Thomas: Self-employment can often be a ‘sink or swim’ system
There is in principle “no sensible reason for a split profession”, with the distinction between solicitors and barristers making little sense in the modern world, a leading silk said yesterday.
Leslie Thomas KC said the weakening of the divide should be allowed to continue – but any move to bringing them together needed to be put in the wider context of a justice system desperate for more funding.
A human rights lawyer at Garden Court Chambers in London who is also a member of the Bar Standards Board, he is professor of law at Gresham College, a 400-year-old institution that exists to provide free public lectures in London from leading figures in their fields.
In a lecture last night, Professor Thomas observed how difficult it was to summarise the difference between solicitors and barristers for a lay audience.
“And any statement we might make about the differences between the two professions is inevitably subject to exceptions. In short, the difference between solicitors and barristers is often confusing for the general public.”
Though there were arguments in defence of the split profession – such as that barristers were professional advocates, could offer an objective and detached view of the case and may have expertise that the solicitor lacks – there were answers to each of them, he said.
“In a fused profession, there’s no reason why we couldn’t have some lawyers who are primarily advocates and others who are primarily litigators. Indeed, we already have solicitor-advocates in England, many of whom have years of experience of courtroom advocacy under their belt and are highly skilled at it, while being solicitors.
“Nor is there any reason why lawyers couldn’t bring on other lawyers to assist them with a case, just as solicitors presently instruct barristers.”
Professor Thomas highlighted the problems with the self-employment model for the Bar, such as the difficulty of sustaining a practice particularly in the early years of legal aid work, “fee inequality”, and the lack of employment rights.
“In short, the self-employed Bar can often be a ‘sink or swim’ system where it is difficult for marginalised people to make a living. This is admittedly mitigated by the strong solidarity and collegiality that often exists between barristers.”
The silk identified another major problem as “the apparently arbitrary lines” between what solicitors and barristers could do.
If solicitors could be trusted to carry out advocacy in some courts, he asked, why not all of them? “It’s no answer to say that the magistrates’ court and the county court tend to deal with less serious cases…
“Advocacy is a specialist skill, and it is true that barristers and solicitor-advocates tend to have much greater experience of advocacy than does the average solicitor. But that doesn’t justify drawing an arbitrary line between superior and inferior courts, which exists only for historical reasons.”
He concluded that there was in principle no sensible reason for a split profession. “The separation between solicitors and barristers exists mainly for historical reasons. The lines that are drawn between the two professions don’t make a great deal of sense in the modern world.
“And the structure of the Bar, where most barristers are self-employed, creates a lot of avoidable difficulties.
“It is true that barristers often bring significant benefits to our cases, due to our specialist skill in advocacy and our independence. Similarly, it is true that solicitors often have skills and experience that most barristers do not.
“But this does not necessarily require a rigid separation between the two professions, nor does it justify the current arbitrary limits on what each can do.”
Professor Thomas stressed that he was not necessarily calling for an immediate change given the background of the “systematic underfunding” of legal aid over the past two decades, which he blamed for many of the Bar’s financial problems.
“It would be very difficult and disruptive to fuse the English legal professions overnight. And we also need to recognise that the structure of the legal profession does not exist in a political vacuum…
“The legal distinctions between what solicitors and barristers may do have already been significantly weakened in recent decades. That process should continue.
“But this should happen alongside an immediate increase in legal aid rates, the repeal of the 2012 [LASPO] Act and a restoration of the full scope of legal aid, and a commitment to fund the administration of justice properly.”
He took over as Gresham professor of law in 2020 from Jo Delahunty QC. Predecessors include Professor Richard Susskind, Sir Vernon Bogdanor, Baroness Deech and Sir Geoffrey Nice KC.
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