Leading article

Why lawyers deserve Michael Gove

The legal profession has gone unreformed for far too long

27 June 2015

9:00 AM

27 June 2015

9:00 AM

A great test of political leadership is how well you deal with vested interests on your own side. In his first speech as Lord Chancellor this week, Michael Gove has shown himself willing to tackle a profession which has long been comfortable with Conservative governments and whose reform, as a consequence, is long overdue.

A legal system designed from scratch would not resemble what we have now. The only thing wrong with Michael Gove’s observation that Britain has a ‘two-nation’ justice system is that he should really have said three nations. Like the central London property market, the courts have become the preserve of the very rich and the very poor. The middle is excluded. The rich can afford to revel in the pantomime. So can the poor, thanks to the state’s largesse — albeit to a lesser extent following the coalition’s legal-aid reforms. But those who must cover their own bills, and whose pockets are not bottomless, are being edged out.

It is an irony that a legal system so apparently committed to human rights should create the unjust situation where wealthy individuals and organisations can crush their opponents not through the merits of their case but through fear of landing them with ruinous costs. Michael Gove wants wealthy legal firms to conduct, or to contribute to, more pro bono work. He also wants ponderous procedures to be improved, with greater use of technology to eliminate expensive hearings. But there is an argument for going much further and radically rethinking legal procedures.


The former Chief Justice Tom Bingham argued in his excellent book The Rule of Law that the legal system must be accessible, clear, and able to settle civil disputes affordably. And it should also apply equally to all, regardless of wealth. Such principles as these have meant that English justice is revered the world over. This, strangely, is part of the problem. The world’s super-rich resolve their disputes in English courts, and lawyers’ fees have duly soared.

As Harry Mount argued in this magazine two years ago (and as Gove argued this week), the sheer weight of this new money is corrupting. There is nothing wrong with a market in legal advice and representation, but it should not be possible to employ the most expensive legal team available and then pass on the cost to the other side. A more equitable legal system would be one in which opponents in legal cases could set a cap on the costs they can claim on the other side — and vice versa.

Michael Gove’s other great reforming battle is over the replacement of the Human Rights Act with a British Bill of Rights. The argument against this is now familiar: how will Britain in future lecture the likes of Vladimir Putin on human rights when we have opted out of the European Court of Human Rights (ECHR) and he has not? But Russia’s slide back towards dictatorship since the country ratified the European Convention on Human Rights in 1998 demonstrates the problem: the court has become bogged down with trivial cases brought by people simply using it as yet another appeal procedure when they have failed in their domestic ‘supreme’ courts. Ultimately, the ECHR has no powers to stop autocratic regimes doing what they want. Genuine human rights abuses are better dealt with through protests from powerful democracies.

What the Human Rights Act has done, however, is transfer legislative power from elected representatives to unelected judges who, using the vague principles of the Human Rights Convention, have effectively been able to rewrite laws. In a properly functioning democracy, it is Parliament which makes the laws and the courts that enforce them. That distinction has become blurred, with Parliament now ultimately subservient to activist judges in Strasbourg — many of whom come from countries whose own human rights record is poor.

Michael Gove’s appointment as Lord Chancellor has been attacked on the grounds that he has never been a practising lawyer. But that should be seen as one of his chief qualifications for the job. It is vital for the health of democracy that ministers are — and are seen to be — independent of the professions whose activities they must oversee. That is not how it has tended to be with the law. Not only has the job of Lord Chancellor always been held by a lawyer until very recently (Gove’s predecessor, Chris Grayling, was the first in 400 years not to have a legal background) but the legal profession as a whole has been over-represented in Parliament. One in every ten MPs elected since 1979 has been a barrister or solicitor, while the House of Lords is even more dominated in this way. For this reason, the law has been given preferential treatment for too long. It’s time for that to change.

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Show comments
  • misomiso

    +1

    • Sue Smith

      The specialist medical profession does the same in Australia. GPs do a rigorous test to gain entry into specialisations only to keep failing until, miraculously, one in the profession dies. This is a Trade Practices issue in Australia and I wonder if you have this in the UK – the profession keeping prices high through a cartel and consumers having no other competition available.

