“Two years ago, when this conference last gathered:
- President Obama had not yet completed his 100 first days in office
- Susan Boyle had yet to appear on Britain’s Got Talent and was totally unknown
- we were looking forward to a barbecue summe
- the Conservative Party was in opposition
And of course 2 years is a long time in politics.
“So thank you for inviting me to speak, perhaps look at some of the changes over the last 2 years and some of the challenging times we are facing. As a government minister I am first to acknowledge there are many challenges.
“Justice doesn’t and cannot come cheap. According to Treasury figures, before last year’s Comprehensive Spending Review, annual central government spending on preventing crime and delivering justice - a global package including the police, prosecution, the courts, legal aid and offender management - was estimated at over £19 billion. Of this, my own departments cost a relatively modest £700 million.
“Whatever the economic climate, all public servants are obliged to make the best possible use of the resources with which the taxpayer provides them. But the situation we face today is that the present government inherited the UK’s biggest budget deficit since the Second World War. We are determined to bring it under control by the end of this Parliament, because if we don’t bring it under control then the prospects of being able to deliver good public services in 10, or 15 years time with a huge debt which requires a service and higher rates of interest to pay for that debt would in fact guarantee that the United Kingdom progressively becomes less capable of looking after those in need.
“As a government minister, I know that the Criminal Justice System cannot be exempt from that process. As Attorney General, I am however determined to find every possible way of doing this without detracting from the quality of justice.
“The government recognises this is a transitional period providing both risks and opportunities and is likely to require a dynamic debate as to how we find the best way through the issues.
“Today’s theme of embracing change recognises that opportunities exist, and I pay tribute to the professional bodies represented here today and the way they have engaged with policymakers as we review the legal landscape. Not always an easy thing to do, often something that can sink into confrontation and polemic. I have to say with gratitude that although there have been differences, we have successfully avoided that in the period of the last 12 months.
“Our hosts the Law Society have of course been extremely active in recent months campaigning with and on behalf of its members around the legal aid reforms.
“I meet regularly with the Bar as its leader - a rather ancient title which I try to honour by attending Bar Council meetings - and hear its concerns. It too has been very active in scrutinising the proposals for legal aid reform and engaged in offering alternative strategies, while accepting that the government has a problem in cutting the deficit.
“In a moment I want to address some of the issues of this conference; the legal aid review, alternative business structures, diversity within the profession as it is, and as we would like it to be.
“But in addressing you I start with the principle that you are not an interest group by virtue of being drawn from minorities. Each of us is an individual, even if we share some aspirations and aims.
“I may be white, male, married with teenage children and Oxford-educated but that actually tells you very little about me.
“My life is based on my own experiences and my own views, and how I’ve responded to those experiences just the same as each one of you in this room.
“My view has always been that anybody who has the necessary aptitudes to be a lawyer and wishes to do it, ought to have the opportunity to do so and to bring their background and experience to bear on the work that they do, and that is what we all need to strive to achieve together.”
“The legal aid consultation closed on 14 February and the responses are currently being considered. It is expected that a government response will be published in the spring.
“England and Wales has one of the most comprehensive legal aid provisions in the whole world. But as my ministerial colleagues have said, the current system, costing around £2 billion a year, is regarded as unaffordable in its present form.
“Our proposals aim to radically reform the system and I and colleagues at the Ministry of Justice want to encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution. And that doesn’t necessarily always mean involving lawyers or courts. In fact for the avoidance of doubt, most of us responsible lawyers know very well that moment in conference when you say: “my advice to you is not to litigate.
“However, we also need to make clear choices to ensure that legal aid will continue to be available in those cases that really require it, the protection of the most vulnerable in society, and the efficient performance of the justice system.
“There is still going to be a lot of publicly funded legal work available and those chambers and solicitors’ firms which are adaptable and open to new ideas are in my view going to be poised to do well in the new market, where of course quality will still be of the utmost importance, as will the ability to show that the work will be processed efficiently and in a way which both furthers the need for propriety and the needs of justice.
