When is a Vote not a Vote?

Last night a group of barristers had a monumental decision to make. I refer not to the CBA but to myself, Mrs VFTN and our friends, all of us criminal barristers. We had to choose accommodation for our holiday. We had a number of options. We discussed the pros and cons. We then had a vote. We adopted a preferential voting system and all agreed to be bound by the result. And hey presto! A decision was reached. 

At about the same time the CBA Exec met. The result of that meeting is captured in a message which you can read here. The upshot is that the current CBA position is that they will not be calling for any direct action from the Bar at the present moment in time and they believe work can be done with the Government that puts the Bar, and the public, in a good position. 

I say “hmmmmmmm”.

I actually said a lot more. But “hmmmmmmm” sums it up in a way that seems more reasonable and even handed (and slightly less David Cameron down with the kids) than “WTF!”

For the time being I am going to leave to one side what “hmmmmm” says about the wisdom of putting all our eggs into the wisdom basket of the MoJ. I don’t necessarily blame my baldness on being patted on the head by wise and cool coves who tell me that the news from the Ministry is encouraging but it has happened often enough for it to be a contributory factor. And it has certainly happened more often than the actions of the Ministry being encouraging. 

No, my “hmmmmm” is mainly expressed as a surprise at what it says about democracy. I am a real stickler for it. That was why, despite my personal opposition to “the deal”, once the membership had voted that was the end of that episode. 

So I am little confused. You see back in May the Bar were asked this question;

Would you support action, ‘No returns’ and ‘Days of Action’ if the new government decides to proceed with the Duty Provider Scheme, reducing the number of solicitor providers by at least two thirds? 

The response was overwhelmingly in favour. You will note that the question was not predicated on the positions adopted by solicitors. This was the Bar’s response to Dual Contracts and the threat it posed to us. And our willingness to take action to change proposals that we viewed as damaging to the Bar. Not “will you strike if they strike?”. 

The response was communicated to the world in a press release which included these words;

“The Criminal Bar Association has conducted a survey of its members in order to gauge better the depth of concern amongst the profession about the Government’s proposals for the Dual Provider Scheme. The response for such a survey was unprecedented and 96% of those who responded have urged the CBA to take action to press the Government to think again. 

I make, if I may, three observations. The first is this – the Government must really quake in their boots now at the thought of the power of the Criminal Bar. We roar like lions and act like mice. The second is this – I do not see in today’s message the route that we have travelled from the membership urging the CBA to take action to the exec ignoring their urgings. The third is this – hmmmmmm.

When is a democratic decision not a decision? Well I guess the answer is when a vote is a survey. 

So I am not going to worry my pretty little bald head over such things as my future, the future of the professions and the future of the Justice system. I am going to leave it to those who know best and the man who wreaked havoc in Education. 

So this morning I have booked the villa. When I say “the villa”, I in fact mean the villa I wanted to go to. Yes that wasn’t the villa we chose last night, but that was only a “survey”. And what are my friends going to do about it? Not be my friend any more? Who needs friends anyway, when you have a lovely big empty villa to enjoy all on your own?

4 thoughts on “When is a Vote not a Vote?

  1. polruan

    A powerful series of very well made points. Your compelling advocacy in support of what is left of our once proud and effective criminal defence system, and the community of those who seek to ensure that the criminal bar can continue to deliver something that approaches our shared concept of a decent service, is what continues to draw me back to your blog, despite my occasional irritation at your sadly dominant and really rather revealing tendency to treat seemingly all and any other professional group as objects beneath contempt. You did it again in “How much?!?!”, talking about “the journalist that…”. There’s a place for “that” as a relative pronoun in referring to a general group of people, but I have searched your posts and not found a single instance where you use it in talking of your ‘own’ group, and quite a number where you have thrown it in in referring to other groups, almost always when making disparaging comments about one of their number. You might like to make a note to yourself to listen out for this in future.
    P.S. The image of Michael Gove “reeking” havoc is an interesting one. I’ve never got up close and personal to Mr G, and have little desire to do so (although it might be an opportunity to give him a piece of my mind), so can’t comment on whether he really does pong (& would probably refrain from saying so, even if I found he did), but he certainly wreaked havoc at Education, and seems sadly set on giving free rein to his inner beast at Justice (sic).


