“If we were starting from scratch, would we design a legal profession with two branches which have an ongoing feud?”
If you were creating a criminal justice system from scratch, would it look like the one we have in the UK?
In an adversarial system, one of the key elements has to be the provision of advocacy services. Most roads usually lead to court; the preparation that we do as litigators is about the journey.
So if we were starting again, would we still divide the legal profession into two branches, which have an ongoing feud about the provision of advocacy services? It is a strange phenomenon. On one side is an independent bar that looks like a guild from the 15th century, with dress and traditions to match; on the other, commercial entities that are accused of maximising profits at the risk of the service to clients.
My answer is unequivocally that we would have one profession, where members can choose to specialise in advocacy services. I think the current system is outdated, old-fashioned and inefficient. I simply don’t recognise the maintenance of the independent bar as the be all and end all of the system.
That is not to say that I don’t recognise the value of specialist advocacy services: in the current climate, I think they are more essential than ever. Whatever we say about judicial prejudice against solicitor advocates (and there still is some), it is not the full story. Concern about advocacy standards in the Crown Court of some solicitor advocates needs to be addressed. Solicitor advocates should, at the very least, have the same requirements of advocacy training and CPD.
Yet the divided profession has allowed the government to play off one side against the other. I am invariably told (and this is highlighted in the Jeffrey Review) that good advocacy depends on good preparation. Cutting rates for litigators will affect the quality of advocacy, but the government has been allowed to get away with it.
The Ministry of Justice consultation on advocacy services floats exactly the wrong debate: about banning in-house advocacy. That smacks of regulation of form over substance: it is about trade union interests triumphing (as is the current Solicitors Regulation Authority investigation). Yet we do require greater regulation of content. We should be held to account for the standards of our advocacy, irrespective of status. Some 86 per cent of criminal advocacy services are funded through the public purse. There is going to be some form of regulation; to say otherwise is to be living in the clouds.
The debate about banning in-house advocacy smacks of regulating form over substance: it is about trade union interests triumphing.
Specialism goes further than ‘advocacy’. The time has come for some sort of accreditation process in certain cases such as sex or youth cases, or where there are vulnerable witnesses. The Youth Proceedings Advocacy Review (set up by the Bar Standards Board and CILEx and conducted by the Institute of Criminal Policy Research) has also recommended this. The youth court is a specialist court due to the law and process involved and the client group that it serves. However, the current position is summed up by a respondent in the report: ‘It is a kindergarten for professionals to gain skills.’ One of the most difficult forums cannot be reduced to a ‘kindergarten’ because of how our professions are structured.
Personally, I enjoy being a solicitor advocate as I like the mix. I enjoy both preparing and being an advocate in my own cases; indeed, being an advocate has made me a better litigator. The enemies are time and funding; it is absolutely critical that we devote them to getting things right. ■