David Gauke – 2018 Speech on the Advocates Graduated Fee Scheme

Below is the text of the speech made by David Gauke, the Lord Chancellor, at the Annual Bar and Young Bar Conference on 24 November 2018.

Thank you Lucinda [Orr, Chair, Annual Bar and Young Bar Conference]

And I am very pleased to have this opportunity to address you at your annual conference.

Everyone in this room will have their own reasons for choosing a career in law:

To give a voice to the voiceless. To improve lives. To help right wrongs. To pursue justice and fairness. To bring certainty and clarity to a complex world. To rise to the intellectual challenge.

Fittingly, you are called to the Bar – for many, it is a calling.

I recognise not just the contribution that comes from pursuing that calling but the importance of an independent Bar itself.

For my own part, when I was studying law and as a trainee solicitor back in the 1990s, it was clear to me that the law shapes every aspect of our lives and of our country – our families, our relationships, our environment, our trade, the decisions of government.

For example, when I worked on legal contracts, I saw just how important a clear and fair framework of rules is for businesses to make decisions, to invest and to resolve disputes.

I thoroughly enjoyed my time working in law. What I learned helped me shape my politics and sharpen my desire to protect and influence those rules that govern us so they better help everyone fulfil their potential and support a prosperous economy.

So I stand before you today as a proud former lawyer. When I started my career with Richards Butler more than 20 years ago, I never imagined that I would be the first solicitor to become Lord Chancellor.

Without wanting to dwell on quite how long ago that was, it’s fair to say that the legal world I experienced then as a trainee solicitor is very different to the one I see today as Lord Chancellor. In the 1990s, the internet was in its infancy. Concepts like AI and machine learning were the preserve of science fiction. Today, they are a reality.

The digital and technological revolutions are making waves across the legal sector, fundamentally changing the way we access and use services.

The profession is also more diverse, open and inclusive – the theme of your conference this year.

Given my legal background, I’m pleased to see more solicitors joining the Bench.

Visible and vocal role models like Anne Molyneux at the Old Bailey and Lord Justice Hickinbottom, who I believe is the fourth solicitor to be appointed to the High Court, and who last year was appointed to the Court of Appeal.

As Anne Molyneux herself has said: “I do not think of myself as a solicitor judge or a woman judge. I am a judge who is a woman and used to be a solicitor. These characteristics should not make a difference.” I agree. And I think there are important strides being made on diversity. For the first time, we have three female justices in the Supreme Court. And there is now a greater proportion of female pupils compared to male pupils.

That represents good progress and much promise and potential for the future – but there is much more we need to do. Just 37% of barristers currently practising are women and just under 15% of QCs are women.

Of people practising at the Bar, just under 13% are from a black, Asian and minority ethnic background. That falls to just 7% of QCs.

I am committed to working with the Lord Chief Justice and members of the Judicial Diversity Forum to increase the overall diversity of the judiciary.

To do that, we must also make sure there is proper support in place for potential judicial office holders. Programmes like the Judicial Mentoring Scheme ensures there are role models for lawyers looking to apply for their first judicial appointment.

And the Bar Council, as a key member of the Judicial Diversity Forum, led on the development of the Pre-Application Judicial Education programme.

Launching in spring next year, it will help ensure talented people from all backgrounds in the legal profession are given more support to apply to become a judge. This is positive action carefully designed to make a real difference.

I am grateful to the Bar for their work on this and their ongoing commitment alongside the senior judiciary, Judicial College, Judicial Appointments Commission and the other legal professional bodies.

But of course, as well as promoting access to the legal profession, it is ensuring access to justice itself that is so important.

The ability for everyone to be able to access justice and receive representation is vital for a just society. That includes having access to criminal defence.

Criminal defence advocates carrying out publicly-funded work in the Crown Court play an enormously important role in our justice system.

I want to say to you that I do understand and recognise your concerns about the sustainability of criminal advocacy. I also recognise the work which goes into conducting complex cases.

I know there are strong concerns and that feelings and passions have run high this year as we have sought to improve the current legal aid scheme.

I have always believed that, given the importance of this criminal advocacy to our justice system, it is important to get any reform right.

In August, we launched a consultation on proposals to spend an additional £15 million on a range of fee increases across the scheme.

As throughout this process, we have been working with representative bodies of the legal professions, including the Bar Council, the Criminal Bar Association and The Law Society, and have carefully considered the consultation responses.

I can announce today that on top of the £15 million we have already proposed, the government will commit a further £8 million of additional funding to the scheme. That brings the total increase to £23 million.

This extra money will be mostly targeted at cases conducted by junior advocates to support continued investment in the profession.

We will also bring a proposed 1% increase to all fees forward so that the rise comes into effect alongside the planned introduction of the new scheme, rather than from April next year.

I also think it’s important to recognise that whilst these improvements must be given time to bed in, there is scope to further improve the way criminal advocates are paid so that we better reflect work done in an evolving and modernising justice system.

Our best chance of succeeding in that task – in designing schemes which incentivise efficient and effective proceedings, in improving access to justice – is if the government and the legal professions work together.

Because of that belief, I am committed to working closely with the legal profession to ensure that criminal defence advocacy is fit for the modern age, and is sustainable, so that people from all backgrounds can enjoy a decent career doing such important work.

