Radical leadership for uncertain times
The Law Society's president, Robert Bourns, talks to John van der Luit-Drummond about the highs and lows of 2016 and what the year ahead holds in store for the solicitor profession
‘My son once said: “Dad, you’ve become radicalised since you went to the Law Society.” But it’s the nature of the role,’ explains Robert Bourns, president of the solicitors’ representative body. ‘The job is a tremendous privilege. People say I’ve become more evangelical, more radical, but I do feel concerned when I see people taking shots at the profession. What has been achieved by practitioners over a long period of time is pretty special.’
Every president of Chancery Lane is invariably judged by the crises which they oversee. In 2013, following discontent over the law Society’s policy on criminal legal aid, Nicholas Fluck was faced with that motion of no confidence in the society’s senior leadership; a year later, his successor, Andrew Caplen, had to rebuild the profession’s trust in the representative body and fight back against swingeing cuts to legal aid. Last year, Jonathan Smithers took up that torch but also had to face criticism for the millions of pounds lost when the largely unwanted conveyancing portal, Veyo, was scrapped. So what does Bourns expect to be remembered for and has he done enough already to be remembered fondly by the rank and file of solicitors?
‘I hope to be remembered as someone who demonstrated passion for the profession,’ he replies. ‘The solicitor profession is very good at what it does and plays a significant role in the administration of and integrity in the justice system. That has been overlooked, dismissed, and disparaged for far too long. That is my message and I hope it may be good enough.’
Bourns’ legal career began with his training at Osborne Clarke in 1978. He qualified two years later and for the next six years practised criminal defence work before later moving to employment, partnership, and regulatory work. Bourns has significant experience managing and developing a growing legal business, having been managing partner of TLT for six years and, more recently, the firm’s senior partner.
Having taken office as the 172nd president of the Law Society on 14 July, Bourns’ inaugural speech at the society’s annual general meeting laid out his plans to ‘proudly promote’ the achievements of solicitors. ‘I will work tirelessly to promote the huge value our profession offers clients at home and aboard,’ he said. ‘We should be proud of our contributions to the communities we live in, in our professionalism and expertise, and our role in upholding the rule of law.’
Although Bourns expected to spend the next 12 months trying to do just that, events overtook him. The UK’s public vote to withdraw from the European Union, which took place three weeks prior to his inauguration, changed Bourns’ agenda. In the weeks and months since he has found himself discussing the likely consequences of Brexit and, ‘in the face of a curious population beyond the UK’, has joined in the general effort to ensure that English and Welsh law remains the gold standard and jurisdiction of choice for both international and domestic parties. And he has been right to do so.
In the immediate aftermath of the Brexit vote, UK lawyers began to fear that competing jurisdictions, such as New York and the financial centres of Frankfurt and Dublin, might try to siphon legal work away from London. ‘We’ve heard people say English law is finished,’ says Bourns, ‘but that has stopped.’ The reports of the death of English law may well have been greatly exaggerated at the time, but such is the uncertainty the Brexit vote brought that the very idea that English law would be unceremoniously dumped in favour of another jurisdiction could not be discounted. With 27 per cent of the world’s legal jurisdictions using the common law and more than two-thirds of the 1,100 claims brought to the Commercial Court in 2015 involving at least one party from outside the UK, the resultant impact to the economy could not have been ignored.
‘We have emphasised to the government that, if the vote was about promoting UK plc on the world stage, then our network of City law firms are already doing that by acting for all the major players, and it is very important that nothing is done to damage that reputation,’ explains Bourns. ‘I think people have understood that, to the extent to which it is within their control.’
This significant piece of work, as Bourns describes it, has provided the Law Society with an opportunity to engage differently with the government. ‘Where we have habitually been used to dealing with the MoJ we are now talking to other departments and in a way in which we make a more obvious contribution to UK plc and its reputation. It is a good thing for the profession to have the government say “solicitors are interesting”.’
