn to act. Although I am not entirely convinced by this argument, it does seem to me that if we permit this dispute to mean we can’t serve as we promised to serve, the baby is being thrown out with the bathwater.

      1. Hmm. Not entirely convinced. When sitting, you act judicially but if you are unavailable then you are simply a self employed barrister not bailing out the MoJ when asked, non? Yes I understand the purple lifeboat issue but that’s a sacrifice we should hope we ‘Seniors’ will be prepared to make… As we ask the Juniors to not to take returns?

  2. Partly you argue against yourself. You correctly identify that the MoJ are threatening us because it is losing. As the CBA stance is the only show in town then it would appear the no returns policy etc is working.

    The big problem with endless debates about the correct course of action will do nothing to promote unity and would probably grind us to a halt. Personally I do not think that the CBA policy is enough – we should take a harder line. I also think that the work to rule concept is doomed to fall apart. We do not have set rules like some jobs do. It would be a very loose concept, very difficult for the second six pupil to face a Judge and say they are not working overnight. And so endless debate will be exactly that – endless.

    Of course people can have their say. And they have the choice whether to join in or not. However the CBA have done the thing most important in this. They have acted and so far acted with to good effect. That is why, despite the fact they are not doing it my way, I am more than happy to do it their way.

    1. Sorry, but you need to say what the no returns policy is achieving. So far it has shown that Judges will – for a limited time – move work around so as not to fall out with the Bar. In so doing, it has slowed down the system.

      That isn’t “working”. You must say what you are trying to achieve. Otherwise no one can measure whether anything is working. If you are trying to get the MoJ to reverse its proposals then no-returns is patently not working.

      Debates are a bad thing? I don’t agree. And calling them endless is both inaccurate and suggestive of a wish to have no debate. Who decides when we’ve debated it enough? You? That’s why I asked you to declare your own position about how long you could take your tougher action for.

      I suspect the second six pupil would rather speak up to the Judge than lose their house and see their Chambers go bankrupt. I find it odd that those suggesting strike action are prepared to see those pupils lose their careers and trust them to do it, but don’t trust them to talk to a Judge. I suspect it’s the other way around myself.

      1. It was you who seemed to suggest that the MoJ considered themselves to be losing and I agree with that. They are losing when confronted with the combined policy of no VHCCs, no returns and days of action.

        The impact of no returns is understated to say it is just Judges moving a few cases around for counsel’s convenience. In the same way that the VHCC refusal has an impact the no returns policy is causing trials to go before Judges where the defendant has no representation.

        The no returns policy is as close to a work to rule as I believe the Bar can sensibly come. As far as the most junior are concerned I can only speak of the juniors I know such as those in my chambers and particularly my former pupils. When the no returns policy was mooted I was immediately concerned about the impact it may have in them. I sent an email around asking about their position and how to protect them. I received a pretty clear response. Firstly that a policy of no returns for just defence work would impact upon them but did not cut off all work therefore allowed them to maintain an income. Secondly, and very clearly, I was told that this was their fight too and whilst they realised I acted with good intentions they were only too willing to play their part in the fight for all our futures. That is a message that I have heard repeated time and time again.

      2. As far as my suggestion that the debate will be endless the point I was seeking to make was that you will never find a policy that all 5,000 of us are completely happy with. As I understand the position the CBA listens to everything they are told. Each chambers is meant to have a representative that can feed back to the Circuit representatives who can feed back to the Executive. We all have the ability, if we wished to take it, of emailing Cross and Lithman directly. I do not seek to stifle debate. I am however realistic enough to recognise that the CBA are trying to achieve something which they understand will receive widespread support. I reiterate, they are not going far enough as far as I am concerned. However someone has to take the decisions and show some leadership.

      3. I’m sure junior tenants are willing to play their part. That’s why I trust them to deal with it if Judges are difficult – as they have to do with days of action. But the no returns policy asks them to play a disproportionate part. Your experience is not mine and I am also from Chambers that do mixed work – if you only did defence work the effect of the no returns policy would be exacerbated. But we still need to ask what the strategy is and how long it can work for.

