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Be Positive – Vote NO

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


2 thoughts on “Be Positive – Vote NO

  1. There is no evidence about AGFS. The evidence comes from those who were there and you don’t accept it (although paying tribute to them for everything except doing the deal).

    We set our own targets and achieved them. That’s normally the definition of winning.

    Your proposition that we could do better is also not evidenced based. This really is the point – support the guess we want to hear, of the more difficult position which those who were present agreed was the reality? I don’t like convenient answers. This is one.

    Voting No means moving on, not naval gazing, I agree.

    You have no idea what produced this and the question of what produced it is answered differently by the Yes vote, depending on what suits. I did oppose it – I looked at the junior tenants in my chambers and decided not to ask them to be first over the top when the Silks blew the whistle. But I also did it and supported those ion circuit doing it. I went with the leadership and I still do. Meanwhile, all your predictions make it oh so easy but that is hardly a basis for responsible planning.

    We can’t win this for the solicitors. They need us because they fear they can’t win it for themselves. If they lose we get all the downsides you predict anyway. They’re working at new rates.

    I’m not doing this for the people who will leave – there will, I agree be many of them. I’m doing it for those who will stagy, because they are the future of the Bar. That’s why I have asked them what will happen, rather than use my authority to make fine speeches about strikes.

    The issue isn’t whether direct action works – I was there the last time we took it on VHCCs, so I know all about it and the threats of prosecution that went with it. But this is about risk not action. You simply don’t confront the optimism that underpins everything you say. What if you’re wrong? Optimism usually is.

    I don’t argue against direct action at all. That’s simply a sneer, which I don’t believe improves the argument. That’s why I support it on VHCCs – because the professional, risk-benefit analysis suggests it. It doesn’t otherwise.

    The quotation is nonsense because it is aimed only at suggesting that it’s fear that drives the No vote. That’s offensive and unnecessarily so. Respect for your opponent demands more than that and arguments based on simple strap line are likely to be wrong. Yours is.

  2. In response to the challenge to provide 9 Answers:

    1. No we still have cuts to VHCCs and you assume that we were going to lose on AGFS despite all the evidence to the contrary. The reviews are for the purpose of streamlining, i.e. civil service speak for paying less. The MoJ have said there needs to be a cull and less of us can thus do more for less.
    2. We have not won, we have secured a deferral of a tiny proportion of what was mandated at Lincoln’s Inn in November. Why would we have to reject a better deal? The whole point of a ballot is that it is for the membership to decide. Voting No means we cannot secure a better deal.
    3. There is no empirical basis to suggest that a politician’s first offer is the best. Our people are experienced at negotiating with each other but not with politicians. No we weren’t there but they were only with Grayling for 10 minutes. He has already backed down on the 48 hours bluff.
    4. That is why an EGM was called for with the motion. There will still be an EGM. The leadership called a ballot as well. Voting No ensures that there will be nothing to discuss because we have accepted the first offer.
    5. Quicker than you predict. Three weeks of no returns produced this, you opposed that. There was an escalation of action planned that was not deployed. If industrial action had to have a finite timescale then we would all still be working in dark satanic mills.
    6. Helping solicitors does directly help the profession because they brief us. Yes they will still employ HCAs but they will need to employ more with the cuts. They will still need silks. This is for the juniors.
    7. Yes, it is tough on new juniors. Those I have spoken too are more inclined to leave because they believe there is no future for them. They are tougher than you give them credit for.
    8. A gloomy prediction is not a wrong prediction. Campaigning secured nothing – we have done it for years; nobody cares. Direct action is the only thing that works.
    9. You contradict yourself. You claim that through direct action we can win the battle on VHCCs but argue against it for everything else.

    A quotation to match yours: “Courage is a decision you make to act in a way that works through your own fear for the greater good as opposed to pure self-interest. Courage means putting at risk your immediate self-interest for what you believe is right.” [Derrick Bell]

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