Life at the Bar · The Future

The Silence of the Lambs

So far, no one has answered the questions posed yesterday. According to Facebook there is a solicitor (I think Ash Bhatia but the post was a little ambiguous, so if it isn’t him I apologise) who has powerful answers to every point, but he isn’t going to give them. Caveat emptor.

However, things are a little clearer because some people have commented on some issues:

  • Michael Turner has made it clear that the CBA’s absence – as observers – from the meeting was not the CBA’s cock-up and was not a conspiracy. Although David Allen Green begs to differ (in deference to him, on the question of whose cock-up) I see no reason not to take Turner at his word. Please don’t let that put you off Jack of Kent generally – it’s usually a good read, and thoughtful about substantive issues.
  • That does rather support the view that the absence of attendance is an irrelevance. That’s rather a shame because nothing is more exciting than a good conspiracy, but we are a fact based profession.
  • As those on the LCCSA mailing list now know, the bigger firms (I am told this is not the BFG) were threatening to pull out of the action on Monday. The new protocol was devised without consultation with the membership of the LCCSA in order to avoid this possibility.
  • For reasons that currently escape me entirely the new protocol was not announced to the MoJ before the solicitors met Gove, but it has now been made clear that the non-annoucement was deliberate. I wonder about that as a negotiating strategy. It seems to me that any discussion must have taken place on the basis that the then current action was to continue, whereas it became clear, within 2 hours of the meeting ending, that this was false, but there may be a reason behind it that is not disclosable at the moment.
  • The CBA was told of – but not consulted about, or invited to approve – the new protocol on Wednesday evening.
  • The necessity for the new protocol is financial.

I make it clear that I accept all those points.

There are 2 questions. First, this new protocol plainly shifts the financial burden of this action to the Bar – otherwise there is no point in the solicitors adopting it. Does that affect the CBA’s mandate, given that it is not the basis upon which people voted? There are arguments both ways: some of the Yes campaign have said we voted for action, regardless of the work solicitors did or didn’t take. Others say that the Bar’s vote was plainly taken on the basis of facts that no longer exist.

Surely, if we are going to go ahead we need to do so now. It seems to me that the Yes campaign must now step up and take responsibility. If they believe we need to reballot, I would accept the need to do so, because it would be plain that a number of barristers wish to revisit their choice. There are a substantial number of solicitors out there who would seize on that decision as a reason to stop their own action and, ultimately, carrying on with the action might be the best way to remain on speaking terms with the solicitors’ profession. If we did reballot, the Bar would be blamed, but at least it would be clear that the reason was that those who voted for action now acknowledge they did so on a premise that should no longer bind them. Otherwise, we should not reballot.

I am content to abide the ballot we took and I acknowledge the Yes campaign may be right. In my view it is more important that we do not lend ourselves to a narrative that suggests this could all have ended in glorious victory had the CBA not stepped in to stop action after we voted for it. I am chiefly anxious that we act responsibly, and it seems to me that the best way to ensure this is to put the Yes group in charge of determining whether and how to continue. That involves no abdication of responsibility by the CBA Officers: they would merely be delegating the strategy of the campaign to those who always asserted they were most in touch with ordinary barristers and, thus, best placed to run a successful action.

Of course, no one has yet answered the questions I posed below. Those do need answering urgently, particularly the one about when we stop.

The second question is whether this action is going to work. In my view – and I say this as someone who is committed to carrying it through – those running the action need to considerably up their game. A financial issue is the easiest of all things to predict – you crunch the numbers and you get an answer. Why those running this action didn’t take those basic steps is unclear. If they had, they would have known that the action could not continue for more than 3 weeks and there could have been a consultation and a more informed choice. It may be the information was so sensitive that even 3 weeks’ advance notice was thought to be too much sharing, in which case we urgently need procedures to ensure that doesn’t happen again. We cannot succeed unless people are prepared to put their own interests aside in the cause of the group.

Equally, I cannot conceive why no one campaigning for action asked the solicitors how long this could continue and what the plan was when it could not (imagine the furore had anyone suggested this hadn’t been done…). I am aware there is already an attempt to blame the CBA for being so slow but that is a poor argument. It was plain that there would have to be time for a protocol to be agreed and some lead in. Moreover, if the solicitors believed this would be over within 10 days of the Bar beginning action, they would have carried on.

Given that those who campaigned for a yes vote have continually been taken by surprise by eminently predictable events, such as the need tho establish a protocol and the likelihood that solicitors would have to take new work, I believe this all needs to be better thought through. I don’t stand for elected office – this profession doesn’t really permit Orthodox Jews to properly serve because meetings are usually on Saturdays (not a complaint) – but I want those who are elected to demonstrate competence and, preferably, more. This point is important because if the CBA officers (none of whom are personal friends and most of whom I wouldn’t recognise if I bumped into them in the street) are going to be attacked for incompetence and self-interest, those taking that line must be held to the same standard.

If – and only if – there is a new ballot, I invite consideration of whether the assurances that Gove cannot be trusted, that we have a sufficient community of interest with the solicitors to justify risking our own livelihoods to assist them, and that the action we are taking will succeed are reliable. It may be that what has happened disposes us to give more weight to the assurances of the CBA leadership and the Circuit Leaders to the contrary.

NB: Some of the information about the announcement to the MoJ may be wrong. I am seeking further info and will amend when I have it. In the meantime, what is up is what I read in the LCSSA communication sent to all on the list.

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3 thoughts on “The Silence of the Lambs

  1. “….nothing is more exciting than a good conspiracy, but we are a fact based profession. Please don’t let that put you off Jack of Kent generally – it’s usually a good read, and thoughtful about substantive issues”

    I do not suggest a “conspiracy”. There was a cock-up – just not the one the CBA is admitting to.

    A fact-based professional would have noted that; but don’t let that put you Simon Myerson generally.

  2. Sorry David. I have corrected the post by making the conspiracy point clear and moving the sentence that referred to your blog to a different point, to avoid associating you with the conspiracy point.

    I do think you hinted it was a conspiracy, but people have a link and can make up their own minds. As I’ve said to you on Twitter, I could see that this may have been a deliberate decision, in order to avoid a bad meeting, but who knows.

  3. Good stuff as usual. My concerns are really not that this shifts the burden but that it alters the timescale of this action. I was told by one solicitor yesterday that of course the implementation of protocol 2 was a matter for them and the bar had no right to be consulted. So much for unity.

    I understand the rationale for the change; but I am concerned that many solicitors are so busy congratulating themselves on making this “sustainable” that they have lost sight of the fact that the Bar took the view last time after about 4 weeks that no returns was not sustainable. Add in no new work and the number of juniors hurting by the end of August will be large, by the end of September it will be unsustainable.

    The original action was of sufficient concern to the MOJ that there was a meeting. These new contracts will be introduced very soon. People will be invited to sign them in a time frame that can be counted in weeks; but we have moved to a strategy that will have limited impact until the end of this year and into next. Yes no returns will have some bite, but the no new work will only impact on trials scheduled from November at the earliest. Do you honestly think a judge will stop arraignment because unrepresented. In the face of the new mantra ” he knows if he did it or not” many judges will not hesitate.

    I understand why solicitors moved to this action. What I don’t understand is having demanded support from the Bar they then pressed ahead with no attempt made to forge an agreement about timescales and objectives. It is, as usual, a total PR disaster.

    We are yet to see how the bar will adopt this action. Protocol 2 is a very watered down action; its great virtue is said to be that more firms will adopt it. I hope that they all do. But does anyone really think that if we are still at war with the MOJ in October or November that this is going to end well?

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