      • eldl1989

        Things are changing a lot with ABSs – look into them: https://www.google.co.uk/search?q=asbs&oq=asbs&aqs=chrome..69i57j0l5.431j0j7&sourceid=chrome&es_sm=93&ie=UTF-8#q=alternative+business+structures

        Given that the general consensus here is that in law and construction Oz is about two decades behind (meaning they’re experiencing a boom in the latter and a litigation rush in the former), I’m sure these will hit your shores by in the next decade or so, right about the time robots start filling in for legal assistants and paralegals.

      • HJ777

        That is very much the case with the BMA and the NHS in the UK. We have never trained nearly enough medics (and so have substantially fewer per head of population than most similar countries) despite well-qualified people queuing up to study medicine.

        The British Dental Association has been similarly successful restricting numbers, hence very expensive dentistry.

  • wildcolonialboy

    “Michael Gove wants wealthy legal firms to conduct, or to contribute to, more pro bono work”

    Which is, of course, moronic in the extreme; wealthy firms contribute massively to payroll tax, corporate tax, income tax, etc. The madness of Gove’s position is that his party has largely dismantled the legal aid system, but is now complaining we have a two-tier justice system? This is utterly incoherent.

    It makes far more sense for the state to provide a legal aid system paid for through tax revenues, rather than forcing Hugo from Mergers and Acquisitions to be forced to spend time at a police station doing pro bono work for which he is not equipped, rather than taxing his fees at 40% and using the £100 revenue raised from his £250 / hour fee to pay for a legal aid lawyer who *is* expert in criminal cases to assist a defendant.

    Frankly, this proposal is the worst kind of populist nonsense; it’s constructing a socialist system to punish successful law firms that doesn’t work and will not provide adequate coverage for those facing criminal charges, while dismantling a socialist system for legal aid that *did* work. Utterly incoherent, the whole thing.

    • AQ42

      It also smacks of enforced servitude. Pro bono work is fine if truly voluntary, but then so is giving up spare time to coach the local under 11s football team, or giving a wodge of your income to charity. Where are the proposals for compulsory pro bono work by accountants, surveyors, doctors, dentists, vets, academics, teachers etc etc? Thought not.

      • eldl1989

        “enforced servitude” That’s one way of looking at it.

        “Where are the proposals for compulsory pro bono work by accountants, surveyors, doctors, dentists, vets, academics, teachers etc etc? Thought not.” Another way of looking at it is that when you are on £25-50k a year, you may not be able to afford to do pro bono, say if you have a modest mortgage and a couple of kids who you have worked hard to provide a good life for. When you are a multinational corporation with a turnover of millions, you can definitely afford to do pro bono.

        It’s about pooling resources to achieve a common effort. And before you bring in communism or Russia, the difference is, in a Stalinist state you take more than a person can give and don’t give him enough. In this state, you take less than a person can give and you let him keep a very healthy slice of profit (after you take account of the economic/financial cost of pro bono work for big corporations).

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    • eldl1989

      Allow me to present a rationale (mainly for the sake of devil’s advocate): Gove sees the destruction reeked by LASPO and Grayling over the last few years. He recognises that it’s simply not feasible (clearly evidenced by many previously conservative lawyers suggesting that the Tories have wrecked an industry) to slash away. So what he’s asked is that the private sector take the burden of charity, rather than the state, whether or not it wants to, because it has a duty to give back to society in a time of increasing inequality within countries.

    • HJ777

      I agree, his ideas for pro bono work are no substitute for removing cartels and introducing other reforms to make the legal system more efficient and competitive in order to reduce costs.

  • misomiso

    +1

  • Abie Vee

    Gosh.. I’ve never been a practicing plumber, so that “qualifies me for the job”?

    Yeah right.

    • HJ777

      As usual, you miss the point and your analogy is a false one. Gove isn’t trying to do legal work – he is trying to reform the legal system.

      Let’s say that there was a plumbing cartel and the numbers of people entering the plumbing profession was limited by that cartel so that plumbers could work inefficiently in ways immune to change and charge high prices.

      Would a plumber who had benefitted from that system and whose longstanding workmates and friends were all plumbers be the most likely to want to reform the system (or even understand the need to reform it)?

      • eldl1989

        True, and it’s a shame we don’t have enough representatives of professions who care about the profession and its clients, not the profit of the people raking it in. This kind of person would be much better than Gove, but Gove is preferable to a corrupt old boy seeking to preserve the partnership working on a decades-old business model, which describes a fair proportion of firms out there.

        • HJ777

          There is more to it than that.

