|Sir Terence Etherton, Master of the Rolls|
If you don’t know, the Master of the Rolls is a senior judge, in fact it is the second most senior judge in England and Wales. Before becoming Master of the Rolls any office holder will have had a career as either a barrister or solicitor (though let’s be honest there’s not been a solicitor appointed to the role so far but the office has only existed since the 2nd September 1286 so there’s not been much time to appoint a non-barrister I suppose).
The current incumbent is Sir Terence Etherton who has completed almost two months in post and is already proposing the sort of dotty ideas that are best left to politicians.
There seems little doubt that the British justice system is, to use a technical legal term that you may not all understand, fucked. There has been years of under investment by successive governments in every possible area from the buildings through the judges and down to the lawyers that appear before them. The buildings are collapsing, the judges are suing the government over cuts to their pensions, which makes it harder to recruit new judges leaving posts unfilled and cuts to legal aid has left legal advice desserts across the country where poor people simply cannot get legal help. The article highlights housing law problems but the same problems exist in other areas of law including my own area, motoring law, where legal aid is usually not available even though for many people losing their driving licence will mean losing their job and their home.
To resolve the last of those problems (or at least pop a sticking plaster over the problem), the Master of the Rolls has suggested that the unrepresented – by which he really means “the poor” because usually the well-off will pay somebody like me to represent them privately where legal aid is unavailable – should be represented in court by law graduates who have not completed their training to entitle them to practice as solicitors, barristers or legal executives.
He is very clear that this assistance would not be merely in the form of giving advice and helping litigants in person to prepare documents but would include conducting advocacy before the courts. That is something McKenzie Friends can already do despite MF’s often having no legal training or experience.
On a side note, it’s worth saying that given the constant criticism of solicitor advocates by the Bar, claiming solicitors provide unacceptably poor advocacy, it is surprising, to say the least, to find a senior barrister turned judge calling for wholly unqualified people to be allowed to represent people in courts.
Leaving that point aside for a moment, let us ask ourselves what are the consequences of this going ahead?
First, if the courts and Parliament accept that it is appropriate to have people who have not undertaken any professional training conducting advocacy and litigating then we must question what is the necessity of solicitors undertaking the Legal Practice Course followed by two-years on the job training and barristers completing the Bar Professional Training Course following by 12 months of pupillage? Of course, the answer is that it is only following training that prospective lawyers are able to apply for and obtain practising certificates to practice the law because it is only at that stage that a person has been tested and found competent to do so. But, if that level of competence is now to be deemed irrelevant then why should fresh young law graduates spent up to £20,000 completing the professional stage of training?
Holding a practicing certificate is a very important requirement that enables a lawyer to obtain insurance indemnifying them against their own negligence. While insurance sounds frightfully boring, it is very important because if you want to make a claim against your solicitor or barrister you’ll find it is futile if he has insufficient funds with which to pay you, which is where insurance comes in – it’s there to protect you, the consumer not the lawyer!
Upon qualification as a solicitor, one cannot simply set up a firm and start recruiting clients. Before a solicitor can practice on his own account he or she must have three years’ post qualification experience. That means that for the first three years of practice a solicitor must be supervised by a more senior lawyer – that is on top of the two-year training contract, which means that solicitors will have five years of close supervision before being allowed to take cases without the safety net of a supervisor looking over their shoulder. The requirements for barristers are slightly laxer but nonetheless they must be supervised for a period and both branches of the profession are required to undertake new practitioner training after they qualify.
Compare this with a law graduate who has spent three or four years studying the law and absolutely no time studying legal practice or how the law is applied by the courts on a daily basis. Experience has taught me that the academic study of the law breaks down very quickly when faced with a short-tempered judge stuck in a busy Monday morning list.
Sir Terrance suggest that these problems can be overcome by the graduates offering their services through law centres or university advice centres where they can be supervised by staff or pro bono lawyers and covered by the centres insurance policy. I write this with all the respect I can muster, but that is clearly insufficient. The Solicitors Regulation Authority requires offices to be properly supervised on a full-time basis by a solicitor qualified to supervise staff. A member of university staff or a part time volunteer is unlikely to be able to offer the level of supervision necessary to be a proper supervisor.
Did you know that a learner motorcyclist accused of careless driving would not be judged by a lower standard of driving than a fully qualified driver with 50 years’ experience? You can be confident than an unqualified advocate could not successfully argue that as they are unqualified they should not be held to the same standards as a qualified advocate if they were to be sued. Now put yourself in the position of an insurer asked to accept the risk of an unqualified advocate who is only going to be supervised when the pro bono supervisor is free to pop in and see what’s happening. How quickly would you turn down that application if it were your money on the line?
The Master of the Rolls said that these unqualified advocates would “… be subject to professional regulation…”. That’s an interesting point, but how would it work in practice? Sir Terrance may wish to consult s.12 of the Legal Services Act 2007, which tells us that exercising a right of audience (representing somebody in court) and conducting litigation are reserved activities. Section 14 of that Act makes it an offence to carry out a reserved activity when not entitled to do so. Entitlement comes from holding a practicing certificate as either a solicitor or barrister. The Bar Standards Board goes to great lengths to spell out that unregistered barristers must not carry out reserved activities and it’s worth saying that an unregistered barrister is anybody who has been Called to the Bar but who does not hold a current practicing certificate, which still puts them a step above law graduates who have not even been Called to the Bar!