        As for the CBA, my issue is not that it can’t be contacted. It is that the true range of options isn’t being properly debated by the membership. There is no point feeding in ideas and views that are discussed by a few and then buried. That promotes disunity, it’s objectionable in principle and it suggests a complete lack of confidence in our ability to make the ‘right’ decision. If this needs more debate then let’s have the debate before we do something stupid.

  3. I’m not entirely sure how this feeds into what you have written, but elements of the above strikes a chord with me.

    I have been – and I think this is the right word – ‘disturbed’ by some of the rhetoric written by very senior barristers on Twitter. If barristers were not self-employed but employed by an employer, there is no doubt that some of them would have been hauled over the coals by their employer and would perhaps be now sitting where I am, in the dole queue every fortnight: not a pleasant place to be, I can tell you.

    Some of the comments on Twitter seem to suggest an unhealthy desire to ‘take on’ the MoJ. As much as I support the principled stand – it appears to me, as an observer with a degree of insight and interest in the matter, as though many have lost sight of the objective.

    Ahead of, and during, ‘Grayling Day’ – the whole thing reminded me of the run up to and the first few days of strike action that I was once involved in… people were treating it as ‘a jolly’. And look how that turned out…

    I found myself taking industrial action in 2002 as a firefighter. I argued passionately against taking strike action. I stood up in union meetings and pointed out the crass realities of a demand for a 40% pay increase. I pointed out the foolishness of believing that ‘a friend of a friend of someone high up in Govt had told Andy Gilchrist that we only needed to threaten strike’ and the Govt would capitulate – seriously – that was ome of what was being peddled at Union meetings when industrial action was first being proposed.

    I was not only shouted down – I found myself literally nose-to-nose with a (not particularly militant) senior firefighter who had been in the job back in the late ’70s when the last strike took place: there he was ‘educating me’ about his real experiences in a very threatening manner – ‘You weren’t there in the ’70s’, he said…

    Well, no I wasn’t, but you didn’t need to be Einstein to recognise that we no longer lived in the 70s. I pointed out that, back in the ’70s nobody had heard of a credit card, or a foreign holiday and that firefighters lived in social housing and used public transport… The Gov’t had us where they wanted us: unable to afford to strike.

    And that strikes a chord with me: how long can you afford to keep taking this action and a policy of ‘no returns’?

    And again – as you suggest is happening here -I experienced that underlying feeling of ‘if you are not with us, then you are against us’. There was an unhealthy passion to strike.

    Of course, I backed the strike – because I was an FBU member. I supported it, but more than that, I passionately fought for the cause (even though I fundamentally disagreed with the way we had gone about it). I wrote letters that were published in national and local media. I appeared on BBC Breakfast explaining my reluctance to strike but what we were actually fighting for, because by then, it had taken a sinister turn. It had shifted from a pay claim to a fight for the fire service as we knew it. Once we had walked out of those doors – we were destroyed: the media turned on us and the public followed.

    The strike – very badly managed – gave the Govt the opportunity to try out their ‘model of a modern fire service’ during the first 8-day long strike. The Bain Review, which the FBU – for some ill-advised reason – refused to co-operate with – gave birth to what we see now: Integrated Risk Management Planning having replaced National Standards of Fire Cover, allowing for closure of fire stations and removal of fire appliances at the stroke of a pen.

    We ended up with a pay deal that delivered LESS over 3 years than what we would have received had we remained under the old pay formula: and we had seriously damaged an effective fire service for the future in the process. And, of course, our terms and conditions were considerably worsened.

    And that is what really worries me about what is happening here.

    There is a real danger that this apparent passion to ‘take on’ the MoJ will set in motion similar wholesale change – much of it probably predictable – but some of it, as yet, not even on the barrister radar.

    I am – unquestionably – a supporter in the principle. The fees paid to barristers, particularly at the junior end, are slashed below the bone as it is: who on earth can afford to live in London on a minimum funded pupillage? I barely managed it last year on just under £30K.

