The government’s ‘concessions’ over secret courts are not concessions at all

Posted on May 30, 2012 by

Don’t get me wrong, I enjoyed Spooks as much as the next person, although I lost interest once the characters played by Rupert Penry Jones and Hermione Norris were bumped off. Along with most people, I have no illusions as to how accurate a portrayal it represented of the security services. Most amusing was the idea that there were only about a dozen spies at most, all highly swashbuckling, protecting us.

Nobody thinks there are spies much like James Bond either, but I suppose most people would generally assume that our spies at least are the good guys and reasonably successful in doing their jobs. And there’s the rub. Mostly we have no idea what they are up to, which is why the government’s proposals for secret courts are so worrying.

I wrote not that long ago about why these plans undermine the principle of open and equitable justice and why we should oppose them. Secret courts have no place in an open and democratic society and apparently the justice secretary Ken Clarke has finally been swayed by the Daily Mail’s campaign against the proposals.

Or perhaps not. The much-trumpeted climbdown, most notably on the proposal that public inquests might be held in secret, is really nothing of the sort, if you take as your starting point the principle that all institutions must submit to the rule of law. Instead, this bill means that the intelligence services can insulate themselves from legal challenge and press scrutiny.

That is not to say we shouldn’t welcome the concessions, limited though they might be, although, as with any government u-turn, it is always worth remembering what Shami Chakrabarti, director of Liberty, calls the ‘oldest parliamentary trick’ where you start with ‘a policy so outrageous that any crumb of comfort looks half reasonable’.

The other crumb offered by Clarke has been to decide that a judge, not a minister, will make the final decision on whether proceedings should go into close session.  It’s difficult to see, however, how the proposals, which remove judges’ public interest immunity discretion, are anything other than a whitewash.

In reality, this ‘concession’ is a nonsense.  Under the bill, a judge ‘must’ agree to a secretary of state’s demand for secret hearings if the disclosure of information ‘would be damaging to the interests of national security’.  This, says Clarke, is a much narrower criterion than ‘the public interest’.  It may well be, but the problem remains, who defines what is in the interests of ‘national security’. The judges? The government? The spies?

One key opponent to the proposals, Liberal Democrat peer and former Director of Public Prosecutions, Lord Macdonald, told the Today programme that ‘judges pay a high degree of deference to ministers in the area of national security’. Judges themselves agree. As Lord Kerr of the Supreme Court said in al-Rawi, the leading case on secret hearings in civil claims, ‘evidence which has been insulated from challenge may positively mislead’.

I don’t know about you, but I want to know what is being done, in my name, to protect ‘national security’. I want to know if my government has been complicit in the torture of detainees overseas or has allowed their rendition back to brutal regimes where their lives are in danger.

I am quite sure the Intelligence and Security Committee doesn’t provide the accountability it’s supposed to.  But that’s hardly surprising when it is appointed by the prime minister, has its reports vetted by him and probably only sees what MI5, MI6 and the government want it to see. The committee probably knows this, but that doesn’t make me feel any better about it.

Ken Clarke claims there will, in fact, be more justice under these proposals because the only alternative is silence.  This sounds pretty unlikely to me.  Much more likely is that he wants to protect ministers against civil damages claims, like those from Guantánamo Bay detainees ‘to whom we paid a lot of money recently because we could not put the evidence up against them’.

Lord Macdonald suggests the government has failed to come up with any concrete examples where this has happened.  More to the point, it doesn’t make it any more like fair justice if the case goes ahead in secret and is decided on evidence that one of the parties can’t even see.

It is worth citing the case of Khadidja al-Saadi who was rendered at the age of twelve by the UK to Gaddafi’s Libya. Her family are taking the British Secret Services to court for conspiracy to torture after failing to get either an apology or an explanation for their ordeal. Even with Ken Clarke’s ‘concessions, her case will be held in secret, so we’ll never know the truth.

On hearing about the plans, Khadidja al-Saadi said they sounded

‘a lot like the trial that Col. Gaddafi used to sentence my father to death. In that case, my dad told me, a man came from behind a panel and whispered intelligence in the judge’s ear. My father had no opportunity to respond and had no idea what was said. [He was] sentenced to die. I say ‘sentenced’ but it was no trial. It was a joke. Is this really what Britain wants to do with my case?’

