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Decision

Ultimately, this is where I think this debate has got to. I have taken the claims of those on each side at the proponents’ own estimation. An asterisk indicates where I think that is a higher estimation than must necessarily be taken. I have tried to set out what each side says will be achieved, or lost, first followed by what might be called more general reasons to support its position.

Strike

  • It would bring the courts to a halt.
  • It would thus demonstrate our ability to do so.
  • Which would teach the MoJ a lesson and thereby* increase our credibility.
  • And would achieve the aims of the strike more quickly.
  • It is certain* that this would help the solicitors succeed in reversing the rate cut.
  • It is more than likely* that without the rate cut, dual contracts would be abolished.
  • It demonstrates solidarity with the solicitors.
  • Lots of solicitors* would reward that solidarity by not doing any more advocacy work themselves in the short to medium term.
  • It involves very little* additional risk to the Bar, as there will be much less work coming through until this is sorted out.
  • The gains are thus worth* the loss of income to the Bar, especially its most junior members who are disproportionately hit by no returns.
  • In any event, striking is justified because if dual contracts is implemented the number of small and medium sized solicitors firms will shrink to the stage where the junior Bar cannot survive*. The Big Firms Group will, as now, continue to do as much of their own advocacy as possible.
  • Like it or not, the Bar is affected by this issue because the MoJ will* come after us next.

No Strike

  • It adversely affects clients.
  • It is a breach of our undertaking to the MoJ, which has honoured its side of the deal we reached with it.
  • It endangers our engagement with the MoJ, which is now significant and fruitful*.
  • As we now compete with solicitors for our work, but they do not compete with us for theirs, there is no true community of interest*.
  • If dual contracts were really the end of the road solicitors would not have bid for them and would be taking action about them*.
  • Dual contracts are probably here to stay because quite a lot of solicitors want them and (because of that) they are not taking action about them.
  • Unless the Bar can protect its ability to conduct advocacy, it will wither in any event. A strike would postpone the inevitable, not* prevent it.
  • Striking invokes the law of uncertain consequences. The MoJ can impose cuts on us or implement things like one case one fee, which would certainly kill the Bar.
  • Striking may not achieve the aims of the strike, either because the MoJ holds firm or because the solicitors do not.

As you can see, there are only 3 virtual certainties of note: that the Bar could halt the system; that without advocacy we cannot survive and that competition between solicitors will involve them doing more advocacy. The first 2 are obvious. The last seems obvious to me, but I have repeatedly asked whether solicitors will do less advocacy if they win and the answer is no – at least if payment for other work is not increased.

The rest of it is about where you personally put the emphasis and what your own take is about the asterisked issues. The asterisks essentially represent the areas of risk that you need to assess when making your decision.

I can see why those people whose primary motivation is  kicking the MoJ and solidarity want to strike. I’m not interested in the former (although I believe the MoJ is second rate at present), but the latter is important. I can see why you could honestly and passionately vote yes on an assessment of the issues. I would very much like to vote yes, because I believe the solicitors’ cause is just, and because I admire them, what they do and their commitment to it.

Yet, I still cannot accept that the Yes side has properly assessed its case, because almost every asterisked issue has been answered with a statement of faith, rather than a substantive argument. I think that to vote yes you have to be persuaded that the chance of saving the current level of work is worth the risk that the MoJ will not negotiate with us again and that the work will be available both to the solicitors who brief the Bar and to the Bar itself.

I also think that, perhaps because much of it is an issue of faith, the tone and shrillness of the Yes campaign has been a turn off. It certainly has been unpleasant to me personally (with some important exceptions), but it has also descended into personal attacks on honesty and ability. That’s demeaning and I cannot rid myself of the feeling that it indicates something about the merits. I wonder how broad the support for it really is, with the most vocal supporters coming from a handful of Chambers. That  isn’t a problem in itself, but it suggests that volume of advocacy isn’t equivalent to volume of support.

I would very much like to vote Yes. I hope the solicitors succeed. But I am going to vote No. I do not consider myself bound to support the solicitors. I do not believe that the prospect of their victory offers the Bar what we need. That being so, the fact that they may lose and that their defeat might affect the Bar is not a sufficient reason to support them. If there were nothing else for the Bar, then solidarity – for me – would suffice. But we have negotiated with the MoJ successfully and we are on the verge of a new relationship. That has been forged because we did a deal and both sides have honoured it. I have heard those words spat out too often. Negotiation is what we do. On what basis is it properly said to be an act of betrayal? Who makes an argument so much about emotion and not enough about hard fact? Normally, the party who knows the case needs a bit of oomph.

Of course, it may all go wrong. But at this time, and in this place, you have to make a hard headed assessment of where we are. The answer lies with those who can assist our futures and who are saying that they will. Hard as it is to stomach, that’s the MoJ.

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