Fighting a good fight

Last year in the UK, lawyers came under scrutiny from the Government. The line, simplistically, was that Legal Aid lawyers were too expensive and too inefficient. Politics of course thrives on such simplistic arguments. While there may be some kind of truth in some such statements, the arguments are too easy to promulgate and will often shape public opinion before more considered and accurate voices are heard; if they are heard at all.

This year it is the turn of doctors in the UK and the same tactics are being deployed. The UK National Health Service is, according to our Government, too expensive and too inefficient.

In both situations the people at the heart of these disputes, the lawyers and doctors, have taken unprecedented industrial action. Court cases had to be cancelled and now some hospital patients must wait for their operations. Lawyers and doctors on strike is a virtually unheard of phenomenon and while there is public support for the doctors (and there was for the lawyers too) vested interests in the media and in pressure groups have been given an easy platform to show their lack of respect for the difference between evidence, assertion and opinion.

By taking on lawyers and doctors it seems to me that our politicians want more than ever to vigorously assert their strength over institutional power, but only if the institutions cost the Treasury money (so legal aid lawyers and NHS doctors are fair game).

In contrast, compare the approach taken with banking institutions; institutions, note, that generate income for the Treasury. While there has been much huffing and puffing about nasty bankers, in reality politicians have done very little to tackle behaviours that caused the banking crisis of 2008.

I don’t think politics has changed in my life time, but tactically the game feels different; it seems harsher and more high stakes.

I cannot speak for lawyers or doctors, but I know a little about the legal profession and it worries me a lot that lawyers find it hard to fight by the new rules of the game.

Lawyers were saved to a point (or is it just a “stay”) not because they won the argument last year, but because the Minister changed and the new Justice Secretary now seems to have a different agenda. Until that point the arguments presented by the lawyers were thoughtful, accurate and fair. It was also the case that the arguments were a little more self-interested than was wise and were prosaic, complicated and lacked penetration.

A Government that can take on lawyers and seem to care less about the accuracy of their own arguments, or a Government that can inflame doctors enough that they strike, is also a Government that will contemplate dismantling any institutions that cost the Treasury money whatever their worth, importance or history.

A very wise man I worked with a few years ago told me that before any business is sold, executives motivated to sell and cash-in will seek to do the following things:

• Outsource back office functions to break internal networks, create distracting agendas and to weaken resistance to change.
• Fail to invest in infrastructure so that success depends hugely on goodwill and improvised workarounds
• Then load up individuals with attritional levels of work to sap goodwill and show the pointlessness of the workarounds.

At this point any business will be vulnerable and the need to sell or merge becomes a self-fulfilling strategy that will have support (or acquiescence) from most people involved, including those previously opposed.

I do not think I am either paranoid or a purveyor of conspiracy theories, but it seems possible to me that the Government has tested lawyers and doctors in exactly the same way.

The key strategic challenge therefore for lawyers and doctors is to recognise the rules of the fight and “get with the programme”.

At this moment in time the doctors’ representative body (The British Medical Association) seems better organised than the Law Society and Bar Council representing the lawyers. All, however, are not yet as strong as they need to be.

To be stronger I am convinced that they must work on five linked themes:

1. Demonstrate a representative voice that understands the rules of the fight and is not compromised by institutional politeness, complex governance and multiple agendas.
2. Ensure there is an engaged profession that feels represented rather than patronised and sees action on its behalf rather than hears there might be stuff happening behind closed doors.
3. Create a communication machine that is constantly and proactively setting the tone of voice for the debates and providing verifiable and factually accurate impact stories. Criticisms should not be offensive, rude or unkind, but must be put firmly and boundaries should be set.
4. Develop a strategy that looks more like a business plan than an advertising slogan. What can be achieved over, say, three years? Why is it important? How will it be achieved? And, crucially, what happens first?
5. Demonstrate a willingness to be the author of change and not just a resistor to change proposed by others. Everything can be improved and nothing is so perfect that it is beyond criticism. A profession that is self-aware is a more credible defender and a more authentic challenger.

The Law Society is still in the fight, but is ill-equipped to survive further attack. The Law Society does not come close to inhabiting my five themes. It is crucial for the legal profession to have a representative body that is emboldened and energised by its purpose, not confused and weighed down by its own complexity and a misplaced faith in old rules played out in past fights.

Even more importantly and frankly fundamentally, we all need our lawyers and doctors to be capable of fighting hard; not to always win especially against good argument supported by good evidence, but because if lawyers and doctors cannot fight their corner and hold the Government to account, how the hell can we?

Paul Gilbert