And this, ultimately, is the point. I don’t want my justice system to be compared with that of a raving, maniacal and badly-dressed despot. I don’t want our spies, however noble and just they might be, running around unchecked. And I don’t want ministers to act as judge and jury, deciding what I can and can’t know about what they are doing in my name, because it isn’t always good and it’s not always pretty.

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We have only ourselves to blame

Posted on May 29, 2012 by

I spent this weekend on a yoga retreat.  It wasn’t terribly successful as on Sunday morning I fell down the stairs and sprained my ankle, rendering any further participation in sun salutations or downward facing dogs nigh on impossible.  As you might imagine, the place was full of healing hands and there was plenty of positive energy all directed at my ankle.

Nonetheless, it still hurts and walking has become something of a challenge in its own right.  Naturally, I put this all down to rotten luck, particularly as my other ankle was still hurting from a fall (from the giddy heights of 4-inch heels) a few weeks ago.  Until one of the yogis pointed out that it was probably because of that fall that I had the second one.

This seems remarkably unfair, but is probably right.  I was all out of balance from the first injury and that is why I fell spectacularly down a flight of stairs.  It is a principle that applies to much of the rest of life making it very difficult to ascribe any event purely to chance or lay the blame for it entirely on someone else.

If you take this to its logical conclusion, it means we all have to take responsibility for everything that happens in our lives, whether directly or indirectly.  Applying this idea to crime and punishment is not just problematic, it’s about as controversial as you can get.  But as I’m never one to avoid a challenge, here goes.

Perhaps this was most eloquently expressed in the much overused quote by Martin Niemöller, the Lutheran pastor imprisoned by the Nazis for his opposition to their state control of German Protestant churches.  In the quote he expresses his deep regret about not having done more to help the victims of the Nazis:

First they came for the Communists
And I did not speak out because I was not a Communist
Then they came for the SocialistsAnd I did not speak out because I was not a Socialist
Then they came for the trade unionists
And I did not speak out because I was not a trade unionist
Then they came for the Jews
And I did not speak out because I was not a Jew
Then they came for me
And there was no one left to speak out for me

Niemöller draws a direct line between his lack of opposition to the Nazis and his subsequent imprisonment.  The lesson must be that we all have to take responsibility for the society in which we live and that includes those who commit crimes, whoever they may be.

This doesn’t, of course, mean that criminals aren’t to blame for the acts they perpetrate.  I am not going advocate letting off murderers because they were smacked as children or rapists because their parents never gave them a hug (although both show pretty appalling parenting skills), but I do believe we have to accept some of the responsibility for allowing those crimes to happen.

We have, I think, rather lost sight of the difference between blame and responsibility.  Our criminal justice system is built entirely around a culture of blame, in which we lock up over 87,000 people at any one time, take away not only their liberty, but a whole host of other rights (to vote for example) and then spit them back out on the streets.  In some prisons, over 70 per cent of those released end up back inside.

Not only are we heaping all the blame on to someone else, we are obviously failing to do anything much to prevent them doing it again.  The tabloid cries for ever tougher punishments, often before anyone has even been convicted of a crime, and thorough dislike for liberal fancies like community sentences and restorative justice, has forced the hand of many a Home Secretary, even though much of the evidence suggests they may be more effective than short stays in prison.

The ‘blame vs responsibility’ question surfaced again this weekend following the case of Andrew Jackson, who had followed and bothered teenaged schoolgirls with obscene comments and sexually assaulted a 21-year-old disabled woman.  Jackson has an IQ of 75, has Asperger syndrome and, at the age of 48, lives with his parents and does not work.

I have no idea of the help, if any, he has received for his mental health problems and learning difficulties, clearly not sufficient to prevent him from offending.  However, the judge’s sympathy seemed to focus more on the evident frustration Jackson must experience from never having had a full sexual relationship.  Because of this he spared Jackson from prison, giving him a two-year supervised community order and ordering him to sign the sex offenders register.

