BLAIR’S BRITAIN, 1997–2007
Page 50
The AJA 99 also affected reforms in relation to the private funding of
litigation.54 Conditional fee agreements were extended in 1999 to all civil
(except family) cases. Both the uplift payable for successful cases and litigation insurance premiums could be recovered in costs from the other
side. Third parties became entitled to establish funds to support litigation, also on a conditional basis. While supporters of the measures
argued that they increased access to justice for those too rich to qualify for
public funds, but not rich enough to pay for lawyers, critics warned
against the spur to ‘ambulance chasers’ and the potential for conflicts of
interest between client and lawyer.55
51 Fiona Woolf, ‘What Price Justice?’, The Barrister, Easter issue, 2007.
52 The Criminal Defence and Services Act 2006 enables regulations to be made to give the
Legal Services Commission powers to grant and withhold rights to representation in
criminal proceedings. Section 2 provides the right for representation to be granted only
where the individual satisfies the criteria of financial eligibility.
53 Frances Gibb, ‘Is This an Unseemly Rush to Change?’, The Times Law, 1 May 2007, p. 26.
54 See the consultation paper ‘Access to Justice and Conditional Fees’ (LCD, 1998).
55 Desmond Ryan, ‘Conditional Fee Agreements: Strutting their Stuff Around – A Circle that
Cannot be Squared’, Civil Justice Quarterly, 2001: 29.
Tribunals
The report of Sir Andrew Leggatt, former Lord Justice of Appeal56 – the
first serious review since the Franks Report 195757 – identified a system
of adjudication, outside the boundaries of the ordinary court system,
which had ‘grow’d like Topsy’, and was in consequence topsy-turvy.
Leggatt recommended a common administrative service: the grouping
of existing tribunals into nine divisions, with each related to a single
subject area, each with its appellate tier (providing appeals on points of
law and thereafter to the Court of Appeal). As was usual with reports of
this period, not all his recommendations were accepted,58 but a new tribunal service accountable to the Department of Constitutional Affairs
(DCA) was launched in April 2006 without the need for legislation,59
and a Tribunals Courts and Enforcement Bill has been introduced into
parliament.
The Bill reflects many of the principles applied elsewhere to reforms of
the court system, importantly involvement of the JAC in the appointments process; interchangeability of roles (for example, Circuit Judges
will be automatically tribunal members); a duty on the Lord Chancellor
to provide administrative support; carefully limited two-tier appeal
rights; and, less importantly, the re-designation of legally qualified
members as tribunal judges.
Some tribunals will share a common administration, and the leadership of the Senior President of Tribunals, but their jurisdictions will
remain autonomous, the employment tribunals (and the Employment
Appeal Tribunal) because of the nature of the cases that come before
them, involving one party against another (unlike most other tribunals
which hear appeals from citizens against decisions of the state), the
Asylum Immigration Tribunal (AIT 2005) because (unlike the other tribunals) it has a single-tier appeal only.
The government had originally intended to immunise the AIT’s decisions from judicial review, but retreated in the face of massive opposition
from all parts of the political spectrum.60
56 Tribunals for Users: One System, One Service (London: TSO, 2001).
57 Cm. 218.
58 See Department of Constitutional Affairs, Transforming Public Services: Complaint,
Redress and Tribunals (London: DCA, 2004).
59 Guevara Richards and Hazel Genn, ‘Tribunals in Transition: Resolution or Adjudication’,
Public Law, 2007: 116.
60 Andrea Le Sueur, ‘Three Strikes and It’s Out’, Public Law, Summer 2004: 225.
Inquiries
The Blair years saw a series of controversial inquiries of different origins.
Lord Hutton’s into the death of Dr David Kelly was non-statutory; the
Bloody Sunday Inquiry chaired by Lord Saville was set up under the
Tribunals of Inquiry (Evidence) Act 1952. But the lack of coherence
prompted the Inquiries Act 2005, so as to provide a new framework by
which a minister can establish an inquiry into events that have caused
public concern, endowed with appropriate coercive powers to commandeer documents and to summon witnesses. Inquiries will generally sit in
public, but (controversially) there is a discretion to hold them in private.
