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SPEECH TO THE AUSTRALIAN BAR ASSOCIATION BOSTON, USA 9 JULY 2015 What we can do to assist the development of the Bar given the pressures on graduates and the Bench particularly as funding and other pressures
SPEECH TO THE AUSTRALIAN BAR ASSOCIATION BOSTON, USA 9 JULY 2015 What we can do to assist the development of the Bar given the pressures on graduates and the Bench particularly as funding and other pressures mount It seems to me that the first obligation we have in these difficult times is to those who seek to join our profession. There are a number of very important reasons for that. In the first place, it is a stain on the profession that so many people are trained every year but are unable to find pupillage. Many are called but very few are chosen. Second, it means that, for reasons I shall explain in a moment, there are many people entitled to call themselves barristers who are not really barristers at all. I think that devalues the brand. Finally, the fact that these people have spent a King s Ransom on their training without achieving their objective, means that there are large numbers of highly qualified people who bear the Bar ill will. There is nothing like, as they would see it, being a reject, to fuel resentment and recrimination against those who have been successful. The current system should be contrasted with that, which obtained when I began my career at the Bar. When I was a Bar student in the early 1980s, in England and Wales there was only one place that you could complete the training course for the Bar finals examination. That was the Inns of Court School of Law in London. There were about 1,000 people on the course every year. But that was it. When you think that there were a substantial number of people who were from outside the UK and whose intention was to return home to practise law there, and also factor in the number of people who never had any real intention to practise at the independent Bar, it meant that, although pupillage was never easy to find, it was, at least manageable. If you were persistent enough you would be able to find a start somewhere. The position today is very different. There are many institutions providing teaching for the Bar qualification and they are spread all over the country. In 2014, there were about 1,700 people who passed their Bar qualification. But in that year, there were a mere 425 pupillages on offer. But the problem is not merely about numbers. In 2014, the fee charged by a well- known provider of this course was 17,980 in London and 14,690 in Leeds. By my calculations, that is $A36,000 and $A30,000. When you add on subsistence costs and other expenses, the amount of money charged appears to me to be astronomical. Now, this might be acceptable if there were sufficient pupillages on offer but, as we have seen, that is far from the case. In addition, because our system permits people to be called to the Bar once they have passed the qualifying exams, we are year on year adding many hundreds of people to the Bar register who are not, in reality, barristers at all since they have not carried out a pupillage. So what can we do about this problem? Well, we have as Director of an organisation called COIC, the Council of the Inns of Court, a very able person, called James Wakefield. He is a highly experienced legal educator having run the Nottingham provider of the Bar Finals Course. He has come up with a suggestion about how to deal with this problem. In the first place, he considers it ridiculous that the knowledge stream of the course runs simultaneously with the practical side of it. So he suggests breaking the course into two parts. In the first knowledge- based part, the course material such as legal and civil procedure would be supplied to students on line. The students would then sit a part I exam, which would be quite tough. The effect of providing the materials on line is that it is much cheaper and much more flexible than the current system. Although there is a two-year part-time course offered by some institutions, it involves lectures in the week and at weekends. The new course knowledge material could be accessed whenever it suited the student. Because it is on line, there is no need to provide classroom space and the staffing costs would be pared down to a minimum. Because the exam will be a tough one, it ensures that those who pass it are more likely to have a chance of succeeding in obtaining a pupillage. It may, and I emphasise may, also have the effect of reducing the numbers of those seeking pupillage but that remains to be seen. So far as costs are concerned, whilst the part II exam would be intensely practical, it would be offered over a much shorter period than at present since the time would not be diluted by the requirements of knowledge acquisition. It also seems to be an entirely logical way to proceed. I have every reason to believe that this system will be accepted and will become available in the foreseeable future. It simply must be in the interest of the Bar to reduce the cost of training to a manageable sum. By taking this initiative, it is also my belief that we will encourage diversity in the profession, an issue of real, and increasing importance in the UK. I next want to move on to consider the position of those who succeed in obtaining a pupillage. Now, there is a very large differential indeed between those who are taken on as pupils in commercial sets of chambers and in sets devoted to publicly funded work. Pupillage awards of 60,000-67,500 per annum are not unheard of at the former whereas in a set of the latter type you are looking at 12,000. And those differentials do not cease at the point of transition between pupillage