Burning Issues

The temperature is rising at the Bar Council as it battles hard on public funding and key structural issues, says Tim Dutton QC

June may not have been flaming but the metaphorical temperature inside the Bar Council has been hot. I attended the opening of the Bar Council’s new Brussels office, a building shared with other European liberal professions, not just lawyers but also architects and engineers. Much will be gained for the Bar when we lobby at the European Commission and Parliament for the profession’s interests, now we can advance our argument in tandem with other professions wherever possible. Also on the international front, we have been receiving delegations of practitioners from China, Vietnam and India. India is an obvious market for the Bar. Although the question of regulation and restriction still needs to be addressed, there is a great deal we share in common.


Structural focus


If the first half of this year seems to have focused on public funding issues (although there has been much else besides), the second half is likely to focus on structural questions. Amongst these is the Alternative Business Structure consultation. I have received 93 detailed responses to our working paper and these have been passed to the Bar Standards Board (BSB). Of those responding, 32.3% preferred to keep the status quo within the Code of Conduct restricting practice to self-employment or employment as a barrister. The “intermediate option” set out in our working paper was favoured by 44.1% and only 23.6% preferred revocation of Paragraph 205 of the Code. Complete retention of the cab rank rule was favoured by 85.7%. These results show that the Bar wishes to remain a specialist advocacy and advisory profession, underpinned by the cab rank rule—its defining characteristic for centuries.

Next amongst the structural questions is the way in which we organise access to the profession. Derek Wood QC will be submitting his report to the BSB this month. Approximately 2,000 new students were enrolled in September 2007 on the Bar Vocational Course. For the period since 1 October 2007, only 417 pupillages have been offered across the profession, whether self-employed or employed. This ratio is unacceptable. Further, evidence is beginning to emerge through a Bar Council survey that the number of funded pupillages in chambers undertaking family and criminal legal aid work is reducing. This is a cause for serious concern and something which I am taking up with Government. The impact is felt most acutely amongst women and those from diverse backgrounds.


Discrimination action


Last month I held a roundtable meeting of over 40 people at the Bar Council to ensure that issues relating to race, and concerns over the discriminatory effect of the rule that all pupillages should be funded, would be addressed. Positive steps are under way, which include working with the Law Society to ensure that employers who use the services of the solicitors’ profession or the Bar do so on a basis which ensures that work is distributed on the basis of merit without discrimination.

The next roundtable will be on 23 October when we will be addressing issues surrounding gender, in particular how to break the glass ceiling at the Bar. I am very pleased that the General Management Committee unanimously supported the proposal to establish a nursery within or proximate to the Inns of Court—supported, I would hope, by each of the Inns. The Bar Nursery Association’s plan (see p 20) has been well thought through and is one of a number of steps the Bar can take to support its practitioners with families. At the Bar Council AGM on 14 June there was overwhelming support for the plan, and the Attorney General herself strongly endorsed it.


Public funding


On the domestic front we still await (at the time of writing) the Legal Services Commission’s (LSC) response to our powerful paper rejecting Best Value Tendering. We are striving towards a target date of 8 July to obtain an outline scheme for Very High Cost Criminal Cases. On 16 June the LSC published its consultation paper whereby it is seeking to achieve savings of £13m from the Family Graduated Fee Scheme over the next two years. In addition to working on the Crown Prosecution Service Graduated Fee Scheme, the Remuneration Committee led by Michael Bowes QC and I are working closely with the Family Law Bar Association and its Chair Lucy Theis QC to ensure that the key message that society in an age of serious family breakdown needs quality advocates paid for under a legal aid system is driven home. The decision in R v P by HH Judge Mole QC which brought a hearing to a halt under Art 6 of the ECHR because a defendant could not obtain representation, in circumstances where the prosecution alleged that up to £4.5m of assets should be subject to confiscation, has driven home to Government the obvious consequences of faulty design and underfunding of legal aid schemes.


Tim Dutton QC, Bar Council Chairman
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