The issue of diverting judges from their judicial function was not
addressed in the Act directly; the provision requiring a minister to consult
the Lord Chief Justice about such appointments may put a brake on the
practice but will not bring it to a stop. Lawyers as a class may (like politicians) be unpopular: judges retain substantial respect, but it is doubtful if
it is enhanced by their deployment in such extra-curricular exercises.61
The professions
The AJA 99 accelerated the thrust of the Courts and Legal Services Act
(1990) and enshrined the principle that lawyers with appropriate qualifications and subject to appropriate rules of conduct should be able to exercise
full rights of audience in all proceedings. It provided for the Lord
Chancellor to authorise bodies other than the Law Society to grant rights of
audience and to authorise their members to conduct litigation (including
the Chartered Institute of Patent Agents, the Institute of Trademark
Attorneys and the Institute of Legal Executives). This did not, however,
affect overmuch the Bar’s dominance in advocacy, and it countered the challenge by changing its rules so that barristers could in certain circumstances
accept instructions directly from clients rather than through solicitors.62
In 2003 Lord Irvine dramatically suspended the system by which he
had annually selected (on the Queen’s behalf) successful applicants for
the rank of Queen’s Counsel in the wake of a critical report by Sir Colin
Campbell. However, despite fears (in the profession) that the status
would be forever abolished, in 2006 it was reinstated by Lord Falconer,
but with the Lord Chancellor excluded from the selection process, which
61 Iain Steele ‘Judging Judicial Inquiries’, Public Law, Winter 2004: 738.
62 The AJA 1999 established a system of practising certificates for barristers.
was now handed over to an independent panel. A fee of £2,500 is now
required for an application, but this did not appear to deter ambitious
applicants, and in 2006 out of 175 successful ones there were thirty-three
women and ten from ethnic minorities. Honorary Silk was bestowed
more frequently than before on senior solicitors and academics.
The professions were not immune to the modernising spirit of the age.
Already by 1997 the traditional position at the Bar whereby pupils (apprentice barristers) paid their pupil masters had been reversed. Now scholarships of ever increasing
size were offered by sets of chambers to counter the
attractions of the substantial salaries paid by blue-chip city firms to newly
qualified solicitors. The Bar indeed adopted a rule which prohibited
unfunded pupillages (although, as an example of the law of unintended
consequences in action, it may have worked against those from nontraditional backgrounds). School placement programmes to promote the
Bar as a career to new constituencies and a Bar Vocational Course (BVC)
loan scheme negotiated with major banks are part of the current Bar
Council agenda.63 A committee chaired by Lord Neuberger is examining the
virtue of further reforms.64 Whether outreach programmes, any more than
those of the ancient universities, will dispel the perception of a closed professional shop, engendered by anachronistic media representation and the
concerns of law lecturers in the newer universities, has yet to be seen.
To negotiate the shoals of anti-discrimination law, Chambers adopted
far more rigorous systems of assessment for aspirant pupils and tenants,
and for the most part recognised the guidance of the Pupils Applications
Clearing House (PACH) and its descendant (OLPAS), designed to introduce some order and equity into what had previously been an anarchic
system in which Chambers competed unscrupulously against each other
for the best and brightest recruits, like football club managers seeking out
teenage players.
For barristers and solicitors alike, continuing professional education
became mandatory – swelling the ranks of conference organisers, complementing an increasing emphasis on practical training before and at
the stage of pupillage at the Bar or articles as solicitors. Pro bono work
became fashionable.
Transfers between the two branches of the profession increased –
Herbert Smith and Co. became the first City firm to employ two QCs – while
63 Geoffrey Vos QC, ‘A Programme for the Future Success of the Profession’, The Barrister,
Easter Term issue, 2007: 1.
64 The Neuberger Interim Report was published on 5 April 2007.
traffic in the reverse direction was still more common. Relations between
the professions improved, even if the Bar insisted that its code of conduct,
including the cab-rank rule, ought to be applied to all advocates, while in
major firms Chinese walls had to be constructed so as to avoid conflicts of
interest. Responding to globalisation, there were mergers between City
firms, and between them and their many US (or continental) equivalents.
Clifford Chance’s merger with the US firm Rogers and Wells created the
world’s first billion-dollar practice.65
Despite all these internal modernising initiatives, in July 2003 the DCA
concluded that the regulatory framework in England and Wales was ‘outdated, inflexible, over-complex and insufficiently accountable or transparent’, and commissioned Sir David Clementi to investigate.
He duly proposed an independent officer for legal complaints and a
legal standards board to oversee the profession; permission for barristers
to enter into partnerships with solicitors; and permission for non-lawyers
to manage and own legal practices. A Heineken approach designed to
allow the legal services to reach hitherto unreached parts seemed destined to result in a Tesco law. While he recommended that in any such
new-style law company (alternative business structures (ABS)) qualified
lawyers should be in the majority, the government have opted for unlimited external ownership and investment, taking, in the view of some
critics, the lawyers out of the law. Bridget Prentice, the Minister for
Constitutional Affairs, notoriously equated the purchase of legal services
with the purchase of baked beans.
