Two Tribes

The last two years have been remarkable. There was much talk from the MoJ of Transforming this and Transforming that with next steps and all that jazz. It has certainly transformed my professional life from one where I went about my everyday business, meeting clients, irritating Judges and wondering when the next brief would land. A professional life where I thought the robing room at Minshull Street was my patch. A piece of the court building forever for the advocates. 

Now I spend my holiday scouring Twitter and absorbing emails to try to ascertain the latest development. I wake in the morning with a thought to write something comparing the Lord Chancellor to Dr Who or Game of Thrones or something even more ridiculous, like the last Lord Chancellor. Hoping that a gentle dig in the ribs from my iPad will suddenly make everything okay again. 

But it never does. 

So here we are, like the drug addicted client, standing at yet another crossroads. Which way should we go?

And whilst the Bar has two choices to make – take the path of engagement and try to secure a legal landscape which would be fertile ground for our strengths to prosper or the path of taking action to stop the Government grinding us down to no more than mouthpieces for an imitation of a free and fair society – these two choices do not a war make.

We are not at war with each other. 

This is not “Hotheads v Appeasers”. It is not “The Must Do Somethings v The Don’t Do Anythings”. It is not “The Rash” scrapping it out with “The Wise”. It is not even “The Brave” against “The Scabs”. Dare I whisper it? Well, it ain’t “The Noisy Minority” trying to stick it to “The Silent Majority”. It is a body of professionals who face some very real difficulties trying to come up with some very real answers. 

Acuusations fly around. From both camps about the other. “He is just a leftwing hothead, hellbent on fighting the Government, any Government,” is often just as daft as “She is just a non-boat-rocking conservative with one foot already in the pension”. Yes there may be elements of truth in some individuals and their motives but the truth is people advocate for one way or the other because they have analysed the situation and believe it to be the best way. That is to be respected and acknowledged. 

No one should look down at those that hold a different view. Those views need airing to assist those who have yet to come to a view to reach their decision. When we had the vote over “the deal” the CBA hosted a blog for the arguments to be raised by proponents of both sides. It is a shame the same is not being done now. In fact it is such a shame that I’ll offer to host it. Anyone who wants their say should feel free to email me at and I will post your blog for you. 

Any regular reader will know that I favour taking direct action now. I favour it for many reasons. I hope in favouring it I set out my reasons for doing so. Whilst I am not courteous to or about the politicians, and may even tread on a few judicial toes, I like to think I am always courteous and reasonable about differently held views. 

I repeat, this it not two tribes going to war, but one tribe who both want the tribe to survive. We just have different ways of going about it. 

Ultimately we both may be right. Both approaches may have the chance to succeed. The biggest fear I have is that if the engagement route is taken and fails, it will be too late to save us. Our fate will be sealed and that is a fate none of us want. 

No matter what, this is you and me against the damage being caused to the criminal justice system. 

6 thoughts on “Two Tribes

  1. Hywel Davies

    Another reason for there being the dual approach amongst solicitors is this; there are two enemies, dual contracting and the fee cut.

    Many small firms have small cost bases or are diversified so can take the fee cut and carry on for now, but dual contracting will signal the end.

    Larger firms, especially crime specialist firms could scupper dual contracting tomorrow by withdrawing their bids (particularly in the other parts of Dyfed Powys, Hampshire and Devon and Cornwall) however they could live with it as long as there’s no fee cut.

    If the fees were cut in January instead of now, ironically many would withdraw their bids. The cut now has undermined resolve for action as however low, these fees may be the last claimed. They could make the difference between liabilities to cover from personal guarantees after locking the door of the office for the last time, or walking away only having to worry about run off cover.

    I agree with you, let’s be civil. I’m prepared to debate and have strong views e.g. about Swansea firms, but won’t go ad hominem.

    Let’s make the decisions we have to. But let’s not pretend either that there is enough thought going into bid withdrawal by COFAs up and down the country. “We were waiting to see how it panned out” won’t help them with the SRA in the case of firm collapse.

    We did not bid, but as the firm COFA I would have reported any bid and the second cut as a breach. I’m also if the view that COLPs and COFAs in firms taking direct action should be giving strong consideration to reporting that as a breach, whether minor or major.

    Imagine the impact of the SRA telling the MOJ that they have masses of reports (they can’t possibly deal with due to lack of manpower) from COFAs in criminal firms of every size who are concerned they are about to go to the wall as a result of the cut…


  2. Russell Fraser

    “…take the path of engagement and try to secure a legal landscape which would be fertile ground for our strengths to prosper or the path of taking action to stop the Government grinding us down to no more than mouthpieces for an imitation of a free and fair society”

    I would not want direct action and engagement posited as alternatives. I am sure that’s not what you intended either. Direct action will be accompanied by engagement. On the day after the policy of not applying for legal aid representation order began, Jon Black and Bill Waddington wrote to Mr Gove asking him to meet them:

    The point of direct action is that it gives us something with which to see that government engages meaningfully. When one considers Mr Gove’s record to date in government and the fact that this government is one for whom ‘there is no alternative’ to austerity, we flatter ourselves to think that advocacy and finely turned phrases will bring about a change in attitude. Two years of engagement did not achieve that. Direct action includes engagement but it complements it by ensuring we do not merely receive platitudes in return.


  3. Grumpy defence solicitor

    I am deeply saddened by the rows that are beginning to take place about what the Bar should do. The Bar is fearful of Two Tier. Aren’t we all, including those firms that have made bids? We need to take this one step at a time I believe. Defeat these cuts and it may well mean the death of TT. It might not, but it probably will. I am grateful for the support of each and every chambers that are now saying no returns and no post 1/7/15 work. We need to stop slagging each other off and consequently giving hope and succour to the MOJ.

    We all know who the true opposition is. Let us direct our complaints to them and against them.


  4. David

    The fact is that there are so many competing interests in this whole argument. Some firms, possibly medium to large will want TT to come in. We are one of them. They will make it work, simple as that. The competition will be eliminated very quickly and they will thrive. Smaller firms don’t want it as they are out of the game straight away. There is a lot of propaganda from the criminal defence fraternity especially solicitors, who are trying to dress this argument up as being them saving access to justice. If you believe these Twitter warriors who are rampaging every night with their ever more ridiculous jingoistic war cries, then you would be believing that every person arrested was entirely innocent, poor and vulnerable. That simply is not true. There is absolutely no unity at all at present and people are stealing cases off each other left right and centre. Any of you who believe that unity exists on the ground are deluded and this is the sad reality of it…


  5. Robert Askey

    The evidence for engagement being likely to succeed on its own without action is scant to say the least and direct action is unlikely to bring Gove at a trot to anyone’s door with some brand new proposal in his hand. It must be a case of taking action and repeatedly declaring a willingness to talk.



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