Ban all fees paid by advocates to solicitors, not just referral fees, Bar Chairman tells profession

17 October 2015

Quality defence advocates have nothing to fear from Crown Court panel plans

There should be a complete ban on all fees paid by advocates to instructing solicitors to prevent attempts to disguise referral fee payments as 'administration fees', the Chairman of the Bar has told delegates at the annual Bar Conference and Young Bar Conference today. 

In his keynote address to the legal profession assembled at the annual conference, now in its 30th year,Alistair MacDonald QC, Chairman of the Bar, compared those involved in referral fee payments to drug cheats in sport, warning that they were "always one step ahead of those performing tests" and that a referral fee was "a squalid back-hander" that was payable from income derived from the taxpayer. 

His comments come after the Ministry of Justice announced it would seek to crackdown hard on referral fees in its consultation Preserving and Enhancing the Quality of Criminal Advocacy

Alistair MacDonald QC, said in his speech to hundreds of barristers attending the Conference at Westminster Park Plaza, that: "Those who indulge in these nefarious activities are ever ready to seek new ways to hide the truth of what they are really about under the cloak of a name such as an administration fee.  The fact that no solicitor in my experience at the Bar, has ever, until recently, demanded a fee for the administration of the selection process demonstrates that this is just a cloak for a referral fee.  

"Now, since, like the drug cheats in sport, who are always one step ahead of those performing the tests, there are no depths to the ingenious and ingenuous means by which the cheats would seek to dress up their referral fees, the only effective measure would be a complete ban on any payment by the selected advocate to the instructing solicitor.  And that is the measure we will be urging in our response to the consultation." 

Advocacy panels 

The Chairman of the Bar also reassured the Bar that it had nothing to fear from plans for Crown Court advocacy panels, which have also been put forward in the Ministry of Justice's consultation aimed at ensuring quality advocacy in England & Wales. 

Alistair MacDonald QC said plans for a quality advocate panel scheme should not distinguish between which branch of the profession (solicitor or barrister) the advocate comes from. He added: "It is surely right that those who defend people in cases, which frequently have a profound impact upon the lives not only of the defendant and his family but also upon the victims, their families and friends, should have the highest quality representation public funds can buy.  

"If a barrister, with his or her unique opportunities to hone their advocacy skills by a year of dedicated advocacy training followed by a year of pupillage and the support structure of chambers, cannot cut the mustard, there can be no excuses.  No advocate, who does defence work to a high standard should have the slightest thing to fear from a panel scheme."  

Employed Bar 

The Chairman, himself a self-employed criminal law barrister, heaped praise on the employed (in-house) Bar, predicting increased movement between the employed and self-employed sections of the barristers' profession in future. 

He said: "We should relegate ideas such as that you only go into employed practice if you fail in your quest to get into chambers to the dustbin.  Such notions are utterly out of date. There are huge opportunities in industry, commerce and the world of professional and sports regulation, for example, for committed and able barristers. So let us celebrate the diversity of careers that the Bar can provide.  Let us learn from each other, respect each other and work together in the public interest, a concept that underlies the very reason for our existence."

 The Courts 

Alistair MacDonald QC used his opening speech for the conference to highlight the historical and present day importance of the Courts in society, but also warned they were "not an optional extra." He said: "There appears to be a move away from the acceptance that it is the responsibility of the state to provide the infrastructure of justice and there appears to be a push towards the proposition that those who use the system should bear the burden of paying for it, lock stock and barrel.  The point I therefore make is that a misalignment has occurred in which justice, rather than being put at the heart of our constitutional framework, is now put on the side lines." 

Read the full speech by Alistair MacDonald QC, Chairman of the Bar, on the Bar Council website.

                                                                         ENDS

Notes to Editors

1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@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.

3. 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