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• Bar Council Meeting 10 December 2007

Bar Council Meeting 10 December 2007

MINUTES OF THE INAUGURAL MEETING OF THE 2008 BAR COUNCIL
HELD AT 1730 HRS ON MONDAY 10 DECEMBER 2007
IN THE PARLIAMENT CHAMBER, INNER TEMPLE

Present: 
Tim Dutton QC - 2008 Chairman
Desmond Browne - 2008  Vice-Chairman
David Hobart - Chief Executive

The Chairman offered a warm welcome to a number of distinguished guests who were attending the Inaugural Meeting of the 2008 Bar Council.

1. Apologies

Apologies for absence were received from Paul Darling QC, Mirza Ahmad, Stephen Bacon, Joanne Hacking and Kris Venkatasami 

2. Approval Of The Minutes

The minutes of the 17 November Bar Council meeting were approved.

3. Matters Arising

It had been noted that the Chairman’s Statement had included mention of the Wales Circuit, rather than the Wales and Chester Circuit.  

4. Chief Executive's Introduction For Member Of The Bar

Not many professional groups can claim to have been so influential, in countless lives, for so long, here and abroad.
 
This one advocates the views of the young and the old,
it’s the mouthpiece for the weak and the inarticulate;

It sets the tone for the poor and the rich alike,
and it needs no Peer Review

Its defining and distinctive Quality is music to the ear. 
And there is nowhere I would rather be this evening. 

But that’s enough about tonight’s Led Zeppelin concert. 

The Bar Council, on the other hand, is a rather different sort of super-group that faces the same challenge of re-inventing itself to remain relevant and influential. 

There are 2 points about this that I want to highlight:

New members of the Bar Council will be familiar with the various membership categories:  several individual, Circuit, Specialist Bar Association, ex-Officio, and Inns of Court members, and, much like the partridge in the seasonal pear tree, we have our one Co-opted member.

And you will be familiar with the different selection methods:  personal application and competitive interview for the Bar Standards Board and the Regulatory committees; but for the Representative committees it is some combination of First past the post, Single transferable vote, ex-officio, and Tap on the shoulder. 

But – and this my first point - next year I would urge New Members to play a full part in the debates we will be having at the first two Bar Council meetings – January and March – on a number of Governance issues, such as the relative importance of directly-elected members, the make-up of Bar Council committees, and the recommendations of Sir Paul Kennedy’s Review of the Bar Council constitution.

My second point is the fairly new challenge that faces us with the gradual polarisation of Bar Council activities into the role of the Chairman’s Office on the one hand, and the role of the Bar Standards Board on the other.

These two outputs – the Chairman’s Office and the BSB - are growing in significance, both in absolute and relative terms.  That means, inevitably, that the work of the committees – both representative and regulatory – is less prominent.

That gives me a particular problem, if the Committees and their members – and the Secretariat staff who organise and support the Committees  - are to feel fully involved in Bar Council outputs.  It is vital that Bar Council members make the effort to relate  - to link - their committee activity to its eventual output. 

Remember that it is the staff who are the corporate memory, the repository of unused ideas or unfinished initiatives, and your main source of support.  If you help them by getting the context right for them, by articulating your clear sense of purpose, then they will help you to help the profession. 

5. The General Council Of The Bar 2008

The meeting noted the details of the Bar Council membership for 2008, and agreed that Duncan Matthews QC would become a co-opted member of the Bar Council.

6. Appointment Of Chairmen And Vice-Chairmen Of Committess Of The Bar Council

The meeting approved the proposed Representative Committee Chairmen and Vice-Chairmen for 2008. 

7. Appointment Of New Members To The Bar Standards Board And Its Regulatory Committees

The meeting noted the membership of the Bar Standards Board and its Regulatory Committees

8. Bar Council Programme 2008

The meeting noted the programme of Bar Council events for 2008.

9. Date Of Mext Meeting

The next meeting will be held at 1000 hours on Saturday 26 January 2008 in  the Spy Room, Gray’s Inn.

10. Inaugural Speech Of The Chairman Of The Bar 2008

May I start by welcoming you to this, the inaugural meeting of the Bar Council for 2008.  Tonight I congratulate all of those who have been elected to the Bar Council in the recent elections and welcome you to your first meeting of the 2008 Bar Council.  May I also welcome a large number of guests, invited because you have an interest in Justice, the Bar, the work of the advocate and the work of the Bar Council.  Serving on the Bar Council requires considerable work, is rewarding and is a privilege.  There is no greater privilege than being elected as Chairman.  I shall stiffen every sinew to represent the profession.

