Speaking at the Bar Council Symposium on the “Future of the Bar”, Nick Green QC said that the Bar needed to incorporate direct access in its future business models. In particular, the publicly funded Bar had to provide legal services from the police station through to sentencing.
“If the Bar is denied direct access then the criminal Bar risks suffering death by a thousand cuts as solicitors hang on to more and more of the fees and instruct barristers less and less.” He said that in the light of the imminent legal aid review, the family Bar would also need direct access in the near future, and it could also be commercially beneficial for the civil and commercial Bar. “Direct access across the board is inevitable and not something we should be scared of. It will be seen as a natural adjunct to advocacy.” Barristers conducting direct access work would still be regulated by the Bar Standards Board (“BSB”) and the Bar Council, he added. Nick Green also predicted that the number of barristers and solicitors working together in LDPs will increase and such firms would “become more barrister-centric” in the future. It was likely that Higher Court Advocates (“HCAs”) working in those organisations would wish to transfer to the Bar for the education and training support offered by the Inns, the Circuits and SBAs. “For HCAs who are serious in their desire to perform advocacy the Bar should be their natural home.”
He did not rule out the question of solicitor-advocates, who did not wish to join the Bar, also being regulated by the BSB. “This is an issue brimming with complexities but is not something we should dismiss out of hand.” Baroness Deech, the BSB Chair, said the BSB should concentrate on regulating those entities “which have barristers in the majority, or specialise in advocacy or are recognisably barrister orientated”. At some point the consumer or MoJ will see no point in having two regulators competing for business of law-like entities, she warned. “There will be a call for one regulator per firm, and maybe one regulator per legal profession.” “Fusion,” she said, “is not on my agenda”.
The Master of the Rolls, Lord Neuberger of Abbotsbury, expressed concern about the new business structures. They carried the risk, he said, of “undermining the honesty and thoroughness for which English advocates are justifiably respected”. The motivating forces behind the new structures were a desire for competitiveness, market forces and a drive for access to justice. However they also brought financial pressures which risked “a squeeze on professionalism, and in particular on professional ethics.” It was therefore vital that the regulators did not get it wrong; otherwise “we are all up the spout”.
The new regulatory regime must not result in a decline in regulatory standards. “If we sow the seeds that lead to a decline in professional ethics, we will not have a civil justice worth its name,” he warned. The Lord Chief Justice, Lord Judge, called for a single code of ethics for every advocate whatever their qualifications and the involvement of the judiciary in quality assurance. Advocates should also be paid for efficiency. “Fees should be assessed for the quality of the work done, and not for the length of time the case has taken,” he said.
The CPS was focussed on quality and efficiency, the DPP, Keir Starmer QC, emphasised.
He said that the current spending review was the most challenging in the CPS’s 24 year history, and significant cuts to the budget were anticipated from 2011 onwards. That meant as a procurer of legal services, there was a need for the highest quality at the lowest cost.
Quality assurance would be the hallmark of advocacy in the future. It was, he said, “quite remarkable that advocacy had so far survived without a robust quality assurance programme.”
The DPP referred to the “current friction” between the Bar and CPS, which he said had been caused by the “extremely rapid growth of in house advocates”, but said it was time to move on from the question of in house advocacy. The CPS relied on good quality advocacy delivered by the self-employed Bar and it was the “only viable model for the foreseeable future.” Lord Justice Etherington, President of the Council of the Inns of Court, spoke about the role of the Inns of Court. The Inns’ educational activities were not confined to advocacy—also encompassing education, collegiate activities and making a substantial financial contribution. The Inns had collectively distributed £4.5 million this year through funds and scholarships.
The Symposium was attended by about 300 barristers, politicans and the judges and took place on 10 June in Inner Temple.