To talk to Desmond Browne QC, as I did in October, is to talk to someone with a hinterland and who sees things in their context. He is also utterly modern and pragmatic. The ability to view things in the long term is in his genes: his late father, a royal surgeon, fought with the ANZACs at Gallipoli; his great-grandfather was born in the 1790s.
He has been in the same chambers since pupillage, now at 5 Raymond Buildings, where he is joint head. Although specialising in defamation and media law, he belongs to the generation that, in its early years, did whatever work came its way. He regrets how barristers are now pigeon-holed—more “thought of as horses for courses and only allowed to compete in certain races”. Media law attracted him, not “as most of our pupillage applicants seem to think” because it puts you in the public eye, but because of its diversity: “You can have a libel action about almost anything.” In addition, he was a Recorder for 14 years, sitting at Southwark Crown Court, an advocacy trainer and a Bencher of Gray’s. It was the latter which led to his appointment as one of the Inn’s representatives on the Bar Council and thus his involvement in the politics of the profession. Since then he has been the “lead” on issues that have, are and will continue to take a long time to resolve. I asked him if he had slain any dragons as Vice Chairman of the Bar. “They are never slain,” he replied, “just anaesthetised.”
As he takes over the chairmanship in 2009, there is still a lot on the table and his priority is “the unfinished business which needs finishing”. His first great battle was over regulation; what led to the Legal Services Act 2007 and now how that will be implemented. There were “considerable meetings with Clementi before his report, more meetings with the Department for Constitutional Affairs when it was giving instructions to the Parliamentary draftsman” and then the Bill’s passage through Parliament. Efforts concentrated in the House of Lords where the Bill began—fortunately, since it meant that the Government was constitutionally barred from invoking the Parliament Act. Victories were achieved in the Lords because the Bar was able to persuade the Opposition to impose a three line Whip and to combine forces with the cross benchers. He vividly recalls the sight of Baroness Thatcher, not a usual attendee at the Lords, going through the lobbies, twice, once in royal blue and once in imperial purple. Although the Commons reversed many of these victories, some crucial changes survived: the person against whom a complaint is made does not now have to pay the costs regardless of the outcome and—most satisfying to him—the Office for Legal Complaints (OLC) may seek assistance in their investigations from the Bar Standards Board (BSB) which means they can “tap into our pro bono expertise”. He is proud of seeing off a Legal Services Authority in favour of retaining the Bar Council—through the ring-fenced, independent BSB—as an approved regulator. Now the Bar has to see how it will work in practice and how the OLC will levy its start-up and running costs between the two main branches of the profession.
Publicly funded Bar
Then there was the crisis over publicly-funded work and the “dragon” of best value tendering and one case one fee. Browne was head of the Bar committee which wisely included laymen and outsiders. That was the experience he had gleaned from dealing with Clementi: “not only do [laymen] bring really valuable assistance and insights we would otherwise lack, but also somebody casting an eye over the membership sees that it cannot be treated as whingeing [or] special pleading from the Bar”. The battle is still engaged. There are pilot areas for magistrates’ court and police station work, but not in the Crown court. The debate over the very high cost case contracts showed the Legal Services Commission (LSC) that the “market” would not work for those rates. The cuts in family fees (the LSC is trying to take £13m out of payments to family practitioners) are still being fought. Unlike, say, the BMA, the Bar Council is not a trade union, and it cannot advise its members on what to do.
This led us on to the fundamental question facing the publicly funded Bar. In particular, the potential crisis facing the criminal Bar from the increasing use of defence higher court advocates and CPS Crown advocates where counsel had once been instructed. I put it to him that it is an area where the Bar has been skirting the real issue: anecdotal evidence is amassed about poor performance by these advocates, but what exactly is the Bar’s end game? We won’t get the monopoly back, so what are we asking for?
Browne recognised immediately that the “degree of concern is not just that people see their practices vanishing but because they see the young Bar deprived of that vital advocacy experience”. “Nothing can be more soul destroying than sitting around chambers with nothing to do.” We need to open up a debate “with all comers invited to take part” about the structure of the self-employed side of the profession. It is “no good seeing this as a binary conflict between us and the employed Bar”—so many of those in solicitors’ firms or at the CPS are employed barristers and members of the Bar Council. One option (he has come to no conclusions himself) might be to consider the entry route into the self-employed Bar—should people work as employed barristers first and then switch, as they do in Australia and New Zealand? What we need to grapple with is the kind of Bar “a social democracy like ours requires”. It is “quite insulting to the employed Bar to refer to the self-employed Bar as the ‘independent Bar’”. At the same time he has said, “standards for advocacy are universal”.
Diversity and inclusivity
He is deeply concerned about those trying to enter the profession. After his “model, sensible” report on the BVC, he is delighted that Derek Wood QC is looking at pupillage. Sadly, the law of unintended consequences has taken over the well-intentioned requirement that pupils should be paid. Ironically, it is many black minority ethnic students who are keen that more pupillages should be unfunded. He welcomes The Barristers, the recent BBC 2 documentary, as dispelling the idea that the Bar is about white middle class males running a profession for their own benefit. No one should ever think that the Bar is not for them. His own chambers mentored a student from the social mobility project; he is delighted that she now has a place to read law at LSE. Not surprisingly, he supports the Neuberger recommendations. They are “all practical” and “achievable” and “we will be judged harshly” if we do not implement them.
“Diversity and inclusivity”, preferring inclusivity to equality, is what he wants. He knows that the ease with which family responsibilities can be juggled depends on the type of practice, but there is “much too much evidence of heads banging against glass ceilings”. Those who appoint judges should not be dazzled by stellar practices, but should take into account people who had to take time out. “The job of the Bar is to represent individuals in society and the representatives ought to be representative of the society they are representing.”
Realising the demands placed on advocacy trainers, he believes that for the foreseeable future, resources will dictate that advocacy training ends with the new practitioner course. After that, people should have developed their style but there is a need to keep them up to date with changes in the law. Part of his unfinished business is that no solution has yet been found for how the Bar is to be monitored as part of the quality assurance part of the Carter process. Advocacy needs to be assessed by someone who is there to see it—but who is best placed to do it? In one sense the judges are best placed, but that would raise questions about their role. He welcomes the imminent pilot study by Cardiff Law School.
To the future
In the course of a long talk, we touched on his Who’s Who interests (Australia and Venice), music, Italian painting, and family. Whenever I suddenly raised yet another issue about the Bar, he spoke of it with complete assurance and a comprehensive knowledge while being totally open to what other people had to say. At the end, I wished him good luck on his year. “It will be interesting,” he said. That, to Desmond Browne, is a high compliment.
David Wurtzel is Counsel’s consultant editor