and tenancy. Those in many commercial sets fly off, at least when you look at their earnings. But, of course, money is not everything. My spies in commercial sets tell me, over a glass of Dom Perignon, at their expense, of course, that many juniors in those sets hardly ever get into court. The spend most of their time assisting senior barristers in the analytical work for their cases. To that extent, their job, however well paid, can be frustrating. In addition, the case preparation work may go on for a very long time without any result, as such, being achieved. That is in distinct contrast to the work of the publicly funded junior, which is often very court-based. It is also relatively satisfying in the sense that the cases are short and there is usually a result. It is also easier to measure one s progress because, at least in theory, the standard and complexity of cases you are asked to do will rise with the passage of time and the gaining of experience. It is very easy to argue that, in those circumstances, it is horses for courses. But, it is not as simple as that. There are many able people who start, in a somewhat starry-eyed way on a publicly funded career but realise, relatively quickly, that they simply cannot make ends meet. The result is that they leave the law altogether, go into some form of employment or move to practise in a privately funded field. What is happening in England and Wales is that the Criminal Bar is ageing rapidly. No amount of Botox will restore their position. What is needed is the full cost cosmetic operation. The Family Bar too is suffering badly and it will not be long before it starts to go the same way as the Criminal Bar. Now, I think we have to ask ourselves whether this is something up with which we should put. I suggest that it is simply vital to the wellbeing of our society that there should be highly qualified lawyers who accept that they will never earn fortunes, but who take the not unreasonable view that publicly funded law is of enormous social value. The UK Government adores the privately funded sector of the profession but, in truth, they have, over the years, disempowered and demoralised those who work in the public sphere. They have successively cut the fees of those practising in these areas to the point at which, as I say, there are those who, however busy they are, are simply giving up because they do not feel able to earn a living commensurate with the hours they put in and the responsibilities they carry. So what is the answer? Well, I think it is two-fold and I regret to say that the solutions are not entirely in our hands. In the first place, I think it is absolutely vital that our Government is made to appreciate the value of the independent and publicly funded Bar. In a report commissioned by the Government itself, there was a frank recognition that the Criminal Bar was, and is, a national asset. The Government should stop denigrating its work whenever it suits its position in order to make a cheap political point. It should recognise that a fully functioning system of justice is as important as the National Health Service, a publicly- funded organisation whose funds are ring-fenced, of which the Government appears to be very proud and which absorbs a greater and greater share of GDP as the population ages. Second, it simply has to stop reducing the funding available to the system. I calculated that the annual costs of the whole of our legal aid system are equivalent to the spending on one District General Hospital and that was before swingeing cuts were made to the legal aid budget. One gets to a point at which, in order to save that which we have, there must be investment. In an interesting parallel, the Palace of Westminster is crumbling around the ears of those who use it. It is, as a building, I freely accept, a national asset. The latest estimates for its restoration are 3 billion. The only controversy among peers and MPs appears to be whether they will have to move out or not whilst the repairs are being conducted. There is no debate about whether the building should be saved. Now, I am not going to take up a lot of time in asking what that tells us about the planning abilities of those charged with husbanding the nation s finances. I had thought it sensible not to let the house fall down before seeking to repair it. But somehow there always seems to be a discontinuity between what happens in ordinary private life and that at the level of the national finances. But it is interesting, to say the least, that no political party in the UK appears to see that you can have an intangible national asset. The judicial system of England and Wales is crumbling just like the Palace of Westminster. If you walked under the notional Criminal Justice System arch, no hard hat would save you from having your brains dashed out by tons of falling masonry. And, as the song so eloquently puts it, you only know what you ve got when it s gone. And so it is essential to continue to argue the case for investment in law. In this year of Magna Carta, in which I have heard many Government Ministers preening themselves about the legacy of Magna Carta, whilst, at the same time, stripping away access to justice and making other changes inimical to the rule of law, we make them recognise the value of what you have in all the hard-working people in the system. Not just the lawyers and the judges, but the ushers and court staff. And, having recognised what you have, pay for it properly. Restore it to the pride of place it used to have. When you speak of how much the legal aid system costs, do it with pride in your voice rather than with a sheepish and regretful tone. The next area I want to cover is the use of technology in criminal courts. A report