I haven’t blogged for a few weeks now. That’s not because there’s nothing to foam at the mouth about – there’s plenty. But I’ve had to focus on the day job of helping the criminal justice system to creak on and actually earning some money to pay my bills. And obviously, with the country falling to pieces around us and no one actually running it, there have been other things for people to read about and blow their stacks over.
I’d originally started a new blog about the disgraceful situation in the magistrates’ courts regarding disclosure and the conduct of trials – in particular, the way that the burden and standard of proof (that’s that the Prosecution bringing the case so the Prosecution must prove the case, to you and me) is being deliberately eroded by stealth and without any public discussion on the matter. I’m still planning that blog, and if any solicitors have more specific examples of this in practice, then feel free to post them in the Comments below. (I’ve been overwhelmed with examples so far, but there’s always room for more.)
However, when at a very large Crown Court in outer London last week, I witnessed a scene which had me choking on my PG Tips. Waiting to get on with a sentence, I witnessed for the first time in the Crown Court a McKenzie friend in action.
For those not in the know, a McKenzie friend is supposed to be a person who assists an unrepresented litigant in court. They do not need to be legally qualified. They are not supposed to have the ability to address the court on behalf of the litigant, because only qualified lawyers with rights of audience are supposed to have that right. But in recent times some courts have allowed this, seemingly on the basis that some representation is better than none. From the view of those who have actually had to act against McKenzie friends, that is a matter of debate.
Some McKenzie friends now charge for their ‘services’, anecdotally often charging more than a qualified solicitor or barrister would be charging, if the hapless litigant did but know it. To those outside the legal profession, this must seem totally insane. A completely unqualified person can be permitted to charge fees to operate in an arena in which they are not qualified? Replace the word ‘lawyer’ with the word ‘doctor’, ‘accountant’ or even ‘plumber’ and you begin to realise how bonkers the situation actually is.
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What I witnessed sincerely made me hope that the unfortunate Defendant in the case I saw was not being charged any fees by the McKenzie friend he turned up with.
The proceedings didn’t start well, when the MF – who was dressed so scruffily that I thought he must be the Defendant – sauntered up to the advocates’ bench with his ‘client’ and sat next to him. The very experienced judge dealing with the case was plainly not impressed. The MF had clearly not advised his ‘client’ that the first thing you don’t want to do is upset the judge. The MF should have been sitting in the row behind the Defendant, if he ventured out of the public gallery at all. His next mistake was obvious: he appeared to have given his ‘client’ advice that was going to make him look stupid.
This was apparent when the Defendant was asked for his name. This is, usually, the most straightforward part of any Crown Court hearing. The Defendant responded: “My name is [X] and I am here under protest.” Oh dear.
This impressed the judge even less. As did the fact that the MF was openly chewing gum as he whispered his ‘advice’ into the Defendant’s ear.
Matters went further downhill when, without having sought the permission of the judge to do so, the MF attempted to address the court on his ‘client’s’ behalf. This ill-advised foray was given extremely short shrift and the pair were sent packing with the case being put back while they sorted themselves out. Incidentally, this case was apparently listed for a PTPH and so the case papers would have been on the digital system. To which, presumably, the Defendant would not have had access, though if he’d had proper representation that wouldn’t have been an issue.
Quite why a Defendant would voluntarily be in front of the Crown Court without proper legal representation is unfathomable. Very few people would not qualify for legal aid for a case listed for PTPH: by the sound of the details it was a relatively complicated fraud and so unless the Defendant had a disposable income of over £37.5k per annum – so that’s money left over after all expenses such as rent/mortgage etc have been paid – I’d have thought he’d have qualified for representation, subject to monthly financial contributions. Thank Sid James we only very rarely see MFs in the corridors of the Crown Court. At the moment.
In the civil courts, it’s a different kettle of fish. By all accounts the presence of MFs, many of them apparently being paid at least the same or more than the lawyers on the other side, is increasing exponentially. And not always apparently to the benefit of their ‘clients’, as stories such as this one from earlier in the year demonstrates here. You may think that the public are at risk from the very fact that unregulated persons can actually purport to offer what to the untrained eye might appear to be legal services (see further examples of horror stories here and here): I couldn’t possibly comment.
Why do the courts and the professions tolerate this?
My MF experience came hot on the heels of the publication of a report prepared by the Legal Services Board, the ‘super regulator’ which controls the activities of legal professionals: see a link to the Law Gazette report on it here. I’m not the only lawyer out there who greeted the publication of this report with the open derision it frankly deserves. There is nothing ‘super’ about the LSB.
In short, the LSB smugly opined that “unregulated suppliers of legal services are often cheaper, more innovative and more transparent than their regulated competitors”. Well, no shit! Of course they are cheaper BECAUSE THEY ARE UNREGULATED!
“Unregulated suppliers”, such as MFs, don’t have to pay insurance. They don’t have to pay fees to a regulator just to be allowed to do their jobs. They don’t have run any sort of compliance structure at their firms or Chambers. They don’t have to ensure that they operate within a recognised code of conduct, or indeed any code of conduct. There is no Government quango looking over their shoulders making sure they stick to the code of conduct and taking them through very expensive disciplinary proceedings if they don’t. And they don’t have to fund the NINE DIFFERENT REGULATORS out of their own collective pocket. SO OF COURSE THEY ARE BLOODY WELL CHEAPER!
The LSB is chaired by Sir Michael Pitt, a man who apparently also has time to be the current non-executive chair of the Pharmaceutical Services Negotiating Committee (see link here). As chair of the LSB, he apparently picks up a cool £63k for “at least 70” days’ work a year, or did when he took up the role in 2014 (see report here). He has quite possibly never crossed the threshold of a criminal courtroom.
