PLUS CA CHANGE

It’s that time of the year, looking back in reflective mood, wondering if we could have done things better, and hoping against hope that the New Year will be different for all the right reasons.

In the law, we have seen the appointment of Sir Ian Burnett as the new Lord Chief Justice, and in the  fullness of time, he will no doubt take a barony befitting his status as the most senior judge in the land. I hope he takes as his title one we can all pronounce, unlike his predecessor Baron Thomas of Cwmgiedd.  For those of us whose feet are not planted in the green green grass of Boyoland, it is complete gibberish, and take it from me, I am one of the few Anglo-Saxon interlopers who have appeared in the Court of Appeal sitting in Cardiff, and I was hugely underwhelmed.  I mean, talk about a fish out of water, look you Boyo!

The second big change was the appointment of Baroness Hale as President of the Supreme Court, the first woman ever, so many congratulations.  Her appointment coincides with a  difficult time for the Supreme Court, whose reputation has recently suffered following a number of controversial judgments. One in particular stands out, the Brexit judgment delivered in February after a lively debate about the judiciary and the body politic, and which persuaded me to write a blog about the independence of the judiciary.  You will remember it well.  The Supreme Court got it wrong, and some of the Justices got very defensive when criticised for an error of judgment.

Otherwise, the legal profession bumbles along, with more and more mice chasing the same piece of cheese and very little to show for it except a large overdraft and an increasingly disillusioned client base, and now, perhaps too late for regrets, many of them have read the writing on the wall and wished they’d qualified as a plumber.

Finally, and something completely different, it may not have escaped your notice that we have been celebrating the birth of the Son of God to the accompaniment of Noddy Holder, the frontman of the pop group Slade back in the 70’s, whose hit song “It’s Christmas” is played ad nauseam in every shopping arcade up and down the country.  Notwithstanding, it is a Heaven sent opportunity for the Church of England to sell itself as well as the message of the Angels, but sadly, it comes up woefully short, yet again.

The present incumbent of the See of Canterbury, and the most senior archbishop, is Justin Welby, and by all accounts, he is a monumental disappointment even by his own modest standards.  He is completely irrelevant, and gives no guidance whatsoever to his ‘flock’ on a whole range of ecumenical issues.  He simple wafts around with a rictus grin, says little and does even less, so is it any wonder that our established Church is in free fall.

Don’t get me wrong.  The clergy in my parish work incredibly hard, all year   round, with precious little thanks, and even less temporal reward, but where’s the backup from on high?  No, no, not that on high, I mean the Archbishop and his fellow travellers.  In our diocese, we broke new ground in 2015 with the appointment of a woman bishop, controversial at the best of times, but since her appointment, we have seen neither hide nor hair of her.  Perhaps she is frightened to show her face, but that’s no excuse.  Jesus Christ said: “When two or three are gathered together in my name, I am there among them.” Be bold, Madam, or at least be seen!

To survive beyond Noddy Holder, the Church must reinvent itself, not by changing the Christian message, but by changing the way it’s delivered.

THE ULTIMATE GUIDE TO AREAS OF LAW CAREERS

As I wrote in a previous blog (Let’s kill all the lawyers), I remain astonished at the sheer volume of lawyers wanting to come into the profession, and, to put it bluntly, with very little prospect of success.  That ‘sheer volume’ is a staggering statistic. When I was first called to the Bar in 1974, there were less than 2000 barristers.  Now there are over 18,000 and counting.  Much the same can be said about solicitors.  In 1974 there were 30,000, and today there are over 120,000. As somebody observed, there is now a lawyer for every 400 people in the country, making it easier to find one than a doctor.

It’s not easy to fathom the popularity of the legal profession as a career.  I assume those qualifying are aware of the odds against them, but I suppose these hopefuls believe they will succeed where so many of their colleagues have failed.  It’s a little like doing the lottery – somebody has to win, and ‘it could be you’!

In order to succeed, the lawyers best placed to hit the ground running and stay ahead of the competition will be those who set themselves a clear and realistic goal and who stick to it.  So many start out with lofty and unrealistic ambitions but become disheartened if those ambitions are not fulfilled.

Perhaps more so than in any other profession, newcomers need all the help they can get, as the profession is changing year on year. Barristers can now accept instructions direct from clients instead of going down the traditional route of instructing a solicitor first. Solicitors now have access to the highest courts of justice where formerly their rights to appear on behalf of their clients were confined to the lower courts.  The administration of law firms and chambers has changed to make them more ‘user friendly’, allowing the public and their end users greater choice at more competitive rates.

