A further guest post on the subject of “the deal”. This one comes from a practitioner on the Northern Circuit of less than three years’ call. Once again posted anonymously.
“Do as adversaries do in law. Strive mightily then eat and drink as friends”. This was the message at the end of Saturday’s Northern Circuit meeting. So I ask myself, what am I striving for.
One of the speakers pointed out the debate was all about three letters. In my view it centres around three Ps: 1) the politics, 2) the practicalities and 3) the principles.
I won’t pretend to know or understand every nuance of the argument.
However, like any good debate there are polar opposites and then everything in between.
The politics doesn’t just mean Grayling’s politics, it includes the politics between solicitors firms, between solicitors and the bar, between chambers and of course, between the professions and the MOJ. I am not going to rehearse what all of that encompasses.
The practicalities include, the financial reality for all under the cuts, the financial reality for all in taking action, the financial reality for the MOJ and the ability of the professions to galvanise, organise and sustain action.
The principles. Need I state them? Integrity, independence, excellence, fairness, access to justice, equality and accountability.
Today I found every speaker’s argument valid and compelling.
I have the utmost respect for the CBA leadership, without which we would not even be having this debate. I fully understand the predicament with which they were faced. I think the current leadership is essential to our resolve and our survival in this fight. Let’s be clear. It is a fight. I sincerely hope that the leadership remains as it is.
What to do, what to do?
Here are my general thoughts:
The MOJ has not, thus far, acted honestly, openly, fairly, objectively or with the interests of the professions or the weak and vulnerable in society in mind.
The consultation was no more than lip service; a ruse intended to ensure that the decision, which was already made, was procedurally speaking, free from challenge.
The MOJ has systematically sought to publicly undermine the bar with lies and misrepresentations.
The MOJ’s decision to put the offer on the table was not, nor was it presented as, an act taken in the interests of the professions.
The MOJ will not now or at anytime in the foreseeable future act of its own volition in the interests of the professions.
If the MOJ could out manoeuvre the professions and pursue its own agenda it would.
If given time and opportunity this is, in all probability, what the MOJ will indeed do. How? ABSs, HCAs, PDS for a start.
I really cannot find one saving grace in the MOJ’s actions thus far. I have spent many hours since last week thinking, looking for one. I can’t find one.
In a meeting very recently with a senior civil servant who was in town, ostensibly, to consult with the professions on the quality of ‘an independent advocacy service’ aka the bar, stressing he was not there to talk about cuts, the words ‘does it need to be excellent or can it just be good enough’ were uttered from his mouth in reference to the quality of legal representation. Whether this was an intended statement or a slip, I believe this is the mentality behind the culture at the MOJ which informs its agenda and decisions. In my view, this translates as, “what can we get away with”.
Grayling has no legal background and I should imagine he has no desire to preside over this branch of the executive function in the future. I suspect his lack of legal background is a factor contributing to his spectacular misjudgment of what the bar is prepared to do. He will not therefore want any issues arising in this role to jeopardise the roles he will no doubt have his eye on for the future and, in all probability, he will do what is necessary to avoid political embarrassment in that regard.
However, make no mistake, if Grayling detects a chink in your armour he will seek to exploit it because, whilst he doesn’t care one iota for the professions or the justice system he presides over, he also doesn’t like to be beaten or embarrassed. He will not think twice of using whatever means necessary to, in his mind, win. He will if necessary lie and lie and lie in the face of his lie. But, we have a significant advantage, 1) we know what we are dealing with, 2) we have the ability to be as relentless as him, 3) we have strength in numbers 4) on our side some of the finest intellectual and tactical minds on this planet and 5) at this moment we have something that cannot be replaced overnight. We ought to play to our strengths.
THREE WEEKS. Three weeks of direct action, that’s all it took to bring the MOJ to the negotiating table after it had dogmatically introduced the cuts and said in all arrogance there is no wriggle room, strikes will not change a thing. I wish we had taken action at the point of consultation. I wish then we had answered the consultation with a simple – NO MORE CUTS and immediate action. I am not criticising any person because that didn’t happen we agreed we had to engage with the process before taking action and simply didn’t appreciate our own strength at that time.
I do not believe that it is necessary to save £220 million. I just don’t. Since these cuts were announced the same amount has been pledged to a married couples allowance and pot holes. No doubt a forensic examination of the budget would establish that the cuts are not needed. Even if it was necessary there are other ways to achieve it. Therefore I treat with great suspicion the MOJ’s approach thus far.
I do not believe that setting aside the AGFS for now is an outcome we should settle for. However, I do believe that the resolve is still there to continue to refuse VHCCs which will force Grayling to act.
I also believe Grayling has already considered what he will do if we reject the deal. I’m not sure I want to give him time to put his plan B into action.
We know the nature of this beast. We know only too well the untruths and misrepresentations peddled in the press to undermine us, to cast aspersions on our intentions, to detract from the savagery of what was being done in the name of austerity and the good of the country. We can allow this beast to live and grow horns or we can destroy it before it destroys us and everything we hold dear.
We quite plainly have the power to achieve this if we want to. We really do have the power. We could bring the entire system to a grinding halt, tomorrow, if we so desire. It wouldn’t take much and it wouldn’t take long.
Why would we do this?What could we achieve if we took further action?
