As the recession comes to an (apparent, so we are told) end, we find ourselves in interesting times. Perhaps the most pressing question for readers of this blog is how the need to repay the mortgage we took out over our own future will impact upon legal services.
This will be different for publicly and privately funded work. Publicly funded work will, I fear, have to bear its share – and more – of the overall downturn in public expenditure. Expenditure on legal services is not popular with voters, who tend to assume that everyone is guilty and that they are paying for cunning lawyers to enable these people to get away with it – at least until they are these people. The same may not apply to family work, but both crime and family have the further difficulty of the civil service’s attitude to barristers generally, which is politely described as incomprehension regarding the scope of our job and its responsibility (I have heard it called much worse), and the consequent desire to link our earnings to, say, the level of a civil servant. The fact that most of us work a 70+ hour week tends not to be factored in here.
It seems to me inevitable that the current decline in the investigation and prosecution of fraud will accelerate. I am not talking here about the SFO’s cases, although it would not surprise me to see a rethink there either. I am talking about the local type frauds which are enormously expensive to investigate and prosecute and where there is already a tendency to ask the alleged victims to provide the evidence themselves. As regulation is beefed up I foresee the investigation and prosecution of regulatory breach as being increasingly passed to the regulator (funded, of course, by the institutions and professions which it regulates), with the primary penalty being the equivalent of being struck off. It may then be that the confiscation regime is extended so that a regulatory finding can form the basis of a confiscation.
Similarly, the government will periodically renew its efforts to abolish trial by jury (expensive) and to limit the offences which can be tried in the Crown Court (expensive). Expect the idea of a fixed penalty for minor offences to be re-introduced (cheap). The guiding principle, although the use of that word is ironic, is the cost of the exercise, not the reliability or justice of the result. The one thing which would surely bring down the cost of criminal justice will probably not be discussed: that is the legalisation of drugs. I am not taking a view here, but drugs are behind a substantial amount of crime, well over half of all drugs users regularly offend and we then pay to prosecute them and incarcerate them. Providing drugs on prescription may be cheaper.
By the same token I would expect support to the challenge of government decisions to be reduced. These are already unpopular in Whitehall, with the proposition that the government may act unfairly being treated with surprise edging into disdain. The fact that challenges cost money will be a ready made excuse to restrict the money available. The challenges themselves are unlikely to be abolished – we do not yet see quite such an overweening sense of infallibility – but the ease of making them will increasingly depend on our willingness to work for free. The exception is challenges to immigration decisions: the government has already tried to abolish these and I expect them to try again.
In privately funded work, there will be a shift from an hourly rate to a fixed price, as clients try to keep expenditure to known limits. How we negotiate the rate for a task which is often unknowable at its outset will be an interesting challenge for barristers and their clerks. As alternative business models take hold there may be scope for contracting out various parts of the work. You may find yourselves able to work for Chambers as a legal researcher to a far greater extent than currently.
Expect professions and institutions paying for their own regulation to try and control the legal fees of those thus engaged, or to seek to ensure that costs recovered by a successful individual be limited. In my view one of the challenges for the Bar is to seek to become involved at the stage of prevention rather than cure. This is currently largely left to solicitors. There is no reason why it should be.
Finally expect professional regulation to begin to examine competence. We have vigorously resisted it but in my view the pressure will become unsustainable. Firstly because we will have to pay for our own regulation, so that my mistakes (not that there are any, obviously) will cost other people money. Secondly because the Bar will need publicly to demonstrate competence across the board in order to survive. Thirdly, because it provides a way to ensure that those ensconced in place do not take undue advantage of their position to prevent new talent obtaining its deserved slice of the pie.
Madame Myerson foresees a reduction in the numbers in independent practice of around 25% – 33% in the next 10 years. Let’s hope she is just wrong, rather than being Cassandra. For those of you about to start the BVC, it’s as well to know what you are going into.