Bar Council urges outright ban on all inducements beyond ‘kickbacks’

27 November 2015

The Bar Council has urged all inducements, not just referral fees, between advocates and litigators be outlawed in its response to the Ministry of Justice's consultation Preserving and Enhancing the Quality of Criminal Advocacy.

In its response, the Bar Council has called for "an absolute prohibition upon any payment, charge or financial arrangement or other impost or inducement between the advocate, or his agent, and the litigator, or his agent, having any connection whatsoever with the securing, receipt or discharge of instructions by the litigator being imposed on advocates by litigators in order that the advocate should secure instructions. This is necessary to ensure that the only question to be determined by the litigator in briefing the advocate is the quality of that advocate." 

The body which represents barristers in England & Wales has also called for a Solicitor Regulation Authority-style reporting service to allow advocates and other interested parties to report referral fee breaches on a confidential basis. 

Chairman of the Bar, Alistair MacDonald QC, said: "It is a matter of principle that public funds provided to pay for advocacy services should not be used to pay for 'kickbacks'. Nor should such considerations play any part in the process of advocate selection. Every effort should be made to capture all arrangements that act as an inducement. The best possible advocate for the case should be instructed, regardless of the financial interests of the lawyers involved." 

Advocacy Panel 

In its consultation paper the Ministry of Justice proposed a criminal defence advocacy panel, loosely based on the CPS model. The Bar Council supports this proposal, but has urged that safeguards are put in place to ensure any such panel operates effectively. 

Alistair MacDonald QC, said: "The panel is a positive initiative, but in our consultation we have emphasised the need for independence to be embedded as a core principle of any panel structure. That means that the choice of which advocates are appointed to the panel and the grade of their appointment are entirely independent of Government. The panel scheme must not challenge the independence of the legal profession. It is not right to have a system where an advocate may feel that their position on a panel could be jeopardised by defending their client fully and fearlessly." 

Choice of advocate

In its response to the consultation, the Bar Council has backed calls for litigators to sign a declaration confirming that the client has been fully informed about the choice of advocate available to them. However, the Bar Council has also urged a client signature confirming they have been advised in plain and simple terms, and they understand their right to choose a class of advocate. 

Alistair MacDonald QC, said: "Any declaration must require a litigator's signature. There are serious contractual and professional consequences if a litigator is found to have lied on a signed declaration. This can't be a tick box exercise. The client's signature must be there to acknowledge that they have been advised and understand that they have a choice. 

"The purpose of the Ministry of Justice's consultation is a positive one: to ensure quality advocacy for the benefit of clients. All advocates, irrespective of which part of the legal profession they come from, must be committed to that principle. Good quality advocates have nothing to fear from these proposals. This is an important opportunity to shape a system that safeguards the high standards of advocacy in England & Wales which are renowned across the world." 

The Bar Council's full response to Preserving and Enhancing the Quality of Criminal Advocacy can be found  here

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Notes to Editors 

  1. Further information is available from the Bar Council Press Office on 020 7222 2525 andPress@BarCouncil.org.uk.
  2. The Bar Council represents barristers in England and Wales. It promotes:  
  • The Bar's high quality specialist advocacy and advisory services
  • Fair access to justice for all
  • The highest standards of ethics, equality and diversity across the profession, and
  • The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.