          Sometimes it requires an outsider to look at things. However well-intentioned someone who has spent their life working inside a system might be, because of their lack of experience of the way things can be and are done better elsewhere, they may lack the necessary insight to be an effective reformer.

          • Abie Vee

            Conversely, I’d suggest that someone who has spent his life working outside the system wouldn’t have the faintest notion of the utter complexity of it, and by the time he learns he’ll be dead. And that is being charitable, because, on the other hand, darker forces may well be in play.

            The danger with this appointment is that its a nakedly party-political appointment… a blurring of the distinction between the three great principles of state: the executive, the legislature and the judiciary…. known under our constitution as the doctrine of The Separation of Powers.

            This happens for a very good reason: the doctrine insists that the principal institutions of state should be divided ” in person and in function” in order to safeguard liberties and guard against tyranny.

            Yes dear… now you’ll beginning to see why I’m n-n-n-n-nervous (as you too would be if you able to think for yourself).

            One of the earliest and clearest statements of the separation of powers was given by Montesquieu in 1748: “When the legislative and executive powers are united in the same person, or in the
            same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those powers.

            Add to this disgraceful and, to my mind unconstitutional, political interference in the workings of the judiciary, Mrs May’s extraordinary draconian legislation which turns every state employee into a paid-snooper, then add to that the surveillance state (a fundamental precondition of totalitarianism) and the Tories intended derogation from the ECHR, and you will begin to see nothing less than an unprecedented attack on our liberties, the likes of which we have never witnessed before.

            Oh yes my dear… be afraid, be very afraid. Are we coming under the heel of an elective dictatorship? All very well if you think that the dictatorship is, and always will be, benign: “all in the best possible taste!!”

            But what if it isn’t?

      • Abie Vee

        “Reform” ? What?… reactionaries don’t want reform (as in “improvement”); they want regression.

        Reform in this government is a synonym for austerity, for cuts in government spending, for the wholesale disposal of state assets to their chums, the limitation of workplace protections and human rights, and the rolling back of the state itself: Voodoo economics.

        Reform? Stop it willya… you’re killin’ me. Do you think they want to leave the ECtHR in order to IMPROVE our rights? hahahahahahahahahahaha

        • HJ777

          If you aren’t capable of an intelligent or reasoned post, then why do you bother?

          • Abie Vee

            Answer the question (what I do is irrelevant). If you’ve nothing germane to the topic to say, say nothing.

          • HJ777

            As I said.

          • Abie Vee

            As I said.

          • Abie Vee

            Given answers like that, I wonder myself sometimes.

          • HJ777

            That makes two of us.

            Why not just give up and spare us your immature ramblings?

          • Abie Vee

            That would be far too easy for me, and too darned convenient for you and your ilk. If nothing else, I’m the living breathing proof that you people do not speak for “us”. I hope that, at least, is clear.

            But I’m not the issue here, flattered as I am; your peculiar notion of reform is the issue. Try and keep on track…

          • HJ777

            You’re the living breathing proof that there are people out there who are thick but loud and opinionated.

          • Abie Vee

            Again I’m the subject. Ho hum… I could talk about myself all day if you’re so interested… shall I start with potty-training? I’d prefer to spend a few days nailing down just what you mean by reforms and why you think they’re so necessary… tell me, what price justice? How do you weigh the two? What measures will you use to see if your objectives are A) obtainable and B) cost-effective C) an improvement on the current system (for if you cannot, then your reform is pure charlatanism).

            Anyhow, it all began one sunny summer post-war afternoon in a large detached villa on the fringes of Hampstead Heath. Pa Forghorn was returning from a hard day in the City, when to his astonishment….

      • Abie Vee

        To overview a cartel of plumbers, I would have to know a good deal about plumbing. What are Gove’s qualifications again? They are about as relevant to the legal profession as Osborne’s history A-Level is to the economy.

  • Ahobz

    The English legal system aims to provide a “Rolls Royce” system and that is the problem. The aim is to get to an objective truth.This lead to the madness of “discovery”, the process of collating listing and reviewing every single document relating to a case, even if only tangentially. This was reformed somewhat in 1999, only to be overtaken by the electronicera, where any single document could exist in numerous electronic versions. Dealing with all this is very time consuming and hence expensive.

