Off and running

With the general election around the corner, the Gazette brought together leading figures from the main political parties and the profession to debate the major legal issues of the day

The Gazette last month held a pre-election debate at Stationers’ Hall in London pitting the three main political parties against each other on legal issues. The Labour government was represented by the Lord Chancellor and Secretary of State for Constitutional Affairs, Lord Falconer, who was joined by the Conservative Shadow Attorney-General Dominic Grieve MP, and Liberal Democrats Shadow Secretary of State for Constitutional Affairs David Heath MP.


Also on the platform were Roger Smith, director of lawyers’ human rights group Justice, and Sue Ashtiany, a partner at City firm Nabarro Nathanson and a commissioner of the Equal Opportunities Commission.


The debate was chaired by Gazette editor Jonathan Ames, with questions coming from an audience including many leading figures in the profession. This is an edited version of the hour-long event:


Jonathan Ames: Is it easier or more difficult to be a lawyer now than it was when Labour came to power in 1997 and, consequently, are the profession and the rule of law more or less respected by the public than they were eight years ago?


Lord Falconer: Over a quite long period of time, and 1997 is but a milestone on the way, it has become harder and harder to be a lawyer. My father and my grandfather were solicitors. Much greater deference was shown to them than is to lawyers now, and also they were much poorer than many lawyers are now. It would never have occurred to them that one went into the profession to make any money. It was entirely a job that one did out of a sense of duty.


Now lawyers are unpopular in society, their advice is sometimes taken, sometimes not and they are not treated with the same deference. A small number of them have become much richer than lawyers used to be, and the effect has been that all lawyers are much more unpopular than they ever were. It is harder to be a lawyer now than it was in 1997, not because of anything which this particular government has done but because of the different attitudes towards lawyers generally.


Our respect for the rule of law remains as strong today as it was in 1997, in 1987 and 1977. It has become easier to identify whether people are complying with the rule of law because of the incorporation of the human rights convention into our law. It is an utterly remarkable thing that for the first time a government in taking steps against terrorism allowed those legislative steps to be judged by the courts – that is, primary legislation judged by the courts – against an objective template, namely, the Human Rights Act, and then the government acted on the basis that the courts have said that was going too far, which seems to me to be ingraining yet further the rule of law in a way which had not been done by any previous government.


Dominic Grieve: I certainly agree that being a lawyer is harder. I am not sure I entirely agree with the analysis about the poor lawyers of yesteryear. It is true they probably led quieter lives and also that some lawyers are now much wealthier than they could ever have dreamt of, even for those who were at the pinnacle of their profession. In fact, they had quieter and, in many ways, more comfortable and more secure lives than many lawyers now have. This may be a recent phenomenon, and it is certainly linked to the squeeze in legal aid funding, but it is quite apparent to me that in the year 2005 there are quite a few lawyers who are struggling to make ends meet in a way that they could never have dreamt about or expected a decade ago.


So far as the rule of law is concerned, I do not share Lord Falconer’s confidence. My impression – I want to make it clear at the outset that I do not entirely blame the government for this – is that our society is now under a variety of pressures which could not have been thought about eight years ago and which are tending to erode the rule of law and make it more tempting for government to find administrative solutions to problems. This is going to be one of the really big issues for the next ten or 20 years.


What happened over the anti-terrorism Bill was a massive undermining of the rule of law. We have had other examples, such as undermining jury trial, ouster clauses and removing the right to judicial review in asylum cases. Yes, also the Human Rights Act is an important issue, but it has conferred many benefits. It also, undoubtedly, has areas of tension and friction with the ability of government, and indeed the public through Parliament, to get what they want. I found the Human Rights Act a fairly dynamic document, and I have some confidence in its future.


David Heath: I am one of the few people in this room, I suspect, who is not a lawyer, but I have to say that some of my best friends are. They are trying to operate small practices in rural Somerset and find they cannot get the funds for their publicly funded work. They know their local magistrates’ courts are closing down, so if they wish even to attempt to provide a service in a criminal practice they are required to go 30 or 40 miles to the nearest court, and that is at the expense of their partners. They know that if they are trying to provide a family law practice, it is increasingly difficult to do. They also know they are commonly execrated as ‘fat cats’, living off the earnings of others, and frankly the cap does not fit.


