BIG BANG AT THE BAR

Press, 18 February 1989, Page 25

BIG BANG AT THE BAR

MANY YEARS AGO, a witness at London’s Old Bailey was asked by a lawyer why he insisted on wearing a woollen hat. "Is it not rather a strange article of clothing to wear in a courtroom?” the advocate inquired loftily. "No stranger than what you’ve got on your head,” replied the witness, gesturing towards the lawyer’s tattered horsehair wig. He had a point. Lawyers who appear in an English court still do so clad in wigs, gowns and starched collars which would be more fitting in an eighteenth century costume drama. Under new proposls for a radical reform of the legal system, however, such archaic customs could, at last, be on their way out.

There is nothing, in fact, in the British Government’s proposals which specifically refer to what lawyers should, or should not, wear in court. But the clear thrust of the measures is to get rid of the bizarre system under which only certain lawyers, known as barristers, have the right to act in most of the country’s courts. Other lawyers, solicitors, have to hire barristers to act on their, and their clients’ behalf.

Critics have argued for years that this is a wasteful, inefficient system which does nothing to enhance the reputation of the legal profession. Defenders say it is an invaluable way of ensuring that people whose cases come to court are represented by skilled, experienced advocates who are able to bring a "fresh eye” to their case. “Two heads are better than one,” is their slogan. Britain’s legal set-up is devilishly complex. For a start, England and Wales have a different system from the one in Scotland, where a separate legal system is one of the few remaining hangovers from the days when Scotland was an independent nation. The Government’s proposals, although introduced by a Scot — Lord Mackay, who as Lord Chancellor is the country’s senior law officer — apply only to England and Wales.

His suggestions have set off a furore in the legal profession. He proposes that solicitors should be allowed to practise in all courts, not just the lower ones as at present. He also proposes that solicitors should be eligible to be appointed judges, which they aren’t at present. Solicitors, inevitably, think this is an excel-

lent idea. Barristers, equally inevitably, think the opposite. Revolutionary also is Lord Mackay’s proposal that lawyers should be able to take on cases on a “no win, no fee” basis, as they already do in the United States and elsewhere.

On that issue, the lawyers are split — some welcome it as a

way of enabling more people to take their grievances to court, especially in compensation cases. Others fear it will lead to vast and unjustifiable claims being made by lawyers who hope to win a share of the spoils.

It is also argued that, in certain circumstances, it may actually be more difficult for

plaintiffs to get their cases heard in court as lawyers may be reluctant to represent them unless they are certain of a win. The Government’s proposals were published in the form of three discussion documents, known as Green Papers, which are to provide the basis for debate and argument over the

next three months. After comments have been received from all the interested parties, the Government will publish a firm plan to turn the reforms into law. There is no guarantee that the proposals in their present form will remain unaltered, although it is widely expected that they will survive largely intact. Prime Minister Margaret Thatcher was herself trained as a barrister. She can be said,

therefore, to know at first hand whether or not her former colleagues’ protests are justified. But although there is certainly an element of special pleading — no profession, after all, likes to see its privileges removed after centuries — there are other, more serious questions which need to be considered.

Under the present system, a citizen who wishes to go to law — or one who finds himself prosecuted for a criminal of-

fence — first retains the services of a solicitor. He either pays for the services himself, or, if his means are inadequate, he can apply for Legal Aid from Government funds. Many solicitors operate from small, local offices, and in many cases represent a client throughout his life. When a case is ready to come to court, the solicitor hires a barrister, who is a sort of freelance sub-contractor, employed simply for his skills and experience as an advocate. It is the barrister who appears in court, usually with the solicitor sitting behind him to assist as the case progresses. The client, of course, pays for the barrister, too, on a day-rate system which can rise to astronomical levels if the case goes on for several weeks.

Under the Government’s proposals, this would all change. The solicitor could either appear in court himself, or ask a partner in his firm — either a barrister or another solicitor more experienced in advocacy — to do so instead. The idea is to lower the cost to the client and give him a greater choice of advocate. Critics, however, argue that legal costs may well rise under this new system. It will, they say, encourage lawyers to group themselves into fewer, larger firms, so as to have experts available in as many different fields of the law as possible.

Bigger firms mean bigger overheads — secretaries, receptionists, photocopiers, etc., — so their fees will be higher. If barrister John Smith is employed by Jones and Brown (lawyers), his services will no longer be available to clients of Grey and Green (solicitors) as they are at present. As for the wigs and gowns, for the moment the Government has no suggestions to offer. Solicitors are unlikely to be prepared to appear in court wearing fancy dress, but nor will the courts want juries to be faced with two different categories of lawyers standing side by side — one lot in ordinary, boring suits, the others in full costume.