Inaugural Meeting 11 December 2006
Minutes of the Inuagural Meeting
of the 2007 Bar Council held at
1730 HRS on Monday 11 December 2006
in the Parliament Chamber, Inner Temple
Present:
Geoffey Vos QC - 2007 Chairman
Tim Dutton QC - 2007 Vice-Chairman
David Southern - Treasurer
David Hobart - Chief Executive
The Chairman offered a warm welcome to a number of distinguished guests who were attending the Inaugural Meeting of the 2007 Bar Council.
1. Apologies
Apologies for absence were received from: Jane Giret QC, Adrienne Page QC, Frank Abbott, Catherine Addy, Carol Atkinson, Mirza Ahmed, Christine Bispham, Melissa Coutino, Christopher Frazer, Fiona Jackson, Taryn Lee, Helen Mahy and Mark Wilson.
2. Approval of the Minutes
The minutes of the 25 November Bar Council meeting were approved.
3. Matters Arising
No matters arose.
4. Introduction for Members of the Bar Council
The Chief Executive gave a brief overview of the work of the Bar Council and its Secretariat, and reminded all members of the Constitutional provisions regarding their regular attendance at Bar Council meetings.
He placed particular emphasis on the solid achievements of recent Bar Councils. Over the past 18 months, the ubiquitous themes of Clementi, Carter and the imminent formation of the Bar Standards Board has given way to post-Clementi legislative work, post-Carter implementation activity, and the successful launch of the Bar Standards Board. The Bar Council had actually achieved a number of its objectives, and had influenced the development of public policy. This was no accident resulting from mere existential activity. This was the deliberate product of some imaginative Bar Council ideas, turned in to persuasive policy proposals by the hard work of members and the Secretariat alike.
But this was not enough. What was also needed was a conscious effort by Bar Council members to educate and persuade the profession that the Council was succeeding on their behalf. It was essential, but insufficient, for the Chairman, the Vice-Chairman, and the Chair of the Young Bar to travel around the Circuits spreading the message, and seeking feedback. More was needed by Bar Council members to lead opinion, to cajole the key players in the justice system, to persuade the press and the public, and to demonstrate to the Secretariat staff, that the Bar Council has become an active and influential participant in events.
5. Standing Orders
The Standing Orders of the General Council of the Bar were noted.
6. The General Council of the Bar 2007
Annex B to the agenda gave details of the Bar Council membership for 2007. The meeting agreed that Duncan Matthews QC would become a co-opted member of the Bar Council.
7. Appointment of Chairmen and Vice-Chairmen of Committees of the Bar Council
The meeting approved the proposed Representative Committee Chairmen and Vice-Chairmen for 2007. The meeting also noted the appointed Chairmen of the BSB regulatory committees.
8. Bar Council Programme 2007
The meeting noted the programme of Bar Council events for 2007, which is again for reference at Annex A.
9. Date of next meeting
The next meeting will be held at 1000 hours on Saturday 27 January 2007 in the Parliament Chamber, Inner Temple.
10. Inaugural Speech of the Chairman of the Bar 2007
“Incoming Chairmen customarily suggest on this occasion that the Bar faces challenging times. This is probably intended to protect themselves against the possibility that their Chairmanship will be judged a failure a year later.
I hasten to say that, although Stephen Hockman said something similar this time last year, his Chairmanship must be judged an unqualified success, so he had no need of that protection.
Many of the challenges that I intend to discuss tonight are indeed the same ones that faced us last year. Over the last year Stephen and I have worked together to put in place a programme that can span our two Chairmanships. The Bar Council is taking an increasingly strategic ‘long view’ of issues, which means that Chairmen are seeking to knit together their successive programmes. I believe that this is an important step forward in the governance of the profession.
If there is one message for the future of the Bar as I see it, it is that we must devote ourselves to the pursuit of quality. Quality pervades every aspect of what I am going to say. I believe that if we can demonstrate to the public that we provide the highest standards of service, the future of our profession will be assured.
