Thursday, 10 November 2011

Where have all the lawyers gone?

The House of Commons is full of lawyers, isn't it? Not really, not any more. Last night I was at a Cambridge seminar presented by David Howarth, the former LibDem MP for the city and now an academic, on the "decline and fall" of lawyers in Parliament. The statistics he presented were (if you like the idea of the people who create the law knowing something about it) sobering.

On the one hand, there has been a slow but steady decline in the proportion of lawyers and former lawyers taking their seats in Parliament, from almost a third a hundred years ago to around 15% today. More strikingly, over the course of the last decade, while the number of lawyers in the Commons has flatlined, the proportion of MPs with a background in the worlds of advertising and PR has doubled: for the first time, there are now more ex-PR people in Parliament than lawyers. And more than half of new MPs are career politicians, many of them people who have never in their lives done anything except politics. Two thirds of these were formerly lobbyists or special advisers. The apotheosis of this tendency, of course, is David Cameron. And Nick Clegg. And Ed Miliband.

The Bar used to provide one of the standard routes into politics. I can remember a barrister giving a careers talk at my school and saying that it was provided great training for would-be MPs because politics was largely concerned with "arguing about law". So what changed?

Lawyers have either been losing interest in a Parliamentary career or have been squeezed out. Howarth thinks that it's a bit of both. A top-flight QC or a partner in a large City law firm would, after all, face a serious drop in income and status as a backbench MP, not to mention the soul-destroying tedium of whipped votes and constituency drudgery. Meanwhile, the characteristics being looked for in today's Parliamentary candidates aren't necessarily those most associated with the legal profession. Modern selection criteria embrace things like "people skills" and "ability to motivate" that lawyers might be deficient in. And even "communication skills" might be beyond many of them. Bob Marshall-Andrews aside, the days of histrionic advocacy in either Parliament or the courtroom are long-gone. Some modern lawyer-politicians have these qualities (think Tony Blair). But they tend not to be particularly lawyerly lawyers and usually give up the law as soon as they can.

Not only is politics proving less attractive to lawyers (lawyers less attractive to the party apparatus) even those lawyers who do turn to a political career increasingly seem embarrassed of the fact. Howarth mentioned one MP (who shall remain nameless), whose CV (as shown on her Who's Who entry) listed numerous jobs with big City law firms yet whose campaign leaflet described her merely as a "local businesswoman" who ran a marketing consultancy.

Being a marketing consultant is something to boast about, if you want people to vote for you. Being a highly successful lawyer is something you want to hide.

What does all this mean? Most obviously, it suggests (as if we didn't know it already) that politics is increasingly a distinct profession. Howarth compares it to a medieval guild. After serving an apprenticeship as a Spad or policy wonk, the successful politician embarks on a career as a "journeyman" politician - anything from the Welsh assembly to Westminster itself, along with senior positions in quangoes or lobbying firms. The grade of master would embrace not just government ministers but "grandees" who end up running think tanks or chairing the major quangoes. The system has become self-replicating, turning out politicians increasingly indistinguishable because they increasingly conform to a pre-set template of what a modern politician is supposed to be like.

But it may not simply be a question of the professionalisation of politicians (something that may not entirely be a bad thing). For Howarth, what we're seeing is the rise of "symbol manipulation" as the core activity of politics: it's now an environment where images matter more than arguments or evidence. When the House of Commons was stuffed with lawyers, politics seemed to be a law-making activity. I agree that modern politics looks more and more like a specialised branch of the marketing and PR industry. Laws still get passed - more than ever, in fact - but politicians neither know nor understand how they work. Some Acts of Parliament, indeed, serve little purpose beyond enabling the government to be seen to be "doing something" about some passing tabloid panic.

One consequence of the decline in the number of lawyer MPs might be a falling off in the quality of legislation, or at least of legislative scrutiny. A good political candidate (ie someone with voter-appeal) is not the same thing as a good legislator. Howarth's successor as Cambridge MP, Julian Huppert, is a scientist by training. At a recent meeting of Cambridge Skeptics in the Pub, he too was lamenting the current scarcity of Parliamentarians with a legal background. Like scientists (though in a different wasy) lawyers, he suggested, cared about evidence. PR executives just want to sell you stuff.

Howarth himself doubts that srutinising legislation is, in fact the primary purpose of the House of Commons; he sees it more as an electoral college which sustains the government. He pointed to other, less obvious changes. In the middle of the 20th century there was an intimate relationship between Westminster and the Inns of Court. The old Parliamentary hours allowed the significant numbers of QC MPs to argue a case before a judge in the morning and in the Commons chamber in the afternoon. It wasn't unusual for a former MP to become a judge, sometimes with no decent interval in which to detoxify from the world of politics. Some MPs were even appointed straight to the Judicial Committee of the House of Lords - including Lord Reid, who is generally looked upon as one of the greatest judges of the 20th century.

Today, by contrast, legally qualified MPs are rarely still-practising lawyers, and on leaving Parliament few return to the legal profession.

In the old days, there was much less emphasis on a strict separation of powers. The Lord Chancellor still sat as a law lord. The Law Lords themselves still sat in Parliament as legislators as well as judges (they have, of course, now been evicted). A cosy Establishment club, perhaps - but as David Howarth pointed out, an advantage of the system was that "judges understood democracy and MPs understood the rule of law". When lawyers and politicians occupy different professional and mental landscapes, with different, sometimes mutually contradictory priorities and increasingly little understanding of one another, there's much more potential for conflict.

David Howarth began his talk with Max Weber's observation that "modern democracy is inextricably linked to lawyers"; he ended by asking if, in that case, modern democracy may be at an end. But one can go much further back. Right at the beginning, in ancient Athens, there were no lawyers, only spin-merchants and rhetoricians. What passed for law was little more than advocacy, as Socrates (most famously) found out to his cost. Law and politics were both branches of the PR industry. If politics is returning to its ancient roots as an intellectually bankrupt popularity contest, we might as a society be better off if the lawyers stay somewhat aloof.