Michael Gove has called for the representation of all defendants in Crown Court cases and the more serious magistrates court cases to be restricted to barristers. The former justice secretary, giving this year’s Longford lecture, argued that that criminal bar was in ‘increasing danger’ as a result of ‘the slow strangulation’ of young barristers.
Graduates contemplating a career in the law would be aware of the ‘huge fees’ at the commercial bar and that salaries of hundreds of thousands of pounds a year were ‘the norm’ for partners in top city firms. ‘It would require a particularly elevated commitment to serving the interests of justice to ignore those temptations and instead opt for the criminal bar, where remuneration is falling and annual earnings after fees and taxes for many are lower than almost any comparable professional,’ he said.
It is an analysis that Gove first made when he was appointed Lord Chancellor last year – see here on LegalVoice. His latest speech will do little to reverse the view of some solicitors that he has ‘swallowed the propaganda of the senior Bar’.
Whilst acknowledging that there were some ‘very fine solicitor advocates’, Gove went on to say that ‘individual for individual’ barristers provided a better service. ‘That was the judgement of the independent Jeffrey report into the quality of advocacy and it is certainly my view after observing the workings of our criminal courts,’ he said; pointing out the training required to be a solicitor advocate is ‘at a minimum a mere 22 hours’ to 120 days for a a barrister.
The politician said that there was a case for ‘a higher quality filter’ being applied before people could read for the Bar in the first place. ‘And I think we should investigate how we can better regulate those solicitor firms who refer clients to in-house advocates or those with whom they have any sort of other commercial relationship,’ he said.
Gove argued that a number of factors ‘conspired to undermine’ the criminal bar such as extended rights of audience for solicitor advocates and (in his words) ‘changes made to the operation of legal aid. Such developments had ‘not worked in the broader public interest’, he said. Last February, as justice secretary, he was forced to drop plans to foist the hugely controversial dual contracting plans on the solicitors’ profession which would have put many firms out of business. He also suspended a second 8.75% fee cut.
‘There are, of course, some very fine solicitor advocates…’
From Michael Gove’s Longford lecture
At the same time some solicitors’ firms have built up in-house advocacy teams, often recruiting those who have not made it into barristers’ chambers. For these firms it often makes economic sense to pocket both the fees due to solicitors and payable to advocates rather than instruct independent barristers. There are, of course, some very fine solicitor advocates, but there is also no doubt that, individual for individual, barristers provide a better service. That was the judgement of the independent Jeffrey report into the quality of advocacy and it is certainly my view after observing the workings of our criminal courts. The training required to be a solicitor advocate is – at a minimum – a mere 22 hours, for a barrister it is 120 days.
With work siphoned off from barristers to solicitor advocates, with the development of an entirely new class of ‘plea-only’ advocates who do not profess to have all the skills and competences of a qualified barrister and with legal aid payments not just cut, but structured in such a way as to facilitate solicitors’ firms keeping business in-house, the criminal bar is being squeezed to the margins.
Of the total amount of criminal defence work available, the amount taken by solicitor advocates has increased from 6% in 2005/6 to 43% in 2014/5 and is continuing to increase.
… I think there is a case for saying that the defendant in all Crown Court cases and the more serious magistrates court cases should be represented by a barrister. High quality existing solicitor advocates could, of course, become barristers in appropriate circumstances. I also think there is a case for a higher quality filter being applied before people can read for the Bar in the first place and would like to see the Inns of Court play a significant part in establishing a higher quality threshold. And I think we should investigate how we can better regulate those solicitor firms who refer clients to in-house advocates or those with whom they have any sort of other commercial relationship.
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