Barristering

We become barristers out of a desire to serve justice using our skills as advocates.  The belief in justice and our serving of it is rooted in strong idealism, usually developed when young.

In time we specialise, and hone our advisory and advocacy skills.  Our idealism remains but we engage with the practicalities.  We strive for quality. An example is the establishment of the Bar Quality Advisory Panel – driven through by Geoffrey Vos QC. 

When I talk about the quality which we bring as barristers to justice, I go to the definition, which we developed when I chaired the Bar Council’s Advocacy Working Party in 2002.  It said that the essential skills for a persuasive modern advocate are:

• The ability To Persuade Orally
• The ability to Persuade in Written Argument
• The use of Cogent Legal and Factual Analysis
• The ability to Develop Reasoned Argument
• The use of forensic Skills with Evidence
• And all of the foregoing undertaken to high ethical standards

The background to the identification of these requirements is an adversarial system.  In a civil law system there is less of a requirement that the advocate should be skilled in cross-examination or indeed written submission since they have less of a role to play.  Much of the skill is transferred to the judge.

I have little doubt that the English, and common law, adversarial system is here to stay, and thanks to the work of our European Committee, is gaining ground in Brussels.  We have a system, which by probing and testing as it does, in the full glare of the public eye, is widely recognised to be at least as good, if not a great deal better, than those of our EU neighbours. 

Despite the awful circumstances, I was heartened to hear public demands for good old British Justice, during the recent press coverage of the disturbing Madeleine McCann case.  What was being sought was the methodical approach of our police, our prosecutors, our barristers.  There was reprehensible reporting of innuendo outside of official process.  The English jurisdiction would have provided a well-adjudicated process, under which evidence is carefully tested and the issues presented to an impartial jury. Ultimately what the public was showing was trust in our system.

The call for British Justice reminds us that it is still held in high regard around the world.  That is why we must oppose any lowering of standards by those involved in the system - solicitors, barristers, judges, police, CPS, other agencies.  We must also resist any attacks on or lack of investment in the system.  The public will only know that something has gone wrong long after mistakes are made.

In my view, members of society who encounter serious legal difficulty are entitled to representation by advocates who have the qualities I have described.  This is vital for the constitutional health of our society, just as a good Health Service is vital for our physical well-being.  These qualities are found in barristers.  If the profession is weakened, for whatever reason, then it is not just the professional who suffers.  It is the voiceless.  It is the prosecution in a rape case.  It is the victim of serious crime.  It is the family fighting to keep their children, or the single mother struggling to remain in her home.

I shall continue to argue vigorously for the proper funding of representation. This requires responsibility on both sides: we must not espouse schemes which are inflationary or have perverse incentives, nor must the state weaken representation by espousing schemes which detract from quality or which create a second class of representation for those who are less fortunate than the wealthy.  Two-tier justice belongs to an age long in our past.

Barristers conduct their work with conscience and good will.  Each new piece of legislation which requires research, and written submission in court, leads to barristers burning the midnight oil: often for no financial reward but out of loyalty to justice and their professional ethics.  In this they are the public’s servant.  They must be recognised as such.

I welcome Lord Hunt here tonight.  As Minister for legal aid, he has begun a process of dialogue with the profession which I welcome.  On Friday the Bar Council received a letter from the Lord Chancellor in which he spoke of the Bar’s work as rightly earning it a reputation for excellence around the world.

Lord Hunt and I have recently taken part in a lively and civilised debate on Radio 4.  A much healthier rapport is developing and I detect that dogma may no longer be driving the debate.  The challenge is to maintain a quality justice system, while recognising that public resources are not limitless.

Cohesion and the One Bar Philosophy

One of my principal aims for the year is to strengthen the bonds that bind us together as a profession.  We are a profession of 11,500 self employed and 3,500 employed barristers.  When I was called, we numbered in total about 5,000.  The solicitors’ profession has increased by similar proportions up from about 45,000 with practising certificates when I started, to about 120,000 with them now.  There is a clear need within our society for the expert help, which lawyers and barristers in particular can offer.  The recent MORI research undertaken for the BSB found that 96% of our professional clients consider the Bar provides an excellent service and even 76% of prisoners do.  The latter is telling: they plainly feel that their advocate gave voice to the merits of the case; a view, which remained even if after the prison door had closed.

