Thatcher Vs. the British Legal System

<i> Fenton Bresler is an English barrister and journalist, currently in Los Angeles to research a book</i>

Margaret Thatcher’s government is virtually proposing to abolish the Bar of England as it has existed for nearly 1,000 years, to bring her country’s legal profession much more into line with the American model. A great debate now rages in the media and legislation is promised this year or next.

The English bar, so arrogant but of such unassailable integrity, thought it was safe from deep-rooted change with ex-barrister Thatcher as prime minister and octogenarian Lord Hailsham seemingly a fixture as Lord Chancellor, a sort of all-powerful justice minister and senior judge rolled into one.

But the bar underestimated Thatcher’s blazing devotion to “market forces” as the solution to all the problems of modern life. Or the willingness of her new 64-year old Lord Chancellor, railwayman’s son Lord MacKay, to play the role of the oldest yuppie in the kingdom, with terms like “cost effective” and “the discipline of the market” falling smoothly from his lips.

Reaganism is alive and thriving in Thatcher’s Britain.

In three Green Papers (official consultative documents) put out by MacKay, the government proposes to abolish the difference between England’s 6,000 barristers and the country’s 45,000 solicitors. Barristers are the only people allowed to appear as trial lawyers in the higher courts, wigged and gowned like Rumpole of the Bailey, independent, forbidden to form partnerships or corporations or to advertise--and not even able to sue for their fees. Solicitors are non-trial lawyers, allowed to form partnerships and corporations, to advertise and to sue for their fees.

MacKay’s papers propose that either a barrister or solicitor will appear in the higher courts, needing only a “certificate of competency” as an advocate, issued by a government-appointed and -controlled body.

Lord Rawlinson of Ewell, Thatcher’s former attorney-general, has already declared being “glad I ceased to practice at the bar three years ago. I would not have liked to have had the creatures of government assess my ‘specialist’ qualifications for a ‘dog-license’ to plead in the courts.” But the threat to British justice--where independence of politics and the state is traditional (it was the judges who overturned Thatcher’s pique-motivated ban on ex-MI5 agent Peter Wright’s book “Spycatcher”), goes even further. Future judges will no longer be chosen from the individualist, non-corporation-man barristers of today, but only from the ranks of these state-licensed “advocates.”

Lord Lane, the Lord Chief Justice, has called this proposal “one of the most sinister documents ever to emanate from government.” Fellow senior judge Lord Ackner has said the government is “deluded with dogma.” Desmond Fennell, the leader of the bar, has declared: “The disappearance of a free and independent bar would be a tragedy in a free society.”

Barristers will cease to be professional loners. They will be allowed, if not encouraged, to form partnerships with solicitors and even other non-legal professionals. The current notion of an elite core of trial lawyers to whom anyone has access, via a solicitor, will tumble into history. The client will have only limited choice, in most cases able to select only among the trial lawyers employed by one particular firm instead of the whole range of free-lance barristers as now.

Bigness will prevail. American-type law firms, with their brochures and their brash hype, will become more aggressive and pervasive. The standards of the market will move into the halls of justice, where they have never had a proper place in England.

None of the government’s sweeping proposals exposes a market ethic more tellingly than Lord MacKay’s suggestion of no win, no fee. Britain’s Legal Aid Service has led the world since World War II, with a system similar to the National Health Service. Middle-income people have been able to obtain legal aid from the government to pay lawyers’ fees and fight their cases through the courts. But that too has withered. Now, with rising inflation, many ordinary people are considered too “rich” to qualify, because the government resisted raising the income limits within which legal aid is available. Government determination to cut public expenditure whenever and wherever it can (does that sound familiar in America?) has affected the law, the health service and other sectors of national life.

So the new idea is, find a lawyer prepared to take your case “on spec” and you need not worry about the expense. If you win, the costs will be paid by the other side. And if you lose, it will still cost you nothing; the losing lawyer suffers.

Lord MacKay is not yet prepared to go the whole hog and adopt American-style contingency fees, allowing a successful lawyer to pocket a substantial percentage of his client’s “winnings.” Contingency fees have been considered “unprofessional” in England. Lord Hailsham, the ex-Lord Chancellor, has himself spoken out angrily against them: “Contingency fees are inherently immoral because they afford a direct incentive to the practitioner to dishonesty in the conduct of his cases, dishonesty to his client, dishonesty to the court and dishonesty to his opponent.”

But MacKay does suggest that some sort of extra payment be offered as an inducement to lawyers to take on this new breed of work.

The proposals blur the essential dividing line between a profession and trade, between a calling and a way of making money. English citizens must ask themselves the question: Do you want a lawyer or a businessman to represent you? Who would make the greater contribution to justice?

If the proposals become law, I will consider very carefully whether I want to continue to practice, after 38 years at the bar. Money and cost-effectiveness are not everything. A judge recently wrote of the “ancient truth that distinguishes a profession from the market place--that a profession calls for more than simply complying with the law . . . . The American bar should take note of and learn from the high standards of professional ethics and methods of policing of the English bar.”

The judge’s name? None other than Warren E. Burger, the former chief justice of the U.S. Supreme Court. My country’s Lord Chancellor should heed those words.