  2. SM

    It’s a bizarre thought process. I encouraged people to reply to the survey and I did so myself. Had I been told that it was a substitute for later discussion, or that anyone on the Executive must regard themselves as bound to commit to a course of action that they did not personally believe in because of that result, I would not have participated.

    That doesn’t mean I agree with what was decided, or that I don’t. It is a comment on the fallacy that people on an Executive are wrong because they did what they thought right.

    That goes with the “you weren’t elected so you don’t really count” argument, currently being advanced on social media. Both arguments are rubbish.

    I agree that the CBA should explain its reasoning. It is clear that this wasn’t a unanimous decision, which is a relief – unanimous decisions on important matters are suspicious. But it is a decision, properly reached. My own view of the people who immediately denounce it, or who suggest that it is illegitimate, or whose first impulse is to denounce their own professional colleagues to solicitors, is that they should attempt to stop confusing their own passion and anger at a decision with which they disagree, with intellectual rigour or good points.

    I can see why the CBA have reached their decision (to which I was not a party). The issue of the split between dual contracts and cuts is said by the solicitors to be false. I don’t know the answer to that. But if the best argument against it is that the survey didn’t make that differentiation then perhaps the split is sensible. If the solicitors won’t unite against the cuts because their contracts may be at risk – as has been suggested on Twitter – then why should barristers put their professional livelihoods at risk instead? There’s support, and then there’s being the sacrificial lamb.

    Equally, the undertone of this debate has been the view that if we don’t support them solicitors will withdraw all work from the Bar and keep it in house. Thus, it is said, we should withdraw ourselves from work and risk losing it to solicitors (and some rogue barristers) who won’t stop working. That’s daft. If what underpins calls for action is the fear of what will happen if we WIN, then we are not thinking sensibly. And of course, we are told that if solicitors lose this battle they will all go out of business – so the threat that work will go in house must be applicable to the scenario where solicitors don’t lose.

    The reality is that solicitors will not go under in the numbers currently being bandied about. If those numbers were accurate the threat of losing the contract would not inhibit strike action. Thus we are being threatened with the removal of our work so that solicitors can take it.

    First, what about the client? The generalisation is that a properly funded CJS is a prerequisite for clients. I don’t disagree, but I’m not persuaded that those arguing that actually believe it. If there ISN’T a properly funded CJS, the implicit threat is that clients’ interests are expendable and advocates will be chosen on the basis of who receives the fee. I don’t understand why I should trust those arguing on that basis.

    Secondly, what about the new AGFS? If that is likely to improve payment for good advocacy then better barristers will be able to target better work. That will undoubtedly alter the financial equations many of us have to make. I can see the force of the CBA’s position on that.

    Thirdly, if the real issue is that solicitors are going to compete for advocacy work, then on what basis is it not worth considering whether we should simply let them get on with it? I would understand the argument for action better if the basis was that solicitors would not try and do advocacy work. The reality is wholly different and has been since 1990 for civil, and since HCAs were first created for crime. I have no problem, with that – I have no problem with competition. I do have a problem with level playing fields, but that isn’t pertinent to this debate. But, if there is going to be competition then why should I support the opposition? It’s like the story of the snake which needs to cross the river and suggests that the dog should carry it. The dog is worried and the snake says “why should I bite you? If I do you will die and I will drown”. Persuaded, the dog starts swimming and the snake bites it. As the dog sinks the snake says “I’m sorry – I just can’t fight against my nature”.

    I am not resolving any of these issues. I am merely saying that I can understand a decision to wait and see, based upon those thoughts. I have read far too much “we will take your work if you don’t support us” for my own comfort or for me to feel comfortable advising junior members of the Bar that imperilling their own financial survival again is a risk worth taking. It makes me neither a fool, nor a traitor. Let’s think not shout.



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