In allowing this aspect of Jackson’s probably quite unfulfilled life to dominate his judgement, the judge passed up the opportunity to shine a light on how society cares for and supports those with such problems.  Instead, he enabled the press, yet again, to criticise so-called ‘lenient’ community sentences and deflect the blame for Jackson’s incapability to participate properly in society onto him and him alone.

The curious aspect of this is that while the likes of Mr Jackson received little sympathy from the tabloid press, there remains a prevailing view, one held by more than half of women, that the victims of sexual assault only have themselves to blame, whether that’s because they were flirting, wearing revealing clothes or dancing provocatively.

I don’t share that view, rape is never the victim’s fault.  But as a member of a society in which it is still seen as ‘inevitable’ that men have uncontrollable sexual urges, which sexualises girls from an obscenely young age, and uses sex in order to sell just about everything, maybe victims do share some of the responsibility.

Continuing to insist that crime is always someone else’s fault means we have to acknowledge we are unlikely to change attitudes about rape or prevent young offenders from becoming lifelong recidivists.  It is our responsibility to create a society in which troubled children, whether because of bad parenting, physical abuse or mental health problems, don’t grow up to become criminals.  If we don’t, we all have to share some of the blame.

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Mr Wonga and the jobs factory

Posted on May 23, 2012 by

Apparently all we need to get our sluggish economy up and running again is the ability to sack people more easily.  This according to a man who gets at least some of his wealth lending to the desperate and charging them nearly 4,200% APR.  This is definitely someone whose advice I want when I am down on my uppers.

I can tell Mr Beecroft, having been made redundant myself, it is quite quick and easy enough as it is.  Within one month of being notified that my job was ‘at risk’ I was out the door, admittedly with three months’ pay in lieu of notice in my pocket, but it was quite a shock to the system all the same.

At least my erstwhile employer had to go through some sort of due process, laughably referred to as a ‘consultation’.  Imagine what it would be like if Mr Beecroft has his way?  Employers wouldn’t even have to pretend to consult or let you get over the trauma before packing you off to the Job Centre.

Decades of hard won victories that have given workers at least some job security and the ability to plan their lives beyond next week would be undone quicker than you can say ‘debt consolidation’.  Make a complaint about being bullied by the boss?  Ask for a pay rise? Request flexible working?  Any excuse will do under Mr Beecroft’s plan for no-fault dismissals.

It’s not often Nick Clegg and I agree on anything, but on this occasion he was right:

‘There’s just no evidence that in the highly flexible labour market that we have, comparatively speaking, for instilling greater insecurity and let’s be blunt, fear, amongst workers, at a time of great economic anxiety as a way of fostering new employment.’

Whoa, go Clegg!

It should come as no surprise that Mr Beecroft seems unmoved by this prospect, whether or not his proposals succeeded in driving economic growth.  Echoing that Tory mantra that ‘unemployment is a price worth paying’ his view is that:

‘The downside of the proposal is that some people would be dismissed simply because their employer did not like them. While this is sad I believe it is a price worth paying for all the benefits that would result from the change.’

Well that’s ok then.  All the women, people from minority ethnic communities, the disabled, fat people, Muslims, people with ginger hair and the guy who never comes to the pub will all end up without jobs while the Mr Beecroft’s of this world make money from other people’s misery.

The chances are, however, that it wouldn’t work anyway.  Even the OECD, that bastion of fluffy liberals, says ‘there appears to be little or no association between employment protection legislation strictness and overall unemployment’.  TUC research shows the same.

You really only need a small dose of common sense to realise there can be no connection between regulation and jobs:  labour regulation has barely changed over five years but unemployment rates have gone up.  I may be going out on a limb here, but surely a far better (and cheaper) way to deal with poor performance would be through good performance management?

But it’s not just poor performance that is crippling British business.  Mr Beecroft would also like to scrap plans to introduce the right for all employees (not just those with children under 17) to request flexible working.  Oh and he’s not keen on equal pay audits either.

I am not sure what is so economically sound about having all your staff working nine to five Monday to Friday or paying your perfectly able female staff less than their male colleagues, but hey, what do I know?  I haven’t made a fortune lending money to people at rates they can’t pay back.