    And I know that it is not ALL about the remuneration – it is far bigger than that – it is about access to justice for the most vulnerable members of society… but I fear that this ‘action’ has spun off on a tangent and, at present, I cannot see a happy ending on the horizon: quite the opposite.

  4. We have reached a position where both the Bar and the MoJ have become wholly obdurate. The Bar is threatening the MoJ and the MoJ is threatening the Bar. Who has the whip hand? I do not believe (and your article fortifies me) that this is a battle that the Bar is going to be, to say the least, in any position to win. Why? because while most barristers can afford not to go to work for the odd day or to decide not to cover returns for a few weeks, they cannot do so indefinitely. And yet do we expect the MoJ to capitulate even if courts come to a grinding halt?
    We have to look for constructive solutions. Withdrawing our labour for returns is going to mean irretrievable financial disaster for some and as that moment approaches, could we possibly condemn those breaking ranks? I will not condemn them.
    A work to rule is a viable option. After all VHCC refreshers are predicated on a full day with 2 hours prep. Anything above that and you should get authority to work the extra hours. (I have never had that authority denied.) So on AGFS cases,make it clear that you will only work till 6pm. If the Judge demands that work must be done, tell him why you will only resume work at 9am the following morning and if that means that the Court is inconvenienced, so be it.
    I know that many will regard my views as heretical nonsense. But I am not going to be who suffers from the No Returns policy. But many of the 70 odd members of my Chambers will and for what?
    While I passionately oppose all that this Govt is doing in denying access to justice and in making the income of the criminal barrister unsustainable I, for one, am not going to be leading the lemmings in charging off the cliff into oblivion.
    So, let me call for a day for debate. With motions set out in an advance agenda. Let’s not waste further time in demonstrating or marching when we have no idea of what the product of that will be.
    Unity is good, but only if it achieves a purpose. The current position of the Bar, to my mind does not.

  5. Simon,

    I think this needed saying. I also think the monstering of Grayling, however provoked the legal professions are, is sensible in the short term or – even more so -in the medium term. No barrister, even if it was a particular terrorist case, would begin, advance or end their case with Your Honour is a Twat. Not if they hoped to win it, or even emerge relatively unscathed.

    1. Richard,

      Thank you. I agree about Grayling (I think there’s a ‘not’ missing though ;)). However, the debate at the moment is so heated that I felt the need to establish my own credibility with people I am trying to persuade.

      Nor, in fact, would it hurt us for the MoJ to realise they are not trusted. I agree that f we want to resolve this we will have to find ways of working with them. However, that is a two way process and we need a partner. If Grieve thought the threat of OCOF will work then I wonder if that partnership is realistic? So, my current view is to make it clear that there is more pain in not working with us but that we will work with them if asked.

      I am beginning to realise how Martov felt. My concern is that we do not parallel their idiocy.

  6. Simon, I agree with a lot of your excellent analysis and comment. We have to achieve a mechanism to talk. A day of debate is a start. No returns must be time limited, although I have supported it on that basis. Personal attacks on the LC have always been counter productive and particularly from professional advocates. That is quite different from scrupulous analysis and condemnation of misleading press and other releases. Most of all, I beg my colleagues to have a sense of proportion. We cannot set out to bring the system of Justice to a halt and expect long term to succeed. I still suggest a mediator, however unlikely that may appear at present. My regards, Nigel Pascoe

  7. Simon, for what little my view is worth I echo the previous comments about how important and helpful your contributions to this debate are – thank you. However, for my own part I also agree with ‘jaimerhamilton’ that ‘The no returns policy is as close to a work to rule as I believe the Bar can sensibly come’.

    Isn’t the fundamental difficulty with a more general ‘work to rule’ policy that it sets up an inevitable conflict with our professional duties? If a barrister has accepted, say, a legal aid criminal defence brief and is faced with the option of stopping work at 6pm during a trial, or working on for a further 4 hours to finish preparing for the next day, the client’s best interests is clearly in the latter course, especially if the judge insists, when pressed on the issue, that the court will sit at the normal time. Having accepted the brief, on the legal aid funding arrangements extant at the time, the barrister agrees to act in the client’s best interest in return for the relevant fee. To do otherwise is to prioritise the barrister’s interests (or that of the profession, the legal system, the future of western democracy etc. depending on your view) over that of the client. However laudable and justifiable such a prioritisation might or might not be in a given case, it won’t it always be a breach of our professional duty and undertaking to our client?

