Still a place for the Bar

The demise of the self-employed Bar has been predicted at various intervals over its long history and similar fatalistic soundings have once again resurfaced in the wake of the Legal Services Act (LSA). The reason that these predictions have never become a reality can be attributed, in the main, to the quality of the service the Bar provides and the independence under which it operates. Interesting discussions lie ahead of us in relation to the application of different service models including Legal Disciplinary Partnerships and Alternative Business Structures. The Bar Council has already submitted a detailed response to the Bar Standards Board's consultation paper on the LSA (see our website www.BarCouncil.org.uk) and is in discussions to determine how best to regulate barristers in the new regulatory landscape for legal services. Obvious problems in relation to conflict and confidentiality will inevitably arise if barristers are to offer their services under an LDP or ABS structure. Indeed were barristers to form partnerships, choice of advocacy services for the consumer might be significantly reduced, particularly in specialist areas of practice. I am more than confident that, if we continue to focus on our independence and quality, the Bar will rise to the challenge of reform and be around for many years.

Justice as a commodity

One need only to turn to the current Very High Cost Cases (VHCC) problems to see the difficulties that arise when quality is driven out of the system. The Legal Services Commission's (LSC) attempt to impose a 'market based' reform onto this specialist area of the publicly funded Bar has resulted in a less than satisfactory outcome. The LSC initially did not make sufficient allowance for the fact that the provision of quality legal services is not a commodity that can be easily tendered on pure financial grounds. There are, of course, wider public interest considerations that need to be addressed when procuring legal services. Putting this to one side, ultimately the terms of the contract offered to the Bar were not sufficient to attract an adequate number of quality barristers to undertake this work. This lack of quality has resulted in two significant outcomes:

• it has now proved necessary to work on the development of a revised scheme which concentrates on payments for specific tasks rather than hourly rates. The alternative scheme will, I believe, reward high quality and efficient advocates and dispense with the perverse incentives associated with hourly rates; and
• a number of ongoing VHCCs will run into administrative difficulties if senior counsel refuse to undertake the work at the rates offered. This lack of capacity means that an alternative solution needs to be found in the interim which will ensure that cases in the immediate future are defended competently and efficiently. If a solution is not found quickly then there is a risk of delay in these cases, something which no one wants.

While I remain confident that we can continue to work collectively with the LSC and the Law Society to arrive at a sound alternative solution, the current difficulties bring into sharp focus the importance of experienced criminal practitioners and the essential skills they bring to the criminal justice system.

I have long recognised that the Bar has no exclusive right to practice in the higher courts. Indeed we welcome competition. What we must all keep clear in our minds is that every one of us, whether solicitor or barrister, owes a duty to act in the client's best interests. This requires barristers and higher court advocates alike not to undertake work which is beyond their experience. Otherwise we would be letting our clients down.

Retaining diversity

Unfortunately the strains on the publicly funded Bar are not limited to VHCCs. The Family Law Bar is in negotiations over cuts to the Family Graduated Fee Scheme where the LSC is seeking to cut £13m out of an overall budget of £100m over the next two years. This has obvious adverse implications for the most vulnerable in our society who rely heavily on the Bar to defend their rights in extremely serious family court proceedings. Any such cuts would have a disproportionately negative effect on black and ethnic minority practitioners as well as on women given that a higher percentage of these barristers undertake publicly funded family law work.

The retention of a diverse practising population is an important issue for all lawyers. We recognise that ensuring the Bar is populated by a representative base of practitioners is essential to the health of the profession. For this reason the Bar Council has worked hard to dispel errors of the past as well as some unfounded myths. In 1995 the Bar was the first profession to introduce a Diversity Code. At entry level the Bar recruits 50 per cent women and 17 per cent qualify from ethnic minority backgrounds. Through the inns of court and chambers we have set up a number of initiatives to implement the recommendations made by Lord Neuberger to improve entry to the Bar. Over 30,000 state school students have taken part in our mooting competitions and a number of young people from disadvantaged backgrounds have been given an insight into life at the Bar through our partnership with the Social Mobility Foundation (SMF). We are now working with the Sutton Trust and co-ordinating that work with the SMF. We will continue to develop these to build on the impressive gains to date. It would be an appalling irony if our gains in diversity were turned into reverses because publicly funded practice ceased to be a realistic way of earning a living for the most talented from diverse backgrounds.