Raising the Bar

In the 'Commonly asked questions and answers' information published by the Legal Services Commission, the question as to whether the proposals for best value tendering (BVT) affect the Bar is answered in the following terms:

'The Bar Council responded to the LSC's last consultation on best value tendering. This response highlighted some similar concerns to those expressed by other stakeholders but also raised some specific points about the potential impact upon the Bar.

'This consultation is clearly focused upon the proposal to tender elements of criminal lower work (police station and magistrates' court cases). We have also expressly ruled out the possibility of tendering Crown Court work at this time. Any proposals to extend tendering to cover this type of work would be subject to a further consultation.

'On this basis we do not consider that the Bar will be directly impacted by the proposals or that there will be any restriction on the ability of clients to instruct a barrister of choice as their defending advocate' ('Commonly asked questions and answers', https://consult.legalservices.gov.uk/inovem/gf2.ti/f/160610/2601093.1/pdf/-/BVTQAfinal_1_.pdf).

This response ignores the very real consequences for the Bar '“ the junior Bar in particular '“ of the BVT proposals.

The tendering process is one which is almost certain to reduce the number of 'providers' of publicly funded criminal work ('Response to consultation', July 2009, paragraph 3.45). Nevertheless, the LSC intends to proceed with the BVT pilot schemes in the Greater Manchester and Avon and Somerset areas. It is anticipated that the successful bidders will require access to greater volumes of work than at present, in order to 'work with greater efficiency' '“ 'cutting costs' in simple terms.

That single paragraph of the LSC response to the consultation encapsulates the key to the wider effect of the BVT proposals for both existing holders of the general criminal contract and the Bar.

Can there be anyone involved in the criminal justice system who does not believe that BVT will see a reduction in the number of firms of solicitors holding the 'licence' to provide publicly funded criminal services? Is there any doubt that many of those who succeed in securing such a 'licence' will each have a greater market share than at present?

In the real world, the BVT process will drive down the bid price to what is probably an uneconomic level and it will be that very process which will see the reduction in the number of firms willing and able to provide legally aided criminal legal services.

Financial pressures

The Bar should recognise that its own recent skirmishes with the LSC are only part of the larger picture. Just as the Bar has seen the introduction of the graduated fee and Very High Cost Cases (VHCC) fee schemes, so our professional clients have undergone a similar process of constraint: fixed fees in the magistrates' court, fixed fees for police station attendances and the graduated litigator fee scheme for Crown Court cases, as well as the litigator's VHCC fee regime. Each of those changes has had its own effect and, in combination, has brought about marked financial pressure on our solicitor clients. Further proposals have now been published (Ministry of Justice Consultation Paper, CP 18/09 'Legal Aid: Funding Reforms', published 20 August 2009).

At the Bar, we have seen and continue to see the effect of those financial pressures and are in turn affected by them.

It is no longer the case that our solicitors can afford to send representatives to court when counsel had been instructed in all but the exceptional cases. That has practical consequences: the absence of the solicitor's file with the increasingly important correspondence folder dealing with the compliance with the increasing number of administrative directions; there is no one present to take proofs of evidence from the defence witnesses who finally turn up on the day of trial; and it is counsel alone who now takes instructions from the client on those vital issues such as the plea at the PCMH, whether to seek a Goodyear indication, and whether to give evidence at trial and mitigation.

We have witnessed the sad faces of those employees of our solicitor clients who have been made redundant and, even worse, have witnessed firms of solicitors simply going out of business.

Increasingly, where counsel is instructed, the legal drafting, which is now required in criminal cases, of defence statements, hearsay and bad character responses and notices, devolves to the barrister. A sizable proportion of the Crown Court work is now undertaken by higher court advocates (HCAs) directly employed by our solicitors and the Crown Prosecution Service.

Anecdotally, and obviously, these changes are a direct consequence of the reduction in available funds for publicly funded criminal work. The effect is that in order to maximise the fee income from each case, it is an economic necessity for our solicitor clients to streamline their practices. It could hardly be otherwise. If some of the work traditionally done by the solicitor can be undertaken by the barrister, there is a saving of time and effort and an increase in the profitability of the case.

That is not to say that the Bar can or should expect time to stand still: we have to move with the times and adapt to the changes which are all around us, working much more in partnership with rather than aloof from our solicitor clients. It is little wonder that some lay clients labour under the misapprehension that we are not members of an independent branch of the legal profession, but an integral part of the firm of solicitors which represents them.

The solicitor-barrister relationship

But a reduction in the number of firms of solicitors holding a 'licence' in criminal work under BVT will have a much more profound effect on the Bar. The relationship between solicitor and barrister is a very personal one; few members of the Bar have not appreciated the need to develop and retain close working relationships with the solicitors who choose to instruct them. It is a competitive market in which a barrister's reputation in court is only a part of the overall picture. Most members of the Bar have a limited number of such contacts. The same is true for our solicitors: the list of 'acceptable' or 'suitable' counsel for each solicitor (or, in some cases, each firm) is limited.

The supply chain begins with and is dependant upon the solicitor securing the case at the police station. Now we face the very real prospect that overnight, as early as June 2010, a number of firms of solicitors may simply fail to obtain a contract under BVT. One can imagine the effect on individuals and even whole sets of chambers, when one or more of the firms of solicitors presently providing instructions to counsel, without warning, can no longer do so.

But the volume of work will remain, so there will still be a need for barristers to represent the defendants, whoever has the contract under BVT, won't there? The answer to that question comes from the same economic pressure. The firms of solicitors that secure contracts under BVT will be under enormous pressure to 'work with greater efficiency' by achieving savings and maximising income. Where the available funds are finite, it is necessary to secure as much as possible of those funds in each case. Hence the increased deployment of HCAs.

There are extremely able HCAs practising in the Crown Court, but many do not do so through choice. It appears frequently to be an economic decision of the principals of the firm that it is necessary to secure the advocate's graduated fee for the case as well as the litigator's fee to ensure the maximum income and perhaps even the survival of the firm.

How much greater the pressure to employ and deploy HCAs when the income from the case is reduced further by the BVT process? So the successful firms under the BVT scheme may be forced to keep more of the Crown Court advocacy in house. The latest proposals from the Ministry of Justice ('Legal Aid: Funding Reforms') underline the ever-tightening legal aid budget.

Anticipation and adaptation

Will BVT affect the Bar? Yes it will. There will still be an independent criminal Bar, but it will shrink, by natural wastage, by a migration to employment within large firms of solicitors and by a change of direction into other fields of endeavour. Those who remain will be those who have anticipated and adapted to the future climate; those who have found a way to cooperate with and complement our fellow BVT survivors.

Starved of the opportunity to work in the Crown Court by the increasing numbers of prosecution and defence HCAs, the major casualties will be among the most junior members of the Bar and those who have their sights on a career as a criminal barrister '“ those who may very well have that opportunity denied.