I do not think there is a diminution in the country as a whole in respect of the rule of law, but what worries me intensely is the apparent lack of respect for the rule of law on the part of government ministers. The last home secretary was a past master at this, but as far as I am concerned a government that shows such scant regard for process, principle, jury trial and for many of the basic principles of our legal system is not showing proper respect for the rule of law.


Sue Ashtiany: The thing that strikes me about being a lawyer which is precious to me and which, I suspect, is precious to everyone else in this room, is that we share a community of professionalism, judgement, integrity and, to some extent, also of openness among ourselves as a community adhering to those standards.


The matters that bother us as a community of lawyers are an increased complexity in the things we have to deal with and advise about, the increased regulation we have to live with and advise about, plus the increased uncertainty in our lives, particularly in terms of the possible unintended consequences of professional practice and regulatory reform. I pause on that because the law of unintended consequences is one that we should bear in mind. Look, for example, what has happened to Directory Enquiries. Finally, there is our uncertainty about what the shape of the profession will be and the fact that we may not, as independent people with integrity and judgement, be able to have a full say in what that should look like, whatever branch we come from.


Roger Smith: Is it harder to be a lawyer now than in 1997? Yes, but it is nothing to do with the government. I live in fear that my daughter will say she wants to be a solicitor, which I figure will not cost me less than £20,000. By 1997, legal aid was well on the path to becoming a separate sector of disengaging from the rest of the profession. It became a smaller area and much harder to make a living in, but that was nothing to do with the government.


In terms of the rule of law, it is more interesting and more complex. I pay tribute to the government for introducing the Human Rights Act, which gives you a checklist for measuring your actions as a public authority. The government finds that difficult, and any government would. That is enormously to their credit, because very few governments have ever easily introduced legislation that would inhibit their power.


That sparked off a process of the tectonic plates of the constitution shifting. You can see the judiciary beginning to devise notions that you have a right to the courts regardless of what Parliament says. You can see the judiciary moving into a position that probably helps the rule of law. [But] you can see a crisis forming. Where I locate the current crisis is actually in the legislature. To push through the Prevention of Terrorism Bill in 18 days was outrageous. That behaviour raises an issue that we can see as we move towards the election of legislation being thrown through Parliament. There is a real crisis now between the legislature and the executive which we have to work out, and which the executive has to look at with the same honesty and clarity as it did when it brought through the Human Rights Act.


Lord Falconer: It was in December that the House of Lords ruled the old law was defective. We took the view immediately that we would have to accept that conclusion and we sought to produce a new Bill that was in accordance with the Human Rights Act. You complain about the speed by which it was done, but the pressure that was driving us was that you could not, ultimately, leave the people in Belmarsh indefinitely if the consequence was that the courts had already described that they were unlawfully imprisoned.


Edward Nally (Law Society President): What will be the impact of Sir David Clementi’s recommendations on the delivery of legal services to the public in five years’ time?


Lord Falconer: There is not agreement throughout the legal profession on all aspects of Sir David’s review but there is pretty considerable agreement about a number of aspects, and everybody is agreed on the need to separate the regulatory function of the professional bodies from the representative function. There is broad agreement about the need for a more effective complaints-handling system, and a need for the professions to be regulated in a way that more reflects the needs and aspirations of the users of legal services.


The consequence of Sir David’s proposals being put into effect is that in five years’ time you will have a much more client-conscious, consumer-driven legal profession, both in the way that individual firms operate, and also in the sorts of way that legal services are delivered.


Dominic Grieve: If the Conservatives are in office, you are not going to have Tesco Law. I do not see how either I or my colleagues would ever accept the notion of outsiders being able to own law firms; there are serious issues concerning ethics that surround that matter.


Multi-disciplinary practices seem to me to be a very sensible idea. They need to be properly regulated, but I certainly do not see that as being an insurmountable obstacle.


I dislike the Clementi model about regulation and discipline. There is a key issue here about independence – it is all very well setting up an independent regulator appointed, I note, by the Lord Chancellor, but the fact is that the state will be taking a very big stake in the future of the way in which professions operate. If states wish to abuse that position, it is very easy for them to do so. I am a cynic; if you give people power, they start to use it. You have got to separate representative, regulatory and disciplinary functions, which the bar and the Law Society are both doing. I am not against an over-arching structure on which you can fall back if there is failure, and I absolutely believe that self-regulation is better – it delivers higher professional standards and, in the long run, it ensures independence.


