Setting the Matter Straight

The merits of joining forces with the Law Society and CILEx; the need to help facilitate the transition to the new world, even if its flaws are readily apparent; the Bar as guardians of the Rule of Law; and a fond farewell.

Contributor
Michael Todd QC, Chairman of the Bar

This last year, I have come to realise, even more clearly than before, that you cannot please all people all of the time, and you cannot please some people any of the time. Add to that the fact that messages can be misconstrued and you have a recipe for misunderstandings. I have been portrayed as “calling for” the abolition of the Legal Services Board. I have not. In answer to a direct question, I did say that I thought it should be abolished and I said why. It is something to desire an outcome, it is another actively to pursue it. To “call for” the LSB’s abolition, so soon after its existence was extended following the MoJ’s triennial review of the LSB, would be pointless. Someone recently suggested that I am “anti-solicitor”. Nothing could be further from the truth. After all, I have been married to a solicitor for several decades. I have the highest regard for what solicitors do, and how they practise.

During my term as Chairman, I have found that, whilst there may be competition around the edges of what we do, there are many areas on which we can make common cause with both the solicitors’ profession and with the members of CILEx. Just as the Bar are servants of the public interest, so too are solicitors, and chartered legal executives.

In my speech to the Bar’s recent Annual Conference, I called on the Law Society and CILEx to join with us in working together, to seek to deliver the savings the Government tells us, consistently, it must make in the justice system budget, whilst at the same time providing effective access to justice. From my discussions with Lucy Scott-Moncrieff, and with Nick Hanning, the Presidents of, respectively, the Law Society and CILEx, I have every reason to believe that they will do so.

It is important that we do. We need to take the principled arguments to Government, and to the public, as to our essential role in the justice system, how competitive tendering based on price without regard to quality is inimical to, rather than promotes, the public interest; how, whilst regulation is of value to ensure the maintenance of our high standards, over-regulation is damaging to the efficient and cost-effective delivery of legal services.

The coming into force of LASPO in April 2013 heralds the advent of yet further challenges, not to the Bar, but to the public interest, as whole swathes of legal advice and representation are taken out of scope of legal aid. The Government believes that many disputes should be resolved through mediation rather than through the Courts. But mediation is not a panacea. As the Civil Justice Council reported in November 2011: “Every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception.”

I recently heard someone suggest that the Government should be left to “clear up its own mess. It is responsible for cutting legal aid, and the resources available to the Justice system.”

The point is well made. But that is not the way the Bar, or the rest of the legal profession, operates. We recognise the essential part we play in providing access to justice, and the essential part that access to justice plays in the promotion of the Rule of Law. Yet again we must assume the role of guardians of the public interest.

The Bar Council has established a working group charged with providing help and guidance, seeking to demystify the legal process, for the benefit of litigants who are have no option but to “represent themselves” in the courts.

Further responsibility for providing access to justice will fall yet again on the profession as a whole, but this time on a pro bono basis. I know that the Law Society and CILEx will play their part in this too.

There appears to be no problem with the profession’s willingness to perform the legal services pro bono. Last year, a further 600 barristers signed up with the Bar Pro Bono Unit; now, nearly one-third of all silks have registered their willingness to undertake pro bono work. But I fear that as the pressure on the provision of pro bono services becomes ever more acute, so too will the financial pressures on the Bar Pro Bono Unit become more acute, as they require more people and resources to administer those services.

I have asked those at the Bar Council who are responsible for levying and collecting the PCF to provide on the invoice an optional “contribution” of £30 per head, to cover the costs of the Bar Pro Bono Unit, for the ensuing year. I know that some practitioners may be unable or unwilling to make that donation. I ask, therefore, if those better able and willing to pay more will do so.

I know that now is not a good time to ask the Bar for more money. But I have asked myself, when will be a good time? And to that I have no answer. What I would say, however, is that there has never been a more propitious time for us to make that investment in our Pro Bono Unit.

This is my last Counsel Chairman’s Column. I return to practice on 1 January 2013. I have welcomed the opportunities I have had to engage with the profession. I know my successor, Maura McGowan QC, will do so as well. We shall be in good hands under Maura’s chairmanship. I wish her, and you all, well for the future.

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