With that in mind, I will deal with my objectives for the year ahead under the following heads:-
1. The Legal Services Bill and the Bar’s regulatory regime.
2. The Bar Council’s leadership role in relation to quality.
3. Ensuring free access to the profession for those from all backgrounds.
4. Instilling confidence in the Bar Council.
5. Fair fee rates and structures.
6. The constitution of the Bar Council.
7. Our relationship with Government, the Law Society, and the Inns.
1. The Legal Services Bill and the Bar’s regulatory regime
The second reading of the Legal Services Bill took place in the Lords last week. The Bill will make significant changes to the legal profession generally and the Bar in particular.
During the Bill’s pre-legislative scrutiny by the joint committee of both Houses, we campaigned for three important changes to the Bill. All were approved by joint committee, but none was accepted by Government.
We sought the inclusion of a power allowing the Office for Legal Complaints to delegate the handling of service complaints to the Front Line Regulator.
We are not asking for delegation to take place, only that there should be a statutory power allowing it if the Legal Services Board thinks it appropriate.
There are two main arguments:-
1. Separate treatment of conduct and service complaints will be duplicative of cost and time.
2. When the Bar’s complaints handling has consistently been commended, it is pointless to transfer complaints handling to an Office of Legal Complaints with paid staff, when senior barristers provide millions of pounds worth of time gratuitously to the BSB’s Conduct Committee. The Government is throwing away that value at a stroke.
It is notable that Sir George Bain has recently reported in Northern Ireland, and has rejected much of the Clementi model, because of the high standard of complaints handling by the professions over there. There is no reason why our profession, which has s similarly good complaints handling record, should be treated less favourably than the Northern Irish professions.
We will also want to ensure that Alternative Business Structures, which are likely to become a reality, are regulated in such a way as to ensure that the standing of the English legal profession is not diminished here or overseas. They may well be regarded, particularly by the employed Bar, as a business opportunity, waiting to be exploited.
But although the Legal Services Bill will take much of our time in the coming year, it forms only the background to the regulatory issues facing the Bar Council.
Sir David Clementi recommended that there should be a single professional body with a representative arm and a ring-fenced regulatory arm. But there is much misunderstanding of what regulation really entails.
Regulation, I believe, encompasses all decisions made by a profession’s governing body that concern a person’s ability to practice, and the ways in which he/she is permitted to practice. Thus, regulatory decisions either govern the rules of entry to, training for, and practice, at the Bar, or relate to an individual’s qualification for practice, professional conduct or discipline. The four main areas of regulation are, therefore, making the rules, deciding who is qualified to practice, prosecuting misconduct, and monitoring compliance.
It is decisions in these areas that need to be made by ring-fenced bodies comprising members who have no say in the representative activities of this Council.
But it would be senseless and dogmatic to duplicate costs in regulating what is a very small profession by requiring complete separation. And the Bill does not require it. Finance, diversity and record keeping are examples of areas where the Bar Council and the Bar Standards Board can and should share joint services to save cost to the profession and thence to the public who use our services.
The culture of the new Bar Standards Board is different to that of the old Bar Council. This is right and was entirely to be expected. We must make sure in the coming year that we develop and maintain a harmonious relationship between the Bar Council and the BSB.
Indeed, both bodies together will, I believe, work to ensure that we have a vibrant and successful profession operating in the public interest – and also in the interest of consumers, but not just in the consumers’ interest. The users of our services are not just consumers. They may be guilty defendants in serious criminal cases, large corporations, the State, or children on life support machines. Our work must be regulated and undertaken first and foremost in the broader public interest, not in the interests of simply the high street consumer.
Barristers need to ensure that we provide a service that allows a fair justice system to prosper. It is the fair justice system that our services must support, and it is that fair justice system which must operate in the public interest. In the case of the criminal defence Bar, in particular, the interests of the consumer are very much only part of the story.
Whilst making clear that we support a strong and independent BSB, we cannot allow the cost of regulation to become disproportionate. We are a small profession with a good record on regulation, and we need structures that are suitable in terms of proportionate risk-based regulation.