At the same time, as we have increased in numbers, so we have increasingly specialised by subject matter.  Barristers now tend to describe themselves as “criminal specialists”, “commercial”, “family”, “regulatory” and so on.  With this increasing tendency to specialisation by subject matter, have grown the Specialist Bar Associations.  Some, but insufficient, glue to these arrangements is provided by the Circuits outside London, who should be attracting the professions wider membership to join regardless of their particular specialism.

The Inns have re-discovered their true vocation in advocacy training – currently provided to three years post call, and there are active steps being taken to extend this to 6 years. 

The Bar Council stands astride all of this.  It is in the interests of the whole profession of barristers to ensure that we are strongly bound together.  As the market draws us into ever-increasing specialisation, it is as critical as ever that the Bar uses its collegiate nature as an underpinning strength. 

In 2008 I want every member of the profession to know the important fact; that the Bar Council works in their interests across all ranges of discipline.  A number of steps will be taken to strengthen ties and to ensure better communication to, and within, the profession of what we are doing.  These will bind together Circuits, Specialist Bar Associations, the Bar Council and individual barristers with stronger lines of communication and reporting, maximising our use of new technology in pursuit of this.

It is easy to criticise, but harder to work for the profession.  As I have said: this Council will work for the profession.  I want also to use this occasion to say to the profession that every individual member must ask what he or she can do for the profession.  I will take steps to re-engage the Bar Council with each practitioner.  In return I ask that each practitioner must ask the question: what can I do to help.  And the answer should be a positive one. 

“Barrister First” – My approach to what we the Bar Council ought to do for the profession

The Bar Council exists to promote the interests of barristers, always in the public interest.
 
It is, of course, also the regulator as recognised by statute in the Legal Services Act 2007.  Delivery of high quality regulation is done on behalf of the Bar Council by the BSB.  High standards of regulation, and close co-operation between the Bar Council, its committees and staff and the BSB, are vital to the success of the Bar Council and to the reputation of the profession.  While regulatory decisions must be ring-fenced, close co-operation is vital to retain the public’s and the profession’s confidence in the Bar.

It suits our “marketing” objectives, domestically and internationally, that we are regulated to high standards. 

There is a further sense in which I will be promoting the Bar – both here and abroad.  Barristers are the leading-edge problem-solvers in the law: if you have a difficult point of Chancery Law you seek advice from a specialist Chancery barrister.  If you are charged with a criminal offence, you should be seeking the advice from and representation by a specialist criminal barrister. The reason why you go to such practitioners for advice is that they are able accurately and expertly to predict, in the light of the facts and the law, how a court or tribunal will rule in a case.  The knowledge and skill which comes from the Bar’s work at the end of the litigation process is what is needed before any such process gets under way.  Barristers are best placed to anticipate the outcome, and therefore advise on the appropriate response.  A brief conference with or an opinion from a specialist barrister may save a client thousands in costs, and a great deal of heartache.  Barristers should be brought in early.

So I intend loudly to proclaim our expertise here and around the world.  Too often one finds that a barrister has not been instructed, or instructed early enough, or that costs have been wasted on fruitless enquiries because there is a simple point, which determines the case.  Further, the comparative attraction of “advocacy” to some firms of solicitors, as a service that they themselves might offer, may be causing them not to instruct barristers until errors have been made by inadequate in-house handling of work.  I shall be working with the Law Society to ensure that professional standards are never compromised in the way that clients are supported by law firms.

In global markets, where the Bar’s skills should be used, for example India or the Gulf states, it is perfectly possible for a barrister to be instructed by a local firm under the Bar’s access arrangements: such a firm can come direct to the Bar and an English solicitor can be used when the need arises.  Our Access Committee under the chairmanship of Paul Darling QC, is there to advise the profession and the public on access to the Bar.  None of this is intended to affect our good and close working relationships with English solicitors, nor the relationship we have with the Law Society.  But we must recognise that barristers have a pro-active role to play in an increasingly dynamic and competitive market for the provision of advocacy and advisory services. Competition is healthy.  Let us embrace it. 

So I intend to promote the skills of the English and Welsh Bar in the way I have described.  I shall do so by reminding people that they should approach any legal problem with the thought in their head of seeking a solution to the problem and that means thinking “Barrister First”.  I shall campaign on this basis this year, and make best use of the resources available to me to drive this message home on behalf of the Bar.

