How can we identify the public good that the legal system serves in areas where lawyers are not merely major actors, but also have a predominant influence? How can we avoid the all-too-easy equation of lawyers' ideals and self-interest with the public good? In these Hamlyn Lectures, Alan Paterson addresses these issues by examining three significant case studies. Discussing professional regulation, access to justice and the judicial determination of the public good, Paterson seeks to work out practically how to live with the tensions involved in the public's reliance on lawyers' professionalism and commitment to the rule of law on the one hand, and lawyers' influence over the operation of the legal system on the other. His answer is that the public good is too important to be left to be determined by lawyers.
The core of Paterson's approach to implementing his answer is to combine an appeal to the better instincts and ideals of lawyers with institutional mechanisms that can reinforce them. In all this, he makes an appeal for strategic policies, rather than relying on the operation of the market. It is a pragmatic approach to achieving principled objectives, which are clearly defended. His approach recognises the very real challenges for legal services, but presents an optimistic way forward which, if implemented, would provide an attractive and a practically realisable face of the legal professions. The chapters are written engagingly, in an easy style. At the same time, they are thought-provoking for lawyers and laymen alike.
In studying professional regulation, Paterson contributes significantly to an understanding of professionalism as it relates to legal practice. His theme is that the model of professionalism typical of the 1930s to 1980s has broken down and is being replaced. The idea of a self-regulating profession which provided a public service as it thought fit has been replaced by a more entrepreneurial model. The more commercialised incentives of modern legal practice and the advent of alternative business structures have offered the public a diverse range of legal services and ways of using them, but have also challenged the pre-eminence of the public service ethic. In this context, Paterson does not see the disintegration of professionalism, but provides a positive account which retains important elements of the ethic of self-regulation – for example, by enhanced quality control through peer-review of files and authentication of the many specialisms into which much of practice has now split. He also advocates the strengthening of the ethic of public interest responsibility, putting the privileged position of the legal professions at the service of the community – at a public level championing the rule of law and access to justice, and at a private level exercising an ethic of care where the client is not able to negotiate with the lawyer on equal terms.
In relation to access to justice, Paterson shows that the 1950s settlement gave the legal professions north and south of the Border the predominant say in the allocation of the legal aid budget. This position has broken down under political pressure from ministries concerned with costs. He is able to analyse the complex reasons for rising costs and the effects of reductions in provision in the area of civil legal aid. At the same time, he also makes a passionate argument that access for all to justice is essential to a democratic society – the poor being able to vindicate rights is a public good (p. 75). Whilst generally being willing to challenge the profession, Paterson does not really resolve the question about whether English lawyers are paid too much for what they do. He is a pragmatist and accepts the market pricing. Paterson's own solution is a mix of measures: a collaborative spirit between professions and public authorities oriented towards public service and committed to maintain the viability of access to justice. Pro bono work by lawyers, combined with new technologies and ways of delivering services will reduce the cost of legal services. In his analysis of costs in Europe, he focuses very much on the costs of the legal advisers (e.g. p.106). But in assessing affordability, we really have to look at the costs of the system as a whole. One feature of the British system that Paterson almost takes for granted is that its biggest cost saver is the very substantial use of lay magistrates and lay tribunal members, rather than professional judges. If we can judge over 90% of criminal cases without a bench of one or three professional judges and do not have judges closely supervising police investigation, then we may be able to afford more money for legal aid for defendants.
The chapter on judges and the public good is much less focused on the conception of the public good which judges formulate and much more about the processes through which judges, particularly members of the House of Lords/Supreme Court reach their decisions. In his pathbreaking research, The Law Lords (Macmillan 1982), Alan Paterson gave us an insight into the role of the Law Lords and the way in which they worked. In this chapter, based on more recent research he has conducted through qualitative interviews, Paterson revisits many of the themes of that book. At the core, there are a number of dialogues: between Bench and Bar, among the members of the Court, and between the Court and the wider public. In the earlier research, the last was small, but it has grown in importance, and Paterson would want this accountability to grow as a dimension of the work of the Supreme Court (pp. 137–41). If judges wield power, then they need to be transparent and accountable for its exercise. In fascinating detail, Paterson explains the internal dynamics of the House of Lords in the last few years of its existence. Undoubtedly, a lot depends on particular individuals, but there are also important structural features, such as the increased size and importance of written documents and the reduction in the typical length of oral hearings which have contributed to a change in the dynamics of judicial decision-making.
More specifically concerning the public good, Paterson examines how the judiciary is accountable for its decisions. Of course, judges write judgments, and that is one form of transparency. But it is focused on resolving a particular case. In the higher courts, judges lay down rules which have implications for a number of cases. Judges also deploy significant resources in the administration of justice. To what extent can judges be made to account for the wider implications of decisions, beyond the individual case? Paterson notes the difficulties that ministers (pp. 131–33) have had in having a dialogue with judges about the trends of their decisions and actions. At the same time, he sees a gradual relaxation, notably in the way judges are prepared to talk with the Constitutional Affairs Committee of the House of Lords (p. 196). Judicial appointments are also more transparent, but in an indirect way. In many ways, this section of the chapter shows that much thinking remains to be done about what a democracy needs by way of the accountability of judges and what institutional mechanisms are compatible with the proper independence of the judiciary in deciding individual cases.
In his conclusion, Paterson brings out the importance of lay participation as a growing feature in determining where the public interest lies in relation to lawyers, access to justice and the judiciary. Undoubtedly, more non-lawyers (other than politicians) are involved in regulation of the professions, appointments to the judiciary and in deciding on priorities for access to justice. But, as Paterson identifies (pp. 195–97) the identification of the appropriate lay voices to be involved and the means of including them has yet to be determined satisfactorily.
The strength of Paterson's approach is personal knowledge, supported by empirical research and a comparative method.
Paterson draws heavily on empirical evidence in relation to all three topics, much of which he has conducted. His use of the data is particularly helpful because it goes well beyond the presentation of information and offers interpretation which provides insight into the real story. For example, inevitably, the situation is more complex in an area like legal aid than the major headlines about “fat cat legal aid lawyers” that summarise government attitudes. By offering both quantitative and qualitative evidence in different areas, Paterson provides good examples of the value of these different forms of empirical method to legal research, and especially to policy research.
The frequent comparison in the book between Scotland and England allows Paterson to draw out the distinctive choices and dynamics of each system. Both have very similar problems and share similar values. Yet, in terms of policies, institutions and outcomes, the two countries are different. The comparison between the approaches of the two systems enables the reader to assess which has made the better choices and what factors have shaped them. One might note that the comparison shows that, on these matters, Scotland is very firmly within the Anglo-American common law world, rather than within a civilian, mixed jurisdiction tradition.