“Those people who are go-ahead and can do the work are going to get the work. There’s plenty of evidence of chambers or solicitors firms which are capable of operating within the sorts of constraints and requirements of the successor to the Legal Services Commission will lay down.”
The changing market
“One of the key workshops today will be around the introduction of Alternative Business Structures.
“Now I am a bit of an old fashioned lawyer, having been called to the Bar in 1980 it never crossed my mind when I started my career that we would end up by 2011 with the sort of prospects of ABSs that are now on offer.
“By establishing a new framework for the regulation of legal services in England and Wales, the Legal Services Act 2007 has already led to significant changes.
“The government believes these do offer exciting opportunities by lifting the restrictions on the structure, ownership and management of businesses that provide legal services. This will allow different types of lawyers and non-lawyers to work together as single enterprise and provide legal and non-legal services. This is, I have to accept, revolutionary and some may look askance. Some people view it as a glass half-empty and others clearly view it as a glass half-full. The question is whether this change can be managed. I believe it can. I simply make this point, going back to my own experience as a lawyer having qualified in 1980. Even before the changes come in, are the Chambers in which I’m in recognisably different than in 1980? I can promise you the answer to that is ‘almost unrecognisable’.
“When I joined the Bar it was small group of 20 people working in a number of offices with a couple of clerks, everything done by paper - there were still ledgers, manual diaries and the system was dependent on a series of structures which isolated us almost completely from our own clients, including the solicitors for whom we worked. It is now a rather high-tech enterprise with over 60 members and when one looks around the Bar it’s perfectly obvious that the capacity to adapt to the sorts of challenges that the Legal Services Act may impose on us are already on the way to being met.
“So Alternative Business Structures - and I want to reassure you on this point - will not be introduced until ministers are convinced that all the appropriate regulatory arrangements have been made, the necessary safeguards are in place and the impact of the new regime on the legal services market is fully assessed. But there is a need for all of us to prepare for the moment it happens.”
The wider picture
“Turning to diversity, there are lots of examples of good practice in the private sector and leading law firms have shown what can be achieved. I entirely agree with the comments made in the introduction, that with any number of global markets ethnic minority lawyers with origins and cultural roots in countries where in fact we wish to expand our services are now in an unrivalled position to have a substantial advantage over their non ethnic minority colleagues.
“If the private sector promotes diversity and equality at every turn, then we will achieve greater diversity and equality far faster than if the government is the main driving force.
“But even in this time of savings the state as an employer of legal professionals must continue to provide opportunities for all on merit. I believe the record where the state is an employer is good in this respect and must not diminish.
“Those of us within the system need to consistently work hard to dispel the myth that the government service and its various branches is not one of the best employers of equal opportunity, because my experience of 10 months as Attorney General is it unequivocally is. I’m very wary of quotas. Often the only thing that stops people aiming for a profession which may seem dominated by specific groups of people is a perception that it is a members’ club - but I can assure in the case of government service it most emphatically is not.
“At the end of last year in the Government Legal Service, of all those lawyers, including legal trainees, who responded to the GLS ethnic monitoring questionnaire, 14% declared that they were from an ethnic minority background.
“As you’ll know, in 2008 Baroness Scotland as Attorney General launched an Equality and Diversity Expectations Statement for Civil and Criminal Panel Counsel and their Chambers. I, as Attorney General, and my colleague the Solicitor General as the current Law Officers are committed to equal opportunities and the Expectations Statement for the Civil Panel will remain in place and we will continue to monitor applications to the Civil Panels and the makeup of the Civil Panels themselves. It was a pleasure for me indeed this week to go and meet new members of the Civil Panels and to note there was good ethnic minority representation amongst them.