Before leaving regulation, I want to say a word about a new consultation initiative concerning future practice at the Bar that is just beginning in the context of the Bill. For many years, the Bar has been seen as a profession of self-employed Court advocates. The fact that we now regulate more than 3,000 employed barristers in the Government legal service, the CPS, and industry is often forgotten. They are, however, as much a part of those that the Bar Council represents as any other barristers, and I shall not be forgetting their interests in the coming year.
The consultation initiative asks the profession who we should be regulating in the years ahead. For my part, I believe that we need to find a robust rationale for our existence. I favour the concept that we should be offering to regulate and represent all those who practice as specialist advocates and advisers.
It is, in my view, simply wrong to say that our independence depends on our being either self-employed or on the fact that we are mostly a referral profession. Our independence stands and falls by the ethics of which we are justly proud. A self confident profession which delivers high quality work, and high standards of ethics and training, will always be in demand. I am, therefore, less concerned about the business structures in which barristers might, in future times, be allowed (if they wished) to practice, provided we find ways of preserving the two central bastions of our profession: our ethical and training base, and the availability to the public of a pool of independent advocates willing to take anyone’s case without regard for the unpopularity of the cause the client might espouse.
2. The Bar Council’s leadership role in relation to quality
Lord Carter recommended in his Report that there should be a quality control mechanism for both publicly and privately funded advocates. Some take the view that such a universal system is unnecessary, since the market provides a self-regulating control on quality at the privately funded Bar. But one thing that nobody can gainsay is that Bar trades on excellence. We must do everything possible to ensure that barristers are, so far as possible, of a uniformly high standard.
We have made great strides in educational terms. The Inns and the Advocacy Training Council provide high quality advocacy training. This must be maintained and improved still further. For this purpose, we are introducing compulsory advocacy training as part of the CPD requirement for those between 4 and 6 years call.
But we must not be complacent. Quality is the passport to our continued existence as a profession. If it can ever be justly said that we do not produce the highest quality advocates, we will no longer have the right to argue, as we can and do, that the existence of the Bar is a crucial pillar in the defence of the individual against the abuse of power by the State, and in the defence of human rights generally.
The quality of the Bar is what ensures the quality of the justice system we operate. We must never condone the inefficient conduct of trials, poor preparation, and unfocussed and excessive advocacy.
For this reason, I believe that the Bar Council must provide leadership on the issue of quality. We must spearhead the campaign to improve standards of advocacy and preparation, enhance trial management procedures, and encourage efficient case disposal. We must set our face against the perpetuation of outdated and inappropriate methods of case presentation. We have a criminal and civil justice system, which Lord Carter described as “one of the most highly regarded justice systems in the world”, but if we do not continue to pursue improvements in efficiency and good service, we will be doing the public a great disservice.
I intend to work towards improving quality. That involves a continuing change in culture, and understanding a progressive legal landscape. In the criminal field, there are now many high profile terrorist trials on the stocks, and we must ensure that nobody can say that the Bar of England and Wales does not exemplify the highest standards of ethics and good practice in their conduct.
3. Ensuring free access to the profession for those from all backgrounds
The Bar is still seen by many as exclusive and elitist. I am using the word ‘elitist’, not in the sense of being of the highest ability (which we would wish to encourage), but in the sense of barristers being a privileged few who seek to exclude those who are not from similar backgrounds.
In many respects, however, we have already made good progress. We have good percentages of women and ethnic minority entering the profession. But we still have a high percentage of practitioners from privileged backgrounds. One survey showed that more than 80% of the Bar originated from the top two socio-economic groups.
I feel very strongly that it is central to our future to ensure that talented people from all social and racial backgrounds are equally able to come to the Bar. This requires a number of matters to be addressed, not least of which is the finance available for those entering the profession. We must make it widely known to those from less privileged backgrounds that the Bar is not a profession of toffs, but that it encourages those of the highest calibre from every walk of life to join its ranks.
Once it is more widely understood that anyone of sufficient intellectual ability, whether or not they have access to private or parental funds, can make a career at the Bar, we will be able to say without fear of contradiction that the Bar is neither exclusive nor elitist. In other words, we should be truly representative of the community we serve.