Co-ordination and Cohesion in education

Our educational and training work is vital to the Bar’s success in attracting and keeping work, or thriving in employment.  It is this work which ensures that we maintain the highest standards and which in turn demonstrates to the public that our standards are the highest.  I want to stress that standards are high and that our professional bodies invest heavily: one Inn alone is investing 2,3 million per year even before counting the thousands of hours of volunteer work by barristers.

There are two difficulties.  First, there seems to me to be a gap (in time and provision) between qualification and the offer of help to one’s profession.  We make too many demands on the members of the profession who do give up time to work for the profession as opposed to just their clients.  More barristers need to teach advocacy; more are needed to work with the Bar Council.  Our profession needs a constant supply of representatives, and ambassadors for our work. 

We are about to enter a period when we contemplate changes to the referral model of practice because the Legal Services Act 2007 has received Royal Assent.  I believe, for reasons which I will develop in a moment, that it is the model which produces the best advocates in the world at economical cost.  By 2011, more likely 2012, we are expecting Alternative Business Structures to be permitted: for example solicitor in partnership with a barrister and an accountant.  Our profession will be helped to deal with this if we demonstrate that we, specialist advisers and advocates, are in a position of professional and market strength.

What does this mean?  I want to see the Inns, the Circuits and the SBAs working together to ensure that their already high standards of education and training are delivered in a co-ordinated way.  The Inns are a fabulous educational resource for the Bar, undertaking not just advocacy training but also, for example, acting as hosts for other well publicised educational programmes.  We, the profession should exploit online resources to plan our continuing training early in the year, every year to suit our practice needs.

As things stand our training after 3 years call is delivered in a somewhat piece-meal way and without sufficient cohesion.  I have asked the GMC to approve the formation of a working party under a former Chairman of the Bar, Jonathan Hirst QC, on the best ways of co-ordinating post qualification educational training to the profession.  Our future in a competitive market depends on the continuing investment we make in our own skills.  Let no one doubt that we are the best trained advocates: what I want to see is better co-ordination of our training work across the profession

The Referral Model, will it thrive?

I cannot think of a time when the profession has not been asking this question.  There are three reasons why we need to address it again.  First, the advent of the Legal Services Act 2007.  Second, the Government’s approach on public procurement and more particularly price competitive tendering under a one case one fee mechanism or  “OCOF”.  Third, we must always ask ourselves how best we can serve the interests of our clients and the world in which we live: we must strive for the best method to deliver our advice and advocacy.  We will only keep the referral model if it is indeed the best, and if we can justify it as best serving justice.

We cannot discuss what vision any one of us has for the provision of services by the Bar in future without asking and answering two fundamental questions.  What will be required in the future of those who practise advocacy in the UK in terms of their core skills? And what is going to be the likely need for the services provided by the modern day barrister in the future?

Then we need to examine two further questions.  How can the Bar satisfy that need? And, finally how will the barrister be regulated?

The Legal Services Act is now law.  It is a once in a generation change to the way legal services are regulated, and in turn provided.  Everyone must by now appreciate that we are to be regulated after 2010 under the eyes of an oversight regulator - the LSB - and that the single point of entry or portal for all complaints will be the OLC.  But the Bar Council is, through the BSB making its regulatory decisions independently, now established in law as the front line regulator.  The OLC will be well advised to seek assistance from the BSB in the investigation and consideration of a complaint is issued.  Next year, I shall be working closely with the BSB and through our Clementi Group, so ably chaired by Desmond Browne QC, dealing with the regulations that will follow the Act.  We will also be addressing the issues: (i) should the rule against partnerships be relaxed and (ii) if so, in what way.  These issues are fundamental to the future shape of provision of legal services and of advocacy in particular.  My intention is to ensure that the Bar Council’s approach to these questions is expert, visionary and well informed.

The Likely Need For Barrister Services in Future

We can learn a little from recent history.  In 1979, when I joined the profession, we had c5,000 barristers, and I believe around 45,000 solicitors with PCs.  We now have 11,500 barristers in self-employed practice about 3,500 in employed practice and 144,000 solicitors of whom about 120,000 have PCs.