How the actual feck does he know anything about the value of proper professionalism in our legal system? Clearly nothing, since he and his quango cronies appear to be doing everything they can to undermine it. See legal writer John Hyde’s excellent rant Throw Consumers To The Wolves: It’s Cheaper on the topic here. Imagine if the regulator of the medical profession had approvingly pronounced that unregulated suppliers of medical services were often cheaper, more innovative and more transparent than their regulated competitors. There would be riots in the streets, and doctors would certainly be out on the picket lines.
The Justice Select Committee – whose sessions have, in recent times, often been compulsive viewing – decided to tackle the thorny issue of legal services regulation last week by summoning the Great And Good of the various legal professions and their regulators to explain exactly what the regulators actually do. After all, for those in the professions, these people cost us a lot of money, time and aggravation. (The link to the JSC session is here.)
As chairman Bob Neill (Conservative, Bromley & Chislehurst) correctly observed at the outset, the area of legal regulation is rather a crowded marketplace. With those NINE (count ’em) different regulators. You have to wonder what half of these regulators actually do to justify their salaries (obviously paid for by us) and whether it is of any value at all. I have a horrible feeling that many of them just sit about spouting management speak, espousing blue sky thinking and bustling from one pointless meeting to another trying to appear as if they have something important to do.
My suspicions are confirmed when Paul Philip, Chief Executive of the Solicitors’ Regulatory Authority, kicks off. Speaking like a man who has his nasal passages stuffed with cotton wool, he enlightens us all by suggesting that “legal services regulation is on a journey”. Well, I think we could all have guessed that: it appears to be on a race to the bottom, grinding down the professionals who have to toil within its tentacles and at the same time appearing supremely unbothered about the unregulated legal sector, growing like topsy.
So what is legal regulation all about?
I wondered how hard the Committee had to try not to appear to be laughing as Philip tells us that legal regulation is, inter alia, all about reducing bureaucracy. Eh? I don’t think any solicitors who’ve had dealings with the SRA would exactly have spotted that one.
It’s soon clear that the reason for this session taking place is that the Treasury have apparently decided that all the legal regulators should become totally independent from the professions. Which might sound like a good idea in principle, until you consider that if the idea has come from HM Treasury, that can only mean one thing: they want it to be cheaper to/for them, and therefore almost certainly to pick the pockets of the profession even further.
Not unreasonably, Catherine Dixon, Chief Exec of the Law Society, suggests that while the country is undergoing a “period of unprecedented change” (roughly translated: utter chaos), now might not actually be a good time to embark on a wholesale review of legal regulation. Let’s face it, it’s unlikely to be high on anyone’s agenda right now. And very soon, she mentions the elephant in the room: the LSB. The super-regulator isn’t represented at this Committee. Perhaps they couldn’t find a McKenzie friend willing to take the case?
Bar Council chairman Chantal-Aimée Dorries QC pointedly tells the Committee that the Bar “doesn’t support a super-regulator”, considering it to be surplus to requirements. Quite why we need an over-arching regulator in an already crowded marketplace is anyone’s guess, but I suppose all those Government cronies need some quango or other willing to have its pips squeezed for cash.
John Howell (Conservative, Henley) then suggests that “the cost of providing legal services is out of proportion to what people want”. Well, the cost of the plumber I had to call out last week to fix my leaking toilet was “out of proportion” to what I wanted as well, but I still had to pay for it. To get a properly qualified, certified plumber COSTS ACTUAL MONEY. They have to go through training, qualify, join trade associations, that sort of thing. So why should lawyers be expected to provide their specialist professional services for below cost or – as the Government seems to expect – for free? My plumber wouldn’t.
When Howell goes on to suggest that “the problem is of having too many lawyers”, the face of Alex Chalk (Conservative, Cheltenham) seems to wear the carefully neutral expression of someone who desperately wants to bang their head on the desk at the rank stupidity of their colleague, but knows they can’t because they’re on the telly.
What about the performance of the LSB, quips Bob Neill? Dorries QC, who has a wonderfully understated manner, suggests that the LSB could do better (well, it could hardly do worse) and is prone to straying beyond its remit. I read into that that the LSB has had to be slapped down on a number of occasions, such as when it spent an inordinate amount of its cash (and by that I mean ‘our cash’) commissioning recent reports on areas such as diversity or the cab rank rule.
Dixon then grasps the other current nettle by suggesting, rightly, that that there is objection to the LSB spending the professions’ cash commissioning that recent report on the unregulated legal sector. Yes, let’s get that one straight: the report I referred to above, which concluded in basic terms that unregulated legal providers were all very jolly and should be allowed to run riot in our justice system unhindered by any sort of rules or governance, and without even having to be insured against, well, something going wrong as a result of their lack of competence. And who almost certainly paid for this research? Why, the regulated legal professions, obvs!
You could not make it up.
Paul Philip, on the other hand, suggests that the LSB should be praised for “pushing the boundaries in thought leadership”. WTAF? Next!
Victoria Prentis (Conservative, Banbury) asks about the issue of paid MFs. The problem is, as the Committee appeared to grasp, that anyone can use the term ‘lawyer’ to describe what they’re doing, even if they are, well, not actually a lawyer. This is misleading to the public and is why, as Dorries QC said, the Bar Council have repeatedly called for MFs and other non-lawyers, who are not qualified, not regulated and not insured, to be prohibited from charging fees for such work.
My guess: with its obsession with dumbing down the legal professions and wiping out access to justice with its unrelenting ideological cuts, the Government will follow the lead of the likes of Sir Michael Pitt and continue to allow these unregulated imposters free rein.
Can I re-train as a cat whisperer?