Why should you? 9 reasons.
Firstly because we are facing another year when fees that are already too low will further reduce in real terms due to the effect of inflation. Meanwhile the passage of the year will allow the MoJ to regroup and improve their resources. In that time we will have the opportunity to influence two reviews. Of course those two reviews had already been announced before the deal. And are not going to be withdrawn if we refuse the deal. Which allows us to influence those reviews regardless of whether we accept the deal or not. Oh and they are not reviews that will have a remit to influence our fees. Achieving this stay in relation to AGFS only achieves half of what we set out to do as represented by our very bottom line.
Secondly refusing the deal will show the MoJ we mean business. It will say to them that we have the stomach for the fight. It will send the clearest possible message that they are up against a foe that is motivated to succeed. It will also demonstrate that the CBA is a truly democratic organisation that listens to its membership. It may even galvanise our allies in the other profession to take the sort of action that we have.
Thirdly a huge team of skilled and experienced people believe we can do better than what is currently on offer. Whilst it is right that many people speak in favour of it who are close to the negotiations so are many of the people who speak against the deal. It is not the antecedents of the sides that matter, it is what they say and how that influences what you think.
Fourthly there is still a strategy that can be deployed to achieve an alternative victory. Announcing that strategy in full to the opposition would be foolhardy. As SunTzu writes “All men can see the tactics whereby I conquer, but what none can see is the strategy out of which victory is evolved.” We have many tactics at our disposal, days of action, a week of action, a universally observed holiday, no returns and it is even contended that a work to rule could paralyse the courts without costing the Bar financially. All of those tactics are at out disposal if we reject the deal. None of them are at out disposal if we accept the deal.
Fifthly we have seen that causing real disruption to the court system brings concessions of some kind from the MoJ. On 6th March Grayling had this to say about impending direct action “I have not been surprised by the strength of feeling we have faced. But, strike action won’t change anything I’m afraid to say.” The no returns policy began on 10th March. On 15th March the A-G addressed a meeting of the Bar Council. This was recorded in the minutes as “the Attorney expressed his anxiety about the continuing dispute leading to more radical solutions being considered. He has spoken to the Lord Chancellor and discussed the Bar’s preference for waiting for an outcome from the Jeffrey and Leveson reviews before assessing whether cuts are necessary. However, the Lord Chancellor has been clear in his view that he does not have – within the current financial restraints – the ‘wriggle room’ to provide that indulgence”. With this message came the threat of OCOF. By 18th March Vara had this to say “the action taken by barristers recently is very regrettable. It caused a lot of inconvenience to victims and witnesses. I just want to assure the legal profession that the door of the Secretary of State for Justice and my door are wide open, and we hope that we can engage in constructive dialogue.” By 26th March the wriggle room has been found to a certain extent. 16 days. 16 days.
The next question, question six, follows on from the how long will it take. What is the better deal? Well firstly I am not suggesting an increase in fees will be the result. Remarkably there are some who suggest the deal may lead to an increase in a year. However the better outcome would include a stay in the VHCC cuts. This is not only a better outcome for the Bar but is also better for society as those cases currently stalled can begin to move. There is a certain moral imperative for us to use the weapons at our disposal to not simply have our own stay but to get the system working properly. The better outcome would include facilitating a better outcome for the solicitors. Not necessarily winning the battle for them but getting them around the same table as us. Allies working together.
The question is asked – how long can we last? Juniors have mortgages to pay. No returns impacts them. Well the no returns policy was not open ended. It had flexibility. We could call off the no returns policy. We could have six weeks of not accepting a certain category of cases. Or a period of time when we did not deal with either way cases where the defendant had elected out of fear that the prosecution would offer no evidence and we would work for a pittance. Or we could refuse to deal with appeals. Or work to a rule if someone could devise that system. We could then reinstate the no returns policy. And we always had the spectre of the VHCC cases. We have options. We have options that can keep us in the fight for the long term.
I think that brings us to eight. If we accept the deal the next year will be spent being able to do nothing more than campaign. Frightfully good speeches. Pithy letters to the Times. Evidence based submissions from the brightest and the best. Conclusive proof of the fragility of the MoJ’s case. The reality is that we had all of that for the year leading up to 10th March. And the cuts were still writ in stone. 16 days of action….
Ninthly we are being invited to believe that the market will mean the VHCC boycott will remain strong. Well the market includes people who have decided to join the PDS to secure their financial future. Would a Silk who is currently wondering whether she should join the PDS really turn down the chance of a VHCC if that was all the work on offer? When the CBA says there is nothing wrong in principle in doing the work? We have all seen that the LAA will impress upon the solicitors the need to get any advocate in the case. Quality goes out of the window. The rates are low. Only the needy need apply. Look at the earnings out there for some people. The needy exist. The VHCC boycott works when we are holding the line. This deal turns our fortress into the Maginot line.
Finally you can feel free to reject all these reasons. They are not reasons brought about from anger. They are not reasons brought about by ideology. They are simply what I invite you to consider. All of you to consider. From Silverback to young chimp. Do what you believe is right.