For a ‘successful’ businessman, Mr Beecroft also shows an astonishing lack of awareness about the labour market in tough economic times.  He reckons that if potential employees are told that a small business has opted out of employment regulations they would be ‘free not to take up the job if they did not wish to’.

Um, hello?  We are clearly not on the same hymn sheet, or even in the same church.  I suggest a good number of people would have little choice, leaving us with  a two-tier labour force:  those in large or very successful firms benefiting from employment regulations and those in micro-businesses offering little or no protection to their employees.

Of course, you would expect Mr Beecroft to regard employees as a cost, rather than an asset.  That aligns perfectly with his significant interest in the payday loan ‘specialists’ Wonga who, on the face of it, have little interest in the human impact of their business.

The OFT has criticised the firm for sending out letters to borrowers struggling with repayments insinuating they may be guilty of fraud and that Wonga would consider contacting the police if the customer didn’t do as they were asked.

It would be totally disingenuous for me to suggest that Mr Beecroft can see a clear connection between people losing their jobs and having to apply for a payday loan.  But it is a bit of a coincidence.

Worryingly, Mr Beecroft may be pushing at an open door, with only a rickety barrier of Liberal Democrats in the way.  Ministers have already announced they will exclude millions of people from unfair dismissal laws by only protecting those who have worked for the same employer for more than two years.  Even then, you’ll probably have to pay to bring your claim to the employment tribunal.

Good employers have nothing to fear from employment laws.  I have no sympathy with  Mr Beecroft’s idea that small businesses are unable to grow because they are run by people good at the activity at the heart of their business, like painting or driving, but with limited administrative skills.  They should go on a course then, or employ an administrator.  There you see, it’s easy, I’ve already created several hundred jobs and not a ‘no-fault dismissal’ in sight.

 

 

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Team Justice Gap, probably the best team in the world

Posted on May 22, 2012 by

Yesterday I witnessed, and indeed was part of, something of a rare event.  Over 6,000 people from organisations as diverse as Doughty Street Chambers, Allen & Overy, the Bar Pro Bono Unit, Buckinghamshire Magistrates, the College of Law, Islington Law Centre, the Solicitors Regulation Authority (SRA), Unison, KPMG and Network Rail (assuming they managed to get there on time) joined the London Legal Walk to raise money for the London Legal Support Trust.

It is not often the legal profession manages to unite over anything, but on this issue it seems they are one.  The money raised, around £550,000, goes to support the vital work of law centres and legal advice agencies across London and the South East.

If you were in any doubt as to the importance of the cause the list of luminaries who took part in the 10km stroll, from the Lord Chief Justice to the Attorney General with just about everyone else you can think of in between, should set you straight.  If anyone had wanted to take out our justice system, yesterday would have been the day.

I went along as part of The Justice Gap team.  If you haven’t come across The Justice Gap, I urge you to take a look at the website because it is aimed at real people so it’s written using normal words and proper sentences.

The name neatly sums up the problem with much of the justice system, which is that it is distant and remote to your average individual, a world populated by people, mostly white men, in strange wigs and others who use misleading or incomprehensible phrases like ‘conditional fee agreement’ or ‘habeas corpus’.

It makes a much better job of demystifying this strange environment than the SRA’s consumer website, which is probably not all that surprising.  It also makes a rather good job of shining a light onto areas of the law that don’t always get much coverage and helping people to understand how they can enforce their rights.

The sponsored walk is probably the largest annual gathering of lawyers and judiciary in the world, which made it a rather daunting prospect given that I have been known to criticise lawyers for their their social skills.  I needn’t have worried.  Team Justice Gap was made up of people so magnificent I feel compelled to tell you about them.

Possibly the most exciting event of the evening, apart from managing not to buy a single drink all night, was finally meeting @LifeInCustody.  This has been an ambition since I started tweeting about two years ago.  She doesn’t disappoint.  Commissioning editor at The Justice Gap, she’s been working at the sharp end of the criminal justice system for 31 years.

If the government genuinely wants to tackle anti-social behaviour and the problems of ‘yob culture’, it really should be talking to the likes of @LifeInCustody.  Or at least following her on Twitter.  As she tweeted today, the kids who continuously get into trouble need ‘intensive therapy, counselling, education and mentoring’, not being set up to fail.