So, the Master of the Roll’s plan would require legislation to prevent these unqualified graduates from committing a criminal offence when they undertake these cases. Is an Act of Parliament designed to water down the strict rules on who can appear in court really in the public’s interest? I’ll let you decide that question for yourself.
Recently, and for the first time in my career, I withdrew from representing a client at his trial because the Crown served almost their entire case just 20 minutes before the start of the trial and the magistrates refused to allow me any time at all to read the papers and take instructions. I could not properly represent my client; I could not meet my professional obligations so I withdrew altogether. A barrister criticised me saying, “you could have done a better job than him so why withdraw?” But that misses an important point. The test is not “can an advocate do a better job than the litigant in person” the test is “if I do this, can I do it to the very high level expected of me by myself and my professional regulator”. Where I haven’t read the evidence or taken instructions the answer to that question can only be, “no”. Equally, is somebody who has no professional qualifications, training or experience likely to meet the very high standards expected of them by the public and regulators? I would suggest that most people are not going to be able to do it. That’s not me having a dig at law graduates but it’s a fact that it’s only after a lot of intense training and practical experience that junior lawyers are let loose in court and for very good reason.
Before I move on, I want to put this point into context. Imagine you need a heart bypass. There are no heart surgeons or anaesthetists available but you can get the surgery done on the cheap by a couple of lads who just finished medical school but have no experience of surgery, although they do have a good general idea of how the body works. Are you going to get that surgery? Now imagine you are a father being denied access to your children. You cannot afford a lawyer but you can have a law graduate who will represent you. The consequences of a mistake in the first situation may be death, in the second it may mean you never see your children again. Is that really the way you’d like to be operated on or represented in court? Mistakes by surgeons or lawyers have the potential to change your life forever.
Let’s ask ourselves another question at this point: what is the problem that this idea is combating? The problem, I suggest, is a lack of legal aid for the poor and a lack of affordable legal advice for those in the middle-income bracket. Busing in a bunch of unqualified law graduates does not solve either of these problems, at best it is a sticking plaster applied to an amputated arm that undermines the training given to qualified lawyers and will ultimately drive down the quality of advocacy and litigation in the lower courts – because let’s not pretend for a moment that Sir Terrance is suggesting his own court be flooded with unqualified advocates.
It's also bad news if you happen to be a law student because I guarantee that a few years after this scheme comes in you’ll see the top tier law firms expecting students to undertake a year of free advocacy before beginning their training contracts, which means another year before you qualify. How do I know this? Because we already see firms expecting candidates to have completed an internship prior to applying for a training contract. https://www.lawgazette.co.uk/features/how-to-get-a-training-contract/5042860.article
There is a trend showing itself at the moment and that is that it is okay for poor people to have substandard representation. Funnily enough, nobody expects the likes of Tesco to begin employing unqualified advocate to represent them in the High Court. Lord Westminster is not about to start hiring fresh from uni graduates to tend to his huge property empire and the Government is not going to summon a recent law graduate to argue the big cases of the day. This is a proposal that creates a two-tier justice system where wealthy individuals, corporations and government are represented by properly qualified lawyers and the poor are represented by whoever can be found to stand in front of a judge for them.
What else could be done to address this problem? My first suggestion is that judges tackle the government about their wholly inadequate legal aid provision. For years, governments have slowly stripped away ordinary people’s ability to go to law and defend their rights. Only lawyers have spoken up and overwhelmingly we have not been listened to by the public or government. Before you cry “fat cat” at me and imagine I’m just looking to line my own pockets, please stop and remember that I do not do legal aid work and probably could not make a living from what I do now if legal aid provision was what it was when I qualified.
But, if you accept the (probably correct) position that government simply doesn’t care whether ordinary people can access justice then you must look to other solutions. I would suggest the foundation of a network of charitable advice centres staffed by lawyers with support from non-qualified staff. These could charge on a sliding scale according to ability to pay with those in most need receiving free assistance. Clearly this reflects the existing law centres but I note that these seem more geared towards welfare, housing and debt and not many are able to assist with family law, for example. There are also huge gaps in the Law Centres Network with none west of Bristol in either England or Wales and none east of London all the way up to Newcastle!
In conclusion, the Master of the Roll’s suggestion is flawed legally, practically and ethically. It simultaneously undermines high quality representation, places litigants at a disadvantage when facing wealthier opposition and will create a two-tier justice system with those at the bottom at real risk of losing out.
Successive governments have undermined our once world-class justice system and have brought it to its knees. It is not the place of courts, judges or lawyers to help the government continue to do this. The scheme proposed by the Master of the Rolls plays into the hands of government by giving them yet another excuse to reduce funding for legal aid because there is a scheme that gives the appearance of access to justice for those who cannot afford a lawyer even though the scheme itself risks causing as much injustice as it seeks to prevent.