“Treasury Solicitors sent a questionnaire out in 2009 and the results were helpful. However at a time when public spending was being reduced there had been a question about whether we could or should continue to monitor all Chambers when the Bar Standards Board is also asking Chambers for the same data.
“So I am very grateful that the Bar Standards Board has agreed to share its data with us, and I understand that the next survey will go out in October 2011. I hope to be able to compare the makeup of the Bar in general with the make up of the panels at that time, and discuss it with the Treasury Solicitor when the data is available.
“I prefer encouragement and honest criticism to blunt instruments such as sanctions which can all to easily have an adverse impact on the ethnic minority members in the organisation you’re trying to sanction, but I will do what I can to spread the word that the government is committed to encouraging diversity in the legal profession and that I do see it as an essential part of my work to see that this happens.”
Diversity in the Law Officers’ Departments
“My own departments are consolidating already recognised good work in equality of opportunity. Let me take an example from the biggest, the Crown Prosecution Service.
“Earlier this year Keir Starmer QC, Director of Public Prosecutions, spoke at the Bar Standards Board on the proposed new equality and diversity regulatory provisions that will be part of the Bar Code of Conduct and Practising Rules.
“He said that equality and diversity should not only be a commitment for the public sector but fairness and diversity should be mandatory across the Bar.
“The Equality Act 2010, which came into force last October, requires the CPS and Chambers that deliver public services on the CPS’s behalf comply with the legislation and therefore meet the obligations under the new Public Sector Equality Duty that will come into force this month.
“Against this commitment, the CPS has recently launched a new scheme for the delivery of prosecution services in court which ought to assist all talented criminal lawyers, be they solicitors or barristers
“All advocates undertaking prosecution work in the Crown Court (and Higher Courts) from October must be members of new, quality-controlled CPS Advocate Panels.
“The panels will be open to all barristers and solicitor advocates, and panel members will complement and work alongside CPS in-house advocates. Although the overall number of advocates on the panels will be reduced compared to the current lists, which I have to say often have people on them who have not done any work for the CPS for years, but - and this I think is the important issue - selected advocates will have far more opportunity to undertake prosecution work, and indeed it will be expected that they undertake prosecution work regularly.
“The Bar Council and the CPS worked together to bring about the Advocate Panel scheme. The scheme will not only give advocate appointees an important opportunity to gain experience of criminal prosecution work, but will signify excellence in advocacy with a clear focus on quality.”
Looking to the top
“I was heartened to learn that according to the latest Law Society figures for 2008/9, the number of minority ethnic group solicitors on the Roll increased by 11.5% to 16,111. The proportion on the Roll is up as well.
“As for Barristers, in 2009/10 the total practising profession, according to the Bar, included 10.1% from a black and minority ethnic group - but 13.1% did not disclose their ethnicity. The proportions in the employed and self-employed Bar are around the same level. But the issue remains as to how diversity is reflected on the other side of the courtroom.
“Lord McNally, joint chair of the Judicial Diversity Taskforce, said in March that it was ‘appalling’ that only 20% of judges are female and 8% from ethnic minorities. In February last year the Advisory Panel on Judicial Diversity delivered a report with 53 recommendations. One of them was that there should be a fundamental shift of approach from a focus on individual judicial appointments to the concept of a judicial career.
“A judicial career should be able to span roles in the courts and tribunals as one unified judiciary. It said that lawyers from all backgrounds should be encouraged to recognise early in their career that becoming a judge could be a possibility for them. The government supports, in principle, the recommendations, and the Judicial Diversity Taskforce, established to oversee the delivery of the Panel’s recommendations, met on 14 March to review what has been achieved to date, and will publish its report on progress shortly.
“As the report also said, there is no quick fix and there needs to be a proactive campaign of mythbusting to deter good candidates from whatever background coming forward.”
“Despite the challenges, I am optimistic. There may be some bumps along the road but those who can adapt could well prosper. Talent will out. I wish you all a very productive day.”