David Heath: I, too, have no problem with the concept of multi-disciplinary practices. In terms of outside and commercial bodies owning law firms, I instinctively recoil from the idea of Tesco Law, as it is put, but actually I do not think it is Tesco Law that we need to worry about. It is more NatWest Law or Barclays Law, because that is by far the more likely path. The conflict of interest within practices of that kind are likely to be insurmountable. So there is a real issue there, even where the owners, the people who are the stakeholders within that practice, are ‘fit and proper people’. There is a new issue about how you identify fit and proper people for this purpose.


Roger Smith: I have persuaded myself that you could actually have quite a large degree of third-party ownership. Legal disciplinary partnerships, with or without third-party ownership, could well revolutionise how services are delivered.


Sue Ashtiany: What, finally, will come is a greater fragmentation of our profession. What we are going to see in the very first instance is the creation of lots of regulation and cherry-picking of the bits which we do which are profitable.


David Hobart (chief executive, Bar Council): Would members of the panel recommend to their own children a career exclusively in publicly-funded law?


Lord Falconer: Yes. My children see their mother, who works exclusively in publicly funded law [and it is] extraordinarily satisfying as a job. There are huge pressures on a publicly funded lawyer. There are ups and downs in relation to the amount of money that is provided, but it is a very worthwhile job.


The amount of money available has, in some respects, gone down and in other respects, in relation to family law, gone up, and gone up significantly, such as in public law children’s work. There are plainly some bits of publicly funded law where people are really struggling but, inevitably, that will reflect the priorities of the public funding requirements.


David Heath: Nobody should be denied justice because they cannot afford it. As we know, the combination of the Access to Justice Act or the ‘denial of justice Act’, as some of us saw it at the time, the ring-fencing of legal aid funds and the inevitable expansion in recent years of the amount that has been spent on criminal legal aid and immigration work, has had a very deleterious effect on civil legal aid particularly. That worries me because injustices are being done. One of my concerns is that we have, effectively, rationing irrespective of the merits of the individual case, and that cannot be right.


Dominic Grieve: Publicly funded law should be seen as a vocation and probably not as a career. The other thing that worries me is, yes, there is certainly a future in publicly funded criminal work, but I am actually not very sure there is much of a future in publicly funded civil work. In fact, what we are going to end up with is that the only publicly funded civil work that is going to remain is that the state deems to be desirable. That is a subtle and insidious shift which anyone wishing to enter the profession has got to size up, because it does raise the prospect of lawyers being turned into little more than state functionaries for delivering certain services. The old principle was that the state funded access to justice because it considered that was a good which needed to be supported, without looking further into whether there were particular rights that it considered to be desirable to support or not. We should try and move back towards that.


Sandra Burton (President, Institute of Legal Executives): Should the qualifications of solicitor and barrister cease to be seen as the benchmark standard for legal services in the future, and how should the government ensure that new providers are able to compete in those jurisdictions where only those with law degrees are recognised as able to offer legal services?


Dominic Grieve: Back in the early 1990s, I saw the writing on the wall in terms of the categorisation of legal professional work. I vaguely floated the idea that the true distinction is between advocates and non-advocates. If I were to be looking to the long-term future, I think that is an issue to be revisited. We need to keep professional standards. If you keep that in mind, I do not actually think you are going to go hideously wrong.


Lord Falconer: I do not think a degree is necessary. You need some measure. You have got to preserve, as Dominic says, standards of integrity and expertise but a degree is not the only way to do it.


Colin Ettinger (President, Association of Personal Injury Lawyers): Do panel members believe that talking up the ‘compensation culture’ is a vote winner, despite advice from the Better Regulation Task Force that it is in fact a myth?


David Heath: What we have is not a compensation culture but a greater awareness of the capacity for professionals to get it wrong and for that to have consequences. That is probably a good thing. It has probably helped, immeasurably, to improve the practice and procedures of many professions.


Where there is a difficulty is part of the knock-on effects of the no-win, no-fee structures, which is where you have both unnecessarily aggressive advertising and chasing of potential clients looking for the compensation claims that can be made against public authorities. Speaking as an individual, I find that distasteful. Speaking as a politician, I see it as a drain on public resources which we can probably do without.


Dominic Grieve: We have a rather strange situation, do we not? On the one hand, we have statistics that suggest the total number of payouts may have gone down in the past 12 months. On the other hand, we have insurance premiums soaring on the back of claims by insurance companies that [it] is because of the problems relating to compensation. We do have a compensation culture problem.


