Breaking the Law

Stephen Sedley

  • The Work and Organisation of the Legal Profession
    HMSO, 72 pp, £7.10, January 1989, ISBN 0 10 105702 4
  • Contingency Fees
    HMSO, 20 pp, £3.20, January 1989, ISBN 0 10 105712 1

Connoisseurs of fine ironies will be slapping their thighs at the sight of the Bar and the Government with their teeth sunk in each other’s legs, the former egged on by the judiciary, the latter by Dennis Skinner. It’s a fair guess that three-quarters of the Bar are loyal Tory voters. Yet how many of them, and indeed of their colleagues in the centre and on the left, had understood that Thatcherism is not just a tougher brand of Conservatism? What patrician Tories despise as the mentality of the Grantham grocer (as their parents despised Hitler for his vulgarity rather than his politics) is in truth a gut ideology which has no time and no room for any power élite that claims its status as a matter of right. Privilege, inequality, selfishness, exclusivity: these are of course important values, but they are to be earned in a cut-throat marketplace, not gerrymandered in the collegiate seclusion of the Inns of Court.

The Government is not concerned, therefore, to stop successful barristers becoming rich. Nor, judging by its record, would it feel anything approaching embarrassment at the contrast between its attacks on trade union organisation and its tolerance of monopolies of wealth. Something different is stirring in the bowels of the monetarist Right. It encompasses ideological fire in the belly, disrespect for unearned privilege, but its moving force is not the skinhead iconoclasm we had come to associate with the now marginalised Norman Tebbit. It has much more to do with the fact that the ideology of competition has become powerful enough to challenge a profession which has been accustomed for centuries to calling the shots in its own interest. The opportunity to do so is being seized by the Government because it thinks it can achieve some of its major economic objectives in the process. But the long-term outcome may very well be something that the Government does not anticipate, though I suspect it would not be unduly concerned if it did: a collapse in the maintenance of consent among the governed.

If you start from the relatively uncontentious proposition that a developed society needs lawyers from time to time to sort out people’s problems, what is required of the legal profession can be shortly stated. It must be knowledgable about the law, competent in giving advice and in arguing cases, loyal to its clients and honest with the courts (yes, both). In practice, this means having a corps of lawyers who are experienced and effective as advocates. Whether you call them barristers, and whether they practise on their own or within larger organisations, is of secondary importance, as countries with similar legal systems have found when they have taken away the formal divide between barristers and solicitors – which is what the Government in effect proposes to do here. But it is still of primary importance that advocates and specialists should receive the training and exposure which generate competence and expertise.

Now Lord Mackay, a new Lord Chancellor whose openness and intelligence are an undeserved windfall for the Cabinet, is right when he says that a specialist corps of advocates will undoubtedly survive the Green Papers. It will survive, however, because when the state, the big corporations and the wealthy go to law they are going to continue to want the best representation money can buy. There will therefore remain livery stables of advocates where the powerful can continue to hire thoroughbreds. But what about the rest of the world – the middle-income people too well-off to get legal aid and too hard up to litigate, and the poor, who at present can get legal aid and fight the big battalions on roughly equal terms? For the former, the Government is toying with the idea of contingency fees. It is legitimate to ask why the Government is now choosing to float these possibilities, when it knows that the fullblown American system depends on levels of damages which would send insurance premiums rocketing in this country, and that even the more modest no-win-no-fee system would in some cases create a dangerous pressure on lawyers to cheat in order to eat. The answer does not require much intellectual labour. If the profession’s rules are changed to allow lawyers to act on spec, the middling sort can no longer grumble to the Government about being unable to afford a lawyer: instead of assuming responsibility for these people, the state will pass the buck of financial risk to a lawyer. If it is logically correct that on average lawyers win half their cases, those whose clients cannot afford to pay win-or-lose will have to forfeit about half their income as a direct penalty for representing the less well-off. Before you say ‘So what?’ read on, because these will not be the profession’s fat cats.

For those sufficiently hard up to get legal aid it is, at least at present, a different story. Years ago I was led in court by a tough QC who was admonished by the judge to remember that our client was on legal aid. ‘Yes my lord,’ he said ‘and it entitles him to the same standard of representation as if he was a wealthy man.’ The news media recently carried the story of a large award of damages made to a working-class family catastrophically overtaken by the negligent diagnosis and treatment of their young daughter. Without legal aid they could not even have contemplated going to the courts for redress. I doubt whether, if contingency fees were permitted, any lawyer could or would have risked the necessary tens of thousands of pounds needed for doctors, statisticians, nursing consultants, accountants and architects to assemble and establish their claim; and I am certain that any lawyer would have felt sullied at recouping his or her fees out of damages assessed for the future needs of the child. It is something of a jewel in the law’s crown that such a family can obtain backing out of public funds to enable a local solicitor to buy in for them the expertise they need to match the resources of a major public authority. It gives some substance to the rhetoric of equality before the law. And it is this which without any doubt is now at risk – not overtly from the Green Papers themselves, which glibly treat legal aid as there to stay, but from the current and planned attenuation of the legal-aid system when married up with with reform of the profession and of the system of justice.

