Life at the Bar · Qualities Required · The Future

A Reply to Dan Bunting

Dan has written a powerful post on why he will vote yes. He is one of the good guys, like Matthew, who is both genuinely troubled and is prepared to think through the consequences of what he is urging us all to do. He has not dodged the questions and he has answered them. He is a powerful example of what Grayling is endangering and why the country would miss us if we go. We must make up our own minds and as profoundly as I respect him and his arguments, I equally profoundly believe he is wrong. I have posted this on his blog as well.

 

Dan,

You say, in answer to my first question, that you are questioning the wisdom of the decision, not the fact that it was the best deal we could have got. I understand that, but that does mean that we are unlikely to do better – even if your argument is correct – without significantly ramping up what we do. That, obviously, is a change of course, given that what Lithman got is most of what the CBA said we wanted.

Your suggested course of action is, in fact, to go back to where we were and ramp it up. More financial pain, with cuts in July. As that goes on, it is inevitable that the action will start to splinter because it will have to. Never mind supporting solicitors – how many of us are really going to fail to pay our mortgage and heave our families into the street? It’s the beginning of April, so this is going to go on for May and June and then get worse. Most of the junior bar to whom I have spoken haven’t got anything like the resources to manage for that long.

You don’t address this, but go on to talk about the MoJ response. The difficulty is that their response – leaving OCOF entirely aside for now – is likely to be to do nothing but impose the cuts and carry on waiting us out. We know that because Lithman has told us. We can’t pick and chose on this: if they are evil and will impose the cuts anyway in 2015 then they will certainly do so when we renege next week.

As they do nothing, we fade away. People will go and do returns. Or they will go bust and be struck off. Or leave. And your strategy will achieve – all on its own – exactly what you say the MoJ wants. Your only hope is that the MoJ buckles before we do. I can’t think of an example where a small group of people, about whom the public cares not very much, have achieved that. That is why the current deal is the limits of the possible.

You postulate OCOF as the worst thing and then say it isn’t. OCOF is the end of the Bar because the only competition will be on price. We will bring nothing to the party. Good advocacy will be a random event. But OCOF will be irrelevant if we do it to ourselves. As each person goes bust or returns to work, our ability to negotiate anything diminishes. We will make ourselves vanish. You say that this is what will happen anyway but that is such a counsel of despair I can barely bring myself to believe you mean it. It says nothing for the solicitors you urge us all to support. It is far from certain. It does not begin to factor in the Reviews that are to come.

Most of all, it argues that we should bring about the certain destruction of the Bar, because it is doomed anyway. What happened to fighting? To persuasiveness? To advocacy? You may be right – if we have stopped believing in the things we exist to do then we may as well pack up and go home. This is truly a Darwin moment. We are being urged to be the profession that commits suicide today, so that we aren’t strangled next year.

You explicitly say that we will never win. If that is your view then I think you ought to leave the decision to those who genuinely believe we can. Because, once you have accepted that nihilist position, it is impossible for you to be sure that you are voting responsibly. You are certain that nothing good can happen and your choices – as outlined above – will actually make certain that your prognostications of doom are correct.

And that, ultimately is where I think the Yes camp are. So convinced they are powerless that they would rather have a massive row they lose, than dare to dream of winning. For some – for you – I think it is genuine despair, and I am touched and sorry. For others – I fear – it is the excitement of leading a ‘glorious’ last charge, and I am dismayed.

Don’t do it – please. In 1918 Hopkins addressed this precise dilemma:

Not, I’ll not, carrion comfort, Despair, not feast on thee;
Not untwist—slack they may be—these last strands of man
In me ór, most weary, cry I can no more. I can;
Can something, hope, wish day come, not choose not to be.

Words to live by.

Simon

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