It does not of course follow that there is an absolute need for so many but even allowing for the odd patch of under-employment the indications are that society in the UK wants barristers more and not less.  In any case, two social features underscore this need.  First, as Society becomes better informed (if not better educated) it becomes increasingly aware of its rights.  Authorities have become increasingly aware of their duties to act in the public interest and to enforce regulations.  Hence, the growth of administrative, public and regulatory law.  That awareness breeds a desire to go to law, or at least to seek advice as to the likely solution to a problem should one have to go to law.  Second: law has become more complex.  Indeed in some areas markedly so.  You cannot practice properly in criminal law as an advocate, without a detailed working knowledge of the endless stream of legislation that emerges from the Parliamentary production line.  All of this increases the need for the skilled advocate. 

I have picked on crime to demonstrate a point.  It is an acute one because as we all know the Government has wanted to reduce the payments of legal aid in crime.  Judged by the increased burdens on criminal practitioners this desire does not reflect the increased complexity and burdens in the work of the advocate.  I could make the point in virtually every other area of law – for example financial services regulation, family, and employment law to name but three.

So history tells us that there has been an inexorable increase in the demand for barristers’ services.  But that begs the question as to where the demand current or future will be required to be met, whether under the current predominantly referral arrangements or differently.

To address this question we need to remind ourselves of the reasons for the referral model.  The reason for the referral barrister model is that advocacy is of itself a specialist skill, and requires the practitioner to concentrate only upon it, and the advisory and drafting work relating to it.  The image that I like to use in this context is that of a specialist consultant.  We all need doctors and this is why we have a GP system.  We need that category of doctor called a consultant, but when we do we ask the GP to find a suitable one and to refer us, the patient, to him.  It is the case that the NHS insists on the referral model in this example more keenly than does the private health market. 

So, too, of the barrister.  The skill is specialist and requires concentration upon and repeated practice of its core elements.  The more you dilute the skill by undertaking office admin, personnel management etc, the less likely you will make the correct prediction for cases or conduct them in the best way possible for your clients.

There is a second reason for the historical separation: that is that there should be available to the public a sufficient number of barristers of sufficient skill, such as to enable the public to have the advocate of choice at one’s trial.  The cab rank rule is there to ensure this protection. 

I have no doubt at all that English barristers following the cab rank rule are demonstrably more independent minded in their work and in court than their fused counterparts in other jurisdictions.  I have worked in both systems and I have seen a palpable difference.  This is one of the main reasons why clients in other jurisdictions specifically instruct barristers. 

I believe that recent trends indicate that the public is more ready than it was hitherto to seek the help and assistance of the barrister direct.  First; there is the steady growth of both licensed access and direct access which we have seen over the past several years.  I am expecting this form of instruction to grow, particularly as clients become more discerning.  Second, we can learn a little from what has happened since the Woolf Reforms were implemented in 2000.  The number of issued High Court proceedings has reduced dramatically.  Part of the reason for this must be that clients are receiving earlier and one hopes better informed advice about the prospects of success and the costs of fighting against the odds.  This point is borne out by the growth in numbers year on year at the civil Bar despite the fact that the actual numbers of cases, which fight to trial appears to have diminished.  The Bar, it can be deduced, has been adjusting to a changing legal climate, and has been using its expertise to reduce the amount of cases that go all the way to trial. We save money, reduce stress and smooth the operation of the system.

None of this should serve to diminish any of the other core advocacy skills and in particular the ability to handle witnesses: the prediction that is needed early may well include a prediction as to whether an important witness will or will not withstand cross-examination.  Nor does it indicate a need no longer to have litigators (solicitors) and advocates: plainly we will continue to need both.

We will next year be entering a debate, as the BSB reviews the Code, on whether we should be permitted to enter into partnerships (or other arrangements) and if so under what rules.  Whilst my personal belief is that the referral model currently serves the public interest best, we must respond to the market and examine other forms of delivery and work out whether they may be better, or indeed whether relaxation of the rule to enable solicitors and barristers to be in partnership together will be a healthy adjunct to a still thriving independent Bar.  This debate will get underway next year and we must approach it with an open mind.  We should treat this challenge as an opportunity to be grasped, and we can approach the debate with confidence. 

How can the Bar satisfy the need for barrister services?

The Legal Services Act 2007 contemplates the possibility of differing models of delivery of advocacy services.  I am confident that, in the private sector, provision by a largely specialist referral profession of advocates will be the model of delivery for the next 5, 10 or even 20 years however barristers or their sets of chambers ultimately decide to organise themselves.