These changes can be viewed by lawyers either for the best or the worst, depending on the willingness of the profession to adapt, and if Michael Gove, the newly appointed Lord Chancellor, is to have his way, the profession is about to witness seismic changes as never seen before.  Whether they like them or not, the professionals need to accept that many of these changes are coming, and they need to be prepared.

Despite efforts by successive governments to make the legal process more user friendly, most litigants know that a good lawyer is indispensable to the success of their claim, and in return, lawyers are acquiring new skills.  This is where legal recruitment agencies are coming into their own, with one in particular offering the ultimate guide to areas of law careers.   Law firms and chambers are relying more and more on the expertise of these agencies to sort the wheat from the chaff and make positive recommendations.

 

LET’S KILL ALL THE LAWYERS

It was nearly five hundred years ago when Shakespeare penned the lines ‘let’s kill all the lawyers’ and little has been done over the centuries to displace that sentiment in the minds of those who come into contact with them and especially ‘end users’.

Michael ‘Oikey’ Gove is the newly appointed Secretary of State for Justice as well as the Lord High Chancellor, and for these important posts he brings with him the lessons learned when he was Secretary of State for Education and more recently, Chief Whip. For better or for worse, he brings with him no legal qualifications or experience, which some might say makes him eminently suited to the tasks that lie ahead.

If he didn’t know it before his appointment, Oikey now knows that the legal profession, both solicitors and barristers, is hopelessly oversubscribed.  The  latest statistics show that there is now one lawyer for every four hundred head of population, and as more and more immigrants, legal or otherwise, flood our shores, there are more and more lawyers qualifying to keep pace with demand. The major problem is that there is absolutely no demand for more lawyers, the profession is saturated, and still they come. To coin a phrase attributed to F.E. Smith, there are one hundred and fifty thousand lawyers with work for fifty thousand being done by twenty thousand.

There were two ‘game changing’ decisions in the recent past that have caused this imbalance.  The first was when the Inns of Court relinquished their monopoly on legal education, allowing dozens of colleges and law schools to offer a fast track to the Bar.  When I first came to the Bar in 1974, two hundred barristers were called at the same time.  Now it is closer to two thousand. The second was when solicitors persuaded the then Lord High Chancellor to admit them as advocates to the higher courts, claiming that to deny them would be to violate their human rights and equality of opportunity and much more besides.

The final nail in the coffin for the profession is the litigant in person, who drags down the system almost to a full stop.

Though I say it against myself, the profession is in need of urgent reform.  The delays are unconscionable, usually associated with the worst excesses of banana republics, the Chilcot Inquiry and Italy. The standard of advocacy is deplorable, with few advocates knowing how to cross examine a witness, and fewer still understanding the rules of evidence and procedure. The costs of litigation, both criminal and civil, are excessive, and the cost of legal aid to the public purse is hard to justify.

The profession needs to be streamlined without further delay. Fortunately for Oikey, he will face no real opposition to his reforms from anybody who matters.  As my profession was told back in the early 80’s, when we were complaining about legal aid fees, it we didn’t want to work for the fees on offer, there were at least ten others who would, so if you don’t like it, re-qualify as a plumber.  This was before eighty thousand Polish plumbers descended upon us clutching their tool bags and their English phrase books.

I was talking to a friend of mine who is now retired, and who acts as a witness support officer for his local court. He is appalled at the waste of court time, with cases called on, only to be adjourned because of one problem or another.  Witnesses who have attended and are expecting to have their say, are yet again sent home to return at a future date.  The remedy is simple – if the case cannot proceed, it should be dismissed.

In addition, there is this absurd belief that the judge must be kept fully occupied throughout the court day, so courts are routinely listing two trials per court.  The second trial, listed as back up, is called a ‘floating’ trial, and will only be called on if the first trial cannot proceed. This means that the second ‘floating’ trial must be ready for trial at short notice, which means that witnesses have to be warned to attend, as well as the advocates.

Finally, and whilst we still cling to the belief that trial by jury is the best way to try criminal cases, these potential jurors are summoned to attend court with no real prospect of being required.  They must be paid their expenses, and in many cases obliged to turn up every day for their two week service, only to return home unused and brassed off.

If he is determined to press ahead with his reforms, Oikey is spoiled for choice.  But he needs to emancipate the judges who have been shackled by so many administrative directives and regulations.  A competent judge is best placed to run his own court, not the civil service, and the only directive he needs to follow is to get on with the job he has been appointed to do.  In running his own court, he must be encouraged to stop prolixity on the part of advocates, and tell them when to shut up and sit down.  He must be allowed to take over proceedings where necessary, and above all, he must prevent interminably flatulent final speeches.  With proper management, a two day trial can be heard and concluded in two hours, especially if there is no jury to humour.

In this way, there will be no need to kill all the lawyers, they will simply fade away.