Now, as part of, and alongside access, the experience people have of justice and our courts is also important – for the public and legal professionals alike.

It clearly isn’t right that some of our court buildings have leaking roofs, peeling paint, broken doors and out of order lifts. The impact of this isn’t just on the physical functioning of our courts, it has an impact on the morale of those who work in them and on the experience of those who use them.

That’s why over the last two years, we have spent significantly more than in previous years on our court estate. Last month, we also secured an extra £15 million from the Treasury for maintenance and security of our court buildings.

I am under no illusion that this is one step in a longer journey to make our courts fit for the future. But spending more this year on our courts will help to make some improvements to the estate as we continue with our wider programme to modernise services and move more of them online so they are easier to use and more efficient.

We must ensure the justice system embraces the huge changes that are happening now and that are coming down the track in how people access services. That’s why we are looking to the future at how we can best empower people to access justice in ways that fit with how we live and work today.

For example, the digital divorce service launched in May is reducing the stress faced by couples applying for a divorce.

And reforms in the criminal justice system are making it work better for everyone too – from making pleas online for low-level offences to piloting a new digital system for the police, CPS, courts, judiciary and defence to allow a single shared view of case information online.

I am grateful to the Bar for the contribution you are making to the court reform programme. I know there are strong feelings on this and we won’t agree on everything, but your insight is invaluable. I hope that many of you will be participating in the session led by Susan Acland-Hood later today.

We also need to realise the huge opportunity that exists from harnessing the powers of new technology and innovation for our legal services.

Our growing LawTech industry has the potential to open up the justice system and legal services sector like never before, not to mention the opportunities for those working in it.

Technology is changing our world.

If our justice system and our legal services sector is to remain internationally competitive, it can’t stand still. It needs to continue to change and embrace the technological revolution, as well as respond to the way people expect to be able to access justice and legal services.

Today, lawyers must not only advocate, they must innovate. By doing this, I believe the UK can not only remain a world-leading provider of legal services but a powerhouse for new and innovative legal technologies, such as for SMART contracts.

New technologies – underpinned by English law – and nurtured by a government committed to helping this burgeoning sector.

Our £20 million Next Generation Services Fund is supporting innovation across the legal, accountancy and insurance sectors.

I’m pleased to say we will be announcing the successful bidders for that investment shortly. This is on top of the £700,000 recently awarded to the Solicitors Regulation Authority to support AI innovations within the legal services sector.

Alongside that investment, it’s important we also focus on the education and skills of the lawyers of today – and tomorrow – to ensure they not only survive, but thrive, in this new world of AI, Big Data and Smart Contracts.

I was reading recently about an experiment you may be familiar with where 20 experienced lawyers in the US and an artificial intelligence system went head to head.

The lawyers came armed with their brains, the AI system with machine learning and deep technology.

The challenge was to spot risks in every day contracts. I’m afraid to say that AI won with an accuracy level of 94% compared to 85% across the human lawyers. But arguably more importantly, the AI system took just 26 seconds compared to 92 minutes.

Now, you can either see that as a threat, or as an opportunity. It’s how we use this new technology that will be important. The lawyers of today – and tomorrow – will need the right skills in order to do that.

The LawTech Delivery Panel I announced earlier this year, as well as acting as an international champion for the UK’s LawTech industry, will provide the strategic direction we need, for example on education, which will be covered by one of taskforces established by Panel.

Realising the potential of the LawTech revolution here in the UK will be important to the competitiveness of our legal services on the world stage, particularly as we look to new markets after we leave the EU.

On Brexit, as you will have seen, the UK and the EU have agreed the terms of the UK’s smooth and orderly exit from the EU. In parallel, both parties have also been working to set out a vision for a close and mutually beneficial future relationship.

A draft of the Political Declaration was published on Thursday, and the Prime Minister is meeting the EU today ahead of leaders putting the deal to final agreement at the special November European Council on Sunday.

The negotiations have been tough, and we have pushed the EU hard. We have not got everything we would want, but we have secured important commitments in a number of areas.

The Political Declaration includes a commitment to conclude ambitious arrangements for services and investment, alongside new arrangements on financial services.

Nevertheless, we know that leaving the Single Market will have implications for market access and that some UK and EU service suppliers will not enjoy the same rights as they do today.

On civil judicial cooperation, the UK and the EU have agreed to explore a bilateral arrangement on matrimonial, parental responsibility and other related matters. In addition, the UK intends to apply to accede to the Lugano Convention.

This deal provides certainty for the UK and avoids the very significant disruption associated with a no-deal exit. The precise details of our future relationship with the EU will be the focus of further negotiations once the UK has left on 29 March 2019, and we will continue to press for the best outcome for the UK justice system.

The saying goes that ‘the wheels of justice turn slowly’.

The transformation in the way people use and work in the justice system, as well as the white heat from the LawTech revolution, means those wheels are speeding up.

Yes, there are challenges we need to overcome in the justice system – including challenges for the legal profession. I want to overcome them by working with you. It is important that the reforms we need to make to our justice system carry the general support of those who work in them.

Within the context of that reform, I want to work with you to support and strengthen the legal profession, to make it more inclusive, more diverse and to put it on a sound footing for the future so it can continue to thrive in a rapidly changing world.