Derry seeks the common touch
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4 November 2013
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3 December 2013
Leaving the trimmings aside, Veronica Cowan gets to the heart of what really drives the incumbent Lord Chancellor. Veronica Cowan is a freelance journalist.
Charles Dickens' Lord High Chancellor in Bleak House presided over the very things our present Lord Chancellor, Lord Irvine wants to eradicate from the civil justice system: cost, delay and complexity.
Lord Irvine does not dispute that, in terms of the pace of the reforms, he is driven by a sort of missionary zeal - he says it is enormously important to maintain momentum. His instincts are to get on with it, believing that if the reforms are not brought in at the earliest possible date there would be a loss of energy and pace.
The fact that full IT support will not be in place before the year 2000 does not deter him from bringing in the new rules on 1 April 1999. Even given the reliance on IT of effective judicial case management, Lord Irvine says he has been assured that adequate manual systems are in place, underpinned by existing IT.
Indeed, both Lord Irvine and the Master of the Rolls, Lord Woolf, see benefits in not introducing new rules and IT systems concurrently. They believe judicial case management is primarily about cultural change and the need for judges and their officials to become proactive progress chasers - leading rather than being led.
When it comes to alternative dispute resolution, this Lord Chancellor believes in mediation, but says conventional arbitration is no less complex, time-consuming or expensive than court actions.
The Government is looking at bolstering ombudsman schemes but does not want, as a result of incorporating the European Convention on Human Rights, to take away the informality of such schemes. However, it had to be sure that the schemes answered to a minimum code of fairness and independence, which would be sufficient if the European Court was ever asked to adjudicate on them.
One project that Lord Irvine has repeatedly pushed forward is the Community Legal Service (CLS). And despite law centre concerns he insists that it is on his agenda. The legislative programme has not, he says, been finalised, but provision will be made for development of such a service. The Legal Aid Board's (LAB) new powers will enable it to contract directly with those providing the services required.
"I want to ensure that, through a community legal service, legal aid becomes a popular social service well able to fight its corner with other popular social services for scarce money."
But, he cautions, "we are not talking about new money. We are talking about refocused money".
The new legal aid blueprint has been frequently redrawn and labelled a "shambles" by the opposition. Lord Irvine counters that he set out proposals, listened with an open mind, and then made decisions.
He decided not to immediately remove legal aid from medical negligence cases, and not to change the legal aid system until powers were available to cause the solicitor's uplift and the insurance premium to be recoverable from the losing side, rather than the successful plaintiff.
Legal aid for personal injury cases will now not be withdrawn until October 1999.
People could interpret this as paying attention to informed opinion, or making a U-turn, depending on their persuasion.
Lord Irvine believes that making conditional fees available for all types of money and damages claims is about giving opportunities in place of, and not detracting from legal aid.
Lord Irvine certainly does not see his reforms as a dismantling of legal aid as his critics have claimed, but rather as a "refocusing" of public money.
He has come under fire from many quarters, including the Bar, for his plans to open up rights of audience - though he insists he will not tolerate any restrictive practices. In terms of maintaining standards, he says proper skills, training and experience will be needed to retain the quality of higher-court advocacy.
He is satisfied there will be a flourishing future for an independent Bar as a referral profession. Observing the small number of solicitors who sought advocacy certificates at the highest level, he says it tends to show that the natural division of labour between solicitors and barristers is accepted by solicitors.
While believing that solicitors should be entitled to appear in the higher courts, given the number and range of clients they have, Lord Irvine thinks many will find they cannot perform the traditional function of a solicitor at the same time as delivering single-minded commitment to advocacy.
"I am completely satisfied in my own mind that there will be a flourishing future for the BarS because advocacy is a very considerable skill."
As for ending the silk system, this QC shows no sign of turning: "I can see that people could argue - I don't - that you should just let the market make these decisions, but I still take the view that the granting of silk is a Kite mark of quality. It is an assurance to the public of a certain high standard of advocacy."
Despite his commitment to the existing silk system, Lord Irvine is very open to the idea of introducing a public defender system. He accepts that the LAB could take advantage of such a system.
"It is perfectly possible that they could employ lawyers and use them as advocates in court to see whether that is as efficient and as good value as contracting with private firms."
But despite Lord Irvine's sweeping reforms, is not the position of Lord Chancellor itself somewhat anachronistic? The Fabian Society has called for a single Ministry of Justice, as have Labour MPs, with its head in the House of Commons. This would effectively put Lord Irvine out of a job.
He finds it extraordinary that these claims were made just as the Lord Chancellorship was coming into its own, and points out that he chairs all the cabinet committees on constitutional reform. Moreover, he says, although it seems odd that the head of the judiciary is in the Cabinet, it means the executive is represented in the judiciary and the judiciary in Cabinet.
Lord Irvine says that under the Tories, the separation of powers was not intact when ministers, particularly the former Home Secretary Michael Howard, publicly condemned the courts.
One of his principal functions is to inform judges of government's intentions, and government of judicial sensitivities. "To those who say that I'm an anomaly in terms of the separation of powers, I would say not so. I'm a very important guarantor in ensuring that the separation of powers works."
Yet while Lord Irvine has a dig at his predecessors, New Labour has already broken one promise by jettisoning a Judicial Appointments Commission. Irvine says it was not necessarily excluded, but resources were limited, and a Judicial Appointments Commission meant primary legislation needed to be introduced, of which there was no prospect in the previous, present or next legislative programme.
Lord Irvine has called for a register of judicial interests, including masonic lodge membership. He stresses that there is no evidence that any judge has ever decided a case in a way that was affected by masonic influence.
It is just that the Freemasons are a body, one of whose purposes for existing is to help one another. To avoid public perception that a case could in any way be influenced by a party's involvement in Freemasonry, existing judges could be forced to put their names on a voluntary register, and disclosure would be compulsory for future judicial appointees.
Reflecting on his first year in office, have any lessons been learned, and has it been traumatic? Lord Irvine says he is having the time of his life, enjoys all the work in government, and has no regrets. His role in constitutional reform leads him to say that "the office of Lord Chancellor has come into its own".
"I actually think I'm a very lucky Lord Chancellor. But I hope that, at the end of my Lord Chancellorship, people will be able to look back and say that I am a people's Lord Chancellor as well."
Good intentions, but then the grand title could stand in the way.