It was lovely to meet @nearlylegal, a splendid tweeter and blogger who has been ‘making housing law (metaphorically) sexy since 2006’.  On the whole he manages it, which is good because it is pretty fundamental when you think about it.

We all need, and have a right to, a safe place to live, but unfortunately not everyone has a home to call their own.  In future, thanks to government cuts, there are likely to be many more people suffering from substandard housing, or no housing at all, struggling to get the legal help they need.

I also met, at last, the mighty @_millymoo, legal blogger extraordinaire (she will find out tomorrow if she is extraordinaire enough to win the Orwell prize for political writing) and the evil genius who brought Team Justice Gap together for the walk.

Milly is fearless and utterly unapologetic and just the sort of person ministers should have as their special adviser to ensure they understand the laws they like to mess about with so much.

The most charming person I met was @merryVW, who is working hard to become a barrister, in legal aid no less.  It is slightly odd that she has wanted to do this since she was eight, but don’t let that put you off.  If all barristers were as committed and principled as she is, we’d have nothing to worry about.

It was great to see the marvellous @paulbernalUK again.  He lectures in IT, intellectual property and media law at the LSE and he writes fascinating, if quite worrying, blogs about the privacy, automony and human rights, with the odd poem thrown in.  Don’t read his blogs if you’ve just bought shares in Facebook mind you.

One of the smiliest people I think I’ve ever met is @jezhop.  He used to write illuminating blogs (with a great title, but you’ll have to click to see it) from deep inside a barristers’ chambers, until he became the operations director at a ‘cutting edge legal provider’ (yes, there is such a thing).

It was an utter pleasure to see the gorgeous @felicitygerry again.  Top criminal barrister, media commentator and mother of three, she didn’t even start the walk until the rest of us were in the pub and did the whole 10km on her own.  It is quite hard to tell if she is totally dedicated or utterly mad.

And then there was @Jules_Carey, human rights lawyer, chocolate brazils lover and with an amusing pair of suit trousers cut off ‘in protest at the savage legal aid cuts’.  And walk chronicler @colmmu, director of media at the College of Law and an ‘adventurer in new media, law and education’.   And @stokenewington who has her own law blog for real people, which even has a section on DIY law.

So you see, regardless of what I normally say about lawyers there are some damn fine people working in the legal sector.  Furthermore, if this lot were in charge the world would be a splendid place.  As it is, we managed to raise over £2,000 to help ‘keep the doors open’ of the law advice agencies as they try to manage their budgets following withdrawal of legal aid.

You can still do your bit by donating here.  Go on, you know you want to.

And here is the video by the marvellous Jon Harman

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Tell me why? I don’t like Tuesdays

Posted on May 14, 2012 by

Apparently it’s quite stressful being a lawyer.  This does not come as too much of a surprise because it’s pretty stressful doing any sort of job, although it’s even more stressful not having a job at all.  Nonetheless, it would seem that lawyers have particular issues when it comes to dealing with stress at work, which are perhaps peculiar to the legal profession.

I am constantly amazed at the number of lawyers I know.  Not the ones I’ve met through work – that wouldn’t be amazing at all – but it seems an awful lot of the people I went to school or university with or who I met in other jobs are now lawyers.  I can’t help wondering if there is enough legal work to go round.

More to the point, how is it that I know so many competitive type A personalities with sufficiently high regard for their own abilities that they became lawyers?  This isn’t just another opportunity for me to have another rant about lawyers and their superior attitude to non-lawyers:  it seems that having the sort of personality that makes you a good lawyer can also make you more prone  stress at work.

It is not so much a myth that some jobs are more stressful than others; rather the myth perpetrated concerns which jobs are the most stressful.  Being a hot shot city lawyer or a brain surgeon is no more stressful than being a bus driver or shop assistant if you love what you are doing.    In fact, the more menial and low quality the work, the more likely you are to be stressed or depressed, proving that not all work is good for your health.

The problem for many lawyers is not that their jobs are inherently stressful, but that they are not psychologically equipped for dealing with the stress when it hits them.  Occupational psychologists often argue that lawyers are relatively prone to depression because pessimists, people able to foresee problems, do better at law.