Hearing lawyers described as ‘interesting’ by Whitehall makes for a refreshing change, considering the year-long attacks against those who practise law. Whether it be personal injury lawyers, legal aid practitioners, or human rights defenders, there always seems to be a government minister or backbench MP willing to disparage their work. ‘We have had a lot of rhetoric directed towards the profession as “ambulance chasers” and identifying practitioners with client interest. It is important to remind ourselves of why it is so significant that we have an independence of interests from clients, notwithstanding all the good things we do for them,’ says Bourns.
For Bourns, there has been ‘a steady drive’ of such rhetoric levelled against the profession, which began with 2014’s Jeffrey Review and has culminated in the recent tabloid attacks against those lawyers and the judiciary involved in the article 50 proceedings. ‘We have seen a steady drumbeat from some politicians and what we are now seeing is a slip towards commentary about the judiciary as “enemies of the people”. A popular view has been expressed in relation to the EU,’ he continues, ‘that is absolutely fine, nobody is trying to go behind that, but if you continue to follow a populist line, who will be available to deal with the unpopular: the weak and the vulnerable?’
Advocacy and judicial experience
Michael Gove’s disapproval of solicitor advocates in his Prison Reform Trust’s Longford lecture in November is, to Bourns, a prime example of politicians misunderstanding the work of solicitors. ‘It is really what set me going way back when Gove was Lord Chancellor, when he was busy promulgating this view that a strong independent judiciary requires a strong independent Bar as its breeding ground and that solicitors were interfering with that,’ says Bourns, who also continues to object to Sir Bill Jeffrey’s review and how it characterised the role of solicitors.
While Gove’s misguided comments were directed at solicitor advocates, Bourns argues that the former justice secretary’s unfair criticism was really an attack on the whole profession. ‘You can’t make remarks that go towards a solicitor’s integrity and independence without the whole profession being up in arms. It isn’t qualified in any meaningful sense,’ he says. ‘We need to make sure our advocates are given credit for what they do. There are elements of difference between advocates but that doesn’t mean one is better or worse than the other. Solicitor advocacy in criminal work starts in the police station, negotiating or advocating the client’s cause with the custody officer, and goes all the way through the whole process. To say it is less good than [barrister advocacy] is a sweeping generalisation.’
So what can be done to improve the reputation of solicitor advocates? Identifying and developing best training practices seems to be key, with Bourns explaining the need to support advocacy training right the way through practitioners’ careers so they can build their competency and have the opportunity to practise it. The same goes for those solicitors considering a career in the judiciary, he explains.
Partly agreeing with Lady Hale – who recently told Solicitors Journal that solicitors find it difficult to accede to higher judicial office because they are not always given time off to gain judicial experience – Bourns said what was really needed was hard evidence that those who apply stand a real chance of being appointed, and that there should be clear career progression in the judiciary. ‘What I pick up is that people say: “I got shortlisted but didn’t get appointed.” That puts people off. Practitioners have got to think about what appointment, or failure to be appointed, does to their careers. There is an element of truth in firms needing to recognise that those who are taking time out to undertake a judicial career, even if it is only a part-time appointment, bring back new perspective, knowledge, and experience. We allow people to contribute to the CBI Council or pro bono advice because we can see benefits to it, so why can’t we connect that to part-time judicial appointments?’
Again, this goes back to Bourns’ theme of sustained training and mentoring for solicitors so as to prepare them for life on the bench, moves in house, or ownership of their own law firm. ‘I don’t like to think that members of this profession are painted into a corner of just being technical experts, because in any environment you run the risk of becoming an increasingly overpaid gopher because you don’t have those broader skills,’ he says. ‘Most people are capable of developing those broader skills – getting work, supervising client relationships and people, analysing work flow, managing a firm – and we should be giving them the opportunity to develop their careers,’ he adds, before suggesting that the SRA’s new competency regime seems more concerned with solicitors remaining competent in ‘the job they currently have’, rather than the role they may ultimately be striving for. ‘As a representative body we should be helping people identify what the opportunities are and supporting them as they acquire the skills.’
Ahead of the now published Competition and Markets Authority’s final report into the legal services market, I ask Bourns if Chancery Lane is prepared for the watchdog’s findings and what he expects the future will hold for the independence of legal regulation. ‘The CMA report is likely to promote competition – the clue is in the name,’ he replies. ‘We have to be ready for it. The definition of regulation in legal services has moved on from being profession led to something that is very obviously about promotion of a market.
