Kicking Up the Dust Before It Settles
We are good at outrage. Indeed, as a profession we reside in Tunbridge Wells and spend our time snorting through our moustaches. So, the cries of betrayal, infamy (infamy, they’ve all got it infamy) and doom are not unexpected. Nevertheless, there are some things to be said.
First, we are actually entitled to assess the arguments advanced by the way they are advanced. I have repeatedly said that we need to be professional about this. I will deal later with matters that have prompted me to think I have got some things wrong, but this isn’t one and I am happy to see that the CBA is (now) adopting the same approach. The reality is that advocates who shout, threaten, insult and coerce are crap advocates. It is legitimate to say, not simply that personal vilification is unacceptable (a statement so obvious that it should be unnecessary), but that such an approach calls into question whether those adopting it have any right or claim to lead the Bar. Who wants leaders like that? What qualities do they bring that makes anyone want to follow them?
Secondly, we did not do this for solicitors. Not because we don’t care but because we can’t. The solicitors have chosen to work at the new rates (only half the cut now being implemented, although no one seems to have acknowledged that the CBA did that too). The proposition that we should in some way take up the slack on their behalf is both bonkers and insulting. Bonkers because how on earth could we refuse to work in the light of the concessions made to us? Insulting because of the casual assumption that solicitors don’t want to work but have to. That may be true, but it may equally be true that solicitors have decided they can deal with this in another way. I don’t know, and suggesting that Twitter is a reliable source for the views of a profession of more than 100,000 people is not a serious stance.
Thirdly, the reason it is being said we should do this for solicitors is that otherwise they will go bankrupt and we will not get the briefs, or that – slightly irrationally – if we don’t strike for them then when they don’t go bankrupt (leaving the inconsistency aside for now) they won’t brief us but will take the work themselves. Both these arguments strike me as demented.
If solicitors’ firms go out of business the work will still be there. Whether it is done by us or HCAs it will have to be done. The proposition must therefore be that the surviving firms will be inclined – for economic reasons – to keep the work in house. That may be accurate but, if so, it simply reflects the realities of competition. The answer – as it has always been – is to be better than HCAs. The argument makes the assumption that being better is not enough, because these particular firms will brief HCAs despite the fact that they aren’t good enough, simply to keep the money.
If that is correct – and it may be – then I would expect the solicitors for whom we are asked to strike to pledge not to use HCAs at all. Otherwise we are sacrificing ourselves to them and actually improving their chances of not giving us work, by keeping them going so that they can use HCAs. That isn’t happening. Instead the complaint is that we did a deal which does not assist a group of other people who are not acting on their own account, might not be as affected as some of them say they are, but will use our assistance to compete with us (unfairly in my view) come what may. Thanks, but not thanks – if I want to commit hari kiri I’ll do it in the traditional way by disembowelling myself in front of Chris Grayling. At least then I might spoil his supper.
When one then considers that the people who allegedly need us have spent a considerable amount of time and inventiveness in coming up with way to abuse Lithman and threaten that they will never instruct counsel again, one is forced to ask ‘why bother’? If we don’t save them they won’t brief us. If we do save them they won’t brief us. If they go bankrupt they won’t brief us. When will they brief us? If we save them and it suits them and they can’t make money out of it. None of those 3 things are guaranteed, even if I never worked again.
I don’t blame the solicitors for competing. They are allowed to. I complain that – as a number of them told me on Twitter – they have the clients first, because that suggests that they know that the only basis the client accepts an HCA is that they don’t get a chance at a barrister. But that’s the system and we have to deal with it. I do, however, suggest that those commercial realities suggest that striking for solicitors is like screwing for virginity. If this deal does mean less work for the Bar then the answer is not to carry on striking. The answer is to develop a strategy that helps us avoid that position – a proper, gold plated, top rated, quality assurance scheme that only the best attain. Depressingly, the rejectionist wing of the CBA are also the quality scheme refuseniks who need no authentication from anyone because they know how good they are. I keep being told we haven’t been so united since 1984 but that really isn’t a reason to behave as if we’re still there.
Fourthly, when I wanted to debate work to rule – a method by which we could resist Grayling for months – or no returns of only some classes of work – which would protect the junior bar – I don’t recall anyone from the CBA’s then support group saying that this was a fair way to treat the membership. We were offered a straight choice of work or no work. We were offered a straight choice of no returns and days of action or not. There was not even an attempt to divide those two things up, even though it is a common view that no returns worked and days of action didn’t. That wasn’t fair or sensible then, because it wasn’t democratic. Democracy is debate, not a choice between 2 options – one of which is unacceptable. The CBA survey was designed to persuade people to say yes to no work because the only alternative offered was to do nothing. The proposition that we could suggest other things that no one else would know about and – therefore – round which debate and support could not coalesce – was insulting and, frankly, thick. Nor was the 28th March an important date. The matter was urgent because the CBA said it was and for no other reason.
Nonetheless we did it. Now, when what has happened is not to the liking of those cheering for that rather totalitarian way of designing a plebiscite, we need an EGM and a ‘democratic’ ballot. I’m not saying that’s hypocrisy – I’m just struggling with what else to call it. And the ballot isn’t an open debate – it’s just question 1 of the questionnaire, with all its faults.
In reality this is foot stamping. It doesn’t even engage with the debate – the calls started long before we were told why the decision was made and still don’t ask what the MoJ will do if we renege. This is a group of people for whom only one answer is acceptable and, if they don’t get it, it isn’t because of realities, or because others may legitimately hold different views – it’s because only they really know the answers and the rest of us are simpletons who shouldn’t be allowed to make decisions, or scabs and traitors who have sold us out. The language is redolent of the Labour Party of the 1980s at its most moronic.
I have a view about people like that. I don’t want them making decisions for me, because they are likely to make the wrong decision. Here, when they don’t even seek to know the consequences of what they propose, that view is reinforced in spades.
Fifthly, I’ve read what Lithman said. It sounds right. No one has sought to say otherwise. The only challenge to it consists of a message of doom which – for the reasons I’ve set out above – isn’t answered by refusing to work when we have been told the cuts have gone. For the people bashing this scenario out it is important to be as pessimistic as possible. Their own case is that the savings will be made by the existing cuts. Nothing will happen until after an election and a year. If it is right – as I and (until yesterday) they believe it to be – there will be no need for further cuts. Nonetheless, to get their way, our militant tendency now reverse themselves. Yesterday we wanted a delay. Today a delay is no good because it will happen anyway. Yesterday there was no need for cuts. Today – although the cuts aren’t happening – they will happen, in a year. Oh what a crystal ball is this. Yesterday the CBA were brave fighters going to win for us through their valour and wisdom. Today they are spineless cowards – whoops, no insults, let me correct myself – idiots who cannot see the foolishness of what they have done.
The conclusion I draw when someone will say anything that suits, is that they are wrong.
Two more things. First, I don’t want to do VHCCs and as far as I can see, I don’t have to. So I won’t.
Secondly, although I opposed the tactics and criticised the handling, I have learned that unity can be more important than the detailed measures. That doesn’t mean I am happy with what we nearly did, because I think it would haver destroyed us and I reserve the right to say so. But it means that I acknowledge that there are times when those arguments ought to give way. I think I got it wrong. I hope I judge it better if we have to do it again – and we may. But that only applies when the leadership is good, not when it’s bad.
Finally, the Circuit Leaders and the Bar Council helped the profession to confront the LC and the MoJ and they blinked and backed down. What a great thing to know. Even if you are pessimistic that is important. They played a blinder and we should be grateful – if we aren’t snorting into our moustache in Tunbridge Wells.