Although the Government hotly denies that the DTI actually moved officials into the Lord Chancellor’s Department to write the Green Papers, there is no question but that the Treasury is obsessed with the size of the legal-aid bill. In Government ideology it stands out as a relic of the nanny state, doling out money for a service which ought to be self-financing like everything else. On the Treasury accounts it looks like a huge recurrent subvention to an indigent relative. Nobody with power thinks any longer about its role in making a reality of the myth that we are all equal before the law. Long before Lord Justice Mathew is supposed to have remarked that in England justice was open to all, like the Ritz Hotel, Home Tooke in 1818 had made the same remark à propos the London Tavern, and that is the historical road we are now about to walk back along.

For a number of years now, steps have been taken to reduce the fees paid to lawyers on legal aid, making it a less attractive form of practice. Ernest Saunders, the fallen chairman of Guinness, is apparently discovering that you cannot run a Rolls-Royce defence (and thousands of defendants need one) on the two-star petrol which is all that criminal legal aid will now run to. But once the Green Paper proposals take effect, permitting not only solicitors but accountants and estate agents to acquire certificates of competence in advocacy, it will be possible, and (given the tight funding) almost obligatory, for the Legal Aid Board to insist that the local practitioner argue the case himself or herself in the High Court or on appeal. A few solicitors undoubtedly have the both the desire and the competence to do this, and the Government’s case is at its strongest in arguing that artificial professional barriers should not be allowed to prevent them. Equally, there is no rational reason why barristers should not take a wider part in preparing a case for trial. The Bar is having rapidly to review its intransigent position on these and other restrictive practices, and the fact that it is only doing so in order to stave off more radical reform is an embarrassment which all the expensive publicity of Saatchi and Saatchi is not going to be able to undo. But there is all the difference in the world between the informed choice of a competent advocate, whether solicitor or barrister, to conduct your case for you, and a strapped public-funding body refusing to pay for the division of labour your case needs on the grounds that you can get along perfectly well on a bicycle even if the opposition is travelling in a Bentley. This crude cash chemistry explains more cogently than dogma why the Government wants to restructure the legal profession so pressingly and so drastically. It also explains why the Government intends the restructuring of the profession to ride piggy-back on the reform of the civil justice system. This reform includes relegating most claims for individual redress and compensation to the lower (and cheaper) courts, clearing the decks of the High Court for the official and commercial litigation which both senior judges and the Government want to attract as Britain pushes for a central place in the single European market. It makes a forceful engine for dragging the legal profession into the 21st century.

The acumen of Mackay’s assault on the hallowed structures of the profession lies in its concentration on the apparently indefensible positions. Why on earth shouldn’t barristers be able to form companies and partnerships and multi-disciplinary practices if it suits them? Why is it so awful that a government-appointed body with a minority of lawyers on it should set the profession’s standards? There are powerful answers, as it happens, but who is now going to listen to them from a profession which time and again has walked with outstretched chin into the response ‘Well, he would say that, wouldn’t he?’ The Bar’s public defence has fallen back upon two loud and clear messages: a hidden agenda of butchering legal aid, and the Bar’s role as defender of the individual against the state. The first, as I have suggested, is true, but it will not affect the profession’s fat cats, who rarely if ever see a legal-aid brief and whose clients will continue to nurture them out of long purses. The second also happens to be true, at least for a segment of the profession which has emerged in the last two decades and which from day to day does stand up to the state on behalf of individuals in criminal and civil courts and in more modest tribunals, sometimes asking for no fee. This segment has earned itself the sobriquet of the Alternative Bar – together, until now, with the sometimes unconcealed contempt of some of the pillars of the profession. Suddenly the Bar is dining out on the fearlessness of its poor relations. It has come to something when the response of the Haldane Society of Socialist Lawyers to the proposal for state control could have come from the judges or the Bar: ‘The key concern ... is to prevent, or make difficult, the abuse of power by government to put pressure on legal practitioners who, fairly but unpopularly, defend or promote their clients’ interests.’ What is wonderful to behold is a legal profession which has not been famous for its sensitivity to the inequalities of social power and wealth being shaken into the realisation that the defence of the unpopular and the unprivileged is the single shield which can now defend it from the burning brand of monetarism.

The war is far from over. Although the judiciary is not unanimous, it is likely to be inflexibly opposed to the removal of the judges’ constitutional power to license advocates – that is, to call them to the bar of the court. The trade-off may be that the judges will agree to license a wider range of specialists to address them. The Bar’s response has been to be conciliatory on a number of issues, and it may be that in order to avoid a constitutional rift with its own judges the Government will, uncharacteristically, back off. But what it does not openly achieve by structural reform it will continue to pursue through justice on the cheap. And it is this which risks doing the long-term damage.

In a developed democracy it is not only government which governs. Consent to the political control of what we may and may not do is generated and maintained by the presence of an accessible and evidently impartial legal system – an entire tranche of the state which divorces social regulation from politics in the mind’s eye. The future of the legal system could well turn out to resemble what is now being proposed for the motorway system: an executive fast lane and a well-metalled commercial-vehicle track running alongside a potholed carriageway choked with family cars and old bangers. It is when such disparities become visible and sensible that consent to the system which has produced them starts to break down.