‘The latest LSB paper talks about reduced regulatory objectives, effectively licensing a marketplace, and that award of title by the market regulator is not appropriate. I agree with that. Set a proportionate regulatory framework for all players in the marketplace; license them but allow the professions to do what they habitually do. Growing knowledge and subscribing to standards is the way professions function and we should be allowed to do that.’
The inability of the profession to practise free of red tape is a consistent gripe heard from solicitors. But as the Ministry of Justice and judiciary’s plans to modernise the civil court system take shape, annoyance with the regulators may become the least of practitioners’ concerns, and Bourns admits that the wariness of the profession about the introduction of online courts is well founded.
‘What we’ve got at the moment is a huge gap: we’ve got courts closing, the courts that were to receive the work from closed courts are now going to be closed, and court staff have been reduced, leading to delays. There are real problems in the system and we’ve yet to see much sign of delivery. There is also this exceedingly unhelpful rhetoric around de-lawyering the process, so naturally lawyers are going to feel unwelcome in that new environment,’ he explains. ‘There is also a big issue around public legal education. Fine, people may have access [to the online court] but how will they know what they are meant to be accessing. There is a long way to go before online provision will provide access to those that are vulnerable, weak, and in need.’
In this new legal landscape, Bourns is also wary of the ‘mission creep’ of greater unbundling of legal services. ‘Will the courts acknowledge our duty to the client is limited to the extent of the unbundled service?’ he asks. ‘There are circumstances in which unbundling works and I recognise that some budgets are finite. I may give advice, mentor, or explain some of the bizarre language clients might get in a tribunal order – that is unbundling and I haven’t had any problem in describing a limited scope of advice, but it is important you understand what you sign up to as an adviser and as a client.’
Employment tribunals are the latest section of the justice system to gain attention from the government. In a consultation paper issued jointly by the MoJ and Department for Business, Energy and Industrial Strategy, justice minister Oliver Heald QC and small business minister Margot James paved the way for online resolution of certain employment disputes, with the ministers stating that the tribunal system had ‘not kept pace with changes in society or, in particular, with the way that users want and need to interact with our systems’.
The Law Society has backed reforms of the system, saying ‘tangled’ employment tribunals need to be quicker and cheaper so they are more accessible for both employees and employers. However, reacting to the government’s announcement, employment specialist Bourns said that, to improve access to justice, any reform of the tribunal structure must be accompanied by a reversal the controversial tribunal fees regime, which was introduced in 2013 and which has caused a significant reduction in the number of employment claims brought.
‘I don’t believe those fees were introduced in the expectation that they would generate significant additional revenue; they are about ensuring people don’t come into the system and that has been demonstrated in the tribunals beyond any reasonable doubt,’ Bourns remarks. ‘I don’t accept that we are only losing cases that are without merit. It is ordinary people that have lost their jobs unfairly and don’t have fantastic contractual benefits who are being adversely affected. Everybody needs to acknowledge that, however altruistic your employer may be, a lack of credible litigation risk alters behaviours.’
The year ahead
With 2016 nearly – mercifully – behind us, what does 2017 hold in store for solicitors? What will be the main battlegrounds, flashpoints, or surprises in the year ahead, I ask. ‘Highlighting the implications for uplift in small claims for personal injury is very important,’ begins Bourns. ‘I’m also very concerned as to whether the cuts in the criminal legal aid rate will be reinstated from 1 April. The 8.75 per cent cut will impact firms’ viability, particularly where we see a reduced volume of work going through the courts. Those issues, and their impact on the profession and its morale, worry me.’
Be under no illusion, the Law Society’s president does not believe 2017 will be entirely plain sailing, yet his faith in the profession he has been a member of for four decades remains unshakeable. ‘I do have confidence in the profession; it is has proven amazingly resilient. People will see that lawyers have and do add value, but there are going to be some bumps along the way.’
John van der Luit-Drummond is deputy editor of Solicitors Journal