But, what are you for?

Introduction

It’s a fair question. It’s easy to be against something, much harder to put forward a decent plan. Easy to point out the flaws in a plan, much less easy to be constructive.

I’ve set out my reasons as to why the deal offered to us last week is, in my mind, a bad one (in the context of the legal marketplace) and we should vote to reject it.

 

Debate

Simon Myerson QC wrote two pieces (here and here) in support of the deal. There’s plenty going on in the comments, but Simon asks several (valid) questions to those of us who want to say no to the deal (confusingly, this means voting yes). I indicated that I would try and reply to his questions in more detail – this is it.

 

Questions and (hopefully some) Answers

(1) First, if all the people you laud for their nerve and courage accepted this deal, why do you think you would have done better. The team that met Grayling is as good as it could be

In some ways, this is an easy question to answer – I’m not saying I could do better, I’m not a head of chambers, I don’t conduct difficult negotiations of the sort we are seeing here, nobody has accused me of good sense in the last ten years, and I’m not renowned anywhere outside my mother’s immediate circle of friends for my intellectual ability.

I am not saying that I would do a better job, I probably wouldn’t. Nigel has vastly more experience of this sort of thing that me and certainly more gravitas.

The issue is nothing to do with the leadership of Nigel and Tony. The issue is whether the future of the bar is best secured by accepting this deal or not. That is something that we all have to make our minds up about individually, weighing all the evidence, and seeing which arguments prevail.

If the question is whether we should defer to their analysis of the situation as to what is best then I disagree. Their views are highly persuasive, but not binding. Even if they are right, it is a decision that is fundamental to the future of the bar and therefore, if it is a controversial one, it is right that we should all have a say in it.

The same applies to me of course. I think I’m right, and that I have the evidence to back it up, but I don’t believe anyone should vote ‘yes’ simply because I recommend it. I would encourage everyone to read the consultation response (I have done a summary for Chambers and am happy to share that with anyone who wants to) and do the maths for themselves. Look at their local area(s) and the number of contracts on offer and see who you think will be getting them (if not you), and what that firm will look like.

My views on the merits are as previously stated and nothing I have heard to date has changed that.

(2) What would you do and where would it get us? Don’t simply give the best scenario. The CBA said it wanted a postponement until after Jeffrey and got it. We can still refuse VHCCs – and I am. You want us to renege. What will the MoJ do? Why do you think so? What if you’re wrong? What is the worst you say could happen? What are the chances of it? Why is reneging a risk worth taking? Who is going to negotiate for us after you have taken over, assuming there is a negotiation to be had? What experience do they have? How good are they?

 Taking these in turn: 

  • What would you do and where would it get us? This is the key question. I have my own views on where our bottom line should be, but that’s probably not that important. The bigger thing is the process we use to get there.

My view would be that we should continue with the No Returns policy, and days of action, until there is proper engagement by the MoJ. An ultimatum is not a negotiation.

‘Not a penny more’ is a great slogan, but I would like to see that across the board – to all cuts (if that was not the original plan).

I’m not so naive as to believe that we would win on all of this. I’d be amazed if we did. But any settlement that is reached should be agreed by a majority of lawyers effected, in both branches of the profession.

There are also other points that need addressing. Any wage negotiation where a settlement is reached would assume that it is inflation-linked as an absolute minimum. That should be pressed for. I understand that it is difficult to start increasing demands that weren’t made three months ago, so I won’t go into the other areas where I have grave concerns (arguably ‘not a penny more’ covers the inflation point).

It may that this can be discussed after the various reports have been issued. For the future of the profession, I would suggest that it has to be.

As an aside, I think that we both agree that more should have been done years ago about this. The temptation, when asked ‘where do we go now?’ is to say ‘let’s not start from here’. That is true, but unhelpful.

  • What will the MoJ do as a result? We don’t know. I imagine they may not be happy. According to them it was a take it or leave it deal that had to be agreed last week. If that was right, then the deal was scuppered when the ballot was announced, and so we might as well vote on the merits as it’s academic.

I don’t believe that it was ever ‘take it or leave it’, but the opening offer in a negotiation. Why would it be? If you were Chris Grayling, why on earth would you open with your bottom line?

So, I imagine that there will be some red faces in the MoJ perhaps, but nothing too damaging (after all, the events of last week are all pretty arcane for a non legal aid lawyer).

Is there a risk that the MoJ will come back with a ‘worse’ offer? Yes. Pride on their point would suggest that they may do.

  • Why is not accepting the deal a risk worth taking? Depends on your assessment of the risk currently faced – see below.
  • What if you’re wrong? What if I’m wrong about what?  …. about the reaction of the MoJ?

I accept that a luxury I have is that we will never know the answer to the hypotheticals though.

  • What is the worst you say could happen? Hard to say – probably a hissy fit by the government in which they introduce OCOF.
  • What are the chances of it? I think that that’s unlikely, not because they are honourable, but because they like having OCOF as a threat to hang over us (see more below).
  • Why is reneging a risk worth taking? This is the most important question. We come back to what I said originally as to the risks to the profession if we take this deal. What risks are involved in this? One point – I don’t think there’s any question of reneging on the deal, it’s putting the question to the full membership.
  • Who is going to negotiate for us after you have taken over? I hope there won’t be anyone else negotiating other than Nigel (at least until Tony takes over). I have heard precisely one person questioning Nigel’s leadership on twitter. That was from a solicitor and there was one interaction with that solitary tweet. And that was me telling him not be silly.

 

(3) How long before we ‘win’?

I don’t know. Sorry, I know that that’s not helpful.

What is sustainable for the bar (roughly) is an inflation-linked version of Carter, and we are a long, long way from that. To that extent, frankly, I don’t think we will ever win.

 

Who’s afraid of OCOF?

Not I. I used to be certainly. I remember sitting in a pub near Chambers about 8 years ago talking about Magistrates’ Courts Fees and opining that if they brought that system into the Crown Court then we would be destroyed.

I remain of that view.

Continuing my trip down memory lane, quite recently I had a good chat with a silk (whom I respect greatly) about the prospect of direct action. I said that I did not understand why we had not done this before and was given the answer that it was fear of OCOF. I can’t speak for all our leaders over all the years, but it seems that that may have been what’s held us back from taking action.

I don’t know if that’s true or not, but if so, it would at least explain the repeated failings of the Bar Council (who has done much of the negotiating, over Carter and the like) to achieve anything.

The more time goes by and the more cuts they are, the less of a threat OCOF becomes, as I’m sure you’d agree. There comes a point where the practical difference of OCOF is greatly diminished. The question is whether that point is now.

For the reasons I’ve given previously, I think the changes proposed is a tipping point. Yes, people will still come to the bar, but the determination of who succeeds as a barrister being on merit will, I believe have gone completely.

I suspect that a lot of the arguments about the vote will come down to this issue in particular. If people judge that the bar can’t survive these cuts then they will vote against the deal, however perverse it may seem.

 

Conclusion

I don’t know if these answers are satisfactory, or at last give some further indication of why I will be voting ‘yes’. Feel free to probe me some more Simon, if any of the above is unclear …

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4 thoughts on “But, what are you for?

  1. 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

  2. Pingback: A Reply to Dan Bunting | Pupillage and How to Get It

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