In this sector, the Bar has been the subject of competition from solicitors since the enactment of the Courts and Legal Services Act 1990.  Over time, we have seen some advocates being recruited in house.  The referral model has remained strong and has worked for both solicitors and barristers.  There is a mutual interest that it should.  Solicitors want to have a good range of choice in the advocates and advisers to whom they refer work.  Why should the barrister put all his eggs in one basket if he can remain a person to whom work will be referred from several different sources? And why conflict oneself out of so many interesting cases by belonging to a practice (or an  Alternative Business Structure -ABS ) which is structured so as to create conflict if the two sides are against each other with the same practice or ABS ? The Commercial, Admin Law, Intellectual Property, Chancery, and Technology Bars ought therefore to thrive under a model which is similar to the present even after new structures are licensed and ABSs start to become a reality. 

There are however new possibilities which I foresee, and opportunities for the profession to grasp in what is a fast moving new world to which we belong.  For example: it is possible to envisage specialist advisory and advocacy practices regulated by the BSB which do not handle client money and which provide a specialist service.  We must discuss and debate these issues next year with an open mind, guided by the needs of the public, and the interests of justice.

OCOF and PCT

There is a real concern at the Bar in publicly funded work, in two principal ways.  First, the suggestion of “OCOF” (One case one fee).  Second, in-house recruitment by the CPS and some solicitor practices in order to hold the advocacy fee in house.  Here much depends upon consultation yet to be had with the Legal Services Commission and also how the DPP develops his plans for the use of HCAs.  I welcome the DPP and representatives of the LSC here tonight.  I would, in that light, like to set out some observations of my own. The date for “PCT” in criminal work was October 2008 and has been put back.  A consultation was launched this morning about Police and Magistrates Courts, which we will need to respond to.  In mid 2008, there will be another consultation about higher courts.  There are indications now that the LSC is more open minded and that it does not wish OCOF to be pushed through at the pace initially suggested, and the signs are of a more reflective attitude.  I welcome this.  Formal consultation on the OCOF idea has not yet even started.

The theory of OCOF and PCT is that the LSC will have two graduated fee schemes in place for both solicitors and barristers.  It contemplates an amalgamation of the two schemes and will then require “suppliers” – i.e. solicitors – to bid against each other for the cases by reference to one fee per case. 

There are a number of reasons why the OCOF idea is contrary to the public interest – i.e. contrary to the interests of a fair criminal justice system which enables Defendants to have a fair trial and to receive representation by capable solicitors and advocates – certainly for work in the Crown Court.  The arguments against OCOF and PCT are powerful and the Government should listen to them.  Now is not the time to rehearse the arguments.  Let me state the overall point simply.  At the heart of my concerns about the PCT and OCOF idea is that it does not serve the public interest.  Certainly not in the Crown Court or in family cases.  Work in these Courts cannot be commoditised or treated like cans of beans.  The idea also risks an abuse by Government of a monopolistic position, and risks damaging the quality of provision of legal services and creating a second or third class system in publicly funded work. 

I detect that the Government may want to pause on this idea at least in regard to Crown Court and Family work.  I urge it to do so.  Lord Carter cautioned against a rush: not least because of the impact on BME firms.  An OCOF arrangement without ring fencing the advocacy fee will put quality at risk.

Meanwhile, we live in a world where there are terrorist threats, and difficult terrorist and other trials to prosecute and to defend.  These cases need the best advocates to prosecute and to defend.  I am concerned that High Costs Criminal Cases should not be bedevilled by a flawed procurement scheme (due to start if people sign contracts on 14th January 2008, subject to the effect of the Court of Appeal’s foray into the arena).  Again, I want the Government to listen carefully to the concerns, which are being expressed in the fortnightly meetings we are having with them over VHCC cases, meetings which I welcome.  I want to see a workable scheme emerging from this process which attracts the best advocates in, and serves the public interest – i.e. of the best advocates, ably managing trials which are neither too long nor too costly.

Prosecutions

The DPP wants in house advocacy capacity for the CPS, but also wants and needs work to be undertaken by the referral bar.  There is no reason why a suitably qualified employed barrister should not undertake advocacy for his employer.  As a Bar Council we represent the interests of over 800 employees of the CPS.  The days of protectionism have long gone.  What matters is that we get the balance right in the interests of the public.

