SO states Doing Law Differently, the paper issued recently by the Lord Chancellor that draws together government policies on the legal system and seeks to put them within a coherent framework. The document is an argument in favour of change.

Any analysis of such a restatement of policy must start with first principles — the way in which the system balances the interests of the State or community at large against those of the individual, and the extent to which the system is resourced. This paper is a useful summary. But it fails fully to address either of those central principles.

Some of the advocated changes are well known — ending the role of the Lord Chancellor as head of the judiciary; establishing a supreme court; changes in the way judges are appointed; general ideas about changes in the criminal justice system; reforms emerging from the Clementi review in the way legal services are offered; and, finally, the review of legal aid procurement. The aim, it says, of these changes is to ensure that the legal system is “focused much more clearly on the needs of the people”.

It does go on to state that the justice system must be properly connected to our society and our community; and that this connection cannot be static. And it correctly asserts that to be effective, the connection must be nurtured over time, as society and the community change.

But the paper has a crucial defect: it fails to understand that the core of the problem is the balance that the legal system strikes between the interests of the community and the interests of the individual. Indeed, the rights of the individual receive little emphasis. Nor is there any reference to what many would regard as this Government’s supreme achievement in the legal sphere — the Human Rights Act.

The knock-on effect of failing to give weight to the protection of individual rights is an omission to recognise the importance of the role of those who present a case, whether on behalf of individuals or the State. Our legal system depends critically on a corps of advocates with the skill and expertise to undertake this function. The paper is silent, too, about that crucial requirement. In the absence of a body of independent advocates, rights would go unprotected and wrongs unredressed.

Had this fundamental principle been given more weight, the paper’s emphasis would be different. The need for speedy summary justice would have been tempered by a need for those accused to have the right to be defended, and to have the case proved against them beyond reasonable doubt. The need for new forms of business structures for lawyers would have been tempered by the need to preserve and strengthen a regulatory regime for specialist advocates. The need for a new system of legal aid procurement would have been tempered by the need to ensure that the corps of specialist advocates is properly resourced to enable it effectively to carry out its role for individuals within our community.

There is a second key omission. The paper gives little emphasis to the issue of resources. It rightly proceeds on the basis that the legal system performs a service to the community, which is precisely why the system has to be properly connected to the community. But there can be no proper connection without an appropriate share of the community’s resources. A government that has virtually tripled spending on the NHS, so that the latter can spend in a week what is spent on public funding of the legal system in an entire year, is not perhaps paying quite sufficient regard to that crucial link between the system and the community that it is designed to serve. The justice system needs more resources than at present, not less.

Doing Law Differently is to be welcomed. But the method and timing of publication are less welcome. The paper was produced within the department without any discussion with the professions who, it is said, must do law differently. If its ideas are to be a sustainable reality rather than mere rhetoric, there must surely be better collaboration with all involved to ensure that the legal system achieves the success upon which the health of society so critically depends.

The public interest, in particular, in maintaining a strong and independent Bar was clearly and simply stated in a letter from a retired Welsh solicitor, published in The Times in 1989. He said: “The men and women of the mining valleys know pain and anguish only too well: Aberfan, the Lewis Merthyr Colliery explosion, men crippled and disfigured in accidents in the coal faces and in the tunnels underground. It is a melancholy chronicle, relieved only by stories of devotion and heroism. Those families needed first-class advocates. They got them: advocates of great skill and experience from Cardiff, Swansea and London.

“At the Aberfan inquiry, at the end of the brilliant cross-examination of a prominent National Coal Board witness by leading counsel for the parents and residents’ association, one parent came up to me and said: ‘That was like balm to my soul.’ He had lost his wife, his two children and his home. All he had left was what he stood up in.”

That is how our legal system can and should connect to the community.

The author is chairman of the Bar Council of England and Wales

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