Before the election, we will put forward some sensible solutions, particularly looking at areas like employment tribunals, which is an area which has been both beneficial but, at the same time, has helped fuel certain areas of compensation. Perhaps I could say one last thing. I do not think the Human Rights Act has anything to do with fuelling the compensation culture at all.


Lord Falconer: There is a problem about the compensation culture. We need to send a message which says ‘Bad claims on a wrong-headed basis do not get recovery, but good claims do’. That is the message the government is sending out by doing such things as regulating claims farmers.


Secondly, we need to make sure there is not that sort of advertisement on the television, on the radio and in the newspapers, which suggests that for every accident there is someone to pay. Thirdly, we need to encourage other bodies, employers and insurers to resist bad claims. The fact there is a reduction in the number of claims does not mean the belief that for every accident and every injury somebody has to pay is not having a very bad effect on various activities in our society.


Nigel Bamping (committee member, City of London Law Society): What commitment are the political members of the panel prepared to make to a new Commercial Court facility and on what timescale?


Dominic Grieve: We are committed to having a new Commercial Court. I know that at the moment the sector is grossing invisible earnings of £1.35 billion. I cannot give you a timescale. I would not have had a new supreme court. I would have spent it on having a new Commercial Court. Indeed, it may even be the opportunity of doing just that when the time comes.


David Heath: I can readily see the need for it. I am not going to make a commitment this evening because I would be dishonest if I were to say that I knew where the money was coming from.


Lord Falconer: We are committed to a Commercial Court. I do not think the problem is about money. It is actually in finding a site and developing it. We are committed to the Commercial Court in relation to finding a way forward. The reason why I am saying the problem is not money is because it will not, in the long term, I suspect, cost the nation anything.


David Emmerson (committee member, Resolution): According to a Legal Services Commission report, the number of new family cases starting with legal aid in 2003 was 338,000. The projection for this year is down to 268,000. Is that reduction an indication that fewer people are requiring advice and assistance in family law, or an indication of a more serious problem?


Lord Falconer: I do not know. I suspect it might be the indication of a more serious problem. It seems implausible, on the face of it, that the number of people needing advice or representation has gone down to that extent.


We need, particularly in family law, much better to understand where there is unmet demand and where there is unmet need as well. We also need to make the particular advice that we provide in family cases much more accessible to a much wider group of people who are not getting any advice at all at the moment.


Dominic Grieve: I fear the reason why this is happening is because there are legal advice deserts where people cannot gain access to any sort of publicly funded advice in respect of family work. There is a huge black hole opening up.


Roger Smith: It is probably worse than David says because I do not know whether those figures take into account the outrageous 10% cut in eligibility limits that Lord Falconer announced the week before last. That will mean that all eligibility to civil legal aid is decreasing. There has never to my knowledge ever been a cut so widespread.


Raymond Shaw (committee member, London Criminal Court Solicitors Association): The Legal Services Commission is planning


to bring in a system of price-competitive tendering to allow criminal law firms the pleasure of bidding against one another, ensuring that the lowest price gets the work. If a member of the panel were facing a criminal charge, would that member wish to be represented by the firm which bid the lowest to do the job?


Lord Falconer: There must be in the legal profession, as in other professions, some degree of competitive pricing. Competition in pricing can provide more funding available for legal aid. The question of who is the cheapest suggests that there will be no quality protection, which is wrong.


Dominic Grieve: Seeing that legal aid for criminal work has been, effectively, pegged for a decade, means that you are starting from rather a low base where everybody is already extremely stretched to make ends meet from the payments they are getting. Either the implication of the competitive tendering is in fact that Lord Falconer is accepting that the competitive tendering is going to produce figures which are above that, or if he is going below that. It is going to create a terrible problem.


To begin with, large numbers of firms will stop doing the work. The remaining firms will, I suspect, be of very dubious reputation and quality.


Far from it ultimately saving money, it will all come tumbling down onto Lord Falconer’s constitutional affairs department and they are going to have to pick up the pieces.


I cannot see the rationale for this policy at all, except – I suppose this is what they want to do – to destroy criminal legal aid for defence work entirely and introduce an entirely publicly employed defender system, in which case we are taking a rather unpleasant step towards a Soviet-style state.


David Heath: I have no problem with the government requiring value for money from any service that is funded from public funds, but value for money can be achieved in a variety of ways. In this instance, benchmarking is a better way of doing it than competitive tendering.

I would have hoped that there were clear landmarks against which the value for money could be judged.