No DPP wishes to see cases going wrong on his watch.  Nor does any self-employed barrister, self-respecting Crown Advocate or Chief Crown Prosecutor.  Last September the Advocacy Liaison Group agreed a framework of principles designed to ensure high standards and a level playing field for the distribution of work as between in-house Advocates and the Bar.  It was personally endorsed by the A-G and the DPP.  But the CPS has not embraced case ownership, and has not yet complied with the Principles.  Crown Advocates are doing large numbers of PCMH hearings and not then undertaking the trial, but leaving the Bar to pick up the pieces.  In some instances, cases may have “under-pleaded” (i.e. the plea accepted may have been inadequate), or there has been under-representation for the Crown.  This is contrary to the statement of principles, and is damaging to the public interest and to the CPS.  The DPP has written to all CCPs, Unit Managers, and HCAs seeking their compliance with the Statement of Principles.  I endorse this action.

I believe that those barristers who are employed within the CPS and the self-employed Bar should be able to work together to ensure that prosecutions are undertaken to the highest standards and that the careers of both thrive.  This is not a dispute about territory, but there is a very real concern about standards.  It is the victim, the vulnerable witness, the family and society at large that suffer if we do not get this right.  We cannot afford to make mistakes.

I do not consider that it is in the public interest for unqualified staff to prosecute criminal trials in the Magistrates’ Court.  The Bar Council will be making this point clear to members of Parliament and the House of Lords as the Criminal Justice and Immigration Bill is debated: Clause 58 of that Bill is not, I believe, appropriate and we shall be arguing against its enactment

Parity

When we were involved in the review of legal aid by Lord Carter, we understood that the CPS would stick with the principle of parity of payment for prosecution and defence.  It matters to the Bar and the public alike that criminal cases are conducted with an equality of arms.  The sooner we get to parity the better it is for all concerned.  This is not a self-interest point.  Victim Support has written to the Attorney General to express their concern about disparity and the consequences for the prosecution of criminal cases.  Their concern is to have a level playing field in the interests of victims, and in the interests of justice.  This is an important an urgent issue which I am addressing and will continue to address.

Defence HCAs

I am aware that some solicitors seek to insert “straw juniors” into cases or to attempt to keep a “brief” in house for a Higher Court Advocate (HCA)  who lacks the experience to do it.  The Bar Council will seek agreement from the Law Society to a Protocol, which underscores the fact that this sort of conduct is not lawful.  The guiding principle for any advocate is that they must do what is in the lay client’s best interests: see for example rule 1 of the Solicitors Code 2007. 

Is the imposition of HCAs or HRAs likely to undermine the Bar?  In my view, not.  Those who do work below standard will be seen to come unstuck in court.  I do not believe either branch of the profession to be so driven by self-interest as not to be able to prevent this abuse from happening.  It is an area where I shall take a close interest.

How regulated

I have little doubt, as it becomes possible for advocates to choose by whom they are regulated, that the Bar Council (with the BSB functioning independently in the decisions it makes under Section 29 of the Legal Services Act 2007) will become the preferred regulator of barristers and many senior solicitor advocates.  We have a history of skilled regulation of advocacy through regulating the Bar.  That regulation has enjoyed public confidence and has received repeated praise from the Ombudsman.  We are cheaper than the Solicitors Regulation Authority – by a massive degree.  Our voice is strongly heard and respected in Parliament, the press and wider public.  Why go elsewhere?
 
The Kennedy and Neuberger reports and Recommendations

You will have read the excellent report by Lord Neuberger published on 27th November to acclaim.  It contains 57 recommendations, which will lead to improvements in access to our profession by talented potential barristers from all backgrounds.  This report builds on work, which previous chairmen and Bar Councils have been doing over many years.  The Bar Council will discuss this report in January 2008.  I urge you to do everything you can to endorse and support the recommendations.  I welcome it.  Soon, the last vestiges of the perception that the Bar is the preserve of the privileged will be driven out.

Duncan Mathews QC will chair the Implementation and Monitoring Group, which will report to the GMC.  We shall take Lord Neuberger’s report seriously.  I am personally committed to a diverse profession which is a meritocracy, open to all with the nascent talent to succeed.  In one respect at least, I think we should quickly be taking more positive steps and that is the glass ceiling for women members of the profession.  We have 50% intake of women at the start but too great a loss of women to the profession as the years go by.  I want to find ways to remedy this.  I have already written to the Chair of the Equality and Diversity Committee setting out these concerns.

