Taking Control

Lawyers worldwide look to the UK as leading the common law world in terms of its jurisprudence; the challenges to this position; the Bar must fend off consultation fatigue and become part of the debate; education, training and the quality assurance scheme for advocates

Contributor
Michael Todd QC, Chairman of the Bar

Of all the major dispute resolution centres, including New York, London, Hong Kong and Singapore, US corporate clients prefer to have their disputes litigated in London; the reason given is the quality of the judiciary. New York’s elected judges, without the commercial experience derived from years in practice at the Bar, come second to English judges. Or so I was told on my recent trip to the American Bar Association, Section of International Law Conference in New York, at a roundtable discussion we had with the New York State Bar Association.

It is this kind of sentiment which permeated the Unlocking Disputes campaign, centred on the opening of the Rolls Building last year, which aimed to promote London as the global dispute resolution centre of choice. That sentiment, together with the fact that, in whichever jurisdiction we visit, we are told that all lawyers look to the UK as leading the common law world in terms of its jurisprudence, the integrity of its legal system and in the delivery of its legal services, emphasises the important position that we hold in the common law world. It is a position to which many would aspire; it is a position which we must jealously safeguard. But as with all privileges, inevitably that privileged position carries with it responsibility.


Undermining forces

Many believe that external forces conspire to undermine our position.

  • Fee cuts in publicly-funded work, their effect on access to justice and on the recruitment and retention of those willing to perform this public service;
  • The proposed introduction of a quality assurance scheme for advocates (QASA) in the delivery of legal services in crime, in which the participation of non-trial lawyers is contemplated and where the bright line of quality appears to approximate more to minimum levels of competence than to that of the excellence, which our justice system requires;
  • The challenge to the breadth and depth of our expertise by the mooted proposal for “activity regulation” rather than personal regulation, as moves are made towards increasing commoditisation of our legal services;
  • The ill-informed views expressed by the Legal Services Board as to the status of our legal qualifications, in the context of its education and training review.

Of course, if there is a problem, and there may be, in these or in any other areas, then they must be rectified and remedied, and swiftly. But the evidential basis for the necessity of any such action must be clear. As the saying goes, “if it ain’t broke, don’t fix it”. But just as the clarity of the diagnosis is vital, so too must be the appropriateness of the proposed remedy.

That can only be determined by fully informed debate, and, if we have the opportunity to do so, we must ensure that we engage in that debate. I can think of many occasions when I have failed personally to respond adequately, or at all, to a consultation, or to a survey, only later to be dissatisfied by the result. Of course, consultation fatigue is a familiar condition from which many may now be suffering. But when these consultations concern our practices, the way we practise and indeed even our ability to continue to practise, we must engage. Ultimately we may not like the outcome of a particular debate, but what is certain is that if we fail to engage in it, we have no prospect of influencing that outcome.

But rather than simply reacting to consultations promulgating sometimes ill considered proposals of others, has the time come for the Bar to be more proactive and to take a more strategic look at the ways in which it will maintain the excellent standards according to which it delivers its legal services? The Bar must be, and must be seen to be, in however it is organised and in whatever it does, second to none.


QASA

I have mentioned QASA and education and training. Perhaps if we had embraced QASA more readily when it was first mooted we might have a more rigorous and different scheme from that presently proposed, reflecting the justice system’s demand for real, and indeed exceptional, quality. Why have we left it to the Bar Standards Board (BSB), and latterly the Legal Services Board (LSB) to tell us what the educational requirements are, or should be? With ever increasing numbers of people qualifying to come into our profession than we can presently absorb, is there scope for a more rigorous Bar course, and post qualification training? Is there scope, or even appetite, for extending the excellent educational activities undertaken by, and facilities of, the Inns, the Advocacy Training Council (ATC), and the Specialist Bar Associations, so as to ensure that those who are qualified to be, and are practising, members of the Bar of England and Wales manifestly have met, and continue to meet, the highest and most rigorous educational and training standards?

How should the Bar be organised for the 21st century? What future do government, the Legal Services Board, the Bar Standards Board, the judiciary, the Inns of Court, the ATC, the public, and, indeed, the practising Bar itself, see for the Bar? How do they, and we, see it organised, regulated, “managed”?

Where there is scope for improvement in the provision of our legal services, we must seize the initiative and make those improvements, embrace the changes that need to be made and, where necessary or appropriate, adapt to meet the new challenges in the ever-increasingly changing legal landscape. We can see the changes which are fast approaching. We must ensure we are in the driving seat to be able to influence the direction of our future.

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