Lawyers are also problem solvers and see themselves as someone others come to for help making them prone to think they can sort themselves out without any help.  That, as anyone who has suffered from depression knows, is a recipe for disaster, because it serves to internalise all your angst until it spirals out of control, often to spectacular effect.

I had to chuckle at this piece by David Pannick QC in the Times last week, in which he described the sorry case of barrister Alexander Mercouris who concocted an ever more elaborate scenario to explain to his client why her settlement money had not appeared.  He was eventually struck off with the chairman of the tribunal describing it as a ‘sad case’ in which Mr Mercouris ‘went completely off the rails’.  Doubtless it probably wasn’t quite so amusing for his client.

As Pannick goes on to say, it is probably surprising that there aren’t more lawyers who have a mental breakdown given that their success, or otherwise, is usually measured by winning cases that may be unwinnable.  The hours many of them work in pursuit of working these miracles are criminal: when I worked in a law firm I often felt opprobrium from lawyers when I explained I only worked nine to five and could not, therefore, attend a meeting at 6.15 (pm or am) on a Wednesday.

According to a survey last year, ten o’clock on a Tuesday morning is the most stressful time of the working week with mounting pressures from the trivial to the significant causing one in three lawyers to cry.  Nothing wrong with a good cry, but probably not ideal if you have set your sights on partnership in a competitive and high-pressured environment.

The problem is so acute that lawyers have their very own charity to help them cope.  LawCare, set up to help struggling law professionals, has seen the number failing to cope rise notably in recent years, particularly since the economic downturn.  Its chief executive says a key problem is lawyers lacking support when they are struggling to handle their workload, afraid to raise their voice in case they jump to the top of the redundancy list.

She adds ‘Some partners live in blissful ignorance of what is going on around them [but] as a partner you have to make sure you are available and set time aside if someone wants to talk to you’.  I have to be honest, I can’t imagine anyone I’d have wanted to talk to less, but then I’m not a lawyer.

It was an interesting coincidence that immediately after coming across the Pannick article, I read about the Legal Services Board’s chairman David Edmonds telling lawyers to ‘get off their high horse about non lawyers’ impact on their ethics’.  You would expect me to agree with him that it is ‘demeaning’ to suggest non lawyers are less capable of ethical behaviour in business than lawyers.

As he says ‘I wager the title solicitor isn’t a good predictor of whether someone will act honestly or ethically’ and  highlighted the sting of lawyer scandals to ensure people did not look ‘backwards to traditional regulation through some sort of rose-tinted spectacles, dreaming of the time when professional ethics were consistently high and only jolly good chaps were able to practise law’

It strikes me this sense of superiority that still permeates the profession is the other side of the same coin that is causing more and more lawyers to suffer from stress and even, in the case of Mr Mercouris, driving them mad.

Bad news for the lawyers.  But equally as disturbing is the impact this could have on unsuspecting clients.  Because lawyers rarely let the professional mask slip, there really is no way of knowing if yours is about to crack up.  All you can realistically do is make sure you don’t arrange to see them on a Tuesday morning.

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You get what you pay for: the SRA and the minimum salary

Posted on May 9, 2012 by

This week, it appears, I am regulator bashing.  It’s not much of a sport as it’s so easy to do, but hey, we all have to get our kicks somewhere.  Yesterday I was rather disparaging about the Solicitors Regulation Authority (SRA) website for consumers.  Today I am taking them to task over their ‘consultation’ on whether to scrap the minimum salary for trainee solicitors.

Unlike consumer websites, the training of solicitors and their remuneration is not really my area of expertise, but I was struck by the SRA’s proposal and the report it has produced on the potential impact.  I’m no economist or business analyst, but it seems to me to be a leap faith to assume that doing away with the minimum salary will encourage more firms to offer training contracts.

In fact, their research, only showed that 70 per cent of firms that don’t currently offer training contracts would ‘consider’ doing so if the minimum was abolished.  I expect some of them would, but almost certainly not all.  For a start, I am quite sure there are other issues firms take into account when deciding whether to take on trainees or not.