Also next year we shall have two debates on our own governance arrangements.  One in January on a member’s proposal about more elected representatives, and another in March to discuss Sir Paul Kennedy’s recommendations made in the Kennedy report for the Bar Council.  As I have said, I am already taking steps to strengthen the numbers of elected representatives on committees and to improve communication with the Bar.  I think the Bar Council under the Kennedy arrangements will improve.  We will need to debate this.

One area of communications improvement relates to the work of the Bar outside London.  We are a national profession covering all corners of the country and I have asked that our Public Affairs Committee work to ensure that the Bar’s Work as a provider of public services in the public interest is nationally recognised.  Increasingly barristers engage with the media and give up their time to assist as much as possible with questions about our system of justice.  The agenda has already been set for the Committee to increase this engagement.

The Bar Internationally

My job is to promote the Bar and our system not just at home but internationally.  To assist in this purpose I have asked that the work of the International Relations Committee and the EU Committee become more closely aligned with each reporting ultimately into the new Chair of the International Committee.  Their main brief is to promote the interests of the Bar abroad.  All of us are operating in an international market with English law as an attractive option in commercial disputes.  In criminal law there is an increasingly international aspect to the work, and in family also.  I intend to promote the values and skills of the Bar as advocates, arbitrators and mediators abroad.  I am discussing with the new chair and with the SBAs the possibility of a Bar sponsored arbitral model, which can be used by those who want to exploit the services of English barristers, and arbitrators, in arbitrations or indeed in mediations wherever situated.

The QC System

Having the QC system is integral to our profession.  It is a hallmark of excellence and seen as such around the world.  I intend to work not just to retain it but to make it flourish.  The Bar Council will work with QC Appointments early in the New Year to make sure that the next round is successful.

Constitutional and Law Reforms

This Government has indicated that it wishes to listen and has started three consultation processes.  A Bar Group has submitted a paper on the office of Attorney General, and two more will follow on Citizenship and on the Constitution, the latter under Michael Beloff QC.  I welcome the fact that the Government is undertaking these consultations and is listening.  Baroness Scotland, the Attorney General, has brought with her a willingness to listen to this profession and to undertake her role as head of the profession at this Council, and she has donned her robes again to appear in Court.  The interface between the profession and Government at this Council is one which I have found to be encouraging this year. 

The Bar has some of the world’s leading constitutional law experts.  Our contribution to proposed constitutional reforms is invaluable and demonstrates that we have the public interest at heart, and that we have the expertise to help on issues of importance.

Conclusions

The messages which I stress from this address are:

i. The Bar has a strong future, provided it maintains excellence;
ii. I shall promote the bar – Barrister First;
iii. I shall take measures to improve entry, co-ordination and cohesion within the profession, with a view to our remaining a single strong bar; a One Bar philosophy.
iv. I caution the Government and the CPS against taking steps which diminish access to the best advocates in all cases, which diminish quality, or which create structural risk for the profession.
v. I shall do my utmost to ensure that our arguments are driven home constructively with Government

Finally, I will finish where I started.  One of my concerns over the past 4 years has been that the fashion of attacking barristers and judges, had become part of the language of some in Westminster and was becoming popular in the Press.  At one point whilst the House of Lords debate was under way on the Legal Services Bill the former Lord Chancellor described the Lord Chief Justice to be rightly perceived by consumers as Just Another Lawyer.  This sort of attack is unwise.  Unwise because solicitors, barristers and judges are essential pillars of a civilised Society without whom there will be no rule of law let alone a system admired the world over.  A desire to right an injustice is the hallmark of civilisation and that desire is, as I said when I began, to be found amongst barristers.  It is to be found in our work including of course our pro bono and international work.  

I hope that the Ministerial team we have been dealing with since the summer will continue to say publicly as will the press that British society is distinguished by its adherence to legal principle and the Rule of Law, and that barristers and solicitors are performing an essential service in the interests of the public.  

That way lies fairness in our dealing with each other, and greater prosperity because a strong system of justice means that society and commerce thrive.   Events around the world in the USA, Pakistan, Burma and Zimbabwe, indicate how dangerous it is to erode confidence in the judicial system, and how lawyers are often in the front line in the defence of basic rights.  I look forward to working with colleagues including those in Government and Judges to replenish confidence in the system so that we maintain public trust.

I relish the challenges ahead.  I am lucky to be working with Desmond Browne QC as Vice-Chairman.  I look forward to working with you next year.

TJD QC
10 December 2007

DAVID HOBART
Chief Executive
11 December 2007