was published in January of this year by Sir Brian Leveson, the President of the Queen s Bench Division of the High Court. In it, he argued that many hearings could be conducted by using telephone conferencing and that many of the preliminary decisions in the case could be taken by the use of streams and video conferencing facilities. This is all music to the ears of barristers who are at the mercy of judges micromanaging cases and ordering all sorts of pointless interlocutory hearings for which, when the barrister attends, he or she is paid nothing. Similarly with seeing defendants in prison: no-one wants to travel considerable distances at their own expense to see the lay client when they can do if from their own home or chambers. All these initiatives would help to lessen the burden of expense on the individual practitioner and thus, improve, in real terms, the quality of their lives and, for that matter, reduce expenses. There are a number of hurdles, however, to overcome before this dream becomes a reality. There are at least six constituencies whose systems simply have to be seamlessly integrated with each other. Those are, the police. Then there is the National Offender Management Service, known as NOMS, who administer the prison system. They are important because they control access to prisoners and their co-operation is vital if there are to be video conferences with barristers and solicitors and also conference calls for preliminary hearings at court. Next there is the Crown Prosecution Service, that is to say the solicitor for the prosecution. They are currently woefully underfunded and are simply falling apart at the seams. Many of their most experienced people are leaving and the ones left behind are incapable of doing a lot of the work because of their lack of experience. But, be that as it may, their systems have to talk to everyone else s. Next comes the Court Service, HMCTS. Then there is the judiciary, who are nearly the same as HMCTS but not quite. Finally, but by no means least, is the defence community of solicitors and barristers. What Sir Brian Leveson envisages is that there will be a piece of software called the common platform. It will cater for the need for only some constituents being required for certain aspects of the case, such as public interest immunity hearings and it will provide a complete audit trail of transactions. But there is an elephant in the room. The Government in the UK has an appalling record when it comes to the implementation of high volume, high value IT systems. In 2014 alone, the NHS patient booking system was scrapped after 350m had been spent on it. In 2011, an electronic patient records system was also discontinued having cost the taxpayer at least 10 billion. So what guarantees are there that the new system will pass muster? Well, in fact, none. Except to say that the Bar has been promised that it will be widely consulted as to how the system is going to be implemented and designed. Part of the problem in the past has been that those who use these systems are the last to be consulted about them. It is, perhaps, churlish when the Government is to spend over 700m on this scheme, to cavil. The benefits to the Bar and Bench, together with the system as a whole may be very great. One thing is sure: the Treasury has not authorised this expenditure for charitable purposes. They have done so because they believe that it will save 100m per annum once it is fully up and running. I am extremely dubious about the extent of the savings but the introduction of high quality IT systems is something in which we can co-operate with Government as a means of trying to improve efficiency in the justice system, a goal to which we are all committed and which is essential in times of financial stringency. There are many other areas upon which I could have spoken. There are unanswered questions about whether ABS entities with controlling interests from outside the law should be permitted. It seems to me that it is all very well talking about the professional obligations of those who actually carry out the legal services but there are a whole raft of concerns and questions about the independence of those lawyers, and about conflicts of interest. I also question whether, in a sector such as criminal legal aid, it is even appropriate to have entities in the market who are there with the primary purpose of simply maximising profit. Governments have an apparently insatiable appetite to tinker with institutions without fully appreciating the effects of their actions. This alleged innovation may be another example of that tendency. What I am clear about is the importance of organisations like the Bar Council, which I chair, and the similar organisations round the globe. We have a vital duty to hold Government to account when they seek to make changes to institutions, which interlock in a way politicians and civil servants often fail to understand. We must, at every stage, examine our consciences and ask whether the steps proposed, whilst causing us pain within our professions, are really in the public interest. We should be careful to avoid objection to change for its own sake or because it does away with a process from which the Bar has, in the past, made money, but is no longer justified. But if our conclusion is that the measure proposed is inimical to access to justice or the rule of law considered more widely, we owe it not least to Government as to the elected representatives of the people, to mount and maintain a vociferous and persistent campaign against it so that we play our part in ensuring that Government adheres to the rule of law, however inconvenient it may be for them to do so. Ends
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