The SRA research also found that around half of trainees and students said they would be unable to train as a solicitor without this minimum, which is also a pretty unreliable indicator as to how people would really behave if it really happened.  But I take the view that it is a bit of a no brainer that students from poorer backgrounds are less likely to enter the profession if there is no realistic chance of getting at least a half decent wage to try and pay off their tuition fees.

The report suggests this was no more likely to be the view of those from groups  generally regarded as more at risk of disadvantage from abolition .  I am afraid I find it difficult to be reassured by this. At a time when there are continuing warnings about the lack of social mobility within the profession, it does come across as rather cavalier to imply that removing the minimum salary is unlikely to have a negative impact.

It is also somewhat premature even to make such a proposal when there is a root and branch review of legal education still going on.  I have zero ability to comment on the review itself,  but would consider that much of its work must ultimately be about diversity and access.

The Legal Education and Training Review (LETR) has found, for example, that training partners at City firms will mainly recruit from ‘top universities’.  I’ll let you work out for yourself which those are, but it does mean there are hundreds of law students in other universities who haven’t a cat in hell’s chance of getting into the career they aspire to.

Just 7 per cent of the UK population is educated in fee-paying schools, but more than half of partners at magic circle firms graduated from one.  At the Bar, the figure rises to a shocking 68 per cent, with an even more shocking 80 per cent of barristers coming from just two universities (yes, you know which they are).

Aside from the depressing picture this paints of social mobility in Britain generally and the legal profession in particular, it does nothing to ensure our justice system represents and understands the society it serves.  I don’t think that’s acceptable whether we are talking about city firms, barristers, high street practices or legal aid firms.

It is staggering that the SRA can be so blasé about the impact their proposal will have on female, black or minority ethnic trainees or those educated in state schools, who are more likely to work in the small firms currently paying at or near the minimum.  It is rare for me to agree with the Law Society on anything, but on this they are bang on when they say scrapping it will create an image that will ‘neither benefit the profession nor promote social mobility within it’.

I do hope someone at the SRA has thought to look at the LETR discussion paper published at the end of April, which, while recognising the progress in increasing diversity in the legal profession, expresses concern that it still embodies a system ‘where early social and educational inequalities have a long reach forward [and that] actually rewards the most socially advantaged’.

No-one expects the legal profession to put right all the wrongs inherent in our education system, which is where the real social entrenchment takes place.  But it is their responsibility to promote a diverse profession, which means taking trainees from a range of backgrounds and paying them a decent salary.

And while it is not the profession’s fault that there are far more law graduates around than there will ever be training contracts, I fail to see how encouraging more training contracts than there are jobs is going to help anyone.  That just shifts the bottleneck and transfers the responsibility for misleading students from legal educators to the legal profession.

Far be it for me to second guess which side the SRA will fall when it comes to making a decision about the minimum salary, but in my experience, once there is a public consultation on something, the die is cast.  I’d also be highly suspicious of a process where questions are asked on the impact assessment after the substantive consultation has closed.  But that’s just me.

The minimum salary trainee solicitors get is not huge: I got paid about the same in my first proper job after university over 15 years ago and in all honesty I wasn’t doing anything half as difficult or important as legal work (now of course, what I do is very difficult and important).  The legal profession has made painfully slow progress on diversity, but it is at least going in the right direction.  Do we really want all our lawyers to all be arrogant posh boys who don’t know the price of milk?

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Mind the gap: why the SRA’s consumer information falls short

Posted on May 8, 2012 by

Thanks to the typical English bank holiday weather over the weekend I barely ventured out of the house and instead found myself working.  Sad but inevitable.  It’s also a bit sad that as a ‘consumer champion’ it was only in May 2012 that I came across a report on consumer attitudes towards the purchase of legal services published by the Solicitors Regulation Authority (SRA) in February 2011.

In my defence, there weren’t any surprises hidden in the report, so I think I can be excused from missing the ‘consumers-don’t-shop-around-for-legal-services shock’ headline.  Also in my defence, I don’t think the SRA have made much of a song and dance about their measures to make consumers ‘solicitor savvy’, so I only stumbled across the consumer part of their website by accident.