Firstly, the sending out of a clear message :- you’ve mistaken our past inaction for weakness. Your misjudgment is however your weakness. You have underestimated our capabilities. You have stoked a fire that exists in all of us. We came to the bar because we are fearless. Know this. We do not fear you. We will not dance to your tune. We will not speak your dishonourable language. You, Mr Grayling, shall not dictate our futures. We have the resolve to win this fight. We will not just accept your proposals and die a quiet death. Whatever the outcome you will not come out unscathed. Your career is a split second in the life time of our sacred justice system, the traditions and ethics of which our profession exemplifies. We are the gatekeepers of justice. We cannot and will not stand by and allow you to destroy it. You have overstepped the line. Now step back. Step way back.
Secondly, a platform on which to negotiate terms in line with the principles we hold dear.
Thirdly, the preservation of the independent bar and with it, the integrity of the justice system as we know it.
To return to my question. What am I striving for?
It is simply the principles I stated before. I cannot resolve what the MOJ intends to do with the principles that are at stake. They are not just principles in a court room. They are principles upon which a democracy and the rule or law must rest. They are the principles of a society that I want to be part of. The bar is one of the cornerstones of that society. We all know the line ‘kill all the lawyers’.
When I was 14 I studied Shakespeare’s Merchant of Venice. It struck a chord with me and is still my favourite play. For those not familiar with the plot. Shylock is an unscrupulous money lender. He is also a Jew in Venice and the victim of racism and prejudice. Either his spitefulness has contributed to his unpopularity or his unpopularity has caused him to become spiteful. Either way, despite his shortcomings I felt the treatment of him by the people of Venice was an injustice and that aspect of the story is unresolved for me.
Antonio is a Merchant; he and Shylock are enemies. However, one day and much to his regret, Antonio is forced to borrow money from Shylock on the promise to pay it back when his ships come in.
Shylock sees an opportunity to exact his revenge on Antonio and sets the following term of the contract. If you do not pay the money by the due date you will pay with a pound of your flesh.
Antonio’s ships don’t come in. The money is not paid on time. Shylock goes to court to enforce his contract.
Portia, a woman of wealth, hears of Antonio’s plight. She dresses as a man because a woman in her time cannot do what she is about to do. She makes for Venice, and presents as Antonio’s lawyer at court. In doing so she puts her own liberty at stake.
She invites Shylock to accept three times the amount that Antonio owes him as settlement of the debt. Shylock refuses. He wants his pound of flesh. She invites him again to take the money and again he refuses.
She then says something like this. Very well Shylock take what you are entitled to under the terms of your contract. He gleefully picks up his knife. Before he makes his cut she passes him some scales. For a moment he does not appreciate the point. Then before he makes his cut she says. Let’s be clear. A pound of flesh no more, no less, is what you are entitled to. No blood can be spilt. One cut is all you get. It doesn’t take him long to realise he cannot do it. He tries to relent and take the money she first offered but she tells him it’s no longer on the table. He leaves court with nothing. He has lost his money and his pride. Worse still, his daughter has fleeced him for everything he had left and has done a runner with her lover.
I still feel sorry for Shylock. But I feel an even greater admiration for Portia. She took a risk, stood up for a good cause and, it paid off.
We have consulted with the MOJ. We have given Grayling an opportunity to gracefully turn this around and stop his decimation of the professions and the CJS. If he, like Shylock, cannot see past the end of his arrogant nose then he also stands to lose because, the embarrassment of further and escalated action, will in my view, be too much for him to cope with and survive. He still has a window of opportunity to make good his wrong if he is smart enough.
I realise that there are stories and plays more analogous with the current situation. I just like the Merchant of Venice.
The themes in the play struck a chord with me, along with other factors it sparked my interest in becoming an advocate. After I had read the play I told my careers advisor at school I wanted to be a barrister. She told me it was not achievable and offered me leaflets on being a nurse, a secretary and working as a bank cashier. All worthy and dignified jobs but just not what I wanted to do.
That encounter set the tone. When I first embarked on my quest to become a barrister it seemed an insurmountable hurdle. I am not seeking to blow my own trumpet, I know many a journey to the bar will reflect mine and, I had amazing support from many amazing people but, I undertook my legal studies part time whilst I worked full timed, I had a child and the ordinary family and financial commitments to meet. I spent the best part of 10 years, with my job and studies combined, working approximately 70 – 80 hours a week, at exam, competition and pupillage application times even more hours were involved. The entire process has probably cost me somewhere in the region of £50,000 and, the evenings, weekends holidays and christmases I spent on my studies and not with my family can never be taken back.
Now I am at the bar, I work approximately 70 hours a week and it sometimes costs me to do the job, I still sacrifice many of my weekends, holidays and christmases and the MOJ’s suggested barrister earnings are a joke as much as they are a lie.
The point I am trying to make is that I, like most at the bar, have sacrificed a lot to get here and continue to do so to do this job. Why? For the principles. I am not about to quietly give up now, am I?
There is something important at stake. More important than me or you. The principles. This is what I strive for. I do not wish to look back in 10 years time at the decimation of the professions and the justice system and wonder whether I should have had the courage of my convictions. I have my convictions and I have the courage.
I do not trust Grayling. I do not take the view that his first offer is his best offer. I do not take the view that this offer will achieve what I am striving for. I do not wish to negotiate in his dishonourable language. I am not prepared to allow him to set the tone or the terms. Much to his misjudgment we are in the position of power not him. We know our intentions are honourable. We know that what we seek is for the good of our society. The time is now. The feeling and support is now. I believe we can achieve something great. I agree that the question is imperfect, however I am voting yes.