The Survey, The Ballot and The Misunderstanding

elections_in_occupied_country_cartoon[1]Much has been written over the last few weeks about The Survey, The Ballot and The Misunderstanding, not to mention previous debates about The Deal and quite rightly, different views have been expressed, particularly across the Social Media.

Perhaps some will be greatly relieved that I am not going to repeat in any great depth what has been said, although I particularly commend the recent posts by the respected and intellectually independent journalist @JackofKent

I must begin by putting a few statistical records straight.

When Michael Gove attempted to undermine the turnout of The Ballot and therefore the ‘YES’ vote I expected the CBA to put him right. When the membership voted to accept The Deal the turnout was 1878 and Nigel Lithman, the then Chair of the CBA understandably used it as a decisive mandate to accept The Deal. The Survey which the CBA described in a Tweet on the 21st May 2015 as representing a ‘strong turnout’ garnered 1385 voters. So when we learn that The Ballot attracted 1777 participants, I think it can be accepted that that too fits neatly into the ‘strong turnout’ category, and deserves to be treated with respect and not lightly interfered with.

cba tweet

Yet when Gove sought to immediately undermine the will of the CBA membership by criticising the turnout, we heard little defence of its legitimacy from its authors. Perhaps even more disappointing is that despite this strong turnout there are still concerns, presently coalescing around a CBA Executive meeting on Monday, that the will of the majority of CBA members who voted is at risk of being watered down if not cast aside.

Why is this view gaining traction?

The fiasco around The Misunderstanding is but a part of the cynicism in some quarters, an important part, but just a component.

A few facts about The Misunderstanding need to be made clear. Despite a number of posts and Tweets pontificating whether the CBA were invited to an important meeting with Gove last week, whether they were ‘not on an attendance list’ which rather implies they were invited but did not go, or whether, as Michael Turner suggests, the no show was all the fault of the solicitors, can be and should be debated elsewhere. To my mind, the important questions, which the CBA have steadfastly refused to answer were, given that Mark Fenhalls, the Vice Chair clearly knew that a CBA nominee was desired at the meeting, who did he nominate? If he did not nominate anyone, why not? Were the Chair, the Vice Chair and the Vice Chair elect so indisposed that none of them could go?

This was potentially an important meeting, which by all accounts saw Gove engaged with attendees. The CBA have been arguing for discussion and contact with the Lord Chancellor for weeks, surely here was another palpable opportunity to continue to develop that relationship. Is it so unreasonable to ask why no one turned up?

This background, the result of which was that the Criminal Bar were not represented at a meeting with the Minister, alongside solicitor colleagues at which joint Direct Action was inevitably discussed, leads me to the concerning conclusion that the CBA want out of any direct and unified action mandated by The Ballot, let alone The Survey.

This takes me to the Monday Meeting of the CBA Executive.

The new protocol presented to Gove by the solicitors last week is being fixed upon by some within the CBA to undermine the ‘YES’ vote. Posts on the Social Media have referred to it as ‘a game changer’. But we should remind ourselves of the terms of The Ballot. The question was:

‘Solicitors face an 8.75% cut to litigators fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut? Yes/No’

In carefully calibrating that question the CBA ballot paper stated that it ‘is intended to give the executive a suitable mandate for its next steps. In drafting the ballot question we have sought to synthesise the spirit of the different resolutions that have been proposed and supported at recent meetings’.

This is important when the CBA Executive seek to apply their minds to the matter on Monday. The mandate provided by The Ballot echoing in many respects the will of The Survey which the CBA stated on the 21st May ‘urged the CBA to take action to press the Government’, was not confined or restricted to any opt out which may be executively imposed at a later date and it certainly did not provide the CBA Leadership with any mandate to shift their support should any new developments take place. Both questions in The Survey and particularly The Ballot were clear and unequivocal and it would be unfortunate to say the least if the CBA Executive attempted to undermine the unity expressed in the questions and seek to interpret the will of the members who have now voted twice on the issue.

It would equally be just as worrying if any attempt were made at next Monday’s meeting to extend the start date for Bar involvement in Direct Action a further 14 days, say, from the present starting pistol of the 27th July. Many would see that as a predictable, long grass tactic. Anything short of respecting the will of the membership, as expressed in The Ballot would further damage unity and trust between both sides of the legal profession, something that, be in no doubt we will need in the months ahead…… unless you believe in Gove’s flattery, a tactic he used almost word for word with the Teachers back in 2012.

As Tony Cross, the Chair of the CBA said in his Monday Message of 13th May 2015, anticipating the result of The Ballot “…this vote is a truly seminal moment for the Bar”. It was and we should jealously defend its outcome from any attempt to undermine it.