Gove's nonsense: Barristers vs solicitor advocates

Michael Gove’s short tenure as Lord Chancellor was, on the whole, well received by the legal profession. His understanding of the rule of law, his compassionate approach to prisons, and a willingness to repair the damage done by his hapless predecessor, the notorious Chris Grayling, earned him plaudits from across the political spectrum.

Now banished to the back benches in the post-referendum aftershocks, he clearly retains a close interest in the justice system; while his successor, Liz Truss, barely managed a few words in defence of the judiciary who ruled that invoking article 50 required parliamentary approval, Gove took to Twitter with a robust defence of the wisdom and independence of our judiciary, to the approval of many.

Gove continued in his role as the advocate of the justice system on 16 November when he delivered the Longford lecture entitled ‘What’s really criminal about our justice system?’ It was a wide-ranging speech many criminal practitioners will have found much to agree with, but Gove, perhaps not for the first time in his career, waded into treacherous waters by arguing that barristers provided a ‘better service’ than solicitor-advocates. He took this further by saying only barristers should represent defendants in the Crown Court and that those solicitor-advocates who wished to retain their higher rights should requalify.

Understandably, while barristers have preened, solicitors were and remain furious. It is, after all, some 21 years since His Honour Judge Bentley QC, sitting in the Sheffield Crown Court, was forced to apologise for saying a defendant did ‘not need to stoop so low’ as to instruct a solicitor-advocate and many in the profession had hoped they had earned the respect of their professional colleagues and the judiciary.

Gove’s analysis is based on a number of assumptions – some accurate, some flawed. He pointed out the difference in the training regimes between the two limbs of the profession. True, under the current system, the BPTC is much more geared towards advocacy than the LPC, and the exposure to advocacy a barrister receives through the Inns and pupillage undoubtedly stands them in good stead for their later career. He accepted that the current legal aid landscape makes criminal work the poor relation of commercial work and a career path that only the most determined to serve justice will follow (although he was less vocal on his government’s role in this). And he was willing to acknowledge that there are some very good solicitor-advocates and very bad barristers – a truth borne out in many courts throughout the jurisdiction.

But Gove describes in-house advocacy teams in solicitors’ firms as ‘those who have not made it into chambers’, effectively dismissing them as players who didn’t get picked for the first team. This is a nonsense. With the increased opportunities for higher court advocacy many of the most able students with a flair for advocacy are as likely, if not more likely, to choose to train as solicitors. As this becomes the norm, there will be greater levels of peer support which will further serve to enhance their abilities.

The profession has changed immeasurably over the last 25 years. The distinction between the work conducted by barristers and solicitors has almost vanished. The public needs the best people doing the job and this is not achieved by keeping the very good solicitor-advocate out of court while preserving the rights of both the good and bad barrister.

If the public are to be served by the best advocates (and the most diverse judiciary) the market needs to allow for flexibility in the way advocates can practise. There is scope to improve training, for both sides of the profession, and with the regulators currently reviewing their routes to qualification, it is to be hoped they draw on each other’s expertise to disseminate best practice and, where possible, find common areas of need where training can be combined to reduce the cost burden and make law an affordable career choice for all.

The criminal trial is a cornerstone of a free society, and both sides of the profession should take heart from Gove’s acknowledgement that this is an area where the public will never grow tired of experts.

Jeremy Robson is director of the Centre for Advocacy at Nottingham Law School, part of Nottingham Trent University

@LawNLS www4.ntu.ac.uk/nls