Unfortunately, unless you were looking for it I am not sure you’d know what it was as it doesn’t look like a consumer website and some of the attempts to get rid of legal speak haven’t quite worked.  Here are some examples from its jargon buster:

Agreement:  Where two parties reach consensus on a set of facts or course of action: for example, the SRA sometimes enters into regulatory settlement agreements with individuals where particular misconduct is admitted and a sanction agreed

Misconduct:  sometimes used to refer to the act in which someone regulated by the SRA breaches a principle

Notary:  A lawyer regulated by the Faculty Office of the Archbishop of Canterbury

Persuant:  When something is related to, or comes out of, something else: for example, our powers to regulate stem from (‘are pursuant to’) various acts of Parliament.

Now I know what they mean (although I have never quite worked out what notaries do) but I am not sure your average consumer would, even if they read through the whole list, which surely isn’t quite the point.  And there are some glaring omissions, such as ‘no win-no fee agreement’,  although to be fair, they probably didn’t want to have to keep changing the definition.

I spoke to the SRA last year about helping them to define and flesh out their role in relation to the consumer.  It didn’t get anywhere, which is a shame, because the first thing I’d have told them is their website should explain what legal services are:  a product, like a will; a process, like litigation; or simple advice, like consumer rights.  It may all seem obvious to solicitors but it won’t be to many consumers.  Oh, and they should use a bigger font.

Consumer information is one area where the legal regulators really need to work together and probably with other organisations as well:  the Legal Services Consumer Panel (LSCP) has even raised the question as to whether it is the regulatory system that should address consumers lack of engagement with the legal services market.

If I were a clueless consumer, I wouldn’t know where to look for definitive, or at least reliable, information about how to choose a lawyer and what to expect.  Typing various search terms into Google tends to bring up the Law Society first, but no links at all on the first page to the SRA’s consumer information (nor, it has to be said, to that of other legal regulators).

The closest I can get is the Legal Ombudsman, which of course is focused on complaints, but this may be a strong indication of part of the solution to the issue of where consumers go to get this basic information.  Spreading it across the websites of different regulators and representative bodies only adds to the confusion consumers have about the different types of legal professionals, a confusion that may become more pronounced as different providers enter the market.

The SRA research highlights how most consumers choose their lawyer on the basis of a personal recommendation and, often, simply by opting for the title of ‘solicitor’.  This is not something the SRA is necessarily going to object to, but it does hamper the promotion of effective and real competition in the legal market.  Consumers need to know they have options when deciding who to instruct.

This is something the LSCP highlighted in its work programme for the next year in which it states: ‘the impact of these measures [to open up the legal market] will be limited if consumers do not drive competition’.   It suggests that choice tools, such as comparison websites and quality marks, would help consumers differentiate between providers.  This must be right, but I am not convinced anyone is doing much to develop them.

The SRA also published researched into what consumers want and need from outcomes-focused regulation.  Setting the aside the rather obvious finding that consumers don’t really know what this means, it did come up with some useful insight into how consumers judge legal services.  Believe it or not, it seems consumers do have certain expectations aside from the legal outcome of their case, including the time taken, value for money and the service received.

Again, there seems to be little reflection of this on the SRA’s consumer website.  Is it really too difficult to have information about how much a will might cost, or what an hourly fee for a divorce lawyer in London might be, or how long it normally takes for a bit of straightforward conveyancing, or what an insurance policy under a conditional fee agreement might cost?  If consumers really are to shop around for the best deal, they need some benchmarks, or at the very least some detailed case studies.

There is also little explanation about what is happening in the legal market.  The SRA may argue this isn’t its job, but if it is serious about plugging the information gap then it needs to be prepared to hold the consumer’s hand in helping them to navigate the new legal landscape.  It’s not much good giving a definition of an alternative business structure without explaining what it actually is.

I’m probably being a bit harsh on the SRA, after all, it does at least have a consumer website and lots of the information on it is helpful.  And I know it’s a serious regulator and not a whizzy frivolous brand, but most consumers, even serious ones, are time poor and need information that reaches out and grabs them.  Sadly, in the legal market, we still have a way to go.

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