    The advantage of the ‘no returns’ policy, though by no means without its drawbacks, seems to me to be that it is about refusing to take on (a certain category of) new work, and therefore a refusal to take on new duties to clients, rather than a threat not to fulfil duties previously accepted. This cannot involve, as a more general ‘work to rule’ policy might, a breach of our professional duties. The significance of this go beyond the possibility of professional disciplinary action for individuals, but extends to the basic message we are trying to put across (i.e. we are a profession and hold our professional duties sacrosanct, but cannot fulfil them on the proposed rates and so cannot accept work at those rates). The risk of a general ‘work to rule policy’ is that it involves threatening not to do (or maybe in some cases actually refusing to do) the best job we are capable of in cases we have accepted. This would be delivering ‘cut price justice’ which is exactly what we are trying to argue the independent bar does not and will not deliver but alternative providers would.

    This is only my tentative reaction, it may well be I have missed some subtlety, or that such problems could be ironed out by further debate on what ‘work to rule’ should mean.

    1. I don’t understand the work to rule question. Although a number of people have said this, I think it misses the point. We must do our best for the client. We are paid by the case. Neither of those things mean we need work daft hours. An 8 hour day is the norm. When we give time estimates it should be on that basis and that should be made clear. Then, the Judge would have to say “I order you to work additional hours”. I don’t think they would but if they did the courteous answer would be “Sadly, things have changed from the days when your Honour did this work. We now have to work these hours without a change to the fee and I am afraid that, in those circumstances I have decided to work the same hours as most other people”.

      So we always do the best job we can. Always. We just do it more slowly. We get money in and survive whilst we are doing ti. Courts come to stop pretty quickly. CTL cases fail and criminals are let out. And we are not doing anything except refusing to work silly hours. No breach of professional obligation. No diminution in quality of work.

  8. For reasons unrelated to the crime rate or Mr Grayling I have been unable to do much court work anyway in the last year, and prospects for the immediate future don’t look much better . A “strike” or work to rule is not going to make much difference to my income in the short term. So with that declaration of interest out of the way here’s my twopennny worth.

    Unless we do something pretty dramatic the MoJ’s proposals will simply be put into effect. So, although I thoroughly dislike the expression, “doing nothing is not an option”.

    There is force both in Simon’s point that an all out strike (particularly one organised without a secret ballot) might collapse (even if it could get off the ground in the first place); and that of the now unemployed fireman John Hardcastle, that it is easy to embark on a strike as a sort of “jolly” ignoring the fact that the reality will be a lot grimmer. It is obvious that a significant body of barristers either will not strike as a point of principle (Nigel Pascoe for example), or simply cannot afford to strike. If you face getting your home repossessed, or getting evicted from your rented flat, I suspect a lot of the brave talk about “saving the CJS” would cease. Any strike will also leave a legacy of appalling bitterness amongst any barristers that are still left standing when the smoke clears.

    If an all out strike is ruled out the only actions left for the bar seem to be:

    1. The current no returns policy – possibly expanded to CPS returns –

    2. Simon’s work to rule.

    3. Recorders to stop sitting.

    4. Refusal to accept instructions at the new rates

    5. Something else….

    1. I agree with Jaime that the no returns policy is causing problems and must be putting pressure on the government. Moreover, along with the VHCC refusals it is currently the only show actually in town. True, most have not voted on it but we are a profession of individuals who seem, at the moment, to be voting with our actions. I support it and congratulate the CBA on suggesting it.

    2. Simon makes his “work to rule” sound appealing but I have absolutely no idea what “rules” I would be working to. It’s just too vague. What could it possibly mean in a 2 day ABH, for example? That I arrive at court unprepared and demand an adjournment to prepare every little legal argument that crops up? If not that then what?