I am confident that, despite the difficulty of the task and the fact that others have failed before, the working group that Lord Justice David Neuberger is chairing will find ways of ensuring that these aspirations become reality.
4. Instilling confidence in the Bar Council
The strength of the Bar depends on its unity. It would be disastrous if Commercial or Chancery practitioners were ever to decide that they wanted no part of our single advocacy and advisory profession.
I want to make it a high priority that our 14,500 practising barristers have confidence in the Bar Council, and get good value for their subscriptions.
The Bar Council must be accountable and responsive. Its services must be available across the profession. It must not focus too heavily on any one group – the criminal Bar must not be considered to the exclusion of the Civil and Family Bars. This is all part of the ethos of a single profession of which all kinds of practitioners are part.
I believe that the Bar Council has historically paid too little attention to the smaller and less prosperous Chambers. In line with the drive towards universally high standards, I believe that the Bar Council must do more to help such Chambers. I am intending to initiate a scheme to take the Bar Council to those who have generally received the least benefit from our activities. We need to make sure that we are inclusive and representative. The idea will be to make closer contact with these Chambers, and to make them more aware of the services that the Bar Council offers in terms of practice management advice and guidance and in other areas. I believe that this initiative will provide support for the overall quality drive of which I have already spoken.
In addition, I intend to continue Stephen’s practice of making regular circuit visits to discuss Bar Council policies with members of all the circuits. Again, it is a question of making the Bar Council inclusive and accountable. The circuits must feel as much a part of their professional body as any other section of the profession.
5. Fair fee rates and structures
I turn to remuneration. In chairing the Bar’s Carter Response Group over the last 18 months, I have devoted considerable effort to the pursuit of fair pay for the publicly funded bar. Many of my peers at the Chancery and Commercial Bar have asked me why I should be interested in so doing. The answer is simply my belief in a united Bar. As I have said, I am sure that we can only survive as a profession by standing together, and I am equally sure that the publicly funded Bar can only survive if it is fairly remunerated for the work that it does in defending the rights of the citizen.
We have achieved some success in the Carter process. The Government announced at the end of last month that it would introduce the advocacy fee rates recommended by Lord Carter in April 2007. This will redistribute the available resources from the top to the bottom of the profession, so as to ensure proper increases for the 1-10 day cases just as we had requested.
But there was a sting in the tail.
Lord Carter’s report was not all good for the Bar. One recommendation (4.16) suggested that the DCA/LSC should “consider harmonising the separate litigation and advocacy graduated fees schemes in to a single graduated fee for all defence services in the Crown Court, for implementation as soon as possible after 2009, when the market has stabilised and legal services reforms allow for the creation of alternative business structures”.
The Government did not follow this recommendation. Instead, it has said that: “By October 2008 the LSC will introduce a Single Graduated Fee Scheme which will combine fees for both litigators and advocates and begin to introduce competitive tendering”.
It is clear that there will be a detailed consultation exercise before any such change is made. I intend to make it a priority to argue that a system of ‘one case one fee’ would not be in the public interest, and would place at risk the preservation of an independent referral profession of advocates.
If such a scheme is nonetheless introduced, the safeguards recommended in Lord Carter’s interim report will be required: the LSC must continue to pay the advocate directly; there must be a pro rata division between the elements of the fee paid to the advocate and to the litigator; and there must be a floor below which the fee cannot fall.
We largely won those battles with Lord Carter. I am confident that we can win them again. But we will need to start at once to ensure that the arguments are properly understood.
In addition, we will be starting from scratch in the consultation process that the Government has announced on publicly funded family fees. It is vital that fees for family, and indeed for civil, work do not become uneconomic.
In relation to civil legal aid, I am keen to persuade the Government to undertake a complete review of the fees paid to advocates in civil litigation. The payment structures and the payment rates are long overdue for reform.
Quality is, of course, intimately related to fee rates.
Provided we offer the highest quality advocacy services, we can justifiably demand fair rates of remuneration for publicly funded work.
