The Time for Change?

Desmond Browne QC reports on events affecting the Bar and notes the passing of the House of Lords’ Judicial Committee


 

My August Column went to the publishers on 14 July, at which stage I assumed that by the time it was in readers’ hands the Ministry of Justice would have announced its decision on fees for family legal aid. Indeed the Ministry’s target was to announce the decision before the Parliamentary recess began on 21 July, lest there be criticism if it was done when Parliament was not sitting.


Family legal aid

At midnight on 15 July the Commons Justice Select Committee released its report on Family Legal Aid Reform. It proved to be a devastating indictment of the LSC’s hapless efforts at reform, vindicating everything which the FLBA and the Bar Council had been saying for months about the quite unacceptable fashion in which the consultation launched in December 2008 had been conducted. It confirmed that if the scheme was implemented as proposed, there was “a serious risk of an exodus of experienced practitioners from publicly funded family law”. It pulled no punches about the discriminatory nature of the fee reductions falling disproportionately on women and BME practitioners, pointing out the “serious implications for the development of a more diverse pool of experienced courtroom lawyers from which candidates for a more diverse judiciary can emerge.”

On 31 July the timetable was thrown into further confusion when the LSC announced a six-month extension of the contracts due to end in April 2010. Hopefully this will provide an interlude for the LSC to remedy their failure to take what the Select Committee called “an objective evidence-based approach to delivering the outcomes identified for it by the Government”. No one can doubt that the issues ought to be capable of resolution on the basis of constructive engagement between the parties, but (as the Committee says) there will need to be “a fundamental change of attitude on the part of the Commission”. Hopefully we now have the time to achieve that change.


CPS Inspectors’ Report

Amidst a rush of events affecting the Bar in mid-July, there also appeared the report by the CPS Inspectorate of its review of the quality of prosecution advocacy and case presentation. For those who have advocated the cause of “one Bar”, it was encouraging to learn of the Inspectors’ assessment that tensions between the CPS and the Bar were lessening and that “a more collaborative and less combative approach is beginning to emerge”. In a discussion with the DPP on Radio 4’s Today programme I pointed out that the Inspectorate had commented that as regards value for money, it was a mistake to confine the consideration of value to counsel’s fees saved and that a broader assessment of value would be more helpful. I said that it would be in the interests of all barristers, employed and self-employed, victims of crime and the taxpayer for the Justice Select Committee to undertake such an assessment. It was heartening that Keir Starmer agreed. It is common ground that “we need a constructive dialogue about the future of advocacy and about quality”.


The end of the House of Lords

On 30 July the House of Lords’ Judicial Committee came to the end of its existence, handing down their Lordships’ judgments (or, as we used to call them, “speeches”) in seven final cases, including that brought by Debbie Purdy over the so-called right to die. Those who read law at university will inevitably have written essays about the anomalous position of the Lord Chancellor and the Law Lords in a system which otherwise subscribed to Montesquieu’s doctrine of the separation of powers. Back in the 1860s Bagehot deplored the fact that our “supreme court” should be “hidden beneath the robes of a legislative assembly”, and in 1869 the Royal Commission on the Judicature proposed the establishment of a Supreme Court separate from the House of Lords. If Gladstone’s government had not fallen in 1874, that is what we would have had. Instead Disraeli created the Law Lords in the 1876 Act, and they were to survive for 133 years, often contributing to the debates in the House. In his farewell tribute in the House, Lord Strathclyde said that as a young minister, he soon learnt to fear “the incisive rumblings from behind his eye patch of Lord Simon of Glaisdale”. The reform has not been without its opponents – Lord Strathclyde for one suspected that it was a day we will come to regret. He would not have subscribed to the second part of Lord Wallace’s goodbye: “We don’t want to lose you, but we think you ought to go.”


The American view

At the American Bar Association conference in Chicago, the keynote address was given by the recently retired Supreme Court Justice, David Souter (wearing, incidentally, a Gray’s Inn tie). Why he asked, did we need judicial independence? It was because we all need a safe place.

Desmond Browne QC is Bar Chairman


 

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