Athena Markides, Chair of the Bar Council’s Young Barristers’ Committee 2019 Speech
Athena Markides, Chair of the Bar Council’s Young Barristers’ Committee gave a speech to the Bar and Young Bar Conference 2019 on the 23 November. Find her full speech here.
We find ourselves – once again – preparing to elect a new government. And with it the daily barrage of promises of billions of pounds of good things, from politicians of all stripes.
On healthcare, all parties are promising more nurses and doctors. On education, all are promising more teachers. But on justice, there is no coherent promise being made across the political spectrum.
In fact, although everyone agrees that justice is important, it’s not really clear what “more” or “better” justice would actually look like.
More prisoners! Fewer prisoners! Tougher sentences! Better rehabilitation! More stop and search! Less stop and search!
There is no single ambition for justice, or any real agreement on what “justice” even means.
And if we don’t know what it means, then it’s hard to talk about it effectively. And if it isn’t being talked about effectively, then justice ceases to be a priority for the public and for our politicians.
Against this backdrop, I would like to pinpoint three key justice issues and to propose a framework for how we can better engage with them.
The issues are pay for the publicly funded bar, court reform and Brexit.
These are all things on which the Young Barristers’ Committee and I have worked this year. And in doing so, I have worked with a huge range of barristers - from criminal juniors, to EU silks.
At first blush, their jobs have little in common. But that superficial analysis does us all a disservice.
As barristers we all work at that interface between private behaviours on the one hand, and public repercussions on the other. All barristers in all practice areas act in the pursuit of justice. Whether that is protecting lives and liberties, or ensuring that property and contractual rights are respected –
this is all part and parcel of the justice matrix, and justice is the common thread in our conversations about all these issues.
And that got me thinking about what we mean when we talk about justice.
For many, justice connotes notions of fairness – a sense of moral right, perhaps. Something intangible and aspirational.
But justice is obviously more than just a notion or an aspirational principle. Justice is an integral part – a common constant - of the service which we provide.
And this made me think about how we have divorced the idea of legal services, from the idea of justice as a service. And about how that affects our ability to communicate with others about the importance of justice.
The services which resonate most widely with people are those which marry the public’s interests with the professionals who provide them: health and doctors; education and teachers; safety and police.
Why can’t we add ‘justice and barristers’ to that list?
Everyone in this room will be keenly aware of the services which barristers provide. We help people to identify, evaluate, understand, communicate and prove their entitlement to protections offered by the law.
Conceptualising those legal services as justice services not only gives them an emotional punch, but it also forces us to engage pragmatically with the promotion and protection of justice as a measurable thing.
And it also gives us specific benchmarks against which to measure whether fundamental changes to our rights, our courts and our fees will actually deliver in the interests of justice.
Looking at each of the three issues then:
On fees for the publicly funded bar the argument is most straightforward – the publicly funded bar is clearly and directly concerned with the day to day protection of people’s rights and liberties. There is no doubt that their services and justice go hand in hand.
Barristers provide a vital public service, just as doctors, teachers and police officers do. Just because the majority of barristers are self-employed, does not make that service or the workforce any less important, or any less vulnerable to serious retention, sustainability and social mobility issues when that service is undervalued.
Recognising that the provision of existing services is in fact the provision of justice, and agreeing that we need to value justice, it follows that we must be prepared to pay for that service – to pay for justice - on a fair and proper basis to ensure that we maintain its quality.
Moving onto the issue of court reform:
As many of you will know, HMCTS is currently engaged in a vast and ambitious programme to reform our court system.
Whilst some of these changes may be welcome – like the digitisation of court documents – others require more careful thought. In particular, I would like to talk about video hearings.
These are hearings which take place with all parties appearing on a screen.
You log onto the system on your personal computer, check in, and are ultimately presented with a split screen, featuring the other party and the judge. You then proceed to have something much like a skype chat.
Video hearings have already been introduced, and the aim is to roll these out much more widely – including in remand hearings (where the court decides whether to keep the suspect in custody), plea and trial preparation hearings (where the suspect is given advice and decides how to plead) and civil interlocutory hearings. There is a raging debate as to whether they should be used for final hearings and, if so, which.
And video hearings may instinctively sound appealing. We will no longer have to wake up at 5am and trek to some far flung court. Instead we can pop out of bed at 09:25, pull a shirt and jacket on over our pyjamas and present our respectable upper half to the tiny camera on our laptop with the lights on a flattering setting.
And who doesn’t want that?
The thing is though, that communicating with someone on a screen just isn’t the same as doing it in person.
We all know it’s true, even if we can’t immediately say why. We may have a vague sense that submissions by skype are less impactful. That it’s harder to focus on a screen for long periods of time. That people on a screen are more like TV characters – less real than those sitting next to us.
What is more, there is preliminary research by third parties suggesting that evidence received on screens leads to different outcomes to evidence received in person. Specifically, people who received witness evidence on screens were more likely to resort to discriminatory bias when making decisions based on that evidence.
The research is still in its early stages, but this is obviously cause for concern. If BAME advocates, suspects and witnesses are at a real and immediate disadvantage when using video hearings, then this should be a deal-breaker. The cost-benefit analysis should not allow this outcome.
And that’s where I come back to the idea of justice and services.
HMCTS consistently trumpets its commitment to ensuring access to justice. The trouble is that there is no definition of access to justice, and no access to justice benchmarks have been set against which to gauge the success or failure of the court reform proposals.
Conceptualising justice as a core part of the service which we currently offer enables us to consider whether the quality of that service is consistent in different formats.
In the same way that access to a pair of pliers is not access to dentistry, access to the courts is not – by itself - access to justice. You can achieve the same result, but the process is rather different and a lot more painful.
So when HMCTS are thinking about whether their court reform proposals will deliver access to justice, I don’t just want them to be thinking about whether it is easier for people to get to court or cheaper to run the courts. I want them to be thinking about each of the component parts of the justice service which we offer – the availability, the advice, the evaluation, the understanding as well as the advocacy - and whether people will continue to receive those services at the quality that justice demands.
Finally on Brexit:
Nobody knows what our post-Brexit relationship with the EU will look like.
But the consistent indications from our most recent government are that – whilst it would like to have some relationship with the EU – we should not expect this to include equivalent rights to those which we currently enjoy.
From our rights under the ECHR to our rights of audience before the ECJ – everything is up for debate.
And whether you agree that those rights are valuable or not, it is a matter of fact that they are a part of the package of legal rights which we currently enjoy, and that access to those rights and the outcomes which they offer, forms part of our current conception of justice.
Whatever rights remain post-Brexit, any future government must ensure that they are capable of being clearly understood, evaluated and applied and that they offer equivalent protections, so that people continue to enjoy access to justice as they currently do. And in order to do this, we must protect both the rights and the services by which they are delivered.
The debate on post-Brexit services leaves much to be desired. Although there is a clear commitment to preserve access to goods, there has been a real abdication of leadership or ambition on the issue of services. That must change.
And that is true of the debate on justice services more generally.
Justice needs to be a priority for all of us. It deserves more and it deserves better from party leaders across the political spectrum.
And if they’re not stepping up to the plate, then we must make the case for them, and we must keep making the case clearly and consistently until it gets through.
The Chair of the Bar and his team are fearless, tireless and determined in their pursuit of justice, and they are assisted by a great many brilliant barristers who give up their time and expertise to government consultations, bar council committees and focus groups – making the case for the Bar and making the case for justice. But we could always do with more help.
So please – join us. And let’s make the case for our services - and for justice - together.
