Why should you? 9 reasons.
First, we now have a year of no cuts and a chance to influence the 2 Reviews. That is more than we ever anticipated. It is exactly what the CBA called for. It is a doom-laden view that it will all make no difference. But there’s all the difference in the world between a gloomy guess and reality.
Secondly, we won. We confronted the government and made them back down. We did not know whether we would be able to hold it together and whether it would make a difference if we did. It did, and we are taken seriously. Grayling’s anxiety about the VHCCs is further proof of that point. We need to maintain that advantage. Even if we were able to achieve a ‘better’ result at this stage, we would have to renege on that deal to do so. That isn’t a way to be taken seriously or treated sympathetically. It says we can’t be trusted. Not what we want to say, surely?
Thirdly, this is the best deal we’re going to get. For: a team of people of huge commitment, skill and experience say they are convinced that is the case. Against: a bunch of other people think they’re wrong. They don’t say our team panicked; or failed; or didn’t care. Indeed, they go out of their way to say the opposite. It is just that, on this one point, they got it wrong. Why? Well, because it’s always true that the first offer isn’t the best offer. Never mind that this wasn’t a negotiation. Never mind that the first offer is, regularly, the best. Never mind that the people making this guess weren’t even there. It is, obviously, wishful thinking.
Fourthly, if we do think that we can get a better deal and therefore wish to renege on the current deal we have to decide how we are going to get that better deal. To this question the bunch of people who say they know we could get a better deal say one of two things: a) I don’t know how; or b) let’s wage war on the Ministry of Justice. Option a) is wholly honest but hardly worthy of our support. Option b) means you have to be able to survive financially.
Fifthly, that of course leads on to the bull question: how long will it take to get the better result that some of the bunch of people believe we can get if we wage war on the Ministry of Justice? Well, no one will (or can?) tell us. So, we are supposed to go into this without any time scale. That makes it impossible to judge our chances of success. It therefore begs two more questions.
The first is, what is this better deal that is worth all these risks (not to mention OCOF)? The answer seems to be that it is one that will do nothing directly for us as a profession (even the most optimistic of the bunch of people aren’t suggesting we can raise fees). The answer is that it will save some solicitors. Then, so the theory goes, they will be able to brief us instead of using HCAs to do our work and take our fees. And these solicitors might mean to do that and do it – for a time. But, in the end, they – like us – have a living to make. And if that living can be made via HCAs I believe that they will do it. They will not give up their livelihoods for us, and why should they?
The second is, how long can we last? Not long if we’re honest. Our junior members are already reeling from no returns. Lots of members have mortgages. If we break we are finished. The Ministry of Justice will never take us seriously again. Every single gain will be lost. Can Grayling sit it out for 6 months? I think so but we are being asked, literally, to bet our livelihood on the chance that he can’t.
So, eighthly, the bunch of people have to rely on the gloomy prediction that unless we do this – give up all our gains, renege, incur the pain and hope we can last out – we won’t be able to work for much longer anyway. So we might as well give it a go. That, of course, ignores all the members of the Bar who will have to give up practice in the course of that campaign. It assumes we are going to win, although no one can tell us how or when. It ignores the fact that we have a year to improve our position. That is a year during which the Yes campaign proposes we starve ourselves in pursuit of a chimera. I propose we spend it campaigning. We’re good at campaigning – look at what we’ve achieved. We’re bad at starving ourselves.
Ninthly, We can have all this and still fight on VHCCs – and we should. Grayling calls himself a Tory and says he loves the market – well let’s permit it to decide. The deal does not – cannot – commit us to do VHCCs. As in all other things about this debate the moral is ‘just say no’. And, when we pour all our anger and all our enthusiasm into fighting a fee cut we have never accepted; and ensuring the public understands we prop this system up and do it because we care about justice and access to it, we will win that as well. If you want a gamble, take the one that says the public can be won over. That will mean we can achieve so much more than we have done so far, significant though our victory has been.
Finally, you don’t have to accept all these points. Each one is, on its own, a reason to reject this derailment. All of these issues have been out there for over a week. If no one can provide a satisfactory response to the reasons to vote No, it is because there isn’t a satisfactory response. What we are being asked when we are asked to vote Yes is to let our anger master us. We are angry and we have good reason. It can be exhilarating to be angry – no uncertainties, no questions, no doubts. But as the late, great Edmond Lawson QC used to say to me (banditing it from Ambrose Bierce), “if you speak when you’re angry, you’ll make the best speech you ever regret”. And that’s doubly true of voting and acting. Be professional, step back, make a cool assessment for a long-term future, and vote No.
Simon Myerson QC