Austin Mitchell – 1985 Speech on Legal Profession Reform

Below is the text of the speech made by Austin Mitchell, the then Labour MP for Great Grimsby, in the House of Commons on 11 June 1985.

I beg to move,

That leave be given to bring in a Bill to make provision for the development of a more unified legal profession by enabling solicitors, as of right to exercise rights of audience in all courts and tribunals, civil and criminal, in England and Wales; to regulate and provide for advertising of pupillages and tenancies in barristers’ practices and to enable barristers to establish practices anywhere in England and Wales with direct access to those seeking legal advice and when appropriate, representation, there being no mandatory intervention of any solicitor’s or barrister’s clerk or any other person whatsoever; to enable barristers and solicitors to practise together in any mutually acceptable form; to enable barristers to litigate for professional fees; to enable barristers to advertise; and to abolish the rank and title of Queen’s (or King’s) Counsel and the two Counsel rule.

The first thing that we must do is summed up in the words

“let’s kill all the lawyers”,

as Dick said in Henry VI, part II. Ever moderate, and because some of my best friends are lawyers, I am not proposing to take that extreme course, but I am proposing to save the lawyers from themselves, and to save the consumer from them.

My Bill deals with three problems. The first is the ever-escalating scale of legal costs. In the BBC libel case it is estimated that of £900,000 of legal costs, £650,000 were fees. It worked out at £1,149.42 per day for QCs and £574.71p for their juniors. Secondly, the processes are slow, arcane, cumbersome and inefficient. Thirdly, the system is characterised by monopolies and restrictive practices that are at variance with the competitive ethos of the times. Too much is regulation by barristers for barristers.

Therefore, the first thing that my Bill does is give solicitors rights of audience in every court, thus ending the barristers’ monopoly of the higher courts, which will be welcomed by most customers. After all, there is no point in having a Rolls-Royce when a Mini will do equally well. Most people prefer to be represented by someone who knows them, and knows their problems and their case, rather than by a total stranger who is thrust on them at the last minute, all too often on the day of the case itself. The rich can buy the barrister of their choice, but the poor get Murphy’s law, and all too often Murphy himself.

The Bill will be welcomed by most solicitors. It allows those who want to specialise in advocacy to do so. Indeed, on 27 March last year, the Law Society launched a campaign to end the Bar’s monopoly of advocacy. It said:

“citizens should be entitled to retain the advocate of their choice and not to have to employ more lawyers than are necessary for the case.”

I say, “Hear, hear,” to the Law Society, for once. I am afraid that the Law Society has gone a little quiet about it probably because of the threat by barristers that conveyancing will be handed to banks and building societies unless the Law Society lays off. I have to tell the Law Society that conveyancing will go to banks and building societies anyway, and the principle of equal access to the courts is right.

Secondly, the Bill abolishes the distinction of QC, a title conferred by the Lord Chancellor in his doubtless idiosyncratic and wholly undemocratic way, behind closed doors, with no appeal. It is essentially a mark of status. As one QC wrote to congratulate a newly appointed QC:

“You’ll talk the same rubbish—but now they’ll listen to you.”

​ If people are going to charge higher fees, as QCs do, it should be for quality as designated by the market place, not for status. They should not be able to charge for a junior on half fees to milch the customer at the same time.
The third and most important part of my Bill will democratise the Bar. How wrong it is that we should have a self-selecting, self-regulating elite of some 4,800 barristers whose training is shorter, more amateurish and less adequate than that for solicitors. The profession is exclusive and amateurish, and there are rich rewards. I am talking of incomes of up to £250,000 a year, and even higher. Such incomes are showered on the top, while at the bottom penury prevails. There is a struggle for survival so intense that one has to have either private means or well-placed connections to get in and survive the starvation years.

The right hon. Lady the Prime Minister has testified to what a struggle that is. I was deeply moved in her biography by Penny Junor to read what a struggle the right hon. Lady had to get into chambers, and how much prejudice there was against a woman, just as there is now prejudice against blacks, and how Sir John Senter promised her a place in his chambers and then threw her out at the end of her pupillage, together with the present Secretary of State for the Environment. It was the right hon. Gentleman’s first experience of abolition.
Many are called, but few are chosen, and especially not working-class provincials. Mr. Norman Lloyd, the careers officer at Manchester university, quotes one barrister as saying:

“My advice to working class students would be to avoid the bar at all costs.”

Mr. Lloyd says:

“The entry route is an obstacle route so elaborate and so bizarre that it might have been invented by the producer of It’s a Knockout.”

He is right. That is why my Bill regulates pupillage to ensure that it is a proper training and that it is paid. That is why it regulates tenancies to ensure that they are advertised openly, encourages the co-operative pooling of fees, as in Lord Gifford’s chambers, and stops exploitation by the head of chambers.

The Bill allows barristers to set up practices wherever they please even in co-operation with solicitors—as the Royal Commission on legal services recommended — without the intervention of barristers’ clerks.
Barristers’ clerks have been variously described as an untrained legal mafia or as barristers’ pimps. They have been described as a “unique and disturbing breed” — unfortunately I forget where that quotation comes from —who manipulate the monopoly power of barristers, all too often for their own purposes because clerks take between 5 and 10 per cent. of all fees. They can earn from £30,000 to £100,000 a year, much of it from public money. Their power must be restrained, and my Bill proposes to do so.

The Bill allows barristers to set up anywhere without the necessity of having clerks. It allows barristers to take customers without going through the intermediary of a solicitor, as they can already take cases from abroad. It is interesting to note that barristers have girded their loins and revised their practices to deal with Common Market competition, but they will not give customers in this country the same benefit. The Bill allows barristers to advertise—something that solicitors have now begun to do, with great benefit to the profession and to the public.

Most other countries have a unified legal profession, and it works well for them. It would here. I see no reason for our obsession with keeping two or even three legal taximeters ticking over, shuffling papers and people to and fro, aggregating dramatis personae in cases, and with not setting up a common training for barristers and solicitors.

It is important to note that my Bill only opens the way to unification. It allows solicitors and barristers to work together in any way that suits them and their purpose. It does not enforce a unified profession.

The Bill keeps specialisation, but it eliminates its excesses. What is most important is that it opens the gateway to change at the Bar. It ends the rigidities and inflexibilities. It paves the way for a more democratic, open and efficient profession which can adjust to the times, because this Government of barristers have made a gospel of competition.

I am not seeking to inflict the same damage on the legal profession as the Government have on manufacturing, by the misguided application of competition. I am saying that the test of restrictive practices, wherever they are, must be public interest and not the convenience of a dreadfully complacent, conservative profession.

On that test, barristers need to be brought kicking, struggling and, no doubt, pleading into the 20th century if we are to have a healthier and more open profession and a better and cheaper service to the public. We want not a closed, proud, restrictive and exclusive profession, but one which serves people and protects their rights and liberties. That is what my Bill will provide for.