UK Law Articles
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The Times
November 3 1998
David Pannick QC
Will lawyers become reformed characters?
There is no subject that inspires greater eloquence from lawyers than the defence of their own restrictive practices. The Government's proposals to reform rights of audience in courts have provoked predictable opposition from the Bar and from some judges. But the case for change is overwhelming. Traditionally, judges have decided who may appear as an advocate in court. The monopoly conferred on barristers in the higher courts has led to anomalies, typified by the 1985 farce in which the Bar Council opposed the wish of a solicitor, Alastair Brett, to read out in court an agreed statement in settlement of a libel action involving his client. By 1989, even a Conservative Government realised that the status quo was indefensible. A Green Paper made modest proposals to introduce principles of fair competition in the public interest by facilitating rights of audience for solicitor-advocates in all courts.
Instead of welcoming change as no threat to an expert profession, the legal establishment reacted as if the Government was suggesting that all barristers should be lined up and shot. Lord Chief Justice Lane pronounced that the Green Paper was "one of the most sinister documents ever to emanate from government". He said that "oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband". And that was one of the more reasoned reactions to the proposals.
Parliament enacted the Courts and Legal Services Act 1990 with the intention of enabling solicitor advocates to exercise rights of audience in higher courts. But the legislation has had a disappointingly limited effect in practice. The Government's consultation paper now makes proposals for implementing the relevant principles.
The consultation paper sensibly suggests that all barristers and solicitors should be eligible to appear as advocates in any court, subject to meeting reasonable training requirements and complying with codes of conduct. Employed lawyers (for example, those working for the CPS) should not be excluded, because "independence is a matter of ethos, professional discipline and frame of mind, rather than a matter of how a lawyer is engaged or paid". Reform will not destroy the Bar, as the skills of an expert, independent profession will continue to attract work. But in any event "it is not the role of the Government to safeguard the supply of work for barristers".
The Government has rightly recognised that there is no realistic prospect of effective reform under the cumbersome procedures of the 1990 Act. At present, the Lord Chancellor may act only after taking advice from an unwieldy advisory committee, and only if he has the agreement of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. Each of those judges has a veto over reform. The proposal is that the Lord Chancellor, after taking advice from the judiciary, should have power to impose rules relating to rights of audience where he considers amendments necessary to promote the effective administration of justice.
In his Kalisher Lecture last month, Lord Steyn, a law lord, complained that the Lord Chancellor's proposals are "unconstitutional" because the principle of separation of powers is inconsistent with politicians having power over this aspect of the administration of justice. Similar objections have been made in the responses to the consultation paper from many Court of Appeal and High Court judges, and in the response from the Bar Council (referring to the experience of the South African legal system during apartheid). Those arguments are not persuasive. Parliament can, and does, intervene to regulate the administration of justice in all other respects. It does so because the public interest is most effectively, and democratically, assessed by those we elect rather than by barristers who have been appointed to the bench. Of course, the judiciary's views deserve careful consideration. But judges have no right to decide, and no expertise that qualifies them to decide, what the public interest requires in a policy context where there are competing considerations.
In any event, the judiciary would have the final word if a future Lord Chancellor were to be so foolish as to exercise powers in a manner that breached the forthcoming Human Rights Act, or the general principles of public law. The judiciary would then be able to grant appropriate remedies.
It is high time for the Bar and the judiciary to recognise the necessity for, and the inevitability of, reform of practices that confine access to the higher courts to a particular class of lawyers. The special pleading of judges and barristers has had no persuasive effect on lay people, save to reinforce their low opinion of the legal profession. The advocacy is eloquent and sincere, but those who argue for government of the lawyers, by the lawyers, for the lawyers, simply have no case.
- The author is a practising barrister and a Fellow of All Souls College, Oxford.