    Every refom underaken during my 30 year career in the law had the effect of making litigation more expensive, whe it was intened to make i cheaper. For instance when I started lawyers only ook statements from winesses when a trial was coming up, sometmes many years after the events (all those documens do help here) and only your own side saw the results. Then came exchange of witness statements, aimed to promote early settlement and clarification of the issues. This came with a caveat, you could only give eidence at trial if that evidence was in the exchanged statements. This made getting witness statements much more time consuming.

    Then in 1999 the courts decided that pretty much every case should have witness staements prepared before the parties even started to litigate. This drove out some of the inefficiencies of the old system (such as cases being constantly amended) but at the expense of each case having to be prepared as if for tria,l before the dispute had even got under way.

    From my experience I do not beleive that any of the changes I saw over my career led to cases settling earlier and more cheaply than they under under the old “only do the work just before trial” system.

    This is not to say that lawyers don’t take the piss. Many do, but even if you are a lawyer who does not take the piss, litigation is very time consuming, very stressful, very very rule bound (rules are now three times more extensive than they were pre 1999) all because provong facts before an English court is difficult, sometimes even when the facts are not controversial, and it ends up expensive. To overcome this will involve scrapping the Rolls Royce and finding a less intensive system

  • MrLouKnee

    isnt it a criminal offence for someone to impersonate a lawyer?

  • Zimbalist

    Lawyer here. I echo the comments made by ahobz below. The sheer complexity of modern legislation coupled with the length of the judgments which are produced these days means that the law is inaccessible not only to many lawyers but to virtually all non lawyers. Sometimes solicitors come to me and ask me to draw pleadings. I have to work out whether their client has a cause of action at law. Sometimes it might take me days of research to offer a conclusion on just one specific point as to whether it is a goer or not. It is truly, truly laborious work and I cannot charge for all of it because that is not the market.

    Finally, it slightly irks me that there is this constant call to do pro bono work, which I do from time to time when i can, but the call for it is incessant from, it seems, everyone with a sinecure who doesn’t have to worry where their income in two or three months’ time is going to come from. People contact me directly also asking whether I will give up weeks of my time to work for them for free. I tell them that I have a mortgage just like them and ask whether they have made the same request of their plumber lately and if so, how did that go.

    Not all lawyers are rolling in cash.

    • eldl1989

      “Sometimes it might take me days of research to offer a conclusion on just one specific point as to whether a cause of action exists. It is truly, truly laborious work for which I work day and night, most weekends, and I cannot charge for much of it because that is not the market.” Don’t worry, just skimp on quality, bill those high-volume low-value files like churn, and you’ll be rolling in it from none-the-wiser clients in no time…

      And if you don’t like that state of affairs, simply await the robot legal assistants to leave you to get on with the decision-making!

  • Richard Young

    Do lawyers sweat?Obviously not due to the weather.Hard work?Not in Scotland,where a qtr of msp’s are from that profession.[Nicola Sturgeon et al ] Two part time jobs plus expenses needed to pay the bills I suppose.

    • eldl1989

      Ah, so you’ve lived a life in the day of a lawyer, or Sturgeon for that matter?

      I’ve got a few questions for you if you have a moment?

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  • David Risbridger

    No one with any sense disputes the need for reform of the middle ground and indeed much has been done in the small claims County Court field to enable cheap access to justice with little or no costs risks. Bringing a small claim in the County Court and being heard by a District Judge generally works well. Try it next time you have a faulty car and a garage that will not help.
    In the space above that but below where I as a City Lawyer work we have an enormous gap where many small business and some not so small frankly cannot afford lawyers. Some specific industries have addressed this, the construction industry has its own form of statutory backed adjudication which has generally worked well enabling disputes to be determined in 4 to 6 weeks often by a non lawyer. Both sides get a fair hearing and in general costs are much less than the equivalent court process. Yes the justice can be rough and ready at times but the industry accepts this on the basis the alternative took way longer and cost way more. Better to be able to afford a Ford that gets you around than looking at a Rolls that is perfect but simply unattainable for most.
    The top end of the profession is different. It is a massive revenue generator for the UK and where we are seen as world class and a real leader. I would urge Gove to balance the need to reform the middle without damaging the top. We as lawyers are going to have to accept that alternative approaches similar to the construction industry adjudication scheme mentioned above are going to become more common.

  • Garnet Thesiger

    How about solicitors having access to some of the work currently undertaken by barristers – opening up the market a little?

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