The Legal Services Bill currently before parliament sets out proposals
for a new regulatory framework – the Legal Services Board (LSB), which
will authorise front-line regulators, the Bar Council and the Law Society
to carry out day-to-day regulation, provided they meet LSB standards. In
tandem there will be a new Office for Legal Complaints (OLC) to handle
complaints for the whole legal profession. Given the fact that the professions had already sought to separate their representatives from the regulatory rules, this excited the concern that the Falconer legacy to the legal
profession would be regulation, regulation, regulation.
None of this impeded an inexorable upward trend in qualified lawyers.
In July 2004 there were 121,165 qualified solicitors – a growth of 50% in
65 Some described and decried the metamorphosis of the legal professions into legal
businesses with both sets of Chambers and solicitors seeking to provide a corporate inhouse service which might be other than in the best interests of clients. Sir Gavin
Lightman, ‘A Legal Profession for the Twenty First Century’, Civil Justice Quarterly, 22,
2001: 235.
the decade. Women constituted 39,199 – an increase of 120%; ethnic
minorities 8,031 – an increase of 2.2% up to 9%. At the same time there
were 11,564 barristers in independent practice, of whom 8,153 were men
and 3,411 were women (these included 1,078 QCs, of whom 991 were
men and 87 were women).
Lawyers’ law
While changes in the legal system and its institutions are matters for the
political arms of government, changes in the law itself are shared with the
judicial arm. In this context the conventional view relegates the judiciary
to a minor role. The legislature can affect changes in areas previously controlled by the common law. The judiciary, by contrast, cannot affect
changes in legislation. The sovereignty of parliament is said to be a constitutional fundamental.
This picture requires continued modification for three main reasons.
Firstly, the impact of the United Kingdom’s accession to the Treaty
of Rome involved the traversing of a legal Rubicon: thenceforth the
laws of the United Kingdom were subordinate to a higher norm. This
development preceded the Blair administration by a quarter of a
century, but despite the rhetorical rejections of a European superstate
from many of its prominent figures, the Prime Minister included,
leaving the European Union was never an option on the table and
Luxembourg (the European Court of Justice) as well as Brussels (the
European Commission) impinged ever further on the national substantive law in a host of areas ever more loosely connected with a
common market.
Secondly, the domestication of the ECHR by the Human Rights Act
1998 (HRA) with effect from 2 October 2000 gave judges the novel power
to declare that duly enacted legislation itself was incompatible with
Convention rights, or else face defeat at the hands of the European Court
of Human Rights in Strasbourg. The power was rarely used, partly
because the HRA simultaneously imposed on the judges the duty to
interpret legislation so as to make it compatible with Convention rights
‘so far as possible’ reading words into or out of a statutory scheme. On
some occasions they effectively undermined the very thrust of the legislation itself, for example by reinstating the right of persons accu
sed of rape
to cross-examine the alleged victim on her previous sexual experience.66
66 R v. A [2000] 1 AC 45.
The HRA, by annexing most Convention rights, involved the national
court in deciding such open-textured and politically freighted questions
as to what interference with them was ‘necessary in a democratic society’,
stimulating a debate as to whether (and when) the judiciary should show
deference to executive or legislative choice.67
The HRA has thus substantially added to the weapons at the disposal
of an already activist judiciary, extending the control of executive action
by means of the machinery of judicial review,68 corralling and sometimes
frustrating the wishes of the government. Because the courts are also
identified by the HRA as public authorities, it also invigorated the development of the common law.
In many areas judges’ use of the HRA has been relatively uncontroversial. Sidling in where parliament has feared to tread, the courts have
effectively created a right of privacy in cases involving persons from
model Naomi Campbell69 to the Prince of Wales,70 while simultaneously
extending the boundaries of freedom of expression, especially where
political speech71 is involved.
More controversially, spurred on by decisions from Strasbourg the
courts have abrogated the Home Secretary’s role in determining how long
prisoners sentenced to life imprisonment should serve.72 They have modified the interpretation of various statutes to protect the rights to a fair
trial and the presumption of innocence.73 They have launched a series of
torpedoes at the government’s desire for stricter control of immigration
and restrictions on asylum-seekers.74 David Blunkett counterattacked: ‘ I
am personally fed up with having to deal with a situation where
Parliament debates the issues and the Judges then overturn them.’
In A v. Secretary of State for the Home Department 75 the House of
Lords determined that detention without trial of suspected foreign terrorists was incompatible with the HRA, being both disproportionate and
67 See Beloff, ‘The Concept of Deference’.
68 Michael Beloff QC, ‘Judicial Review – The State of the Art’, Jersey Law Review, February
2003: 29.