Provided we offer the highest quality advocacy services, we can justifiably demand that that the Government should support the existence of an independent referral profession of advocates, because such a profession operates to produce a fair criminal and civil justice system in which the public can have total confidence.
But unless we can assure the public that we provide the highest quality advocacy, neither demand is justified.
It is also, of course, only by continuing to provide the very best advocacy available that we will be able to compete effectively with fair competition from Higher Court Advocates practising in solicitors’ firms and the CPS.
6. The Constitution of the Bar Council
This last year, we have begun to look again at the Constitution of the Bar Council and its relationship with the Inns. Stephen and I have been most grateful to Sir Paul Kennedy who agreed to chair a working group, which was initially referred to as Alexander II – i.e. the second stage of the late Lord Alexander’s review.
I hope that the Kennedy Group will produce its recommendations at Easter 2007, and that it will suggest changes to the Bar Council which will make it fully capable of operating effectively in the 21st century. Its membership and electoral procedures must make it more responsive.
There is much to be done to improve the profession’s understanding of the Bar Council’s work. But the Bar Council is often the author of its own misfortune in this respect. It is only if the officers and members of the Bar Council are truly accountable to the profession that they claim to deserve its respect and support.
In every aspect of our work, there is no substitute for proper consultation and debate. In this the members gathered here tonight play a vital role
7. Our relationship with Government, the Law Society, and the Inns
My last objective is to continue to improve the Bar Council’s relationship with its key partners. I should start with the Law Society. There is no purpose whatever in the two branches of the profession pulling in different directions. We will continue next year to make every effort to ensure that that does not happen. I am confident that Fiona Woolf and her team are wholly supportive of that approach.
I can now make a frank admission that will come as no surprise to anyone. Relations between the Bar Council and the Inns have not been as good as they should have been in the past few years. Much has been done to improve that relationship, but more can still be done. The Bar Council needs to make clear how much it values the educational and other activities of the Inns.
Relations with the Government have also been strained at times. I believe that we should have many common objectives: not the least of which is a fair and efficient civil and criminal justice system. Though we may disagree with some of the steps that may be taken, I hope we will be able to work closely with the Government towards that shared objective.
There is one crucial policy issue that is likely once again to take centre stage in this Parliament: the jury trial. I take the view that the duty of high quality advocates in all types of case, civil or criminal, is to refine and focus the issues so that they can be readily understood. If that job is done properly, a jury can readily understand the central issue in even the most complex fraud. The problem, once again, is the maintenance of the highest quality profession. Our investigations have never shown that it is the presence of a jury that has stood in the way of justice, and I remain to be persuaded that abolishing jury trials in even a very narrow class of case is justified.
Conclusion
I believe that I am the first Chancery Chairman of the Bar since Richard Scott. I hope I will be able to encourage the Chancery and Commercial Bars to become increasingly involved and interested in Bar Council affairs.
I have spent the last few years learning about the criminal and family Bars. And I just want to finish by making my credentials known. As a pupil and squatter in Lewis Hawser’s Chambers in the Temple, I spent more than a year running round the Magistrates’ Courts of London and the Thames Valley. I still believe that that training stood me in the best possible stead for a Chancery practice.
I should spare a moment for the staff of the Bar Council. I am pleased to say that they have earned my greatest confidence. We are fortunate to have a newly replenished senior team inspirationally led by David Hobart. The impressive array of Heads of Department includes Mark Hatcher as head of representation, Oliver Delany in common services, and Mark Stobbs as head of regulation. Brian Buck in finance also provides invaluable support.
I want to finish by saying to all the members of the Bar Council that you should not expect 2007 to be easy. But if we work hard and we work together, I believe that we can make the profession fit and mean enough to face, as the Americans would say, the upcoming regulatory and remuneration challenges.
Finally, I want to thank Stephen Hockman for his tireless efforts on behalf of the profession, and to say that I know that, in 2007, I will have the most able possible support from Tim Dutton as Vice-Chairman.”
Geoffrey Vos QC