    3. I think Recorders stopping sitting would be a a highly significant move. It would ensure, as Simon says, that the more senior practitioners put their careers on the line in a way that the junior ones are doing disproportionately with the no returns policy. It would have a significant effect even if not every recorder signed up to it. It would also generate more interested press coverage than no returns alone. I don’t buy the point about breaching any judicial oath. This is not about judges walking out in the middle of cases, it’s about self-employed people not sitting as judges at all. It can’t be a breach of any judicial oath to say “no” when the lady from the Ministry rings to offer you a week sitting in Gloucester, or wherever. Yes, it might affect promotion prospects, although the more widespread the refusal to sit the less that will be the case. No pain, no gain.

    4. Refusal to accept instructions at the new rates – we don’t have to decide that quite yet, although we will have to do so soon.

    5. Something else? Hanging over all this is the separate issue of QASA. We might want to forget about it, but those of us on the Western & Midland Circuits will soon have to sign up to it or stop working anyway. It won’t go away by not talking about it. Is there some way of using QASA to increase pressure on the MoJ? Or are the two things unrelated?

    We must also wait to see and, in all probability support, whatever action criminal solicitors decide to take after March 20th. We may have a better idea later on today.

    Finally – I don’t have any optimism at all that Nigel Pascoe’s “mediator” will come along and sort everything out. I do think, however, that we must be prepared to allow the MoJ to back away from its plans without losing too much face. When you do a plea bargain there is often some sort of face-saving provision that allows it to be sold to the side that is losing the most. The prosecution drop the violent disorder on the basis that the Defendant agrees to be bound over, or the Defendant agrees to plead to the S.18 but the Prosecution won’t contest his basis of plea, that sort of thing. I was sad enough to be watching Ministry of Justice questions yesterday and I noticed Mr Vara pointedly said “the minister’s door is always open to the Criminal Bar Association.” That sounded like a ministry which might yet be wiling to engage in more constructive talking.

  9. What an excellent analysis of how we protest which can include shutting the CJS down AND sustain incomes at the same time.

      1. Thanks SM I might just as you offer a moderating voice which takes into account our simultaneous need to bring CJS to a halt.

  10. Reblogged this on Supporting UK Justice: For the Defence! by a layman and commented:
    It is a very serious thing to reblog.
    I am reblogging Simon Myerson’s QC Article because I believe we need to do TWO things at once and NOT JUST ONE.
    The CBA our Leader rightly favourited SM Tweet where SM objected to the Strilke on the basis of breaking conditions. I hope The CBA might see this Reblog in a similar way.
    I was at Lincolns Inn at the Legal Aid Rally no different from anyone else, there at the Bar in Spirit but not in person. This reblog is no moderation of my default CJS Disruption position. I just think we need to look at barrister incomes and sustainability issues at the same time.

  11. My view on not accepting work at the new rates is that, reluctantly, it needs to be done.

    The reason is that the last round of cuts were justified by pointing to CPS fees being lower and our still being willing to do the work such that defence fees could safely be reduced.

    And the MoJ was right, we carried on working for less money. Now they’re back for more and if we do the work at these reduced rates, when exactly do we say it’s no longer economic?

  12. Best form of defence is to attack? Why don’t you go after the CPS and rip it to shreds, namely the very poor work they do. Of course that’ll kick morale even further down the stairs, but it would be an indirect attack on grayling when the number of cases falling apart increases – why can’t he get a grip? – and it is anonymously dripped to the DM, The Sun etc and they take it up and run it. Politicians HATE bad publicity, especially when they are the target. Try: when they feel the heat, they’ll see the ‘light’.

  13. As a career change law student I have followed this whole debate with much interest. I have also previously written to the MoJ protesting against their use of statistics. Everything you say here, the substantive part, is good. Just one small point: why talk about taking the kids out of school, as a possible outcome of reduced income from a strike? For anyone trying to promote the barrister ‘fat cat ‘ image this surely simply proves a point.

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