ANOTHER VOICE
`...And I, my Lords, embody the law'
AUBERON WAUGH
Last Wednesday found me lurching in Chancery Lane tete a tete with a disting- uished and successful QC, whom I had not met before. The General Council of the Bar's press office has been arranging a whole series of these luncheons between eminent QCs and journalists, I gather, in order to put across the Bar's case against Lord Mackay's proposed reforms of the legal profession. We all know that you cannot hope to bribe or twist, thank God! the British journalist, but it is amazing what a friendly luncheon can do. My previous experience of consultations with Silk was to be kept waiting half an hour in an outer office and charged about £600 for the half-hour's consultation, although a cup of tea (and in some chambers, a biscuit) might have been free.
On this occasion I was ushered into the inner sanctum as soon as I arrived. My host was an affable, hard-working, over-paid person of great energy, who did not drink at lunch. No doubt he has other pleasures in life. I cannot remember whether I allowed him to buy me a glass of sherry before the meal, but there was certainly a half bottle of Pouilly Fume with the monk- fish sauce basilique and a large Kummel frappe with the coffee.
Why on earth should I take an interest in the misfortunes of the legal profession? I asked belligerently. The three most de- spised callings in Britain — politics, the law and journalism — have no common ground, although the law has generally managed to keep politicians in their place, demanding that the Lord Chancellor, for instance, receive a salary which is nearly three times that of the most senior member of the Cabinet.
Of course I was well aware that these grotesquely high salaries are thought necessary in order to preserve the judici- ary's independence — a polite way of saying that if judges are paid less, they will be more tempted to take bribes. The same argument might be applied to any other trade or profession which is allowed to exercise the smallest degree of discretion over fellow-citizens, but where lawyers are concerned, it seems to work. I honestly do not believe that many — if any — British judges take bribes. A few years ago I was describing a libel action (in which I was not involved) to a group of French friends. The judge's summing up may have been no more perverse or partial than usual, although it was more than usually incom- petent, citing hearsay evidence as if it was admissible. What distinguished it from every other libel summing up I have ever heard is that it was heavily biased in favour of the defendant (who happened to be a millionaire) rather than the plaintiff (who happened to be a journalist).
My French friends immediately and automatically assumed that the judge had been bribed, and that that was the purpose of my story. When I protested that it had not even occurred to me that the judge might have been bribed, and I was still convinced he had not, they looked at me as if I was soft in the head. But I cannot open my mind to the possibility. It is inconceiv- able. The man is now a senior appeal judge. British judges simply do not take bribes. As Humbert Wolfe remarked ab- out the British journalist, 'seeing what the man will do unbribed, there's no occasion to'. The case I have cited illustrates no more than the traditional antipathy be- tween judges and journalists.
Of course the present dispute has no- thing to do with barristers' fees, at any rate in the first instance and even less to do with judges' salaries. Patiently, my host ex- plained that Lord Mackay's proposal to increase competition by the award of advocacy certificates, to be administered by a committee monitoring the advocate's performance, represented a vast and un- precedented extension of government con- trol. A Tory government might use it to curb turbulent advocates in, for instance, the race-relations field, but what might not a Labour government do with it? This seemed a better argument than the Bar's previous one, that part of a High Court judge's independence was to choose who should appear before him. As we discussed the matter further, it emerged that there might also be a community of interest in the matter of contingency fees. This is the system which prevails in America whereby a plaintiff pays his counsel an agreed percentage of the award, if he wins, and nothing if he loses. It is not such good news for defendants, of course, and has resulted in an explosion of litigation across the Atlantic by which no American citizen can slip on a banana skin without discovering half a dozen causes for action.
Barristers' objections to this are not hard to understand. The present system pays them if they win or lose — why should they accept a system which pays them only if they win? Press objections should be even stronger. Under the present administration of the libel law, whereby the plaintiff nearly always wins, an avalanche of writs would come pouring through the letter box under any contingency fee system.
I was less impressed by my hosts' anx- ieties that a few large firms of solicitors would tend to monopolise litigation in their fields (they already do) and prevent people getting the barrister they want. It is not a matter of such great importance to the client as it is to the barrister.
But there can be no doubt that our legal system is a scandal, overdue for reform. Hailsham's long seat on the Woolsack can be seen as the Brezhnev years, although at least Gorbachev does not have to put up with the ghost of Brezhnev appearing on Soviet television to say: 'They really ought to get it into their heads that they are talking nonsense.' Perhaps the unknown Wee Free from Edinburgh will come up with the right answers, but he does not seem to have done so yet.
The first great scandal in the present system is the cost of litigation. This applies chiefly to the High Court, and requires that, to keep the show on the road, the plaintiff must nearly always win in civil actions, which is an obvious denial of justice. The cost of litigation can be re- duced either by barristers (and perhaps other advocates) being forced to accept lower fees by pressure of competition (which is more or less unthinkable) or by moving actions (e.g. libel) to a lower court or by an extension of legal aid or, where plaintiffs are concerned, by the acceptance of contingency fees.
None of these solutions is perfect. The Bar sloppily supposes that the best solution is for massive extension of legal aid to cover its own present exorbitant fees, but that is surely the worst solution of all. The greatest injustice in the present system is between the legally aided plaintiff and the professional defendant who cannot even recover his costs. The best way to break up the present system would be to disqualify barristers from becoming judges, establish a separate legal profession of judges, with a grounding in natural justice, and abolish legal aid altogether. In an educated demo- cracy, citizens should be able to present their own cases or appoint a friend to do it for them, if they cannot afford a barrister. But nothing can be done so long as judges see themselves as the guardians of restric- tive practices.
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