As yet another long and tiring campaign reaches its denouement, the Government has come to both sides of the legal profession with two proposals. For the Bar they had a sheet of paper titled “Elements of Proposal-Advocacy fees”. For the Solicitors’ part of the profession; much the mightier, there was another proposal. They did not vote on ours, nor we on theirs. Both proposals kept in place some of the cuts. Both of the proposals deferred others. In one case, not ours, an extra £9million was offered as interim assistance.
Both professions’ leaderships accepted the proposals. Unlike our fight on Plea Only Advocates we had won some ground. The short question for the CBA membership now is, “Were we right to accept the offer?”
The answer is yes. Not yes because we will walk into the new legal landscape hand-in-hand with a munificent and grateful Government; far from it. Not yes, because we have “won”: on my count we are still, in a decent criminal chambers, down 15% on this year and more than 50% over five years before inflation… if that is victory I would hate to see defeat. No, we were right to accept it because it maintained the field open to further argument and engagement and allowed our juniors as well as in-house advocates to work at the same rates for a lot longer.
In the long term, will this be a positive step? Who knows? For the first time in a generation a Lord Chancellor, for whatever reason, has given significant concessions arising out of a fundamental consultation not once (PCT), but twice. Since the election of a young barrister as Prime Minister in 1997, we have seen cut after cut and not a whiff of compromise. I invite anyone reading this to read Kenneth Clarke’s letter to Peter Lodder in September 2010 when he introduced the last line of cuts in three bites. It makes for interesting reading from a man seen as much more cuddly than the present incumbent. The same can be said of Jack Straw and Lord Falconer. They did not give an inch; that’s politics.
The fact that, for whatever reason, we have breathing space is enough of a reason on its own to accept this deal for the moment. I emphasize “for the moment”. This deal does NOT mean that the Bar withdraws from their arguments; quite the opposite, it gives the profession, all of it, time to re-state their arguments, right through to after the next election. If we do not, however, accept this deal, the cuts will come in and soon, in addition to the ones already in place, of that there is no doubt. It is a lot harder to reverse a cut or a tax than stop it in the first place. Income tax, after all, was only meant to pay for the war against Napoleon. “But he’s dead” did not help me on January 30th this year. “But the economy is better” will not help us either now. If we fail in our argument by next year and the appetite remains, all of the actions that have been undertaken and have been planned in recent weeks will be back on the table for a new, perhaps different, Government to deal with. The Shadow Chancellor made it quite clear on the Andrew Marr Show 10 days ago that he has pledged to stick to the current Government’s public expenditure plans; that’s further cuts for all including the legal profession. We can, of course, live in hope that Labour will take a different view if they get into office, but a quick bad character application on propensity will dash that dream. Has any opposition politician suggested that this deal should be refused and we should continue fighting? They are quiet for a reason. Negotiation is a legal art, deals are political.
So, by voting “yes” is the cut already in for solicitors going to be reversed? Is the Government going to come back to the table and shelve VHCC cuts? Is the Coalition, in consultation with such a quiet and quiescent Opposition, going to ditch Dual Contracts whilst we are on strike? Are they going to shelve next years cuts, on offer already, if we vote to go back to take further action? You have to believe ALL of these will happen if you want to vote “yes”.
There have been plenty of arguments to vote “Yes” put up on the web/blog/twitsphere. Some are a bit Che Guevara, bewigged Citizen Smiths; Some are principled and sensible, some are, I suspect triggered by a natural fear of withdrawal of instructions from angry solicitors and threats of briefs going to more compliant chambers. Some are very partisan or personal against the Lord Chancellor. Most are written in less than 140 characters; somehow. But they are all based on one real point; It is the Les Miserables rift “Can you hear the people sing..”. If we fight more, we will get more. This is the 1968 moment for a new generation. But for these arguments to work you are going to have to believe the Government will cave in to lawyers’, of all sectors, demands. You have to believe that the Leadership of the Bar, the Circuits and the CBA are completely wrong in judging this as our apogee. You have to believe that the public and our lay clients will find our striking when we have been offered most of what we want, sensible, proper and professional. You have to believe a lot.
I think Lithman, Cross, Lavender and the others got it right. They have shouldered responsibility responsibly. They set objectives and faced off the MOJ on dozens of occasions in recent months and got us to where we are. They batted for the whole profession on PCT and cuts, they got unique concessions and they put realpolitik above romance. It’s not perfect, it never is, but we live to fight another day whilst protecting our juniors, HCAs and the legal system as best we can for the moment. Finally, perhaps most importantly, we have achieved that precious gift, time, which even a fortnight ago no one, anywhere, thought we would have. We lose it at our peril.