Voting Yes for Tom

I was one of the juniors who deputised at the South Eastern Circuit Heads of Chambers meeting. I follow the example of our leader, Max Hill QC, by not naming names or making observations about who said what. I simply offer my own point of view.

Two fault lines are emerging. They are growing by the day.

The first lies between those who favour unity with solicitors as a long term strategy and those for whom the principle of unity is a consideration secondary to the merit of the particular battle.

The second lies between the juniors and the leadership within our own profession.

What does it mean for the future? Put simply, this.

If the outcome of the CBA ballot is a no vote, it means that unity with our sister profession as a long term strategy has been abandoned. It also means that a large number of juniors will form the impression that those at the top are either unwilling, or unable, to represent their interests.

Whether or not the current battle is or is not the right battle to fight (I believe that it is) and whether or not the juniors are right will not, come the 15th of July, be the point.

The point will be that a very large number of solicitors and barristers, including myself, will be engaged in direct action that does not have the support of the CBA.

This battle will not be determined by the outcome of the CBA ballot. This battle is already underway. It began organically, the parameters are not fixed and the ground is shifting. We are entering overtly political territory.

It was right to have tried to reduce the issue to a yes or no question, I think we would all now concede that no ballot question could quite do justice to the predicament that we face.

No one supports an 8.75% cut, but that cut is as nothing to the spectre of dual contracts.

The ballot question does not specify dual contracts. But that is what this is all about. The question at the very heart of this vote is our direction of travel in the days to come. It is the only question that matters.

We have a very short window of opportunity to mount an effective campaign against dual contracts. No one has yet advanced an argument in favour. The most that can be said is that some firms believe they can remain financially viable within the dual contract system. That is a very different proposition to the crucial questions. Will dual

contracts secure access to justice? Will dual contracts place the professions on a viable financial footing in the long term? The answers are no and no.

The ‘trust Gove’ thesis does not have a strategy for opposing dual contracts. If negotiating them away was possible, it would have happened by now.

That some solicitors have already bid, so we must all now bow to the inevitable, is a very poor argument in favour of not taking action against them.

But the action proposed in the ballot question is only in relation to the 8.75% cut; you are confused about the issue, I hear you say.

No I’m not. And this is why.

If we don’t oppose the cut, the message we convey to the small and medium sized firms, with no prospect of bidding for contracts and facing a diet of own client work on a reduced income, is that we will not stand with them. The message we send to our juniors is that we do not care about your practice. It is not a message of unity.

Without unity, dual contacts cannot be defeated. To defeat dual contracts, we all have to stand together; those who are bidding, those who are not bidding, and the Bar. We don’t need complete unanimity. We do need sufficient consensus to organise and advance. That consensus will not be achieved within the available timeframe if the starting point is that we won’t stand up and be counted when a very large number of solicitors ask that of us.

To which the rather maudlin response of the trust Gove thesis seems to be, well dual contracts won’t be defeated anyway, unless solicitors unite and withdraw their bids.

That, respectfully, is nonsense.

The contracts have not been introduced. There is no inevitability about it. We are starting from a strong position. We have consensus within and between the professions in principle. So why are both sides of the profession sleep walking into acceptance? Because no one is willing to stand up and lead. Do we want unity, or the tried and tested strategy of ever decreasing circles of divide and rule?

Enough already say we juniors. We can’t let you, the leadership, continue on like this. We carry the burden of the repeated breaks in unity that have brought both professions to their knees. Our whole careers have been the experience of fee cuts. You tell us that successfully opposing further fee cuts in recent times was a success. What a peculiar definition of success, to consider not being paid less for something I am already doing for too little, as an achievement. What a peculiar success that it has become a standing joke amongst juniors in London that anyone not seen in recent times is on secondment to the SFO. Except of course it isn’t a joke. I’ve lost count of the number who actually are. Talented, able, jury advocates, a whole generation of them, sitting behind desks because the best we could offer them was

jam tomorrow. Why are we so strident about this? Why are we so passionate? Because those people are our friends. They are the ones we entered the profession with. We thought, that like you and your friends, they would still be with us as we rose through the ranks. If silks were fleeing in equal numbers, would you be so measured in your response?

And to the spectre that will remove the next tranche of talented juniors, is it really the case that the best we can all say is, well yes, it’s a bad thing, and we are very sorry for you, but, you see, it’s all the solicitors fault. If only they had been unified in their opposition to these contracts, if only they had withdrawn their bids, if only they had led, we would have followed.

When did the leadership of the criminal bar, the criminal defence bar, become so timid? Why exactly do we need the solicitors to lead us into battle? What on earth are we doing allowing the next generation of juniors to seep away?

The ballot question may be directed at the 8.75% cut. But it is about so much more than that. It is a state of the nation question about where we are going and how we are going to get there.

I’m going against the cut. I’m going against dual contracts. I’m committed to the action whether the CBA walks with me or not. I’m doing it because I think it is in the best interests of my clients, my solicitors and the junior bar. I’m doing it because I want to look Tom Copeland (call 2013) in the eye. I read your message on the CBA blog Tom. There is a place for you in this profession. We are going to make sure of it.

This ballot question is about the future. What future do you want? The junior bar is committing itself to a strategy of unity, and a strategy of negotiation supported by action. We want those at the top of the profession to continue to lead us. We want the CBA to continue to represent us. But if you won’t, so be it. We are not for turning. The trust Gove thesis and what is on offer is too little, too late, for this generation.

So hang in there Tom. The juniors are closing ranks. We are not leaving the criminal bar, and nor will you. We will stand and fight together. I have voted yes to direct action. I have voted yes for unity between the professions. I have voted yes for a future that is better than our recent past. I’m not afraid of the fight to come. I know that I am not alone.

Lucie Wibberley

Barrister

11th July 2015

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