As he takes office, we speak to new Law Society president Robert Bourns about his thoughts on the state of advocacy in 2016, QASA, the long-term negative ‘campaign’ questioning the adequacy of solicitor advocates, and more ...
What do you think are the main challenges facing solicitor advocates at the moment?
My overarching concern is that solicitor advocates are not being given enough credit for the excellent work they do, and have been subject to a long-term negative ‘campaign’ that appears intended to raise questions over their ‘adequacy’ and competence. They have taken the brunt of public spending cuts and yet continue to do incredibly important work to a very high standard.’
Following comments made by the previous lord chancellor, Michael Gove, about the strength of the independent bar, I was concerned that the higher rights of audience of solicitor advocates could be affected.
Further, the Jeffrey Review on independent criminal advocacy, also endorsed by Michael Gove, to my mind, based on my own experience, unfairly dismissed the significance of the work undertaken by a solicitor in the progress of criminal defence cases from police investigation to trial.
In addition, he asserted solicitors were not good at recognising or dealing with conflicts of interest. Again, this is a serious criticism that I challenge and something that should be of concern to all solicitors. It also had potentially important implications for the ownership of publicly funded cases.
Having listened to Michael Gove, read the Jeffrey Review and spoken with the chief executive of the Law Society (TLS), we put together a working group to look at what TLS could do to promote the position of solicitor advocates. The group has advised the policy teams at TLS, and we will be unveiling significant initiatives later this year.
With cuts to legal aid and public funding, and a number of other initiatives centred on the vulnerable involved in court proceedings, it is understandable that there is part of the profession that feels strongly that questions are continually being raised over their competence, and that they are being required effectively to submit to a whole raft of additional qualifications in circumstances where they already do the work to a very high standard - for instance, in relation to elements of family and children work, and to higher rights themselves.
I want to make sure that TLS, with all the resources it has available to it, is on the front foot as far as this is concerned, and that the excellence of the advocacy undertaken by solicitor advocates is recognised and distinguished from other advocates. We must support and promote this good work, so that solicitors will still want to become advocates and those that are know without doubt that their work is seen and appreciated by the legal profession.
How can solicitor advocates be protected from the increased workload and costs due to the proliferation of litigants in person (LiP) in the courts system?
I think it’s a matter of continuous dialogue with elements of the judiciary. The rise in LiPs is a joint problem, and responsibility for solving it shouldn’t be placed solely on us. I have spoken to judges who have expressed concern that the represented party is always placed at a disadvantage because of the way in which some courts have been approaching LiPs, putting burdens on the representative of the represented party, which translates into additional costs.
More broadly, we must recognise that solicitor advocates and the advocacy of solicitors is different from the advocacy that is offered by some counsel. Solicitors are constantly described as trying to position themselves alongside barristers in an almost competitive environment. Clearly, there is an element of competition for work, but actually the advocacy that solicitors practise is very different. That isn’t the issue - we have to promote the value of the solicitor advocate.
The Law Society published very helpful guidance notes for lawyers on dealing with litigants in person, which can be found on our website.
Things have been somewhat quiet on the QASA front. Are you planning on reaching out to the SRA for an implementation timetable?
My understanding is that the SRA is continuing to develop a process with the Bar Standards Board (BSB) and other regulators, and we will reach out to the SRA when the situation becomes clearer, and make sure the burden placed upon practitioners is not unreasonable. The SRA uses the language of proportionality - we should encourage it to ensure that in this case, it is.
The Bar Council is leading on vulnerable witness training for advocates. How will you ensure that solicitor advocates have access to the training and that their interests are protected?
Ian Kelcey, Joy Merriam, June Venters QC and others have done a huge amount of work with the policy team at TLS and Lord Justice Rook on this project and have been involved in the roll-out of this training. It is disappointing, therefore, that a disproportionate amount of credit appears to have been given to the bar. There is a huge piece of work to be done in delivering this training within a tight timeframe, and the solicitors’ profession - and thereby TLS and its members are more than playing their part. We will deliver on that, but we need to make sure that people understand what we are doing - and what we have done so far.
Solicitors are conducting an increasing amount of complex advocacy in care proceedings in areas traditionally covered by the bar, eg fact finding hearings. How will the Law Society support them in this?
Solicitor advocates undertaking this work are extremely well qualified. Again, it points to a difference in style of advocacy, and the nature of the relationship between the advocate and, particularly, either the family or the young people involved. Again, we need to promote the work that we do. I understand there may be sensitivities around this, but I was struck by a piece of work that the BSB and CILEx did on the quality of advocacy in the Youth Court. The comments within that report came entirely from non-solicitors in an area where solicitors undertake the majority of the work. It’s a matter of recognising what we do.
What plans does the Law Society have to lobby for an increase in the fast track fixed advocacy fee?
We will reflect on this, and work with the MoJ and the Legal Aid Agency to investigate how those fees might be increased. The government has suggested on several occasions in the past that there is no more money, but there may be some capacity to reconsider how that money is allocated. While we would like to see these fees increased, if doing so entails robbing Peter to pay Paul then we need to understand what the implications of that are. The first principle is that the work should be properly funded. We are working to demonstrate the cost incurred (often by other agencies) from failing to fund meaningful representation.
Do you agree that McKenzie friends should never be allowed to be paid for civil advocacy?
I absolutely agree with this in principle. A McKenzie friend can be extremely useful in helping someone who is genuinely under pressure in court, but I recognise the concern that there are unregulated people without qualifications out there causing problems, especially if they are working to some kind of personal agenda. Clients of fee-paid McKenzie friends have no redress if things go wrong, and they are not necessarily cheaper than solicitors, who are highly regulated and deliver a high standard of quality service for all clients.
Could you tell me more about the Bell committee - what is it supposed to achieve, and how will it affect solicitor advocates?
Michael Gove had said that he wanted to set up a working group. He referred to it as a council, and then we understand that Gary Bell QC was appointed. We are not sure of the standing of the group now with the change in lord chancellor, and are awaiting clarification in this respect.
How can the Law Society support the career progression of solicitor advocates?
The Law Society runs a ‘mentoring for judicial appointment’ scheme for solicitors and will be doing more to promote judicial appointment as a potential career opportunity for solicitors.
We also have the Solicitor Judges Division. I have chaired a number of sessions and they are very well attended.
We have an opportunity to further develop the way we support individual solicitors to identify how they want their career to progress and providing targeted support throughout their career. We should certainly be raising the possibility as early as possible in a solicitor’s career that they could move into a judicial appointment. I think we lose sight of those solicitor advocates who go to the bar and are later appointed to the bench. They retain a deep-seated affection for the solicitors’ profession. We need to capitalise upon that and engage them as potential mentors. Looking more long-term, we need to be better at helping our members acquire judge-craft skills.